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Wilder, P.J. Defendant appeals as of right from his bench trial conviction of possession with intent to deliver 225 to 649 grams of cocaine, MCL 333.7401(2)(a)(ii).* He was sentenced to a term of imprisonment for 240 to 360 months. We affirm. I. FACTS AND PROCEDURAL HISTORY On October 21, 1998, at some time between 11:30 and 11:45 P.M., a Chevrolet Cavalier, driven by defendant, passed Officer John Hopkins of the Baroda-Lake Township Police Department, who was patrolling eastbound traffic on I-94.* At that time, Officer Hopkins, who was parked in the median between the eastbound and westbound lanes of 1-94, noticed that defendant’s view was obstructed by objects hanging from the rearview mirror in violation of MCL 257.709(l)(c). Officer Hopkins began to follow defendant because of this violation and observed defendant’s vehicle weaving in its lane and speeding, in vio lation of MCL 257.642(l)(a) and MCL 257.628(4). Officer Hopkins executed a traffic stop, informed defendant that he was stopped because of the view obstruction, and because his vehicle was weaving and speeding, and requested defendant’s driver’s license, vehicle registration, and proof of insurance. Defendant promptly provided these items to Officer Hopkins. Defendant also informed Officer Hopkins that he had borrowed the vehicle from his mother. After learning that the vehicle was not registered to defendant, Officer Hopkins asked defendant to get out of the vehicle, which he did. Officer Hopkins then patted defendant down for weapons and asked him to sit in the back of the patrol car. While in the patrol car, Officer Hopkins ran defendant’s name through the Law Enforcement Information Network (lein). The lein check indicated that defendant had two outstanding warrants for domestic violence and unpaid child support; therefore, defendant was placed under arrest. Following defendant’s arrest, Officer Hopkins searched the vehicle and found a black leather jacket with a bulge in the sleeve. Officer Hopkins then reached into the sleeve and pulled out a newspaper flyer wrapped around a bag containing 261 grams of cocaine. Before trial, defendant moved to suppress the evidence found in the vehicle on the grounds that (1) Officer Hopkins’ stated reasons for stopping defendant were a pretext, (2) no probable cause existed to stop defendant, (3) defendant did not provide consent to search the vehicle, and (4) under the totality of the circumstances, the cocaine must be suppressed as “fruits of the poisonous tree.” Following a suppression hearing held on January 7, 1999, the trial court denied defendant’s motion to suppress. Defendant’s bench trial commenced on March 25, 1999. During trial, defendant testified that he and his codefendants, who were passengers in defendant’s vehicle at the time of the stop, had gone to Chicago to pay a parking ticket and then gotten haircuts from Kirk Hamill, a friend of defendant’s. Defendant also testified that that they arrived too late to pay the ticket, so he left $30 with Hamill and asked him to pay the ticket on defendant’s behalf. Defendant claimed that while they were at Hamill’s barbershop, Hamill used the telephone, received a telephone call shortly thereafter, and asked defendant to accompany him outside. Defendant further testified that once outside, Hamill requested defendant’s vehicle key, another vehicle arrived, defendant went back inside the barbershop, and then approximately fifteen to twenty minutes later, Hamill returned to the barbershop and informed defendant that he had put a package in defendant’s coat and that he needed it taken to a car wash in Muskegon Heights and given to a man named Kevin Washington. The trial court did not find defendant’s testimony to be believable, instead finding that defendant knew that the package contained contraband and that actual possession of the cocaine had been proved beyond a reasonable doubt. Accordingly, the trial court found defendant guilty as charged and sentenced him to twenty to thirty years’ imprisonment. n. THE STOP OF DEFENDANT A. THE INITIAL STOP OF DEFENDANT On appeal, defendant argues that the reasons given for the traffic stop were a pretext and that the trial court clearly erred in denying his motion to suppress the evidence. We disagree. This Court’s review of a lower court’s factual findings in a suppression hearing is limited to clear error, and those findings will be affirmed unless we are left with a definite and firm conviction that a mistake was made. People v Custer, 242 Mich App 59, 64; 618 NW2d 75 (2000), rev’d in part on other grounds 465 Mich 319; 630 NW2d 870 (2001). See also People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983), and People v Lombardo, 216 Mich App 500, 504; 549 NW2d 596 (1996). In addition, we review de novo the lower court’s ultimate ruling with regard to the motion to suppress. Custer, supra; People v Garvin, 235 Mich App 90, 96; 597 NW2d 194 (1999). Officer Hopkins testified during the preliminary examination, the suppression hearing, and the trial that he intended to stop defendant because defendant’s view was being obstructed by air fresheners dangling from the rearview mirror of the vehicle. He also testified that defendant’s vehicle was weaving in its lane and speeding just before being stopped. The trial court observed a videotape of defendant’s encounter with Officer Hopkins, which revealed not only the dangling ornament from the rearview mirror of the vehicle, but also showed the vehicle going in excess of forty-five miles an hour in a construction zone. In addition, both defendant and his mother testified that there was at least one air freshener hanging from the review mirror. It is clear then, that the record amply supports the conclusion that defendant may have been in violation of MCL 257.709(l)(c), and that Officer Hopkins had probable cause to believe that defendant was in violation of MCL 257.642(l)(a) and MCL 257.628(4). Because Officer Hopkins had probable cause to believe defendant was in violation of three traffic laws, the stop was permissible. People v Kazmierczak, 461 Mich 411, 421, n 8; 605 NW2d 667 (2000); People v Chambers, 195 Mich App 118, 121-122; 489 NW2d 168 (1992). See also United States v Taylor, 955 F Supp 763, 765 (ED Mich, 1997), quoting United States v Ferguson, 8 F3d 385, 391 (CA 6, 1993) (“[S]o long as the officer has probable cause to believe the traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment.”), and Whren v United States, 517 US 806, 813; 116 S Ct 1769; 135 L ED 2d 89 (1996) (expressly adopting the Ferguson test for determining the reasonableness of an automo bile stop). Consequently, on the basis of the record before us, we find that Officer Hopkins’ stop of defendant’s vehicle was legitimate. B. THE EXTENSION OF THE STOP Defendant also argues, for the first time on appeal, that because he was being stopped for a minor traffic violation and since he immediately provided Officer Hopkins with all requested documents, the stop should have only lasted as long as was necessary to write a citation. This issue was not raised below; therefore, it has not been preserved for review. People v Stanaway, 446 Mich 643, 694; 521 NW2d 557 (1994); People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989). Nonetheless, because defendant claims that this search violated his fundamental constitutional rights, People v Grant, 445 Mich 535, 547; 520 NW2d 123 (1994); People v McRunels, 237 Mich App 168, 172; 603 NW2d 95 (1999), and since the issue is a question of law and the necessary facts have been presented, we will review the issue. Grant, supra at 553; People v Lumsden, 168 Mich App 286, 292-293; 423 NW2d 645 (1988). Defendant’s basic claim is that the cocaine was seized as a result of an unlawful search because the intervening detention between the stop and the finding of outstanding warrants was not justified. Specifically, defendant argues that because he cooperated with Officer Hopkins there was no reason to place him in the police car or to investigate any further. When a defendant claims that evidence should be suppressed as a result of an unlawful seizure, the court must ask whether the evidence was gained by exploitation of the alleged illegality. People v Lambert, 174 Mich App 610, 616-617; 436 NW2d 699 (1989). Here, defendant was placed under arrest after a lein check revealed two outstanding warrants. After his arrest, the vehicle was searched. Accordingly, the vehicle was searched as a valid search incident to an arrest. People v Fernengel, 216 Mich App 420, 422-423; 549 NW2d 361 (1996), citing New York v Belton, 453 US 454, 460; 101 S Ct 2860; 69 L Ed 2d 768 (1981), and United States v Hudgins, 52 F3d 115, 119 (CA 6, 1995). See also People v Bullock, 440 Mich 15, 26; 485 NW2d 866 (1992). Because Officer Hopkins’ decision to place defendant in the patrol car in no way contributed to the finding of the cocaine, we find that suppression of the evidence was not warranted. Fernengel, supra at 423-424; Lambert, supra at 617-618. In addition, we find defendant’s reliance on People v Burrell, 417 Mich 439; 339 NW2d 403 (1983), where our Supreme Court noted that “[a] detention following a stop for ... a minor [traffic] violation would be justified only for the length of time necessary to write a citation,” id. at 453, unpersuasive. There, the Court disapproved of the officer’s continued detainment of the defendants after a lein check indicated that the driver had a valid driver’s license and that the vehicle was not stolen. Id. However, the Court expressed no opinion regarding whether an officer could run a lein check as a matter of course and, instead, seemed to suggest that a lein check was an appropriate way to ensure that a stopped driver had a valid driver’s license and was not in possession of a stolen vehicle. Id. Here, defendant stated he was driving a vehicle registered to his mother. Thus, it was appropriate for Officer Hopkins to run a lein check to verify the identity of the registered owner. Finally, we note that a review of Michigan cases demonstrates a recognition that the running of lein checks of vehicle drivers is a routine and accepted practice by the police in this state. See People v Combs, 160 Mich App 666, 668; 408 NW2d 420 (1987) (lein check conducted on driver of vehicle stopped in median of highway). See also People v Hubbard, 209 Mich App 234; 530 NW2d 130 (1995), and People v Oliver, 192 Mich App 201, 203; 481 NW2d 3 (1991) (vehicle stopped after it was discovered the license plate belonged to another vehicle); Young v Barker, 158 Mich App 709, 714; 405 NW2d 395 (1987) (lein check performed when vehicle stopped on highway and the plaintiff did not have a license); People v Bell, 74 Mich App 270, 276; 253 NW2d 726 (1977) (a LEIN check two days before justified the officer’s stop of the driver’s vehicle); People v Portman, 73 Mich App 366, 369; 251 NW2d 589 (1977) (rolling lein check performed on vehicle with outdated license plate). In addition, we note that in at least two circuits, the United States Court of Appeals has held that an officer conducting a routine traffic stop may run computer checks on the driver’s license, the vehicle registration papers, and whether the driver has any outstanding warrants or the vehicle has been reported stolen. See United States v Mendez, 118 F3d 1426, 1429 (CA 10, 1997), citing United States v Elliot, 107 F2d 810, 813 (CA 10, 1997); United States v White, 81 F3d 775, 778 (CA 8, 1996). See also Taylor, supra at 766. Once the computer check “confirms the driver has produced a valid license and proof of entitlement to operate the car, the driver must be permitted to proceed on his way, without further delay by police for additional questioning.” Mendez, supra, citing United States v Anderson, 114 F3d 1059, 1064 (CA 10, 1997). Here, the lein check indicated that defendant had two outstanding warrants. In addition, Officer Hopkins testified that the lein check took about five minutes to complete and this testimony was not contradicted by defendant; instead, defendant simply testified that Officer Hopkins told him it would take about ten to fifteen minutes to confirm the warrants after they were discovered by lein. Thus, Officer Hopkins had a valid reason to extend the stop and to continue to ask defendant questions. Mendez, supra at 1429-1430, citing Anderson, supra at 1064; Elliot, supra at 813. Further, as stated in People v Walker, 58 Mich App 519, 523-524; 228 NW2d 443 (1975), we find that [a] lein check is an unobtrusive investigative tool employed by the police to retrieve information regarding an individual’s driving record and to determine whether there are any outstanding warrants for his arrest—all matters of public record. As such, a lein check does not involve an unlawful disregard for individual liberties. Accordingly, because this amount of time is a minimal invasion in light of the substantial governmental interest in arresting citizens wanted on outstanding warrants, see State v Lopez, 873 P2d 1127, 1133 (Utah, 1994), we find Officer Hopkins’ use of the LEIN check in this case did not violate defendant’s constitutional rights. in. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant also claims that he was denied the effective assistance of counsel by his counsel’s decision not to call certain witnesses to testify on his behalf. Because defendant failed to move for a new trial or request a Ginther hearing below, our review of this issue is limited to mistakes apparent on the appellate record. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000), citing People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989). If the record does not contain sufficient detail to support defendant’s ineffective assistance claim, then he has effectively waived the issue. Sabin, supra. Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy. People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999), citing People v Mitchell, 454 Mich 145, 164; 560 NW2d 600 (1997), and People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987). Further, “a defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he must show that, but for counsel’s error, the outcome of the trial would have been different.” Sabin, supra at 659, citing Stanaway, supra at 687. Here, defendant claims that his counsel was ineffective because counsel failed to call the codefendants, Hamill, or defendant’s mother as witnesses. However, the record does not suggest how any of these witnesses would have benefited defendant’s case, and defendant has not provided this Court with affidavits indicating what the proposed testimony of the codefendants or Hamill would have been. Further, with regard to the character evidence that would have been presented by defendant’s mother, counsel attempted to offer this testimony; however, the trial court correctly sustained the prosecution’s objection that it was irrelevant testimony. Therefore, defendant has failed to overcome the presumption that his counsel’s decision not to call those witnesses was sound trial strategy. Sabin, supra-, Rockey, supra. IV. SENTENCING A. PROPORTIONALITY OF SENTENCE Defendant next argues that his sentence is disproportionate. However, defendant was sentenced to the mandatory minimum sentence of 240 months, which, as a legislatively mandated sentence, is presumptively proportionate. People v Williams, 189 Mich App 400, 404; 473 NW2d 727 (1991). The factors raised by defendant in an effort to reduce the sentence—strong family background, prior work history, and no prior drug-related offenses—do not overcome this presumption of proportionality. People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994). Remorse, another factor raised by defendant, is also a factor that the Michigan Supreme Court has disapproved of as a basis for departure from the mandatory minimum sentence. People v Daniel, 462 Mich 1, 6; 609 NW2d 557 (2000). B. NEW SENTENCING GUIDELINES Defendant’s final argument is that he should have been sentenced under the new sentencing guidelines. This issue is without merit. Defendant’s sentence was based on events that occurred on October 21, 1998. This Court has clearly stated that because the legislative intent of MCL 769.34 was that the statute would only have prospective application, the new guidelines will only be applied to offenses committed on or after January 1, 1999. See People v Reynolds, 240 Mich App 250, 253-254; 611 NW2d 316 (2000). See also Administrative Order No. 1998-4, 459 Mich clxxv, and Administrative Order No. 1988-4, 430 Mich ci. V. CONCLUSION In sum, (1) the initial stop of defendant was legitimately based on probable cause that three traffic violations had been committed, (2) Officer Hopkins did not violate defendant’s constitutional rights by running a letn check of his driver’s license, which check revealed two outstanding warrants, (3) defendant has failed to persuade us that he did not receive effective assistance of counsel, (4) defendant’s sentence was proportionate, and (5) defendant was properly sentenced under the judicial sentencing guidelines of 1988. Affirmed. MCL 333.7401 provides, in part: (1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance .... (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug . . . and: (ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years. Officer Hopkins was actually employed by both the Baroda-Lake Township Police Department and the Berrien County Sheriffs Department. On the night in question he was working as an officer for the police department. MCL 257.709(l)(c) provides, in part: (1) A person shall not drive a motor vehicle with any of the following: (c) A dangling ornament or other suspended object except as authorized by law which obstructs the vision of the driver of the vehicle. MCL 257.642(l)(a) states, in part: (1) When a roadway has been divided into 2 or more clearly marked lanes for traffic the following rules in addition to all others consistent with this act shall apply: (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver first ascertained that the movement can be made with safety. MCL 257.628(4) states: A person who fails to observe an authorized speed or traffic control sign, signal, or device is responsible for a civil infraction. The codefendants were acquitted of ail charges and are not a part of this appeal. We also note that several states have adopted this approach. See State v Ybarra, 156 Ariz 275, 276; 751 P2d 591 (Ariz App, 1987); People v Rodriguez, 945 P2d 1351, 1360 (Colo, 1997); People v Eyler, 132 Ill App 3d 792, 798; 87 Ill Dec 648; 477 NE2d 774 (1985); State v DeMarco, 263 Kan 727, 729, 733; 952 P2d 1276 (1998); State v Bartholomew, 258 Neb 174, 179; 602 NW2d 510 (1999); State v Lopez, 873 P2d 1127, 1133 (Utah, 1994). People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Defendant asserts that his mother would have testified that he was a professional singer; however, because the prosecution never asserted financial status as a motive for transporting the drugs, defendant’s profession or ability to make a living was irrelevant to this case. See MRE 401 and 402. MCL 769.34 states, in part: (1) The sentencing guidelines promulgated by order of the Michigan supreme court shall not apply to felonies enumerated in part 2 of chapter XVII committed on or after January 1, 1999. (2) Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVH committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed.	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Per Curiam. Petitioner appeals as of right from a Tax Tribunal order dismissing its petition challenging its property tax assessments for 1998 and 1999. The petition was dismissed for failure to file a conforming valuation disclosure. We reverse and remand. This case involves an appeal of respondent’s assessment and the taxable and state equalized values of petitioner’s property. Pursuant to a prehearing scheduling order issued by the Tax Tribunal, petitioner was required to file a valuation disclosure by a specified date. Petitioner received an extension of time to file the valuation, and then later filed a motion to withhold and place a protection order on the valuation. Attached to the motion was a document titled “Valuation Disclosure,” which appeared to be an affidavit from petitioner’s expert who concluded that the 1997 sale price of the property was the best indication of its value. The tribunal issued an order in which the referee found that petitioner’s valuation disclosure did not meet the criteria of the applicable administrative rule and ordered petitioner to file a proper disclosure within twenty-one days. The order did not state why the disclosure was deficient; it merely quoted the language of the rule. When petitioner failed to file a new disclosure, the tribunal dismissed petitioner’s appeal. Our review of a decision of the Tax Tribunal is typically limited to whether the decision was authorized by law and whether the tribunal’s findings were supported by competent, material, and substantial evidence on the whole record. Kostyu v Dep’t of Treasury, 170 Mich App 123, 131; 427 NW2d 566 (1988). Although the Tax Tribunal has the authority to dismiss a petition for failure to comply with its rules or orders, Kostyu, supra, the tribunal’s actions in that regard are reviewed for an abuse of discretion. Stevens v Bangor Twp, 150 Mich App 756, 761; 389 NW2d 176 (1986). An abuse of discretion exists where the result is so palpably and grossly violative of fact and logic that it indicates a perversity of will, a defiance of judgment, or the exercise of passion or bias. Dep’t of Transportation v Randolph, 461 Mich 757, 768; 610 NW2d 893 (2000). In this case, the tribunal concluded that the valuation disclosure did not meet the standards required by 1996 AACS, R 205.1101(l)(m), presently 1999 AC, R 205.1101(l)(m), which provides in part: “Valuation disclosure” means documentary or other tangible evidence in a property tax appeal which a party relies upon in support of the party’s contention as to the true cash value of the subject property or any portion thereof and which contains the party’s value conclusions and data, valuation methodology, analysis, or reasoning in support of the contention. The tribunal never specifically informed petitioner how its disclosure failed to comply with the rule, or what petitioner had to do to bring the disclosure into compliance. The rule defines a valuation disclosure; however, there is no requirement in the rule that the disclosure contain any particular information, and nowhere in the language of the rule does it suggest that the disclosure must meet any specific “criteria.” The ultimate issue in this case concerned the true cash value of petitioner’s property. The burden of proof was on petitioner to establish the true cash value of the property. Jones & Laughlin Steel Corp v City of Warren, 193 Mich App 348, 353; 483 NW2d 416 (1992). “True cash value is synonymous with fair market value.” Id.-, MCL 211.27. In its valuation disclosure, petitioner’s expert opined that the true cash value of the property was reflected by the purchase price for the property in 1997. Evidence of the selling price of property is relevant in determining the taxable value of property. Jones & Laughlin, supra at 353-354; Great Lakes Division of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 389-390; 576 NW2d 667 (1998). Accordingly, petitioner’s valuation disclosure identified relevant, admissible evidence in support of its position regarding the taxable value of its property. Our previous decisions imply that the Tax Tribunal should be permissive in the admission of relevant evidence of the fair market value of property subject to an appeal, even if that evidence is not determinative. See Jones & Laughlin, supra at 353-354. The tribunal’s unexplained, perfunctory rejection of the valuation disclosure in this case does not appear to comport with this permissive evidentiary standard. We believe that petitioner’s valuation disclosure satisfied the requirements of Rule 205.1101(l)(m) by setting forth the evidence it was relying on to support its position and by identifying the basis for its conclusion with regard to value, i.e., the 1997 purchase price of the property. Further, the disclosure served its purpose of putting respondent on notice of petitioner’s evidence regarding the value of the property. Accordingly, the tribunal abused its discretion in dismissing the petition for failure to file a conforming valuation disclosure. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.	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Per Curiam. In Docket No. 222904, plaintiff appeals by leave granted from the trial court’s order granting summaiy disposition in favor of defendant township and defendant officers. In Docket No. 223337, defendant township and defendant officers appeal by leave granted, advancing alternative theories in support of summaiy disposition. We affirm. In June 1997, plaintiff called the White Lake Township police and requested that her daughter, Katherine Kruger, be taken into custody. According to plaintiff, Katherine was intoxicated and posed a dan ger to herself and others. Katherine also had an outstanding warrant from Bloomfield Township. Katherine was arrested and transported to the White Lake Township Police Department to await transfer to Bloomfield Township. At the police station, because there was an intoxicated man already in the lone holding cell, Katherine was restrained by being handcuffed to a ballet bar in the booking room. Katherine was left alone in the room, and was eventually able to maneuver her way out of the handcuffs and escape. As she fled from the police station, she ran into traffic and was hit by an unidentified vehicle. Katherine was transported to the hospital, where she died. Plaintiff brought the instant action, alleging, inter alia, that defendant township and defendant officers were negligent. Defendants moved for summary disposition, claiming governmental immunity. Plaintiff countered defendants’ motion by arguing that defendant township was liable under the public building exception to governmental immunity, and that defendant officers were liable under the gross negligence exception to governmental immunity. The trial court granted defendants’ motion. First, plaintiff argues that summary disposition of her claim against defendant township was improper because her claim falls within the public building exception to governmental immunity. We disagree. Generally, a governmental entity is immune from tort liability for actions that accrue while it is performing a governmental function. MCL 691.1407(1). The immunity is broad, subject to a limited number of narrowly drawn exceptions. Sewell v Southfield Public Schools, 456 Mich 670, 674; 576 NW2d 153 (1998). One of these exceptions is the “public building” exception, which provides in part: Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [MCL 691.1406.] Traditionally, a five-part test has been applied to determine whether this exception applies to a particular case: A plaintiff must establish that (1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period. [Sewell, supra at 675.] “[T]he public building exception applies only where the physical condition of the building itself causes the injury . . . .” Id. “[A] building may be dangerous or defective because of improper design, faulty construction, or the absence of safety devices.” Id. “[W]hether a building is dangerous or defective must be determined in light of the uses or activities for which it is assigned.” Id. “[I]n certain circumstances, the public building exception will not apply where proper supervision would have offset any shortcomings in the configuration of the room.” Id. “[W]here the essence of a plaintiff’s claim is negligent supervision, the plaintiff cannot properly allege a building defect merely because a superior building design would have facilitated better supervision.” Id. at 676. In this case, the trial court ruled that the public building exception did not apply because a defect in the building did not cause Katherine’s injuries. In short, the trial court found the public building exception not applicable on causation grounds. On appeal, plaintiff does not address the causation issue. Because plaintiff does not present any argument or authority showing that the trial court erred in this regard, plaintiff has not established entitlement to relief. Our review of the record leads us to conclude that plaintiff’s claim does not fall within the public building exception. The booking room was not defective in light of its intended purpose, which is the temporary detention of those in custody. The handcuffs and ballet bar provide a sufficient means of temporary restraint. Therefore, the absence of an additional holding cell, additional video surveillance, or a locked door, does not amount to a defective design. Further, there is no evidence that the ballet bar and handcuffs were in fact defective. The trial court properly granted summary disposition in favor of defendant township. With regard to plaintiff’s claim against defendant officers, summary disposition was also properly granted. Assuming without deciding that defendant officers were grossly negligent, to be held liable, their gross negligence must be “the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause.” See Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000); MCL 691.1407(2). It is not enough that the gross negligence be “a” proximate cause, it must be the “direct cause preceding the injury.” Robinson, supra at 462. In the instant case, there were several other more direct causes of Katherine’s injuries than defendant officers’ conduct, e.g., her escape and flight from the police station, her miming onto M-59 and into traffic, and the unidentified driver hitting plaintiff’s decedent. Any gross negligence on defendant officers’ part is too remote to be “the” proximate cause of Katherine’s injuries. As a result, the officers are immune from liability. In light of our conclusion that summary disposition was properly granted in favor of defendant township and defendant officers, we need not address the parties’ remaining allegations of error. Affirmed.	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Kavanagh, J. Defendant was charged with first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), in the fatal shooting of William Stanford. The jury returned a verdict of guilty of second-degree murder, MCL 750.317; MSA 28.549, and of felony-firearm. The Court of Appeals reversed, People v Jones, 115 Mich App 543; 321 NW2d 723 (1982), holding that the trial judge had erred in failing to instruct the jury on involuntary manslaughter and that reversal was required. We affirm. In this case, as in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), we are satisfied that the instructions did not fully and fairly present the case to the jury in an understandable manner. The prosecutor would distinguish this case from Ora Jones on the basis that the theory of the defense in that case was accident whereas here the defendant did not claim accident. It is true that in Ora Jones the defendant testified that the gun accidentally discharged when his arm was jostled, whereas the defendant in this case produced no witnesses. We do not think such fact or a fair reading of the testimony which was adduced establishes the prosecutor’s assertion that the defendant did not claim accident. Perhaps the most persuasive evidence that defendant did this shooting at all was the testimony of his girlfriend that in telling her about the shooting, "He just kept mumbling, 'It was an accident. God knows, it was an accident. It just went off ”. This evidence was offered and admitted as a party admission and is accordingly some evidence that the shooting was unintentional. In his closing argument the prosecutor observed: "In raising the whole spectrum of accident, brother counsel wants to give the police so much credit on the one hand”. Although defense counsel argued for an all-or-nothing verdict on the first-degree murder charge instead of arguing for accidental discharge of the weapon, the question of accident was properly within the jury’s contemplation. The record in this case does not contain any written requests for instructions, and the transcript does not show that any oral requests were made. The judge’s instruction sua sponte on manslaughter is inexplicable. We found no evidence in the record which would support a conclusion that the killing was done in such circumstances of passion or provocation as would support a verdict of voluntary manslaughter. We are satisfied that the Court of Appeals was correct in ordering a new trial for the reason we stated in Ora Jones, p 393: "The prosecutor claimed intentional shooting, the defendant maintained it was accidental. The jury was not obliged to accept either theory but could have concluded that the killing was the result of criminal negligence, e.g., involuntary manslaughter. Had the judge not instructed at all on manslaughter, there would be no reversible error, because no request for instruction on manslaughter was made. See People v Henry, 395 Mich 367; 236 NW2d 489 (1975). "Having undertaken to do so, however, it was reversible error to give a misleading instruction which recognized only the prosecution’s theory but not the defendant’s.” Affirmed. Williams, C.J., and Levin and Cavanagh, JJ., concurred with Kavanagh, J.	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Per Curiam. In this case, the Court of Appeals has reversed a felony conviction, but has left undisturbed an accompanying conviction of possession of a firearm during the commission of the felony. We believe that this was error, and we reverse the defendant’s felony-firearm conviction. I The information in this case listed three counts of criminal conduct. Count I alleged that the defendant had committed an assault while armed with a dangerous weapon (felonious assault). MCL 750.82; MSA 28.277. Count II alleged that the defendant had possessed a firearm "while in the commission or attempt to commit said felonious assault as more fully set forth in Count I above”. MCL 750.227b; MSA 28.424(2). Count III alleged that the defendant had carried a weapon in his automobile (CCW). MCL 750.227; MSA 28.424. A jury found the defendant guilty of all three counts. He was sentenced to a term of from one to four years in prison for assault with a dangerous weapon, a term of two years in prison for the felony-firearm conviction, and a term of from one to five years in prison for carrying a weapon in his automobile. The trial court ordered that the sentences for Counts I and III be served concurrently and that they be served consecutively to the sentence for Count II. The defendant appealed to the Court of Appeals, raising several issues. In an unpublished per cu-riam opinion, the Court of Appeals agreed with the defendant that the trial court had erred in permitting testimony that suggested that the defendant had possessed a controlled substance at the time of his arrest. The Court of Appeals further agreed with the defendant that testimony concerning his silence at the time of arrest violated People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). Finally, the Court of Appeals agreed with the defendant that the trial court had given an erroneous instruction on the charge of assault with a dangerous weapon. "Defendant next argues that the trial court erred in instructing the jury on the elements of felonious assault. We agree. Although the trial court did instruct based on CJI 17:4:01, it omitted the first paragraph in that instruction. Therefore, although the jury was properly instructed that defendant could be convicted of felonious assault on either of two different theories, under only one theory was it instructed that the defendant [would] need a dangerous weapon. As such, under the first theory it was instructed that it need not find that defendant used a dangerous weapon. Using a dangerous weapon is necessary. People v Stevens, 409 Mich 564; 297 NW2d 120 (1980); People v Stubbs, 110 Mich App 287; 312 NW2d 232 (1981), lv den 413 Mich 950 (1982).” The Court of Appeals explained that, "[conjoining these three errors”, it was reversing the defendant’s conviction of assault with a dangerous weapon. The Court went on, however, to explain that neither the felony-firearm conviction nor the CCW conviction would be reversed. "Conjoining these three errors, we reverse defendant’s felonious assault conviction. However, we decline to reverse either his carrying a concealed weapon or felony-firearm conviction. Unless the error is per se reversible, we will not reverse a conviction if defendant’s defense is not legally recognized. Defendant’s only defense to the charges was intoxication. Although intoxication is a defense to felonious assault, People v Polk (On Rehearing), 123 Mich App 737; 333 NW2d 499 (1981), it is not a defense to a general intent crime like carrying a concealed weapon. People v Lane, 102 Mich App 11, 15; 300 NW2d 717 (1980). Felony-firearm requires that the firearm be carried or possessed during the course of a felony or an attempted felony. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis 444 US 948 (1979). As such, because felony-firearm is also a general intent crime, intoxication is again not a legal defense. Therefore, because defendant’s only defense in this case is not a legal defense to either of these crimes and because none of the errors complained of are per se reversible, we find the errors harmless for his convictions for felony-firearm and carrying a concealed weapon. "Even though the felony-firearm charge was predicated on the felonious assault and not the carrying of a concealed weapon, we will not reverse the felony-firearm conviction merely because we have reversed the felonious assault conviction. Michigan courts allow inconsistent verdicts. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). The errors requiring reversal for felonious assault in this case do not in and of themselves require reversal for felony-firearm. See People v Morgan [123 Mich App 27; 333 NW2d 163 (1983)].” The defendant has applied to this Court, asking us to reverse his two remaining convictions. The prosecutor has filed an application for leave to cross-appeal, asserting that the trial court properly instructed the jury on the crime of assault with a dangerous weapon. II This defendant was charged with possession of a firearm "while in the commission or attempt to commit said felonious assault as more fully set forth in Count I”. The jury found the defendant guilty as charged, and affirmed its finding of guilt "of the crime of carrying a concealed weapon, felonious assault, and of felony-firearm in the manner and form that the people have in their information in this cause charged”. The Court of Appeals determined that this defendant’s conviction of assault with a dangerous weapon must be reversed. The issue is whether the felony-firearm conviction must also be reversed. Ill The felony-firearm statute reads: "(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years. "(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony. "(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).” In Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), we said that felony-firearm is clearly a separate crime, and not merely a sentence enhancement measure. The relationship between a felony-fire arm offense and the underlying felony was more fully explored in People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). In that case, we dealt with three cases in which juries had entered acquittals on the underlying felony, together with convictions of felony-firearm. The defendants in Lewis argued that a verdict of not guilty on the felony charge represented a finding by the jury that the defendant did not commit the felony, and since he did not commit the felony he could not be guilty of felony-firearm. We observed, however, that such an argument looks at the matter from only one side, and that the conviction of felony-firearm may, with equal validity, be read as an implicit finding that the defendant did commit the felony. Thus the inconsistent verdicts suggested that the juries either compromised or were lenient. We later observed, "[w]hile the felony-firearm statute makes commission or the attempt to commit a felony an element of the offense of felony-firearm, it does not make conviction of a felony or an attempt to commit a felony an element of the offense”. We went on to explain that a jury should be instructed that a felony-firearm conviction may not be had unless the defendant committed or attempted to commit a felony, but that it would be error to instruct the jury that a felony-firearm conviction may not be had unless there is a conviction of an underlying felony. The juries in Lewis reached inconsistent verdicts through compromise or leniency. We observed in People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980), that juries "are not held to any rules of logic” and possess the "capacity for leniency”. We added, however, that "[tjhese considerations change when a case is tried by a judge sitting without a jury”. An appellate court likewise does not normally enjoy the freedom to be inconsistent or to compromise. In explaining that the reversal of the conviction of assault with a dangerous weapon did not mandate reversal of the felony-firearm conviction, the Court of Appeals offered two explanations. The first was that the defendant’s only defense to the charges was intoxication and that intoxication is no defense to felony-firearm. The second was that inconsistent results were permissible. "Even though the felony-firearm charge was predicated on the felonious assault and not the carrying a concealed weapon charge, we will not reverse the felony-firearm charge merely because we have reversed the felonious assault conviction. Michigan courts allow inconsistent verdicts. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). The errors requiring reversal for felonious assault in this case do not in and of themselves require reversal for felony-firearm. See People v Morgan [123 Mich App 27; 333 NW2d 163 (1983)].” Neither reason is persuasive. It does not matter whether intoxication is a defense to felony-firearm —it is a defense to the underlying felony of assault with a dangerous weapon. Our explanation in Lewis that no conviction of the underlying felony need be had does not alter the requirement that the underlying felony must have been committed. As explained above, Lewis does not grant an appellate court the option of reaching an inconsistent result. Lewis thus does not support the analysis of the Court of Appeals in this case. Neither does Morgan, since our subsequent decision to grant relief to the prosecution removed the inconsistent nature of the result in that case. People v Steven Morgan, 417 Mich 1064; 335 NW2d 907 (1983). The jury in this case was improperly instructed on the underlying felony of assault with a dangerous weapon. The assault conviction has therefore been reversed. More importantly, the jury’s factual finding that the assault was committed may no longer be relied upon. Absent such a finding, the felony-firearm conviction must also be reversed. For these reasons, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we modify the judgment of the Court of Appeals to provide that the felony-firearm conviction is also reversed. We are unpersuaded that there is any merit to the other issues raised by the defendant or the prosecution, and thus the judgment of the Court of Appeals is in all other respects affirmed. Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred. Docket No. 62522, decided August 4,1983. Our reversal of the felony-firearm conviction renders it unnecessary to comment on the trial court’s order that the sentence for carrying a weapon in an automobile be served consecutively to the felony-firearm sentence.	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Per Curiam. In this wrongful discharge action, plaintiff, Michael E. Grant, appeals as of right from the circuit court’s order denying his request for an order of superintending control and to show cause. We affirm. Citing incompetence, defendant, Meridian Charter Township discharged plaintiff—a Vietnam war veteran—from his employment as a paramedic. Plaintiff alleges that the discharge was in violation of the procedures outlined in the Veterans’ Preference Act (vpa), MCL 35.401 et seq., and that in reviewing the matter the circuit court failed to properly employ the applicable standard of review. Generally, we review a circuit court’s decision to deny a request for superintending control for an abuse of discretion. In re Gosnell, 234 Mich App 326, 333; 594 NW2d 90 (1999). However, to the extent that resolution of this matter requires that we interpret the provisions of the vpa, our review is de novo. See, e.g., Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998). The first issues to be resolved in this matter are whether defendant complied with the procedural requirements of the vpa in discharging plaintiff and, if not, what remedies are available to plaintiff as a result of that failure. Section 402 of the vpa provides, in relevant part, that “[n]o veteran . . . shall be removed . . . except for . . . incompetency; and [that] such veteran shall not be removed . . . except after a full hearing before . . . the township board . . . .” MCL 35.402. This section further provides that, at least fifteen days before the pretermination hearing, the veteran must be given written notice of both the cause for removal and the fact that the veteran can only be removed on written order of the board after a full hearing has been held. Id. In this case, it is undisputed that plaintiff was never afforded such notice and was removed before a hearing before defendant’s township board, in clear violation of the quoted statutory language. See Sherrod v Detroit, 244 Mich App 516, 523; 625 NW2d 437 (2001), quoting Jackson v Detroit Police Chief, 201 Mich App 173, 176; 506 NW2d 251 (1993). However, in addition to the pretermination notice and hearing requirements discussed above, the vpa provides “[t]hat where [a] veteran has been removed . . . other than in accordance with . . . this act, he shall file a written protest. .. within 30 days . ..; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act . . . .” MCL 35.402. Relying on this language, as well as this Court’s decision in Adams v Detroit, 184 Mich App 589; 458 NW2d 903 (1990), defendant argues that the posttermination hearing held at plaintiff’s request was sufficient to meet the requirements of the vpa, despite defendant’s failure to afford plaintiff a pretermination hearing. We disagree. This Court more recently discussed the apparent conflict within § 402 as follows: Defendants rely on Adams [supra at 597], where this Court expressed strong disagreement with the plaintiff’s argument that the vpa required his employer to hold a full hearing before his termination. Id. However, another panel of this Court, in Jackson, supra at 177, n 1, rejected the conclusion in Adams that the employer need not hold a hearing before taking action. We are bound to follow Jackson, which was issued after November 1, 1990. MCR 7.215(H)(1). Moreover, Jackson conforms with the plain language of the act, which states that a “veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing . . . .” MCL 35.402] ] (emphasis added). See also Jackson, supra at 177. * * * . . . [T]he quoted language does not give employers the option to hold the hearing after the suspension. Rather, the language is akin to a preservation requirement in that the employee must either file a written protest within the specified period or waive the privileges of the vpa. See, e.g., Cook v Jackson, 264 Mich 186, 188; 249 NW 619 (1933). Further, to allow the employer to hold the hearing after the adverse employment action would render nugatory the language stating that the “veteran shall not be . . . suspended . . . , except after a full hearing . . . ." This Court avoids any construction that would render any part of a statute surplusage or nugatory. People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999). [Sherrod, supra at 524-525.] Accordingly, we conclude that defendant violated the vpa when it failed to afford plaintiff a full hearing before discharge. However, although violation of the VPA may be a criminal misdemeanor subject to a fine or imprisonment, MCL 35.403, a veteran’s right to relief under the act is limited. As we stated in Jackson, supra at 177: [T]he remedy the VPA provides for a violation of the right to notice and a hearing is not automatic reinstatement with back pay. Because plaintiff was demoted without a hearing, he was required to file a written protest with the mayor or he would be deemed to have waived the protections of the vpa. MCL 35.402[ ]. If plaintiff filed such a protest, the mayor would be required to conduct a hearing, or refer the protest to the city’s legal department to conduct a hearing. Id. Plaintiff would be entitled to back pay only if the mayor found plaintiff’s allegations to be true and determined that he should be reinstated. Id.; see also Valentine v Redford Twp Supervisor, 371 Mich 138, 147; 123 NW2d 227 (1963). Further, we have stated: MCL 35.402[ ] entitles veterans removed from public employment to back pay only in situations where they are reinstated. We also are reluctant to award back pay in situations where a discharge is substantially proper but proceduraily deficient. Because defendants discharged plaintiff for cause, he suffered no economic loss. An award of back pay would serve only to penalize defendants. The record reveals that the delay in holding a Veterans’ Preference Act hearing resulted primarily from confusion over who would hold the rather unusual hearing. Under these circumstances, we do not believe an award of back pay would deter future procedural errors and are not inclined to award back pay. [Ingham Co Employees’ Ass’n v Ingham Circuit Court, 170 Mich App 118, 122; 428 NW2d 7 (1988).] The record in the instant matter similarly holds no evidence of an intentional violation of the act. Therefore, we affirm the circuit court’s decision because, although it incorrectly held that plaintiff was afforded “all the process that was due and was required,” plaintiff is nonetheless entitled to no relief under the vpa. MCL 35.402, 35.403; Ingham Co Employees Ass’n, supra; Jackson, supra. Next, we consider whether the circuit court properly employed the applicable standard of review, i.e., whether the township board’s decision to terminate plaintiff was supported by competent, material, and substantial evidence. Smith v Mayor of Ecorse, 81 Mich App 601, 604-605; 265 NW2d 766 (1978). See also Egan v Detroit, 150 Mich App 14, 20; 387 NW2d 861 (1986) (discussing circuit court review under the VPA). Our review of the circuit court’s decision is limited to determining whether the court “applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). In other words, this Court reviews the circuit court’s decision for clear error. Id. A decision is clearly erroneous when, “on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made.” Id. at 235. In applying the competent, material, and substantial evidence test, the circuit court must review the entire record, not just those portions supporting the lower tribunal’s findings. Great Lakes Sales, Inc v State Tax Comm, 194 Mich App 271, 280; 486 NW2d 367 (1992). Substantial evidence is any evidence that reasonable minds would accept as sufficient to support the deci sion; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. See Korzowski v Pollack Industries, 213 Mich App 223, 228; 539 NW2d 741 (1995). If there is sufficient evidence, the circuit court may not substitute its discretion for that of the lower tribunal, even if the court might have reached a different result. Black v Dep’t of Social Services, 195 Mich App 27, 30; 489 NW2d 493 (1992). Further, the tribunal’s findings of fact are afforded deference. THM, Ltd v Comm’r of Ins, 176 Mich App 772, 776; 440 NW2d 85 (1989). This is especially true with respect to witness credibility and evidentiary questions. Arndt v Dep’t of Licensing & Regulation, 147 Mich App 97, 101; 383 NW2d 136 (1985). Here, although in denying plaintiff’s request the circuit court did not specifically mention whether the township board’s decision was supported by “competent, material and substantial evidence on the whole record,” Egan, supra at 20, it did, after properly recognizing that it could not substitute its opinion for that of the township board, Black, supra at 30, find that “there was evidence on the record to support [the board’s] findings.” This oral ruling was a sufficiently proper characterization of the substantial evidence test to lead us to conclude that the circuit court neither misapprehended nor misapplied the applicable standard of review. Boyd, supra. Moreover, after reviewing the record, we are not persuaded that the circuit court clearly erred in finding that the board’s factual findings were supported by the requisite quantum of evidence. Id. Although plaintiff presented the township board with testimonial and documentary evidence favorable to his request for reinstatement, additional evidence presented to the board indicated that there were serious concerns regarding plaintiffs competence as a paramedic. Inasmuch as a reasoning mind could accept this latter evidence as sufficient to support the board’s decision, Korzowski, supra, we are not left with a definite and firm conviction that a mistake has been made. We affirm. We have consolidated plaintiff’s repetitive issues for appeal.	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Ryan, J. We are asked to determine whether a board of county road commissioners, as a governmental agency responsible for the maintenance of roadways pursuant to MCL 224.21 and 691.1402; MSA 9.121 and 3.996(102), may be impleaded by a defendant-third-party plaintiff on a claim for contribution pursuant to MCL 600.2925; MSA 27A.2925. As a corollary thereof, we are required to determine whether, assuming that such a third-party defendant may be impleaded pursuant to a claim for contribution, the third-party plaintiffs’ claims in these cases are barred by the statute of limitations. We answer the first question in the affirmative, and the second in the negative. I Bernice Sziber and her four-year-old son, Harry E. Sziber, Jr., died as a result of injuries suffered in a two-car automobile collision that occurred at an open intersection in Tuscola County in September of 1973. One day short of three years later, in September of 1976, plaintiff Karen Tausch, as special administratrix of the estates of Bernice Sziber and Harry E. Sziber, Jr., filed a wrongful death action against Harry Sziber, Sr., the husband and father of the decedents and the driver of the car in which they were passengers at the time of the accident, and against Brian J. Stout and Geraldine A. Stout, the driver and the owner, respectively, of the other car involved in the accident. The collision occurred at the intersection of Swaffer and Willits Roads which divided the counties of Lapeer and Tuscola. In April and June of 1978, the defendants each brought a third-party action against the Boards of County Road Commissioners of the counties of Lapeer and Tuscola (hereinafter the road commissions), seeking contribution for all or any part of any judgment which might be entered against them. The third-party defendant road commissions moved for accelerated judgment pursuant to GCR 1963, 116.1(5), asserting that the two-year statute of limitations established in MCL 691.1411; MSA 3.996(111) barred the third-party complaints. In an opinion dated October 26, 1978, and by judgment dated May 1, 1979, the trial court granted the third-party defendants’ motions for accelerated judgment on the ground that the complaints were indeed barred by the statute of limitations because the contribution actions were not brought within two years of the accrual of the underlying causes of action. On August 18, 1980, a consent judgment was entered in favor of the estate of Harry E. Sziber, Jr., against the Stouts in the amount of $12,933, and against Harry E. Sziber, Sr., in the amount of $12,120. On August 25, 1980, a consent judgment was entered in favor of the estate of Bernice Sziber against the Stouts in the amount of $25,000, and against defendant Harry E. Sziber, Sr., in the amount of $20,000. Apparently those judgments have been satisfied, and it is for those amounts that the third-party plaintiffs Harry E. Sziber, Sr., and the Stouts seek contribution from the third-party defendant road commissions. The Court of Appeals affirmed the trial court’s accelerated judgments dismissing the third-party actions, but did not address the issue whether the third-party plaintiffs’ claims were barred by the statute of limitations. The Court concluded instead that the "third-party plaintiffs’ actions are not within the scope of the waiver of governmental immunity found in MCL 691.1402; MSA 3.996(102)”. The Court of Appeals said: "We find that by its plain language MCL 691.1402; MSA 3.996(102) permits a cause of action to be brought against a county road commission only by that class of persons who have sustained bodily injury or damage to their property as a result of that governmental agency’s failure to keep a highway in reasonable repair. Third-party plaintiffs do not fall within this class, and, therefore, their action is barred by the doctrine of governmental immunity.” 111 Mich App 450, 458; 315 NW2d 166 (1981). We granted the third-party plaintiffs’ application for leave to appeal. 414 Mich 864 (1982). II In the contribution actions, the road commissions, adopting the reasoning of the Court of Appeals, maintain, inter alia, that the third-party plaintiffs may not prevail because they are not within the class of persons who may bring an action against a county for defective roads. We begin our resolution of this first issue recognizing that unless "otherwise provided” by the Legislature, all governmental agencies are immune from tort liability when engaged in the exercise and discharge of a governmental function. MCL 691.1407; MSA 3.996(107) provides: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases when the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” (Emphasis supplied.) This Court has held that the road commissions are governmental agencies within the meaning of the governmental immunity statute, and that the maintenance and improvements of highways are governmental functions. Thomas v Dep’t of State Highways, 398 Mich 1, 11-12; 247 NW2d 530 (1976). However, the Legislature has "otherwise provided” a statutory exception to that general grant of tort immunity by enacting § 1402 which provides, in relevant part: "Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.” MCL 691.1402; MSA 3.996(102). (Emphasis supplied.) The road commissions argue that MCL 691.1402; MSA 3.996(102) does not authorize third-party plaintiffs to bring their contribution action because the statute expressly limits relief to persons who suffer bodily injury or property damage and the third-party plaintiffs have not suffered any such loss. Therefore, the argument continues, since the third-party plaintiffs have no cause of action against the road commissions under the maintenance-of-roads exception to the governmental immunity statute, and since no other applicable exception has been shown to exist, the road commissions are immune from liability in this case. Different panels of the Court of Appeals have reached conflicting conclusions in resolving this issue. In Genesee County Road Comm v State Highway Comm, 86 Mich App 294, 298-299; 272 NW2d 632 (1978), the principal defendant-third-party plaintiff road commission brought an action for contribution against the third-party defendant State Highway Commission. The Court stated: "Although this [§ 1402] would have permitted the action in behalf of [the injured original plaintiff] to be pursued against the state, it does not authorize the sort of action attempted here. This is because the statute limits relief to that class of persons who suffer bodily injury or property damage. Plaintiffs [Genesee County Road Commission] of course, have suffered no such loss. Statutory exceptions to governmental immunity are to be strictly construed”. See also Lenawee Road Comm v Transportation Dep’t, 128 Mich App 528, 530; 340 NW2d 316 (1983); Converse v Isabella County, 126 Mich App 331, 340; 336 NW2d 918 (1983). Three years later, in May v Wolverine Tractor and Equipment Co, 107 Mich App 163; 309 NW2d 594 (1981), app dis 412 Mich 863; 325 NW2d 1 (1982), another panel of the Court of Appeals considered a third-party action brought by a tractor manufacturer against the Oakland County Board of Road Commissioners for contribution arising out of a claim against the tractor manufacturer for injuries suffered by a workman in a highway accident. As to the third-party plaintiff tractor manufacturer’s right to maintain an action against the road commission for contribution, the Court stated: "We disagree with [the] narrow interpretation [given the statute in Genesee County, supra], Concededly, statutes in derogation of a common law are to be strictly construed. Notwithstanding that rule, a statute must also be construed sensibly and in harmony with the legislative purpose. "A plaintiffs lack of diligence, oversight or deliberate choice in not naming a governmental defendant must not be permitted to place upon a named defendant an unfair share of responsibility.” 107 Mich App 163, 168-170. Our resolution of this issue is more easily understood if we defer it until after we discuss the road commissions’ next theory of defense, because the former follows logically from the latter. The road commissions next assert that not only are the third-party plaintiffs not afforded a right of action under the statute waiving immunity of governmental entities for defective roads for the reasons stated in Genesee County Road Comm, supra, they also may not rely upon either GCR 1963, 204 or the contribution statute, MCL 600.2925; MSA 27A.2925, because neither the rule nor the statute provides a substantive cause of action. According to the road commissions, GCR 1963, 204 merely sets forth a procedure governing third- party practice and does not provide a substantive right of action, Morgan v McDermott, 382 Mich 333, 345, 352; 169 NW2d 897 (1969). We agree. "The substantive basis for defendant’s claim against the third-party defendant must be found elsewhere before [Rule 204, which does not create substantive rights] becomes operative, [and t]hat basis may be found in principles of indemnity, subrogation, contribution, warranty, or other substantive right”. 1 Honigman & Hawkins, Michigan Court Rules Annotated, Rule 204, Authors’ comments, p 508. It is well settled in federal practice that Federal Rule of Civil Procedure 14, the federal counterpart of our Rule 204, does not establish a substantive cause of action and merely provides a procedure to govern federal third-party practice. See FR Civ P 14; 3 Moore’s Federal Practice (2d ed), ¶ 14.03; 6 Wright & Miller, Federal Practice & Procedure, § 1442 and supp; 7 West’s Federal Practice Manual (rev 2d ed), §8702 and supp. We think the same conclusion is required concerning GCR 1963, 204. The rule does not create a cause of action for contribution. The road commissions further assert that the third-party plaintiffs cannot rely on the contribution statute, MCL 600.2925; MSA 27A.2925, as a basis for their action because the statute did not provide a substantive right of action. The basis for that assertion is apparently the theory, earlier stated, that notwithstanding the right created in § 2925 to maintain a contribution action against a private tortfeasor, the only cause of action which may be maintained against the road commissions, otherwise immune from liability, is that for which the Legislature has specifically and narrowly waived immunity in MCL 691.1402; MSA 3.996(102), viz., an action for bodily injury or property damage. We disagree. MCL 600.2925; MSA 27A.2925 provided in part: "(1) Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment. Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any other defendant an amount greater than his pro rata share of the entire judgment.” (Repealed, 1974 PA 318.) (Emphasis supplied.)_ Although, concededly, there is some language in Morgan v McDermott, supra, which can be read as supporting the reasoning of the road commissions, just one year after the decision in Morgan this Court held, in Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 322-332; 174 NW2d 797 (1970), that § 2925(a), the statute applicable in this case, provided the identical substantive right as did the predecessor statute, 1941 PA 303. More importantly, five years later, in Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975), the Court discussed the history and theory of the contribution doctrine as well as the effect of Moyses on the doctrine of contribution. The Caldwell Court stated: "The general rule of contribution is that one who is compelled to pay or satisfy the whole or to bear more than his aliquot share of the common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares.” 394 Mich 417. The Caldwell Court then noted that the Moyses Court overruled the remnants of Michigan’s common-law rule that barred wrongdoers from the equitable right of contribution. "Clearly Moyses returned the doctrine of contribution among non-intentional wrongdoers to the original equitable rules.” Caldwell, pp 419-420. In Caldwell, in implicit recognition that contribution is substantive in nature and not dependent on the whim of the original plaintiff, the Court stated that the "plaintiff’s caprice in choosing to join or not to join third-party defendants is not determinant of third-party plaintiffs’ right to contribution.” Id., p 420. It is clear that Caldwell, although not explicitly, recognized that the right to contribution was substantive in nature. Our recognition in Moyses and Caldwell that the Michigan statute abrogates the common-law bar prohibiting contribution among "wrongdoers” and established a substantive cause of action independent of the underlying suit which gave rise to it was consistent with the understanding of the contribution doctrine in sister jurisdictions. The Supreme Court of Wisconsin, in State Farm Mutual Automobile Ins Co v Schara, 56 Wis 2d 262, 266; 201 NW2d 758; 57 ALR3d 922 (1972), stated: "The nature of the newly accrued cause of action [i.e., contribution] is not dependent on whether the obligation discharged resulted from contract or tort. The cause of action that accrues depends not one whit upon the nature of the origin of liability. It is enough that joint liability from whatever source exist. We said in Wait v Pierce, 191 Wis 202, 226; 209 NW 475; 210 NW 822 (1926): " 'Whether the common obligation be imposed by contract or grows out of a tort, the thing that gives rise to the right of contribution is that one of the common obligors has discharged more than his fair equitable share of the common liability.’ "All contribution claims have in common the characteristic that the party having a right against another also liable has discharged more than his share of the liability. It is the bearing of a greater share of a common liability than is justified, and not the source of the underlying liability, that characterizes a cause of action for contribution. "Accordingly, the right of contribution is the same irrespective of its origins. Brown v Haertel, 210 Wis 354, 358; 244 NW 633; 246 NW 691 (1933).” The significance of the conclusion that the contribution statute establishes an independent, substantive cause of action is that it renders irrelevant the argument that the third-party plaintiffs’ case does not fit within the provisions of the statutory exception to the governmental immunity that the road commissions would otherwise enjoy. It is of no moment that the third-party plaintiffs may not bring an action in tort against the road commissions because they suffered no "bodily injury or property damage” if the right created by the contribution statute is a separate and independent right of recovery and not a traditional action in tort. We conclude that it is just that. We hold, therefore, that the statute creates a substantive cause of action for contribution available to the third-party plaintiffs in this case which is wholly independent of the underlying tort ac tion, unaffected by the governmental immunity statute, and which may be prosecuted to judgment, providing that the other requirements of the contribution statute are met. Ill We turn now to the question that was originally put to the Court of Appeals, but which remains unanswered: whether the third-party plaintiffs’ cause of action against the road commissions for contribution is barred by the statute of limitations. In an opinion filed October 26, 1978, the trial court granted motions for accelerated judgments, dismissing the third-party actions on the basis that they were barred by the statute of limitations. The trial court noted first that the question was one of determining when the statute of limitations began to run on a claim for contribution brought by a defendant against a third-party defendant. The road commissions claimed that the period of limitations began to run on the day of the accident, September 28, 1973, whereas the third-party plaintiffs claimed "that there is no statute of limitations applicable or that the time would commence as of when they were sued — September 27, 1976, or possibly when they may pay, discharge, or settle a claim against themselves”. The trial court recognized that the general rule is that a statute of limitations does not begin to run against the right to enforce contribution until a cause of action in favor of the party seeking contribution arises and that, said the trial court, "is when an event occurs which throws an inequitable share of a common burden on him, usually the time of payment, discharge or satisfaction of some or all of the original claim made by the principal plaintiff”. However, the trial court felt bound by the reasoning of this Court in Morgan v McDermott, supra, p 356, and held that the third-party action in the case was barred. In Morgan, the principal defendants, as third-party plaintiffs, sought judgment against the third-party defendant Oakland County Road Commission, for contribution of one half of any judgment that might be rendered against the defendant-third-party plaintiffs. The road commission was brought in as a third-party defendant over a year after the occurrence of the injury. The road commission moved for accelerated judgment upon the ground that the county had not been given notice under the then-existing statute which required that, as a condition of imposing liability upon counties for defective highways, notice of the injury and the defect had to be served upon the responsible governmental unit within 60 days of the time of injury. This Court upheld the trial court’s dismissal of the third-party action, stating that the claim was indeed barred because of the failure to give the requisite statutory notice. The 60-day notice was held applicable to any action maintained against boards of county road commissioners under the statute. Responding to the argument that the statutory 60-day notice requirement would be applicable to an action in tort against the road commission for damages for the plaintiff’s bodily injury and property damage and not to a claim for contribution, the Morgan Court stated: "The county’s immunity cannot be lost simply on the basis of its having been a joint tort-feasor rather than its having been the sole tort-feasor”, 382 Mich 356. Applying the reasoning of the Morgan Court to the case at bar, the trial court said: "However, in a case quite similar to the present case, the Michigan Supreme Court ruled that the action was barred as to a governmental unit if not filed timely. Morgan v McDermott, 382 Mich 333 (1969). The Court at page 356 said: " 'The county’s immunity cannot be lost simply on the basis of its having been a joint tort-feasor rather than its having been a sole tort-feasor. The public policy behind the 60-day notice requirement is even more compelling in the case of a claim for joint tort-feasance than when the county only is the alleged tort-feasor’.” "This court is aware that the former 60-day notice provis [sic] has been declared unconstitutional, however the reasoning of the Morgan case is still applicable when the claim is made beyond the year statute of limitations provision as to governmental units.” (Emphasis in the original.) Our first task is to determine what statute of limitations applies to the suit for contribution and then whether it operates to bar the action. The Court of Appeals, as we have said, did not address the issue. The parties are less than clear in their assertions as to what statute of limitations applies and as to when the period of limitation begins to run. The road commissions claim that the two-year statute of limitations contained in MCL 691.1411(2); MSA 3.996(111)(2) is applicable, and they apparently believe that the period began to run on the date of the accident, September 28, 1973, although they do not explicitly say so. The third-party plaintiffs do not address this issue, although at the hearing on the motion for accelerated judgment before the trial court they claimed that the six-month statute of limitations found in the contribution statute, MCL 600.2925; MSA 27A.2925, was applicable, and in the Court of Appeals argued that the statute of limitations did not begin to run until the cause of action for contribution accrued, that is, when the consent judgments were rendered and satisfied. The statute waiving governmental immunity against tort liability for various causes of action, including defective roads, MCL 691.1402; MSA 3.996(102), provides a two-year statute of limitations: "Sec. 11(1). Every claim against any governmental agency shall be subject to the general law respecting limitations of actions except as otherwise provided in this section. "(2) The period of limitations for claims arising under section 2 of this act shall be 2 years. "(3) The period of limitations for all claims against the state, except those arising under section 2 of this act shall be governed by chapter 64 of Act No. 236 of the Public Acts of 1961.” MCL 691.1411; MSA 3.996(111). But "section 2 of this act”, to which reference is made in subsection (2) declares, in relevant part, that it is for an action for damages by "[a]ny person sustaining bodily injury or damage to his property” that the governmental immunity otherwise extant is waived. By its terms, then, it seems clear that the two-year period of limitation on an action for "bodily injury” and "damage to his property” does not govern the contribution action. A further indication, of course, is the fact that the Legislature established a different statute of limitations in the contribution statute. MCL 600.2925(d); MSA 27A.2925(4). That provision, which was in effect at the time of the accident in this case, provided that any claim for contribution had to be "asserted within 6 months after discharge by such party of the common liability or payment of more than his pro rata share”. Concededly, a correct determination of the question as to which statute of limitations is applicable in a contribution action is complicated in a case such as this in which both a governmental entity and private parties are involved as parties defendant and the Legislature has created one statute of limitations for an action against the governmental unit and another and different period of limitation for an action against the private parties. Resolution of the question was not made any easier for the learned trial judge by his perception that he was bound to follow the reasoning of the Morgan case, supra, which we hold hereafter to have been erroneously decided. We think, as a point of beginning, that it is indisputable that the statute of limitations governing a contribution action begins to run when the cause of action for contribution accrues, and that the action accrues when a judgment has been taken or rendered and the third-party plaintiff has paid more than his aliquot share. "The right of contribution between joint tortfeasors arises at the time of the concurring negligent acts. Until one of the joint tortfeasors pays more than his proportionate share of the underlying claim, the right remains contingent, subordinate and inchoate. When a tortfeasor pays more than his proportionate share, the right ripened into a cause of action”. Minneapolis, St Paul & S S M R Co v City of Fond du Lac, 297 F2d 583, 585; 93 ALR2d 1378 (CA 7, 1961). Similarly, see Kelly v Sproul, 153 Mich 691; 117 NW 327 (1908); Sziber v Stout, 111 Mich App 450, 459-460; 315 NW2d 166 (1981) (the instant case in the Court of Appeals, Cavanagh, J., dissenting); Doall v Michigan Consolidated Gas Co, 23 Mich App 454, 457, fn 2; 179 NW2d 26 (1970); Duncan v Beres, 15 Mich App 318, 332; 166 NW2d 678 (1968), and the cases cited therein. See also Bd of County Road Comm’rs of Wayne County v American Airlines, Inc, 369 F Supp 698 (ED Mich, 1974); Anno: When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 ALR3d 867. Since the cause of action for contribution does not accrue until payment of greater than the third-party plaintiff’s pro-rata share, the action for contribution cannot be barred simply because the statute of limitations would have barred suit by the original plaintiffs against the third-party defendants, if the plaintiffs had attempted to sue the road comiriissions on the date the contribution actions were filed. We conclude that the causes of action for contribution in these cases accrued when the consent judgments were entered against the principal defendants and were satisfied, that the applicable statute of limitations is six months as provided in the former contribution statute, and that it began to run when the contribution actions accrued. Since the third-party actions were actually filed in April 1978, well before the judgments in the underlying cases were entered and satisfied, the contribution actions are not time barred. We are not unaware of some of the problems suggested by our holding today. We note at least one of them not only in anticipation of the oft-repeated observation that "the Court’s opinion raised more problems than it solved”, but to provide some guidance to the bench and bar for application of today’s holding to other cases in the future. In Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), this Court upheld, against a claim of violation of equal protection, the two-year statute of limitations applicable to suits brought against government tortfeasors for injuries resulting from negligently maintained highways. The comparable statute of limitations applicable to private tortfea-sors was three years. In so holding, we noted that: "[B]y setting a time limit of two years, the state is assured that plaintiffs will promptly conduct such investigations as necessary to determine the merits of their claims and will not be unduly dilatory in commencing their suits. This is especially important in times such as these when governments are continually launching highway improvement programs. "Moreover, the statute is essential to the organization of the finances of state and local government agencies in that it allows them to estimate with some degree of certainty the extent of their future financial obligations. It cannot be overlooked that no private party has a potential tort responsibility comparable to that of the government for injuries allegedly caused by defective or unsafe conditions of highways.” 402 Mich 360. (Emphasis in the original.) See also Kutner, Contribution Among Tortfeasors: The Effects of Statutes of Limitations and Other Time Limitations, 33 Okla L Rev 203, 218-223 (1980). Allowing the contribution actions in these cases to be filed against the road commissions 4-1/2 years after the automobile accident may appear to some to undermine, to some extent, the rationale underlying the short statute of limitations applicable to tort actions against governmental entities, viz., allowing governmental units to estimate the extent of their future financial obligations and to plan for them and to correct promptly defective or unsafe conditions. However, to hold otherwise would not only disregard the plain language of the contribution statute then in effect, it would effectively permit a plaintiff to choose which of several possible defendants would bear the entire burden of paying a judgment simply by filing his lawsuit before the expiration of the three-year statute of limitations applicable to private tortfeasors, but after expiration of the two-year statute applicable to governmental units, and would thereby substantially limit the effectiveness of the contribution statute. To hold, in this case for example, that the two-year statute of limitations for injuries resulting from defective highways applied to the third-party defendants, and that the period of limitations commenced at the time of the original accident, "would permit a plaintiff to determine governmental liability by deciding whether or not to include the government as an original defendant. The contribution statute itself was amended by 1961 PA 236 to avoid such a result among nongovernmental litigants. The amendment permits contribution from joint tortfeasors who are joined as third-party defendants. Previously, contribution was only possible when a judgment had been recovered jointly against the tortfeasors. The potential for abuse was eliminated by depriving plaintiffs of the ability to prevent contribution. See Hawkins, Practice Commentary and Committee Comment, MCLA 600.2925, pp 780, 786. * * * A plaintiff’s lack of diligence, oversight or deliberate choice in not naming a governmental defendant must not be permitted to place upon a named defendant an unfair share of responsibility.” May v Wolverine Tractor and Equipment Co, 107 Mich App 163, 169-170; 309 NW2d 594 (1981), app dis 412 Mich 863 (1982). See Caldwell v Fox, supra, p 420: "plaintiff’s caprice in choosing to join or not to join third-party defendants is not determinant of third-party plaintiff’s right to contribution.” We have stated in Section II that there is a substantive right to contribution and that the right to contribution accrues only when judgment against a defendant-third-party plaintiff has been taken and satisfied. To hold that the statute of limitations governing the underlying tort action is applicable to the later action for contribution would mean that the statute of limitations governing the contribution actions expired in this case before the third-party plaintiffs’ claims accrued. We cannot suppose that the Legislature intended such an absurd result. Thus, we hold that the third-party plaintiffs’ causes of action for contribution herein are not barred by the statute of limitations governing the underlying tort actions. See Anno: What Statute of Limitations Applies to Action for Contribution Against Joint Tortfeasor, 57 ALR3d 927, 929, § 3, and the cases cited therein, and Kutner, supra, 33 Okla L Rev 210-216. Although we hold that the third-party plaintiffs’ causes of action for contribution are not barred by the statute of limitations of the underlying actions, there remains the problem of the statutory written notice provision for actions against governmental agencies for "injuries” and "property damage” caused by defective highways. As we observed earlier, this Court held in Morgan, supra, that the statutory provision which then required written notice by the injured person of the injury and highway defect within 60 days of the accident was a condition precedent to the imposition of liability upon a road commission and was applicable to any action, including one for contribution. It is argued that the notice requirement, although now a 120-day provision under the current statute, MCL 691.1404; MSA 3.996(104), is likewise applicable to the actions for contribution before us, and, since no notice was given in these cases, stands as a bar to recovery of contribution from the road commissions. Although the matter sharply divided this Court at the time, it appears to be clear that the decisions in Reich v State Highway Dep’t, 386 Mich 617; 194 NW2d 700 (1972), and Hobbs v Dep’t of State Highways, 398 Mich 90; 247 NW2d 754 (1976), have effectively eviscerated the holding in Morgan. The weight of authority supports the view espoused by Justice Black in his dissent in Morgan that failure by the plaintiff to give statutorily required notice to the appropriate governmental agency does not bar the third-party plaintiff from impleading a third-party defendant-governmental agency pursuant to a claim for contribution. The 120-day notice provision of MCL 691.1404; MSA 3.996(104) by its terms and in the light of its obvious purpose is simply inapplicable to actions for contribution, especially where, as here, the actions for contribution accrued when it was no longer possible to comply with the statute by its terms. To the extent that Morgan is inconsistent with our decision today, it is overruled. IV In conclusion, we hold that the defendant-third-party plaintiffs have a substantive right to contribution against the third-party defendants-road commissions that is not barred by statutory governmental immunity. Moreover, the right to contribution is not barred by the statute of limitations governing the underlying tort actions. Since the plaintiffs could have proceeded directly against the road commissions, third-party plaintiffs herein may proceed to prosecute their claims for contribution providing the remaining conditions of the contribution statute are met. We remand this case to the Circuit Court for the County of Tuscola for further proceedings not inconsistent with this opinion. Reversed and remanded. Williams, C.J., and Kavanagh, Levin, Brick-ley, and Boyle, JJ., concurred with Ryan, J. Cavanagh, J., took no part in the decision of this case.__ The right to contribution among joint tortfeasors existed pursuant to statute, MCL 600.2925; MSA 27A.2925. Although it has since been repealed by 1974 PA 318, the former statute is applicable to the proceedings before us. The amending statute, MCL 600.2925a; MSA 27A.2925(1) applies only to torts committed after January 1, 1975. That statute of limitations provides that the period of limitations for claims arising from the statutory authorization for suit against governmental agencies for defective highways is two years. MCL 691.1411(2); MSA 3.996(111)(2). GCR 1963, 204 provides: ".1 When Defendant May Bring in Third Party. "(1) Subject to the provisions of Section 3030 of the Insurance Code of 1956, before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may thereafter be liable to such third-party plaintiff, by right of contribution or otherwise, for all or part of the plaintiff’s claim against him. "(2) If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiffs claim as provided in Rule 111 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 203. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. "(3) The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff, and, the third-party defendant thereupon shall assert his defenses as provided in Rule 111 and his counterclaims and cross-claims as provided in Rule 203. "(4) Any party may move for severance, separate trial, or dismissal of the third-party claim; the court may direct a final judgment upon either the original claim or the third-party claim alone in accordance with the provisions of subrule 518.2. "(5) A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant, upon obtaining leave of court. ".2 When Plaintiff May Bring in Third Party. When a claim or counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.” The accompanying Committee Comment explained: "The next to the last sentence in (1) is inserted to accomplish the result intended in Rule 204.1, that the right of contribution should not depend on whether or not the plaintiff saw St to sue both joint tort-feasors. (4) is also changed to allow for the defendant’s asserting the right of contribution against the third party defendant. Barring contribution receives little support from the authorities. " 'One difficulty is that several such enactments permit contribution only between tort-feasors against whom a judgment has been rendered — i.e., a joint judgment is a condition precedent to the operation of the statute. * * * When one defendant has no right against a co-defendant until a joint judgment has been rendered against them both, the decision of the plaintiff whether or not there will be a joint judgment and who will be included therein also determines what right, if any, there will be to contribution. This permits the plaintiff to make his own selection and, insofar as he exercises it, the policy of the statute may be defeated. The reasons for allowing contribution, however, apply as strongly to those cases in which the plaintiff sues only one tort-feasor as to those in which there is a joint judgment. " 'In Texas, this weakness was largely remedied by permitting a defendant sued singly to implead his co-tort-feasors.’ 1 Harper and James, The Law of Torts, 720 (1956).” (Emphasis supplied.) See, also, Geiger v Calumet County, 18 Wis 2d 151; 118 NW2d 197 (1962) ("[T]he equitable right to contribution is independent of the underlying cause of action which results in a judgment requiring one tort-feasor to pay more than his proportionate share. This independent existence makes consideration of the basis of such underlying cause of action irrelevant whether it be common law or statute”); Coniaris v Vail Associates, Inc, 196 Colo 392, 395; 586 P2d 224 (1978) ("A claim for contribution is an action separate and distinct from the underlying tort. The rights and obligations of the tortfeasors flow, not from the tort, but from the judgment or settlement itself’); People ex rel Dep’t of Transportation v Superior Court of Los Angeles County, 26 Cal 3d 744, 748; 163 Cal Rptr 585; 608 P2d 673 (1980) ("[A] tort defendant’s equitable indemnity action is separate and distinct from the plaintiffs tort action” [superseded by statute]). See, generally, Uniform Contribution Among Tortfeasors Act, 12 ULA, § 1. We address, in Section III, the significance of this holding in regard to the applicable statute of limitations. The statute in effect at the time the claim for contribution was asserted provides that "[i]f there is a judgment for the injury or wrongful death against the tort-feasor seeking contribution, a separate action by him to enforce contribution shall be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review”. MCL 600.2925c(3); MSA 27A.2925(3)(3). However, the provisions of this act are applicable only to torts committed on or after January 1, 1975. 1974 PA 318. See, generally, Kutner, Contribution Among Tortfeasors: The Effects of Statutes of Limitations and Other Time Limitations, 33 Okla L Rev 203, 210-216, 218-222 (1980). See, e.g., and compare the opinions of Viscount Simonds and Lords Porter, Reid, Tucker, and Keith of Avonholm, George Wimpey & Co LD v British Overseas Airways Corp, Law Rpts [1955] Appeal Cases 169, 177-196 (House of Lords, 1954), aff'g Littlewood v George Wimpey & Co LD, Law Rpts [1953] 2 QB 501 (time limitation was a notice requirement). See also Ainswrth v Berg, 253 Wis 438; 34 NW2d 790 (1948), vacated on other grounds 253 Wis 445a; 35 NW2d 911 (1949); State Farm Mutual Automobile Ins Co v Schara, supra; Waldinger Co v P & Z Co, Inc, 414 F Supp 59 (D Neb, 1976); Markey v Skog, 129 NJ Super 192; 322 A2d 513 (1974); Ezzi v DeLaurentis, 172 NJ Super 592; 412 A2d 1342 (1980); Godfrey v Tidewater Power Co, 223 NC 647, 649-650; 27 SE2d 736 (1943); Thomas v Przbylski, 83 Wash 2d 118; 516 P2d 207 (1973). See, generally, Uniform Contribution Among Tortfeasors Act, 12 ULA, § 1 & supp. See Keleket X-Ray Corp v United States, 107 US App DC 138, 140; 275 F2d 167 (1960) (defendant-third-party plaintiffs claim to contribution did not accrue before defendant had been sued by the original plaintiff, and the government’s contention on this point, if sustained, would mean that a suit under the Tort Claims Act could be barred before it came into existence. "We know of no reason why the law should let action or inaction of the injured party defeat a claim to contribution”); Markey v Skog, fn 9 supra, p 201 (The policy of the contribution statute "seeks to prevent plaintiffs, by their unilateral actions, from electing where to place the burden of a common fault”); Olsen v Jones, 209 NW2d 64, 67 (Iowa, 1973) ("we refuse to attribute to this legislation an intention to permit an injured claimant to elect which of two equally culpable tort-feasors shall bear the whole burden simply because one happens to be a governmental unit”); Royal Car Wash Co v Wilmington, 240 A2d 144, 145-146 (Del Super Ct, 1968) ("[i]t [is] inconceivable that the Legislature should purport to grant the valuable right of contribution among joint tortfeasors but, for all practical purposes, place it within the power of the original plaintiff to decide whether or not it should be exercised”); Waldinger Co v P & Z Co, Inc, fn 9 supra, p 60 (to accept the argument that the claim for contribution arises when the injury is incurred will allow plaintiff to choose which defendant would bear the burden by simply filing his lawsuit after the statute of limitations has run). See generally Anno: Claim for Contribution or Indemniñcation From Another Tortfeasor as Within Provisions of Statute or Ordinance Requiring Notice of Claim Against Municipality, 93 ALR2d 1385. Minneapolis, St Paul & S S M R Co v Fond du Lac, supra (applying the law of Wisconsin); Waldinger Co, fn 9 supra (applying Nebraska law); Thomas v Przbylski, fn 9 supra (third-party plaintiff seeking to join municipal corporation as a third-party defendant need not comply with the claim statute before he has made payment to plaintiff or had judgment rendered against him); Roehrig v City of Louisville, 454 SW2d 703 (Ky App, 1970); Markey v Skog, fn 9 supra; Olsen v Jones, fn 10 supra; Ezzi v DeLaurentis, fn 9 supra (noncompliance by a plaintiff with notice provisions did not bar defendants’ third-party claim against municipal third-party defendant; however, defendants would be required to comply with the notice provisions once the third-party claim accrued); Geiger v Calumet County, fn 5 supra; Royal Car Wash Co v Wilmington, supra; Ainsworth v Berg, fn 9 supra; People ex rel Dep’t of Transportation v Superior Court of Los Angeles County, fn 5 supra. See also Morgan v McDermott, 8 Mich App 260; 154 NW2d 576 (1976), rev’d 382 Mich 333; 169 NW2d 897 (1969). The parties have not raised and we have not considered, for example, the issue whether the third-party defendants are "joint tortfeasors” within the meaning of the contribution statute.	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O’Connell, P.J. In these five cases consolidated on appeal, plaintiffs appeal as of right from various trial court orders from the Oakland and Wayne Circuit Courts. In each case, we are asked to decide whether Const 1963, art 9, § 3 provides that plaintiffs are entitled to taxable values of real property that, as percentages of true cash value, equal the average ratio of taxable value to true cash value of all other property in the taxing district. Because we agree with the trial courts’ conclusion in each case that Const 1963, art 9, § 3, as amended by Proposal A, imposes no such requirement, we affirm in all cases. I. PROCEDURAL HISTORY In Docket No. 224234, plaintiffs appeal as of right from the December 10, 1999, order of the trial court granting summary disposition in favor of defendant city of Troy pursuant to MCR 2.116(C)(8). In Docket No. 224813, plaintiffs appeal as of right from the January 19, 2000, order of the trial court dismissing with prejudice plaintiffs’ claim against defendant Canton Township. In Docket No. 226224, plaintiffs appeal as of right from the March 13, 2000, order of the trial court granting defendant city of Oak Park’s motions for summary disposition pursuant to MCR 2.116(C)(8) and (10). In Docket No. 228106, plaintiff appeals as of right from the June 14, 2000, order of the trial court denying plaintiff’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), and granting judgment in favor of defendant Southfield Township pursuant to MCR 2.116(I)(2). Finally, in Docket No. 232132, plaintiffs appeal as of right from the January 4, 2001, order of the trial court finding no cause of action on behalf of plaintiffs and entering judgment in favor of defendant city of Southfield. Plaintiffs filed the complaints in the Wayne and Oakland Circuit Courts, alleging that the taxable values of plaintiffs’ properties were of percentages of true cash value greater than the average percentage of all other properties defendants taxed in the applicable city or township. Plaintiffs further alleged that because Const 1963, art 9, § 3 requires uniformity in taxation, defendants’ method of taxing plaintiffs’ real property violated our state constitution. In the complaints, plaintiffs sought a declaratory judgment holding that defendants taxed plaintiffs in violation of the state constitution, and a refund for “the unconstitutional portion” of plaintiffs’ taxes. In each case, the trial courts concluded that plaintiffs’ argument was without merit. Specifically, the trial courts rejected plaintiffs’ assertion that Const 1963, art 9, § 3 required uniformity in the ratio of taxable value to true cash value among all real property in the taxing district. The trial courts also recognized that by accepting Proposal A, the electorate provided for a cap on real property tax assessments. Specifically, the courts recognized that taxes are now levied according to a property’s taxable value, and because a property’s taxable value is contingent on whether its owner retains or sells it, the percentages of taxable value to true cash value among identical pieces of property will not be uniform. Plaintiffs now appeal as of right in all five cases. H. STANDARD OF REVIEW In each case, with the exception of the court’s ruling in Docket No. 232132, the lower courts ruled in favor of defendants in the summary disposition context. This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). In Docket Nos. 224234, 226224, and 228106, the trial courts observed that summary disposition was granted pursuant to MCR 2.116(C)(8) and (10). A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone. The purpose of such a motion is to determine whether the plaintiff has stated a claim upon which relief can be granted. The motion should be granted if no factual development could possibly justify recovery. [Beaudrie v Henderson, 465 Mich 124, 129-130; 631 NW2d 308 (2001), citing Spiek, supra at 337.] Further, in Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999), our Supreme Court articulated the standard of review for summary disposition motions brought under MCR 2.116(C)(10): A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Moreover, in Docket Nos. 224813 and 228106, the trial courts denied plaintiffs’ motion for summary disposition and granted judgment in favor of defendants pursuant to MCR 2.116(I)(2). “ ‘Summary disposition is properly granted [under this rule] to the opposing party if it appears to the court that that party, rather than the moving party, is entitled to judgment.’ ” Gyarmati v Bielfield, 245 Mich App 602, 604; 629 NW2d 93 (2001) (alteration in original), quoting Sharper Image v Dep’t of Treasury, 216 Mich App 698, 701; 550 NW2d 596 (1996). Finally, whether the Uniformity of Taxation Clause is violated where the ratio of taxable value to true cash value of plaintiffs’ real property is not uniform with the average ratio of taxable value to true cash value for all real property in a city or township is a question of law. This Court reviews de novo such questions of law. See, e.g., TIG Ins Co, Inc v Dep’t of Treasury, 464 Mich 548, 557; 629 NW2d 402 (2001). HI. ANALYSIS Plaintiffs argue that pursuant to the Uniformity of Taxation Clause of Const 1963, art 9, § 3, they are entitled to taxable values that, as a percentage of the true cash value of their real property, are uniform with the average ratio of taxable value to true cash value for all real property in the city or township where plaintiffs’ real property is located. Plaintiffs further claim that they are not seeking to alter the property taxation system in Michigan; rather, they contend that they are only seeking a reduction of their taxable values to the extent that they mirror the average ratio of taxable value to true cash value for all real property in the taxing district. In response, defendants assert that nothing in the plain language of Const 1963, art 9, § 3 requires uniformity in the ratio of taxable value to true cash value; rather, the provision only requires uniformity in assessment. Defendants also argue that because of the cap on property assessments implemented with the passage of Proposal A, taxable values by their nature are inimical to uniformity because they are dependent on how long a property owner has owned the property or how quickly the property rises in value. Defendants also contend that by accepting Proposal A’s mandate that property assessments be capped, the electorate could not have intended that taxable values remain uniform. According to defendants, by enacting 1994 PA 415, the Legislature facilitated the electorate’s intention to cap the increase in property assessments by adding the term “taxable value” to the General Property Tax Act (gpta), MCL 211.1 et seq. The Attorney General, the State Tax Commission (STC), and the Michigan Townships Association (mta) support defendants in these appeals. In their briefs on appeal, the Attorney General, the STC and the mta note that before Proposal A, ad valorem property taxes in Michigan were assessed on the basis of state equalized valuation (sev). Once the electorate passed Proposal A, it authorized a narrow exception to the uniformity requirement, allowing the ratio of taxable value to true cash value to be disparate depending on whether property is sold or retained by an owner. Further, the Attorney General, the STC, and the mta observe that pursuant to Proposal A, property taxes are now spread against taxable value, rather than sev, and it was the clear intent of the electorate that the ratio of taxable value to true cash value need not remain uniform. A OVERVIEW OF REAL PROPERTY TAXATION IN MICHIGAN Because plaintiffs’ main issue on appeal involves real property taxation, a brief overview of how real property is taxed in Michigan is instructive. At issue here is the uniform ad valorem taxation of real property mandated by Const 1963, art 9, § 3. In Michigan, our state constitution has required the uniform ad valorem taxation of real property since 1850. Fino, The Michigan State Constitution: A Reference Guide (Westport: Greenwood Press, 1996), pp 180-181. See also Const 1850, art 14, §§ 11, 12; Const 1908, art 10, §§ 3, 7. An ad valorem tax is “ ‘[a] tax levied on property or an article of commerce in proportion to its value as determined by assessment or appraisal.’ ” Meijer v Midland, 240 Mich App 1, 3, n 1; 610 NW2d 242 (2000), quoting Black’s Law Dictionary (6th ed). At the heart of the instant cases is the proper interpretation of Const 1963, art 9, § 3, as amended by Proposal A, which provides as follows: The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law except for taxes levied for school operating purposes. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments. For taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each parcel of property adjusted for additions and losses, shall not increase each year by more than the increase in the immediately preceding year in the general price level, as defined in section 33 of this article, or 5 percent, whichever is less until ownership of the parcel of property is transferred. When ownership of the parcel of property is transferred as defined by law, the parcel shall be assessed at the applicable proportion of current true cash value. The legislature may provide for alternative means of taxation of designated real and tangible personal property in lieu of general ad valorem taxation. Eveiy tax other than the general ad valorem property tax shall be uniform upon the class or classes on which it operates. A law that increases the statutory limits in effect as of February 1, 1994 on the maximum amount of ad valorem property taxes that may be levied for school district operating purposes requires the approval of% of the members elected to and serving in the Senate and in the House of Representatives. As noted, Const 1963, art 9, § 3 expressly provides that real property shall not be assessed in excess of fifty percent of its true cash value. MCL 211.27(1) defines “cash value” as “the usual selling price at the place where the property, to which the term is applied is at the time of assessment, being the price that could be obtained for the property at private sale, and not at auction sale . . . .” True cash value is synonymous with fair market value. Great Lakes Division of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 389; 576 NW2d 667 (1998). Although not directly relevant to the instant appeals, it is well settled that [t]he three most common approaches for determining true cash value are the capitalization-of-income approach, the sales-comparison or market approach, and the cost-less-depreciation approach. However, variations of these approaches and entirely new methods may be useful if found to be accurate and reasonably related to fair market value. Meadowlands Ltd Dividend Housing Ass’n v Holland, 437 Mich 473, 485; 473 NW2d 636 (1991). [Great Lakes, supra at 390 (citation omitted).] See also Meijer, supra at 4, n 5. After the electorate accepted Proposal A in a special statewide election on March 15, 1994, the Legislature enacted 1994 PA 415 to revise relevant portions of the gpta, effective December 29, 1994. Specifically, MCL 211.27a, as amended by 1994 PA 415, now provides: (1) Except as otherwise provided in this section, property shall be assessed at 50% of its true cash value under section 3 of article IX of the state constitution of 1963. (2) Except as otherwise provided in subsection (3), for taxes levied in 1995 and for each year after 1995, the taxable value of each parcel of property is the lesser of the following: (a) The property’s taxable value in the immediately preceding year minus any losses, multiplied by the lesser of 1.05 or the inflation rate, plus all additions. For taxes levied in 1995, the property’s taxable value in the immediately preceding year is the property’s state equalized valuation in 1994. (b) The property’s current state equalized valuation. (3) Upon a transfer of ownership of property after 1994, the property’s taxable value for the calendar year following the year of transfer is the property’s state equalized valuation for the calendar year following the transfer. [Emphasis supplied.] MCL 211.27a(6) and (7) also specify what does and does not constitute a “transfer of ownership.” Further, MCL 211.24b, as amended by 1994 PA 415, now provides that real property taxes are assessed on the basis of a parcel of property’s “taxable value.” The former language of MCL 211.24b specified that taxes were assessed on the basis of a parcel of property’s state equalized valuation. See School Dist No 9, Pittsfield Twp, Washtenaw Co v Washtenaw Co Bd of Supervisors, 341 Mich 388, 406-407; 67 NW2d 165 (1954); Consumers Power Co v Muskegon, 13 Mich App 334, 341; 164 NW2d 398 (1968). The current version of MCL 211.24b provides in pertinent part: (1) The tax roll and the tax statement shall clearly set forth the latest taxable value for each item of property. (2) The supervisor or assessor shall spread the taxes on the tax roll on the taxable value for each item of property. [Emphasis supplied.] Similarly, MCL 211.24(1) requires the property assessor, in preparing the assessment roll, to “estimate, according to his or her best information and judgment, the true cash value and assessed value of every parcel of real property and set the assessed value down opposite the parcel.” Subsection 24(1) of the gpta also requires the assessor to “calculate the tentative taxable value of every parcel of real property.” Once the assessment rolls are prepared, they are reviewed by the local board of review. MCL 211.29. Taxpayers protesting their tentative property valuation may then appear before the local board of review. MCL 211.30. Once the board of review indorses the assessment roll, MCL 211.30(3), the board of commissioners of each county reviews the roll to determine “whether the real and personal property in the respective townships or cities ha[ve] been equally and uniformly assessed at true cash value.” MCL 211.34(2). If the county board of commissioners concludes that an inequality exists, “they must equalize to ‘produce a sum which represents the true cash value of the property.’ ” Allied Supermarkets, Inc v Detroit, 391 Mich 460, 464; 216 NW2d 755 (1974), quoting MCL 211.34. Real property valuations are then equalized at the state level as well. MCL 209.1 et seq.; Richland Twp v State Tax Comm, 210 Mich App 328, 332; 533 NW2d 369 (1995); Brittany Park Apartments v Harrison Twp, 104 Mich App 81, 87; 304 NW2d 488 (1981). As Justice Coleman observed in Allied Supermarkets, supra at 466, the goal of equalization is to produce uniformity in taxation. See also Conroy v Battle Creek, 314 Mich 210, 225; 22 NW2d 275 (1946) (“The constitutional requirement of a .‘uniform rale of taxation’ can be satisfactorily effected through the process of equalization.”); O’Reilly v Wayne Co, 116 Mich App 582, 594; 323 NW2d 493 (1982) (“The purpose of equalization is to adjust or correct all of the different modes of assessment to achieve uniformity among government units within a county and uniformity among all of the counties of the state.”). Legislative analysis reflects that the Legislature amended the gpta following the passage of Proposal A to “flesh out in statute” the new concept of taxable value. House Legislative Analysis, HB 5945 (Second Analysis), January 9, 1995, p 1. Typically, [before Proposal A,] property has been assessed for tax purposes based on market value; the millage rate is applied to the state equalized valuation (sev), which is supposed to be set at 50 percent of market value. But with the [Proposal A] assessment cap in place, a parcel of property will have both a state equalized valuation and a taxable value, which might or might not be the same amount. Property whose value is increasing faster than the rate of inflation will, due to the cap, have a taxable value below (perhaps, over time, far below) state equalized valuation. Upon its sale or other transfer of ownership, the property’s taxable value and sev would be the same until the cap was applied once again. [/&] Because plaintiffs’ challenge to defendants’ methods of taxing real property requires us to consider whether ratios of taxable values to true cash value that are not congruent with the average for a whole city or township violate the Uniformity of Taxation Clause, a review of the purpose underlying this clause is also helpful. B. THE PURPOSE OF MICHIGAN’S UNIFORMITY OF TAXATION CLAUSE In one of the earlier pronouncements discussing the purpose of Michigan’s Uniformity of Taxation Clause, Chief Justice Martin, considering Const 1850, art 14, opined in People ex rel St Mary’s Falls Ship Canal Co v Auditor General, 7 Mich 84, 90 (1859): This provision of the constitution has no reference to the power to exempt, or to remit taxes; which is, and necessarily must be, to a great extent, left to the discretion of the legislature. Its design was to secure, to every portion of the state, and to every class of property taxed, a uniform rate,—to secure equality, so that property in one quarter should not be taxed at a higher rate than in another, or the same kind taxed unequally. The legislature has the power of prescribing the subjects of taxation, and of exemption, but it can not arbitrarily tax property according to locality, kind, or quality, without regard to value, but in this respect it must act by uniform rules. [Citation omitted.] Chief Justice Cooley’s observations regarding taxation in Michigan, offered in a different context, are likewise illuminating. The control of the state in regard to taxation is certainly very great, but it is by no means unlimited, and it can not be exercised in an arbitrary manner, nor without regard to those principles of justice and equality on which it is based. It is of the essence of all taxation that it should compel the discharge of the burden by those upon whom it rests; and if the state should attempt to compel any single county by taxation to pay the salaries of the state officers, or the expenses of the legislature, no one would for a moment doubt that, while the act was arbitrary, unjust and tyrannical, it was also unconstitutional. [Ryerson v Utley, 16 Mich 269, 276 (1868).] Further, in Pine Grove Twp v Talcott, 86 US (19 Wall) 666, 675; 22 L Ed 227 (1873), the United States Supreme Court considered Const 1850, art 14, § 11, and Justice Swayne, writing for the Court, discussed this constitutional provision’s purpose: The object of this provision was to prevent unjust discriminations. It prevents property from being classified and taxed as classed, by different rules. All kinds of property must be taxed uniformly, or be entirely exempt. The uniformity must be co-extensive with the territory to which the tax applies. If a State tax, it must be uniform all over the State. If a county or city tax, it must be uniform throughout such county or city. See also Williams v Mayor of Detroit, 2 Mich 560, 570 (1853) (state constitution “enjoins a just principle of equality in regard to all public burdens, and prescribes as a limit to the exercise of the taxing power, that common burdens should be sustained by common contributions, regulated by some fixed general rule and apportioned according to some uniform ratio of equality”) (emphasis in original); Wood v Rockwood, 328 Mich 507, 511; 44 NW2d 163 (1950) (recognizing that to satisfy the Uniformity of Taxation Clause, a tax must be “levied in accordance with some definite plan designed to bring about a just distribution of the burden”); Armco Steel Corp v Dep’t of Treasury, 419 Mich 582, 592; 358 NW2d 839 (1984) (recognizing that the prevailing principle of the Uniformity of Taxation Clause is that of equal treatment for similarly situated taxpayers); Grand Traverse Co v Michigan, 450 Mich 457, 478; 538 NW2d 1 (1995) (concluding that Const 1963, art 9, § 3 requires that “uniformity must be coextensive with the territory to which it applies”). Likewise, in East Grand Rapids School Dist v Kent Co Tax Allocation Bd, 415 Mich 381, 395-396; 330 NW2d 7 (1982), our Supreme Court echoed its earlier statement in Huron-Clinton Metropolitan Authority v Bds of Supervisors of Five Counties, 304 Mich 328; 8 NW2d 84 (1943), in construing the language of Const 1963, art 9, § 3 before its amendment in 1994. “ ‘What is meant by the words ‘taxing by a uniform rule?’ And to what is the rule applied by the constitution? No language in the constitution, perhaps, is more important than this; and to accomplish the beneficial purposes intended, it is essential that they should be truly interpreted, and correctly applied. “Taxing” is required to be “by a uniform rule;” that is, by one and the same unvarying standard. Taxing by a uniform rule requires uniformity not only in the rate of taxation, but also uniformity in the mode of the assessment upon the taxable valuation. Uniformity in taxing implies equality in the burden of taxation; and this equality of burden cannot exist without uniformity in the mode of the assessment, as well as in the rate of taxation.’ ” [Huron-Clinton Metropolitan Authority, supra, quoting Exchange Bank of Columbus v Hines, 3 Ohio St 1, 15 (1853).] See also Edward Rose Building Co v Independence Twp, 436 Mich 620, 640; 462 NW2d 325 (1990) (The uniformity requirement of the Michigan Constitution is concerned with uniformity in the mode of assessment and the rate of taxation and “compels the assignment of values to property upon the basis of the true cash value of the property . . . .”). Most recently, our Supreme Court has recognized that there is no discernible difference between the Equal Protection Clause and the Uniformity of Taxation Clause when considering the constitutionality of a statute. TIG, supra at 563; see also Taylor Commons v City of Taylor, 249 Mich App 619; 644 NW2d 773 (2002); Syntex Laboratories v Dep’t of Treasury, 233 Mich App 286, 290; 590 NW2d 612 (1998); Ann Arbor v Nat’l Center for Mfg Sciences, Inc, 204 Mich App 303, 306; 514 NW2d 224 (1994). C. PRINCIPLES OF CONSTITUTIONAL INTERPRETATION As mentioned, these five consolidated cases require us to interpret the current version of Const 1963, art 9, § 3, as amended by Proposal A. In Michigan, the rules of constitutional interpretation are well settled. Specifically, this Court is guided by the principle that a constitutional provision is to be interpreted in accordance with the “common understanding.” American Axle & Mfg, Inc v Hamtramck, 461 Mich 352, 362; 604 NW2d 330 (2000). Thus, we must strive to effectuate the electorate’s intent in ratifying the amendment of Const 1963, art 9, § 3. People v Bulger, 462 Mich 495, 507; 614 NW2d 103 (2000). “A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ ” [Bolt v Lansing, 459 Mich 152, 160; 587 NW2d 264 (1998) (emphasis in original), quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), in turn quoting Cooley’s Const Lim 81.] Where the people’s intent in adopting the provision in question can be gleaned from a review of the instrument itself, our Supreme Court has cautioned that further construction is inappropriate. Michigan Coalition of State Employee Unions v Civil Service Comm, 465 Mich 212, 222; 634 NW2d 692 (2001). “The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. . . . ‘Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.’ ” [American Axle, supra at 362 (emphasis in original), quoting Cooley, Constitutional Limitations, (Little, Brown and Company, 1868), p 55.] As an initial matter, plaintiffs point to our Supreme Court’s decision in In re Appeal of General Motors Corp, 376 Mich 373; 137 NW2d 161 (1965), arguing that that decision entitles plaintiffs to “uniform assessment.” In this vein, plaintiffs point to the language in Const 1963, art 9, § 3 that “property shall be uniformly assessed” to support their argument. Plaintiffs further argue that the Supreme Court interpreted this specific language in General Motors, supra, to require the relief that plaintiffs seek in the instant cases. According to plaintiffs, the electorate was aware of the Supreme Court’s interpretation of this language when it ratified Proposal A in March 1994, and therefore the electorate confirmed plaintiffs’ rights in this regard. Plaintiffs further argue that the term “taxable value” is synonymous with “assessment” because both refer to the value on which taxes are based, and therefore plaintiffs are entitled to uniform taxable values under Const 1963, art 9, § 3 as amended. In General Motors, supra at 376, the plaintiff, General Motors Corporation, appealed to the Supreme Court from the State Tax Commission’s personal property assessment. In assessing the plaintiff’s personal property, the stc had placed the assessment at the average level for all personal property in the city of Livonia, but had disregarded the average level of assessment for real property. Id. The Supreme Court, in reviewing the plaintiffs appeal, phrased the main issue in the following terms: The main question presented is: Is the Michigan State tax commission required by law to reduce an intentionally unequal personal property assessment to the level of assessment for all property—both real and personal—taxable in the assessment district? [Id. at 377.] After reviewing the language of Const 1908, art 10, §§ 3 and 7, the Court also concluded that the then-current GPTA required the uniform assessment of both real and personal property. General Motors, supra at 377. “Thus, all taxable property, real and personal, is placed in one category to be uniformly assessed and taxed.” Id. at 378 (emphasis in original). The Supreme Court went on to express its concern that the constitutionally entrenched principle that property be assessed at fifty percent of its cash value was not strictly adhered to, and that as a result, “[assessments often bear no relation to the actual cash value of the property or to the level of assessments in adjoining governmental units.” Id. at 378-379. Concluding that the standard of true cash value had been all but destroyed, the General Motors Court noted that “the standard of uniformity becomes even more imperative.” Id. at 379. The Court then offered the following observation that plaintiffs seize on as support for their argument in the instant cases. “As a practical matter, unequal assessments must be reduced to the average level of assessment if the taxpayer is to have a remedy.” Id. Upon the record before us, General Motors’ personal property was assessed at an average of 83.7% of State equalized value. The weighted average of all property—real and personal—would be 76% of State equalized value. This is the average which (assuming the correctness of the commission’s findings) should have been used in computing General Motors’ personal property tax liability. We hold that the mode of assessment used by the State tax commission was incorrect in that, having adopted a standard of average assessment levels to determine the question of uniform treatment of General Motors, it did not take into account the average assessment level of all property, real and personal. [Id. at 379-380 (emphasis in original).] As an initial matter, we note that in General Motors, supra, the Court did not rule that the language requiring that “property shall be uniformly assessed” as set forth in Const 1963, art 9, § 3 required that the plaintiff be granted relief similar to that sought by plaintiffs here. Indeed, this language did not even exist in the 1908 version of the state constitution, which merely called for a “uniform rule of taxation.” General Motors, supra at 377. Further, the key issue in General Motors was whether, in assessing personal property, the STC erred in adopting a standard of average assessment levels to determine the question of uniform treatment of the plaintiff, but did not take into account the average assessment for all property, both real and personal. Id. at 377, 380. Therefore, contrary to plaintiffs’ assertions on appeal, General Motors does not stand for the narrow proposition that the ratio of taxable value to true cash value need be equal to the average ratio for all property in a township or city. Indeed, the Supreme Court rendered its decision in General Motors before the electorate amended Const 1963, art 9, § 3. See, e.g., Waterford Twp v Oakland Co Tax Allocation Bd, 312 Mich 556, 559; 20 NW2d 497 (1945) (where there are amendments of the state constitution, prior cases may be rendered inconsistent or inapplicable to the extent that they are of limited value). Hence, we agree with the trial courts in these cases that General Motors, supra, is of limited value in resolving the issue in these present appeals. Plaintiffs further maintain that the electorate was aware of the Supreme Court’s decision in General Motors, supra, and ratified plaintiffs’ rights that flow from that decision. Plaintiffs are correct in their assertion in their briefs on appeal that “[w]here a constitutional provision has received a settled judicial construction, and is afterward incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it.” [People v Kirby, 440 Mich 485, 491-492; 487 NW2d 404 (1992), quoting Richardson v Secretary of State, 381 Mich 304, 311; 160 NW2d 883 (1968).] See also People v Antkoviak, 242 Mich App 424, 462; 619 NW2d 18 (2000). However, we are of the view that a plain reading of the clear terms of the current constitutional provision, viewed against the backdrop of the circumstances leading to the passage of Proposal A, reveals that plaintiffs’ argument on appeal is without merit. Specifically, the electorate, through the passage of Proposal A, has manifested its intention that, under certain circumstances, the ratio of taxable value of real property to true cash value need not be uniform with the city- or township-wide average. One of the most important methods of ascertaining the meaning of a constitutional provision is to consider “ ‘the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished . . . House Speaker v Governor, 443 Mich 560, 580; 506 NW2d 190 (1993), quoting Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 745; 330 NW2d 346 (1982), in turn quoting Traverse City School Dist, supra; see also Bolt, supra at 160. This rule is particularly applicable when considering a constitutional amendment. “The language of a constitutional amendment should be read in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then construed, if there be therein any doubtful expressions, in a way, so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted.” [Civil Service Comm v Auditor General, 302 Mich 673, 681-682; 5 NW2d 536 (1942), quoting Maxwell v Dow, 176 US 581; 20 S Ct 448, 494; 44 L Ed 597 (1900).] Proposal A was presented to the electorate on March 14, 1994, the culmination of a bipartisan effort to reform the school financing system in Michigan. House Legislative Analysis, Senate Joint Resolution S (Second Analysis), March 1, 1994, p 1. Proposal A “authorized an increase in the state sales and use tax for use in school aid, limited use of local property taxes for school purposes, and authorized other changes in school finance.” Durant v Michigan, 456 Mich 175, 212, n 42; 566 NW2d 272 (1997). As relevant to the present appeals, part of Proposal A’s purpose was to limit the annual increase in property assessments. WPW Acquisition Co v Troy, 243 Mich App 260, 267-268; 620 NW2d 883 (2000), lv gtd 465 Mich 885 (2001). Proposal A was one of two separate financing plans that the Legislature developed to reform school financing and to restore funding for schools that was lost with the passage of 1993 PA 145, which eliminated all school operating property taxes effective December 31, 1993. House Legislative Analysis, Senate Joint Resolution S (Second Analysis), March 1, 1994, p 2. At the heart of the school financing problem is the local property tax. Michigan is by most accounts a high property tax state, regularly raising more revenue from that source than from sales and income taxes combined. It is a highly visible, unpopular tax, that is often described as inconsistently administered from community to community. . . . The Citizens Research Council said in a recent report that, in 1990, ‘Michigan property taxes were 31 percent higher than the national average.’ [Id.] See also Fino, supra at 180 (noting that when Proposal A was presented to the electorate in March 1994, “there [was] a general feeling that Michigan property taxes [were] too high”). Thus, Proposal A aimed to curb property tax assessments by placing a cap on how quickly assessments could increase. House Legislative Analysis, Senate Joint Resolution S (Second Analysis), March 1, 1994, p 4. Under the plan, an assessment would not increase from one year to the next by more than five percent or the rate of inflation, whichever was less. Id. Once property is transferred, Proposal A provided that it would be reassessed on the basis of market value. Id. After Proposal A, Michigan’s property tax burden fell from one of the highest in the nation to below the national average. Chris Christoff: Engler’s Michigan: Gamble on Proposal A Pays Off for Governor, The Detroit Free Press, January 15, 2002. Thus, an understanding of the circumstances leading to the passage of Proposal A demonstrates that in March 1994 the electorate was dissatisfied with Michigan’s high property tax and therefore sought to prevent its rapid expansion. Further, none of the parties disputes that the amendment of Const 1963, art 9, § 3 was intended to curb the growth of property tax assessments. Thus, our task is to construe Const 1963, art 9, § 3 in a manner that forwards the purpose of the constitutional amendment. Civil Service Comm, supra at 681-682. After reviewing the language of Const 1963, art 9, § 3 as amended by Proposal A against the backdrop of its purpose and the circumstances leading to its adoption, we disagree with plaintiffs’ contention that the electorate intended that the ratio of taxable values to true cash values remain uniform with the average ratio for all property in the taxing district. Plaintiffs are correct in their assertion that Const 1963, art 9, § 3 provides that “[t]he legislature shall provide for the determination of true cash value at which such property shall be uniformly assessed.” (Emphasis supplied.) However, we believe that plaintiffs’ argument overlooks the remaining language of Const 1963, art 9, § 3, which provides: For taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each parcel of property adjusted for additions and losses, shall not increase each year by more than the increase in the preceding year in the general price level, as defined in section 33 of this article, or 5 percent, whichever is less until ownership of the parcel of property is transferred. When ownership of the parcel of property is transferred as defined by law, the parcel shall be assessed at the applicable proportion of current true cash value. [Emphasis supplied.] In our view, plaintiffs’ argument fails to account for the electorate’s understanding, as provided by the above language, that property assessments remain capped until a parcel of property is transferred. To accept plaintiffs’ argument would require us to ignore the clear import of the above constitutional language, which reveals that the ratio of taxable value to true cash value of an individual parcel of property may be disparate from the average ratio for the taxing district, depending on whether the owner sells or retains the property. Specifically, Const 1963, art 9, § 3 expressly provides that when a parcel of property is transferred, “the parcel shall be assessed at the applicable proportion of current true cash value." (Emphasis supplied.) Accepting plaintiffs’ argument, which runs contrary to the language of the constitutional provision, would violate one of the primary tenets of constitutional interpretation, “that requires that a [constitutional] provision be interpreted to give reasonable effect to all, not just some, of its parts.” House Speaker, supra at 579. Moreover, if we were to accept plaintiffs’ argument, the practical result would be that the electorate’s amendment of Const 1963, art 9, § 3, providing for a cap on property assessments, would in essence be nullified. “[WJherever possible, an interpretation that does not create constitutional invalidity is preferred to one that does.” Council of Organizations & Others For Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997). In sum, we reject plaintiffs’ assertion that the electorate, in adopting Proposal A in March 1994, understood its action to mean that the ratio of taxable value to true cash value of an individual parcel of real property remain uniform with that of the average in the taxing district. We must give the constitutional amendment its “ ‘plain meaning as understood by its ratifiers at the time of its adoption.’ ” Michigan United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 373; 630 NW2d 297 (2001) (Young, J., concurring) (emphasis in original), quoting Bulger, supra at 507. We conclude that the inteipretation advanced by defendants in these consolidated cases, that the ratio of taxable value to true cash value need not be uniform with the average of all property in the taxing district, is the meaning “ ‘which reasonable minds, the great mass of the people themselves, would give [Const 1963, art 9, § 3].’” Bolt, supra at 160, quoting Traverse City, supra at 405 (emphasis omitted). Thus, we decline plaintiffs’ invitation to graft onto the plain language of Const 1963, art 9, § 3 a meaning that was not clearly intended by its ratifiers in March 1994. See MUCC, supra at 374-375. Further, we disagree with plaintiffs’ contention that the words “assessment” and “taxable value” in the constitution are synonymous because they both refer to the value on which taxes are generally based. Plaintiffs point to other provisions of the state consti tution, arguing that the provisions support plaintiffs’ theory that the word “assess” in the constitution means the value on which property tax is based, and that assessments and taxable value are synonymous, and therefore uniform taxable values are required. According to plaintiffs, it would render an “absurd result” for the Court to hold that “assessment” means one thing in the constitution as a whole, that being the value on which taxes are based, and another in the Uniformity of Taxation Clause. Other than plaintiffs’ repeated insinuations to the contrary, there is simply nothing in the plain language of Const 1963, art 9, § 3 that indicates that taxable value and assessment are one and the same to the extent that plaintiffs are entitled to uniform ratios of taxable value to true cash value. Although plaintiffs point to other provisions of the constitution that recite the terms “assess” and “assessment,” we do not believe that these citations support plaintiffs’ theory that “taxable value” and “assessment” are synonymous. As the esteemed Justice Cooley acknowledged in his seminal work on constitutional interpretation, a constitutional provision should be interpreted by reference to the instrument as a whole, “with a view to arriving at the true intention of each part.” 1 Cooley, Constitutional Limitations (8th ed), p 127 (emphasis omitted). However, although it can be presumed that the same word is used to convey the same meaning in different parts of the constitution, id. at 135, Justice Cooley, quoting Story, Commentaries on the Constitution of the United States, § 454 (1833), has cautioned against the “arbitrary” use of this rule: “It does not follow, either logically or grammatically, that because a word is found in one connection in the Constitution with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mischievous criticism. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the Constitution a word used in some sense which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it seemed too large for their puiposes, and extending it when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions.” In the absence of clear language in Const 1963, art 9, § 3 suggesting that taxable value and assessment are one and the same, it appears that plaintiffs are engaging in the type of constitutional misinterpreta tion against which Justice Cooley cautioned. In our opinion, if the drafters of the amendment of Const 1963, art 9, § 3 had intended to provide for uniformity in the ratio of taxable value to true cash value, they could have so stated. Likewise, there is nothing in the language of Const 1963, art 9, § 3 that would indicate that the electorate’s common understanding of this provision is that an individual parcel of property’s ratio of taxable value to true cash value is to remain uniform with that of all other property in the taxing district. Rather, the circumstances surrounding the adoption of this amendment would suggest otherwise, since it was the electorate’s intent to cap increases in property assessments. Justice Young’s comments in MUCC, supra at 374-375, are instructive in this regard: Th[e] rule of [common understanding] acknowledges the possibility that a provision of the constitution may rationally bear multiple meanings, but the rule is concerned with ascertaining and giving effect only to the construction, consistent with the language, that the ratifiers intended. Thus, our task is not to impose on the constitutional text. . . the meaning we as judges would prefer, or even the meaning the people of Michigan today would prefer, but to search for contextual clues about what meaning the people who ratified the text in [1994] gave to it. Finally, to the extent that plaintiffs contend that the Legislature acted improperly in amending provisions of the GPTA in response to the electorate’s passage of Proposal A, we conclude that this argument is simply without merit. Specifically, plaintiffs maintain that the Legislature sought to eliminate plaintiffs’ purported rights under General Motors, supra, by providing that taxes now be spread against “taxable value.” In support of their argument, plaintiffs cite our Supreme Court’s observation in Westinghausen v People, 44 Mich 265, 270; 6 NW 641 (1880): It is hardly necessary to say that subsequent legislation could not change the meaning or effect of any part of the Constitution; that instrument can only be changed by the combined action of the Legislature and the people. If the Legislature could, by merely calling things by particular names, alter constitutional provisions, it would be quite unnecessary to consult the people on the subject of amendments. However, plaintiffs fail to note that Const 1963, art 9, § 3 clearly provides that “[f]or taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each parcel of property . . . shall not increase each year by more than the increase in the immediately preceding year in the general price level ... or 5 percent, whichever is less . . . .” (Emphasis added.) Thus, the plain language of Const 1963, art 9, § 3 provides the Legislature with the authority to provide for the definition of taxable value. Further, “[t]he power to levy taxes for governmental needs is in the legislature subject only to limitations and regulations found in the Constitution.” Shivel v Kent Co Treasurer, 295 Mich 10, 15; 294 NW 78 (1940). Likewise, the judiciary is not to concern itself with the policy of state taxation adopted by our Legislature. C F Smith Co v Fitzgerald, 270 Mich 659, 670; 259 NW 352 (1935). By the mandate of the Constitution . . ., it is made the duty of the legislature to provide a uniform rule of taxation, and an essential element of that uniform rule is, that all assessments of property shall be at its cash value. The power to impose taxes is vested exclusively in the legislative department of government and cannot be exercised except in pursuance of its authority. The legislative department has, subject to the limitations of the Constitution, a broad and uncontrollable discretion over the general subject of taxation,—the raising of revenue for the support of the government. The power of the legislature of this State is as omnipotent as that of the parliament of England, save only as it is restrained by the Constitution of the United States and the Constitution of this State. Within constitutional limits, the legislature has full control over the subject of taxation. [Hudson Motor Car Co v Detroit, 282 Mich 69, 79; 275 NW 770 (1937) (citations omitted).] Rather than attempting to divest property owners of their constitutional rights, it is clear that the Legislature amended the gpta in 1994 in an attempt to legislatively facilitate the assessment cap the electorate accepted in passing Proposal A. See House Legislative Analysis, HB 5945 (Second Analysis), January 9, 1995, p 1. Because taxes were levied on a property’s SEV before the passage of Proposal A, MCL 211.24b, the Legislature amended the legislation to provide for a new vehicle by which to assess property taxes, that being taxable value. Because the Legislature did not act outside its constitutional limits in prescribing the method of taxation, we decline plaintiffs’ implied invitation to speculate regarding the Legislature’s motives. “[S]o long as the legislation is . . . confined to the enactment of what is in its nature strictly a tax law, and so long as none of the constitutional rights of the citizen are violated in the directions prescribed for enforcing the tax, the legislation is of supreme authority.” Cooley, The Law of Taxation (1st ed) (1876), p 35. Affirmed in all cases. Cooper, J., concurred. Plaintiffs are commercial property owners in the city of Troy, Canton Township, the city of Oak Park, Southfield Township, and the city of Southfield. Although plaintiffs list seven separate issues in their statement of questions presented, six of the delineated issues concern the core issue on appeal, whether Const 1963, art 9, § 3 requires that the proportion of taxable value to true cash value be uniform among all property in a taxing district. In Meadowbrook Village Associates v Auburn Hills, 226 Mich App 594; 574 NW2d 924 (1997), the petitioner advanced the identical issue raised in the present appeals. This Court declined to rule on the merit of the petitioner’s argument in Meadowbrook, concluding that the Tax Tribunal lacked jurisdiction to decide this constitutional issue. Id. at 597. However, the Meadowbrook Court, in dicta, observed that [the] petitioner seeks a ruling that the terms “taxable value,” “assessment,” and “assessed” in Const 1963, art 9, § 3 have the same meaning. This interpretation would invalidate the statutes that implement the constitutional provision because they provide for taxation based on taxable value, not assessed value. See [MCL 211.27a, 211.24b.] The trial court denied plaintiffs’ motion for summary disposition and granted judgment in favor of defendant pursuant to MCR 2.116(I)(2) in an order and opinion entered December 13, 1999. In Docket No. 232132, the parties submitted the matter to the trial court on stipulated facts and briefs. The trial court found “no cause of action on Plaintiffs’ Complaint and enter[ed] Judgment for Defendant.” Although the court did not indicate under what subsection of MCR 2.116 it was granting judgment in favor of defendant, it appears that it found plaintiffs’ complaint deficient as a matter of law. Thus, both plaintiffs and defendant in Docket No. 232132 agree that it would be appropriate to review the trial court’s decision pursuant to MCR 2.116(C)(8). In Docket No. 224813, the trial court observed that it reviewed plaintiffs’ summary disposition motion pursuant to MCR 2.116(C)(10). Const 1850, art 14, § 11 provided: The legislature shall provide a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, That the legislature shall provide a[ ] uniform rule of taxation for such property as shall be assessed by a state board of assessors, and the rate of taxation on such property shall be the rate which the state board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for state, county, township, school and municipal purposes. Const 1850, art 14, § 12 provided: All assessments hereafter authorized shall be on property at its cash value. Const 1908, art 10, § 3 provided: The legislature shall provide by law a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, That the legislature shall provide by law a uniform rule of taxation for such property as shall be assessed by a state board of assessors, and the rate of taxation on such property shall be the rate which the state board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for state, county, township, school and municipal purposes. Const 1908, art 10, § 7 specified that “[a]ll assessments hereafter authorized shall be on property at its cash value.” The italicized portions represent the amendments enacted by Proposal A, effective April 30, 1994. Before the passage of Proposal A, Const 1963, art 9, § 3 provided: The legislature shall provide for the uniform general ad valorem taxation of real and tangible property not exempt by law. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments. The legislature may provide for alternative means of taxation of designated real and tangible personal property in lieu of general ad valorem taxation. Every tax other than the general ad valorem property tax shall be uniform upon the class or classes on which it operates. MCL 211.27a has subsequently been amended by 1996 PA 476 and 2000 PA 260. Plaintiffs also point to this Court’s decision in Hoerner-Waldorf Corp v Ontonagon, 26 Mich App 542, 545; 182 NW2d 759 (1971), where this Court cited General Motors, supra, and stated, “Hoemer-Waldorf is entitled to relief only if its property was assessed at a ratio of trae cash value greater than the ‘average level of assessment’ of all property, real and personal, in the taxing district.” Plaintiffs also cite NeBoShone Ass’n, Inc v State Tax Comm, 58 Mich App 324, 342-344; 227 NW2d 358 (1975), where a panel of this Court, after considering the language of Const 1963, art 9, § 3 before its amendment in 1994, followed General Motors, supra, and Hoemer-Waldorf, supra, concluding that the plaintiff was entitled to relief if its property assessment of assessed value to true cash value exceeded the average in the taxing district. See also Shaughnesy v Tax Tribunal, 420 Mich 246, 249; 362 NW2d 219 (1984) (noting in dicta that where a taxpayer protests a property valuation before the local board of review, he may only obtain relief from a tenta tive valuation before equalization if “he can show that his property has been assessed at a different proportion of true cash value than the rest of the property within the same class in the taxing district”); Brittany Park, supra at 88 (“The Supreme Court has recognized a taxpayer’s right to complain that his assessment was not made in uniformity with other assessments. If the claim is based on lack of uniformity, the taxpayer must show that the ratio of assessed value to fair market value of his property is greater than the ratio of average assessed value to the average fair market value in the taxing district.”) (Citations omitted.); Great Lakes, supra at 427 (“The taxpayer may obtain relief only when it is shown that the property was assessed at a different proportion of true cash value than the rest of the property within the same class in the taxing district.”). However, the courts in these cases did not address the precise issue plaintiffs raise in the instant cases. However, in NeBoShone, supra at 342, the Court, considering Const 1963, art 9, § 3, ruled that the stc was required to proceed under the mandate set forth by General Motors, supra. The other was a statutory plan to take effect if the electorate rejected Proposal A. Plaintiffs also cite myriad cases in their appellate briefs, arguing that the cases support their argument that “assessment” and “taxable value” are identical for the purposes of interpreting Const 1963, art 9, § 3. We have reviewed plaintiffs’ pinpoint citations to these cases, none of which stands for plaintiffs’ stated proposition. Plaintiffs also cite Owendale-Gagetoum School Dist v State Bd of Ed, 413 Mich 1; 317 NW2d 529 (1982), for the proposition that taxable value and assessment are one and the same. In Owendale, the Supreme Court reviewed the statutory language of § 461 of the School Code of 1955, and concluded that a transfer of property from one school district to another needed to be approved by the school tax electors when the transfer amount was greater than ten percent of the “latest available taxable valuation of the district.” Owendale, supra at 10. Although the Court referred to the term “taxable valuation” in portions of its ruling, id. at 5, 6, which was gleaned from the language of the pertinent statute, there is nothing in Owendale that supports plaintiffs’ proposition that the words “taxable value” and “assessment” as used in Const 1963, art 9, § 3 are identical. To the extent that plaintiffs direct our attention to the ballot language that was presented to the voters in March 1994, we believe that reliance on this material is inappropriate in discerning the electorate’s common understanding, where its intent may be gleaned from the language of the constitution itself. Our Supreme Court has recently cautioned lower courts that reference to extrinsic material is of dubious and limited value when the plain language of the constitution expresses the electorate’s intent. American Axle, supra at 362. Given our disposition of plaintiffs’ initial issue in these appeals, we need not address the issue concerning the circuit court’s jurisdiction regarding tax refunds.	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Ryan, J. In these consolidated cases, the Court is asked to interpret and adjudge the constitutionality of 1978 PA 392. Plaintiffs are domestic and foreign corporations seeking refunds of corporate franchise fee deficiencies paid by them for various tax years preceding 1975, under former 1921 PA 85, commonly referred to as the franchise fee act. Act 392 is a legislative attempt to validate retroactively the Treasury Department’s consistent refusal to grant the requested refunds. The Court of Appeals panels in each of these consolidated cases held that Act 392 has denied plaintiffs equal protection of the law. I The controversy in these cases emanates from this Court’s decisions in Borden, Inc v Dep’t of Treasury, 391 Mich 495; 218 NW2d 667 (1974), and Clark Equipment Co v Dep’t of Treasury, 394 Mich 396; 230 NW2d 548 (1975). In Borden, an equally divided Court affirmed the decision of the Court of Appeals, holding that once the Department of Treasury computed a corporation’s franchise fee upon the basis of the corporation’s annual report, it exhausted its authority under the franchise fee act. The Court specifically held that the department had no authority either to conduct field audits of a corporation’s books or to recompute a corporation’s franchise fee if the department subsequently obtained, from whatever source, information about the corporation’s affairs that it regarded as more accurate. The Court rested its holding upon the historical fact that, as originally enacted, the franchise fee was merely a licensing measure rather than a revenue-raising tax. When the fee was subsequently transformed into a major source of revenue, the statutory procedures for collecting it nevertheless remained unchanged. The Court declined to permit the Department of Treasury to augment these existing procedures without legislative authorization. Although Borden was decided by an equally divided Court, Justice Levin’s opinion for affirmance in Borden was subsequently expressly adopted by a majority of the Court in Clark Equipment, supra, p 399. The legislative response to the Borden and Clark decisions was the passage of 1975 PA 13, amending §§9 and 10 of the franchise fee act. MCL 450.309-450.310; MSA 21.210-21.210(1). These amendments, in pertinent part, authorized the division to audit corporations subject to the franchise fee and provided a four-year limitations period within which deficiencies could be assessed. However, in International Business Machines Corp v Dep’t of Treasury, 75 Mich App 604; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977), the Court held that 1975 PA 13 would be given prospective effect only, finding no indication in the act of any legislative intent to make the act retroactive. Therefore, for those tax years preceding the passage of 1975 PA 13, the rule of Borden and Clark Equipment remained controlling. Acquiescing in these decisions only in part, the division cancelled or rescinded those deficiencies which remained unpaid, but refused to grant refunds to those corporate taxpayers who had paid their assessments and later sought repayment. Relying upon Borden and Clark Equipment, two Court of Appeals panels subsequently affirmed judgments awarding corporate litigants refunds of deficiencies paid by them following unauthorized audits and recomputations. St Clair-Macomb Consumers Cooperative, Inc v Dep’t of Treasury, 78 Mich App 287; 259 NW2d 462 (1977), lv den 402 Mich 869 (1978); Giffels Associates, Inc v Dep’t of Treasury, 81 Mich App 730; 265 NW2d 809 (1978), lv den 403 Mich 808 (1978). Faced with a potential loss to the state treasury of up to $35 million in taxpayer refund actions, the Treasury Department again sought remedial legislation. The Legislature responded with the passage of 1978 PA 392, the subject of these appeals. II In various tax years preceding 1975, plaintiffs were issued deficiency assessments following unauthorized audits and recomputations. Plaintiffs were among those corporate taxpayers who first paid their deficiencies and subsequently filed refund requests with the Franchise Fee Division. The division denied the requests, prompting plaintiffs to file suit. Plaintiffs in Armco Steel first filed suit either in the Michigan Tax Tribunal or the Michigan Court of Claims, or both. Later, however, they filed the instant action in the Ingham Circuit Court seeking a declaratory judgment concerning the interpretation and constitutionality of 1978 PA 392. The circuit court held that 1978 PA 392 constituted a denial of equal protection as to those plaintiffs who timely requested refunds for tax years prior to 1975. The Court of Appeals affirmed. 111 Mich App 426; 315 NW2d 158 (1981). We granted leave to appeal. 417 Mich 886 (1983). Plaintiffs in Great Scott filed an action for refund in the Michigan Tax Tribunal. Although the tribunal declined to order a refund, the Court of Appeals reversed, also holding that 1978 PA 392 unconstitutionally denied plaintiffs equal protection of the law. 113 Mich App 679; 318 NW2d 537 (1982). Again, we granted leave to appeal. 417 Mich 887 (1983). Ill The circumstances prompting the institution of these suits is not disputed. The division admits that following the decision in IBM, holding that 1975 PA 13 would be given prospective effect only, it refused to rescind deficiency assessments which remained unpaid, but carried out a considered policy to refuse refunds to corporate taxpayers who had requested them. Moreover, it appears that even after the enactment of 1978 PA 392, the division continued its disparate treatment of these two groups of taxpayers. In at least one instance of which we have been made aware, plaintiff Upjohn Company filed a written request with the division for a refund in 1974, even before Clark Equipment was decided. However, no response was received from the division until 1978, after Act 392 had passed, when Upjohn’s request for a refund was denied on the basis of the new act. By contrast, in an order of redetermination issued to another corporate taxpayer, not a party to this litigation, deficiencies which had been assessed for the tax year 1974 and which remained unpaid were rescinded on the basis of the Borden and Clark Equipment decisions, notwithstanding the fact that this redetermination was made two months after the date of the letter to Upjohn Company, and four months following the effective date of Act 392. Again, these facts are not disputed by the division. It contends instead that a lawful tax need not be refunded simply because its levy and collection were irregular; that plaintiffs have paid only what was legally owed by them under the franchise fee act; and that since the Legislature was empowered to validate retroactively anything which it initially had the power to authorize, the passage of Act 392 terminated plaintiffs’ rights to refunds. The division argues that plaintiffs were simply "caught” through the division’s use of unauthorized audits, and were asked to pay only what was legally required of all corporate taxpayers under the franchise fee act. They should not now be heard to complain. We think these arguments fail to address adequately plaintiffs’ challenge to the constitutionality of Act 392. Plaintiffs have alleged that the act, as applied to them, violates the Equal Protection Clause of the United States Constitution, and the Equal Protection and Uniformity of Taxation Clauses of the Michigan Constitution. US Const, Am XIV; Const 1963, art 1, § 2, and art 9, § 3. This Court has held that the rights provided under the Michigan Constitution are coextensive with those provided under the United States Constitution. Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967); Wolodzko v Wayne Circuit Judge, 382 Mich 528, 534; 170 NW2d 9 (1969). In Allied Stores of Ohio v Bowers, 358 US 522, 527; 79 S Ct 437; 3 L Ed 2d 480 (1959), the United States Supreme Court stated: "[TJhere is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule has often been stated to be that the classification 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’ ” These principles are equally applicable to cases involving taxing statutes. In Beauty Built Construction Corp v City of Warren, 375 Mich 229; 134 NW2d 214 (1965), the City of Warren imposed a special water tax fee upon all new homes in response to the unexpected growth that was burdening the city’s water and sewage system. Existing buildings were exempt from the tax. This classification in the city’s ordinance between existing buildings and new homes was held to violate the Equal Protection Clauses of both the United States and Michigan Constitutions: "This Court has repeatedly held that classification of objects to which a municipal ordinance may be made applicable must be based on natural distinguishing characteristics and must bear a reasonable relation to the object of the ordinance. * * * "Where an ordinance fails to include and affect alike all persons of the same class, and extends immunities or privileges to one part and denies them to others of like kind by unreasonable or arbitrary classification, the same is contrary to the equal protection guarantees of the State and Federal Constitutions.” Beauty Built Construction Co, supra, pp 235-236. (Emphasis in original.) Similarly, under the Uniformity of Taxation Clause of the Michigan Constitution, the controlling principle is one of equal treatment of similarly situated taxpayers. Avis Rent-A-Car System, Inc v City of Romulus, 65 Mich App 119, 128-129; 237 NW2d 209 (1975), aff'd 400 Mich 337; 254 NW2d 555 (1977). As a practical matter, in cases involving taxing statutes, there is no discernible difference between the Equal Protection and Uniformity of Taxation Clauses. Some rational basis for a disputed classification must be shown to exist. The division has failed to suggest any persuasive rational basis justifying its disparate treatment of those corporate taxpayers who paid their deficiency assessments following unauthorized audits and recomputations, and those who did not. Its reasoning that plaintiffs have no basis for complaint because they have paid only what was legally due under the franchise fee act is flawed in two respects. First, it is inappropriate to compare plaintiffs to corporate taxpayers who may have correctly determined their own franchise fee liability in the first instance. It was the Legislature who provided for a self-assessment scheme under the franchise fee act. The relevant class to be considered in analyzing plaintiffs’ equal protection challenge is that group of corporate taxpayers who were unlawfully assessed deficiencies following unauthorized audits and recomputations. Second, the deficiency assessments which plaintiffs paid were no more legally due under the law than those deficiency assessments which were rescinded by the division pursuant to Borden and Clark, supra. Therefore, even if it is true that plaintiffs have paid only that which was legally due, it is a non sequitur to then conclude that plaintiffs have not been denied equal protection of the law. In Sioux City Bridge Co v Dakota County, Nebraska, 260 US 441; 43 S Ct 190; 67 L Ed 340 (1923), the United States Supreme Court addressed a situation wherein plaintiff claimed that, while its property had been assessed at 100% of its true value in conformity with the relevant state tax statute, other real property in the county had been assessed at only 55% of its value. The Nebraska Supreme Court had held that plaintiff’s only remedy was to have the property of others which was assessed below its true value raised, rather than to have its own property, assessed at its true value, reduced. The United States Supreme Court reversed: "The dilemma presented by a case where one or a few of a class of taxpayers are assessed at 100 per cent of the value of their property, in accord with a constitutional or statutory requirement, and the rest of the class are intentionally assessed at a much lower percentage, in violation of the law, has been often dealt with by the courts, and there has been a conflict of view as to what should be done. There is no doubt, however, of the view taken of such cases by the Federal courts in the. enforcement of the uniformity clauses of state statutes and constitutions, and of the equal protection clause of the 14th Amendment. * * * The conclusion in these and other Federal authorities is that such a result as that reached by the supreme court of Nebraska is to deny the injured taxpayer any remedy at all, because it is utterly impossible for him, by any judicial proceeding, to secure an increase in the assessment of the great mass of under assessed property in the taxing district. This court holds that the right of the taxpayer whose property alone is taxed at 100 per cent of its true value is to have his assessment reduced to the percentage of that value at which others are taxed, even though this is a departure from the requirement of statute. The conclusion is based on the principle that where it is impossible to secure both the standards of true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law. In substance and effect, the decision of the Nebraska supreme court in this case upholds the violation of the 14th Amendment to the injury of the Bridge Company. We must, therefore, reverse its judgment.” Sioux City, 260 US 446-447. (Emphasis added.) Although Sioux City is factually dissimilar to the instant cases, the broader proposition for which it stands is clearly apposite. When faced, as in this case, with a choice between securing that which is due under the law and upholding the constitutional requirements of uniformity and equality, the latter is to be preferred "as the just and ultimate purpose of the law”. Under the franchise fee act, corporate taxpayers were provided with two procedural remedies by which they could challenge the division’s determination of their franchise fee liability. Under § 9 of the act, MCL 450.309; MSA 21.210, a corporate taxpayer could petition the division for a redeter-mination of its liability, and withhold payment of the fee pending the division’s decision. Under § 10, MCL 450.310; MSA 21.210(1), corporations were permitted to follow the procedures used by plaintiffs in these cases. Following payment of their fees as determined by the division, corporations were given three years within which to file a written petition for a refund. Under this legislative scheme, it is apparent that corporate taxpayers choosing either procedural remedy were to be treated equally. Nevertheless, taxpayers who refused to pay their deficiency assessments before obtaining a redetermination as provided in § 9, or still worse, taxpayers who refused to pay without pursuing even this statutory remedy, have consistently been excused from payment by the division, while those corporate taxpayers who chose the alternative remedy provided by the Legislature in § 10 have been just as consistently denied the refunds they have requested in their petitions to the division. Each of these taxpayers, however, was subject to the division’s power, or lack thereof, under the franchise fee act. The only distinction existing between them is that one group paid their deficiencies while the other group did not. This is not a natural distinguishing characteristic which bears a reasonable relationship to the object of the classification. Beauty Built Construction Corp, supra, p 235. The distinction has become important only because of the division’s disparate treatment of these two groups. Although not determinative of our decision in this matter, case law in other jurisdictions has held it unconstitutional to benefit or prefer those who do not pay their taxes promptly over those who do. That, of course, is the precise effect of the fashion in which Act 392 has been applied to the plaintiffs in these cases. While it is undisputed, therefore, that the Legislature can validate retroactively anything that it could have originally authorized, it is not empowered to validate the division’s persistent discrimination between two groups of taxpayers who are in reality but one class. The judgment of the Court of Appeals in each of these consolidated cases is affirmed. Williams, C.J., and Kavanagh, Levin, Brick-ley, and Boyle, JJ., concurred with Ryan, J. MCL 450.321; MSA 21.213(1): "All audits performed by or at the direction of the department of treasury for the purpose of determining liability for a corporate franchise fee levied pursuant to former Act No. 85 of the Public Acts of 1921, and all payments received and refunds made on the basis of those audits before the repeal of former Act No. 85 of the Public Acts of 1921 are declared to be valid and to have been in fulfillment of the legislative purpose to provide for fair administration and enforcement of that act.” MCL 450.301 et seq.; MSA 21.201 et seq. This act was called the fees, taxes and charges act. It was repealed effective May 14, 1977 by 1975 PA 230, contemporaneously with the enactment of the Single Business Tax Act, 1975 PA 228, MCL 208.1 et seq.; MSA 7.558(1) et seq. It was provided in 1975 PA 230, however, that the act would extend beyond its repeal date to the extent necessary for enforcement and collection of franchise fees due prior to its repeal. As originally enacted, the franchise fee act specified the minimum ($50) and maximum ($10,000) fees that could be imposed. In 1951, however, amendments to the act increased the rate at which the fee would be computed and eliminated the maximum amount of the fee that could be assessed, converting the act into a major revenue-raising measure. Notwithstanding this transformation, the Legislature did not add to or alter the collection powers of the Corporation and Securities Commission, which was then responsible for administration of the act. Notably absent was the statutory authorization to utilize audits in determining the correct fees and a limitations period beyond which deficiencies could not be assessed. Then, by the Executive Organization Act of 1965, 1965 PA 380, § 90, MCL 16.190; MSA 3.29(90), responsibility for the administration of the franchise fee act was transferred from the commission to the Department of Treasury. Thereafter, armed with the Treasury Department’s facilities for investigation and collection of taxes, the Franchise Fee Division began auditing corporations subject to its tax and recomputing their fees in 1966. Although the state treasury faced a loss of up to $35 million at the time Act 392 was passed, the statute of limitations would now bar many refund actions that were originally included within this estimate. Therefore, refund actions pending currently involve less than $2.5 million. Plaintiffs also sought and were granted a writ of superintending control holding in abeyance the cases previously filed in the Tax Tribunal and Court of Claims. The order granting the writ was the subject of an earlier interlocutory appeal by the division. That dispute has not been pursued in this appeal. Snow’s Mobile Homes, Inc v Morgan, 80 Wash 2d 283, 287; 494 P2d 216 (1972); Perk v City of Euclid, 17 Ohio St 2d 4, 7; 244 NE2d 475 (1969); State ex rel Tharel v Bd of County Comm’rs of Creek County, 188 Okla 184, 192; 107 P2d 542 (1940); Richey v Wells, 123 Fla 284, 290; 166 So 817 (1936); Simpson v Warren, 106 Fla 688, 691; 143 So 602 (1932), reh den 106 Fla 691; 144 So 324 (1932); State ex rel Matteson v Luecke, 194 Minn 246, 251; 260 NW 206 (1935).	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Per Curiam. Plaintiff Deedra Duranceau appeals as of right the order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant Alpena Power Company in this gender discrimination action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq., and the Equal Pay Act, 29 USC 206(d)(1). We affirm. Defendant hired plaintiff into the general labor/meter reader classification in 1990. She started at $7.50 an hour and received regular increases until she reached the $10.50 maximum for her classification. When defendant and the union could not agree on a new contract in 1992, defendant instituted the terms of its last best offer and union members worked without a contract. Defendant’s last best offer contained the basic structure of its 1989 collective bargaining agreement insofar as it maintained the maximum wage for the general labor/meter reader classifications while providing increases for other classifications. The effect of these terms was to freeze the wages of the three female union members, all of whom were in the general labor/meter reader classification, while granting increases for the remaining classifications, which were populated by male union members. However, nonunion female employees also received pay increases during this period. In 1993, plaintiff, together with two other female employees who were employed as meter readers at the time the 1989 collective bargaining agreement was ratified, and the union filed suit against defendant, alleging sex discrimination in violation of the Civil Rights Act and Equal Pay Act. The trial court granted summary disposition of the discrimination claims. In an earlier appeal, this Court reversed the trial court’s order awarding summary disposition to defendant and dismissing with prejudice plaintiff’s claims. See Donajkowski v Alpena Power Co, 219 Mich App 441; 556 NW2d 876 (1996), aff’d on other grounds 460 Mich 243; 596 NW2d 574 (1999). This Court concluded that the trial court erred in granting summary disposition of the then plaintiffs’ discrimination claim because the plaintiffs established a prima facie case of discrimination under the disparate treatment theory and the disparate impact theory. Thus, this Court reversed the grant of summary disposition and remanded for further proceedings consistent with the opinion. On remand, defendant conducted additional discovery and again moved for summary disposition. Following a hearing on defendant’s motion, the trial court granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). A prima facie case of discrimination under the Civil Rights Act can be made by proving either disparate treatment or disparate impact. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). Disparate treatment requires a showing of either intentional discrimination against protected employees or against an individual plaintiff. Disparate impact requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. Lytle v Malady (On Rehearing), 458 Mich 153, 177, n 26; 579 NW2d 906 (1998). Plaintiff alleged that defendant’s act of freezing the wages of the one job classification in which all the female union employees were employed resulted in discrimination toward female employees. To avoid summary disposition under the disparate treatment theory, the plaintiff must present sufficient evidence to permit a reasonable juror to find that for the same or similar conduct the plaintiff was treated differently from a similarly situated male employee. Id. at 181-182. Gender must be proved to be a determining factor in the allegedly discriminatory decision. Town v Michigan Bell Telephone Co, 455 Mich 688, 706; 568 NW2d 64 (1997). Here, plaintiff primarily relies on two comments allegedly made by defendant’s president to establish a motive to discriminate on the basis of gender. However, one comment occurred three to four years before the pay scale modification and four to five years before plaintiff accepted employment with defendant. The statement was too vague and remote in time to raise a triable issue of fact. Phelps v Yale Security, Inc, 986 F2d 1020, 1026 (CA 6, 1993). The second comment, made five months after plaintiff was hired, recognized that those employees in the general labor classification were all women at the time the statement was made. Plaintiff asserts that this comment supports the allegation that defendant moved the male employees out of the meter reader positions before implementing the pay freeze for a combined general labor/meter reader classification so that only females would be affected by the pay freeze. However, plaintiff was the only female of seven employees hired in the general labor classification after the implementation of the wage freeze. Hence, similarly situated male employees were subject to the same pay scale as was plaintiff. Plaintiff failed to raise a triable issue of fact that gender was a determining factor in defendant’s decision to freeze the pay scale of the general labor/meter reader classification. Betty v Brooks & Perkins, 446 Mich 270, 281; 521 NW2d 518 (1994). To avoid summary disposition under the disparate impact theory, plaintiff had to show that female employees were burdened on account of their gender by some facially neutral practice. Roberson v Occupational Health Centers of America, Inc, 220 Mich App 322, 329-330; 559 NW2d 86 (1996). Here, the pay scale modifications challenged by plaintiff applied equally to employees in the classification, regardless of gender. Plaintiff’s allegation that defendant intentionally eliminated male employees from the general labor classification in order to reduce the compensation paid to female employees is not supported by plaintiff’s own testimony that six of the seven employees hired into the classification following the implementation of the wage freeze were male. Plaintiff failed to show that a facially neutral policy, that is, the pay range modification, resulted in similarly situ ated male employees being paid a higher wage than female employees. Plaintiff also contends that summary disposition of her equal pay claim was inappropriate. To avoid summary disposition of the equal pay claim, plaintiff needed to show that defendant paid lower wages to her than to male employees for equal work on jobs. However, plaintiff admitted that no comparable male employee hired into her job classification was paid more than she was. Hence, she failed to meet her burden of proving that a male worker was paid more for performing substantially similar work. Corning Glass Works v Brennan, 417 US 188; 94 S Ct 2223; 41 L Ed 2d 1 (1974). Affirmed. The two other female employees are no longer part of this lawsuit. They both stipulated an order dismissing their claims with prejudice. Plaintiff argued on remand that the law of the case doctrine precluded the trial court from considering defendant’s motion for summary disposition. On appeal, plaintiff does not specifically make this argument. Nonetheless, we note that additional discovery was taken that unveiled new facts and that the case that this Court previously relied on in its decision was reversed by the Supreme Court. See Lytle v Malady (On Rehearing), 458 Mich 153; 579 NW2d 906 (1998). Under these circumstances, the law of the case doctrine did not prevent the trial court from entertaining defendant’s motion for summary disposition.	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Per Curiam. Defendant appeals by leave granted from the trial court’s order denying its motion for summary disposition of plaintiff’s claim under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq. We affirm. Defendant employed plaintiff from 1983 until plaintiff was discharged on September 21, 1998. From 1995 until his termination, plaintiff was the managing director of defendant’s Showcase West Theater in Flint. In October or November 1996, plaintiff began a sexual relationship with Coleen Heathcoat, who was also employed by defendant. After the relationship ended in January 1997, Heathcoat began to make threatening telephone calls to plaintiff at his home, prompting plaintiff to change his telephone number. Heathcoat also complained to plaintiff’s supervisor, Brad Wick, who told plaintiff that he would have to work with Heathcoat in a businesslike manner and advised plaintiff not to let the personal relationship affect his work. In the fall of 1997, plaintiff and Heathcoat resumed their sexual relationship, which lasted until July 1998. In August 1998, Heathcoat again made threatening telephone calls to plaintiffs home. At the time, plaintiff had a live-in girlfriend, Linda Ptacek, who was unaware of plaintiff’s sexual relationship with Heathcoat. On August 27, 1998, plaintiff contacted the police, who recommended that plaintiff request a personal protection order (ppo). Plaintiff then requested a ppo to try to stop Heathcoat from calling his home and threatening his girlfriend. Plaintiff admitted that the ppo pertained to Heathcoat’s harassment at his home and did not have anything to do with her conduct at work. On August 31, 1998, Wick met with plaintiff again and offered to arrange a transfer for plaintiff. During this period, Ptacek contacted a senior vice president at defendant’s corporate office and reported that plaintiff was being subjected to a hostile work environment because of Heathcoat’s conduct and that plaintiff had applied for a ppo. At that point, Cindy Montgomery, an employee from defendant’s headquarters, told plaintiff to go home until she was able to arrive in Michigan to investigate. Plaintiff was assured that he would be paid, but was asked not to have any contact with the theater. On September 4, 1998, plaintiff went to Heathcoat’s home to ask her why she was harassing him. During a meeting with Montgomery, plaintiff admitted that he had gone to Heathcoat’s home. Although plaintiff did stay away from the theater as requested, Montgomery apparently believed that plaintiff’s contact with Heathcoat violated her instruction. At a meeting on September 21, 1998, Montgomery informed plaintiff that he was terminated. Montgomery admitted that among the factors she considered in recommending plaintiff’s termination were the second incident of threatening telephone calls by Heathcoat and plaintiff’s relationship with Heathcoat. In October 1998, plaintiff filed a complaint alleging several claims, including that defendant violated the wpa by discharging him in part because he sought a ppo against Heathcoat. Defendant moved for summary disposition of plaintiff’s claims. Regarding the wpa claim, defendant argued that plaintiff was not engaged in a protected activity under the wpa because the necessity for a ppo arose out of a personal affair between plaintiff and the co-worker and that plaintiff neither could show any direct connection between the ppo and defendant’s business nor could claim that his need for a ppo was based on any desire to inform the public on a matter of public concern. The court granted summary disposition for the defendant with respect to plaintiff’s claims of breach of contract and sexual discrimination; however, the court denied summary disposition with respect to plaintiff’s claims under the wpa and of discharge in violation of public policy. Plaintiff subsequently agreed to dismiss the latter claim. Defendant sought and was granted leave to appeal the trial court’s denial of its motion for summary disposition regarding plaintiff’s wpa claim. This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). Because the trial court looked beyond the pleadings in deciding defendant’s motion, we review the motion under MCR 2.116(C)(10). A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court considers the pleadings, affidavits, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR 2.116(G)(5). Summary disposition may be granted if, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). In order to establish a claim of an unlawful discharge under the WPA, plaintiff was required to show that (1) he was engaged in protected activity as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between the protected activity and the discharge. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998). A person is engaged in “protected activity” under the WPA where the person (1) reports a violation or suspected violation of a law or regulation to a public body, (2) is about to report such a violation to a public body, or (3) is asked by a public body to participate in an investigation. Id.) MCL 15.362. The principal issue in this case is whether plaintiff was involved in a protected activity, as that concept is delineated in the WPA, that was causally connected with his discharge from his employment. There is no question that plaintiff reported a violation or sus pected violation of the law to a public body when he sought the ppo against his co-worker. Moreover, our Supreme Court has held that the wpa protects reports made against a co-worker, not just an employer. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 74-75; 503 NW2d 645 (1993). However, defendant maintains that the finding that plaintiff engaged in protected activity by requesting a PPO regarding a matter that was not related to defendant’s business is not consistent with the intent behind the WPA. The wpa was enacted to encourage employees to assist in law enforcement and to protect employees who participate in whistleblowing activities. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378; 563 NW2d 23 (1997). The underlying purpose of the act was to protect the public and to promote public health and safety by removing barriers that may interfere with employee efforts to report violations or suspected violations of the law. Id. at 378-379. A plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act. As interpreted, the act provides protection to employees who report violations of law by either their employers or fellow employees. . . . Frequently, a close connection exists between the reported violation and the employment setting, although no such limitation is found in the statute. [Id. at 381 (citations omitted).] In Dolan, the plaintiff alleged that she was fired for reporting to the Drug Enforcement Agency the names of two airline passengers who fit a suspect profile after the defendant adopted a policy against employees directly contacting the dea without prior manage ment approval. The Supreme Court found that the reported violation was sufficiently related to the plaintiffs employment setting to be protected under the wpa, commenting: “This is not to say that only those violations that are connected to the employment setting are contemplated under the WPA, only that the reported violation in the present case was sufficiently connected to the employment setting to be contemplated under the majority opinion in Dudewicz.” Dolan, supra at 382. In Dudewicz, supra at 70-71, the plaintiff was assaulted by a co-worker while on the job as the result of the plaintiffs having involved one of the owners of the business in a customer service dispute. The plaintiff filed criminal charges against the coworker and was told to drop the charges or he would be fired. The Supreme Court concluded that the activity at issue, reporting a co-worker’s violation of the Criminal Code resulting from a dispute over the handling of company business, fell within the WPA. Id. at 75-76. The Court stated: Admittedly, a strictly liberal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances. ... However, this is not the case and these are not the facts to test the outer limits of this rather broad statute. In concluding that it was intended to bar a discharge of an employee for reporting a crime by a fellow employee under the circumstances of this case does not begin to test those limits. In saying that, we note that not only was this a crime alleged to have been committed by a fellow employee, but the alleged crime arose out of a work incident at the work site. It is, therefore, very much within the employer-employee setting. [Dudewicz, supra at 77-78.] While the appellate courts of this state have opined that there are “outer limits” to a claim under the wpa, neither this Court nor the Supreme Court has defined those outer limits, leaving the issue to be decided case by case. See Terzano v Wayne Co, 216 Mich App 522, 528-529, 532; 549 NW2d 606 (1996). Although this case presents a close question, we conclude that summary disposition was properly denied. It is apparent that the plain language of the WPA does not limit protected activity to that which has a close connection to the work environment or to the employer’s business practices. MCL 15.362; Dolan, supra at 381. Moreover, remedial statutes, such as the WPA, should be “liberally construed in favor of the persons intended to be benefited.” Dudewicz, supra at 77. Therefore, we decline to interpret the wpa so as to create a limitation that is not apparent in the unambiguous language of the statute. Further, the submitted evidence established some connection, albeit a tenuous one, between plaintiff’s request for a ppo and defendant’s employment setting. Plaintiff showed that once he obtained the PPO, it became more difficult for him to work with Heathcoat. Further, there was evidence that, in firing plaintiff, defendant took into account the ongoing problems between plaintiff and his co-worker and how it was affecting defendant’s operations. Even if we were to conclude that the wpa only protects activity that is related to the conduct of the employer’s business, we would find that the evidence in this case meets that test. Defendant argues that plaintiff obtained the PPO for purely personal reasons, not out of concern for the public and, therefore, was not engaged in a protected activity, citing Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 621; 566 NW2d 571 (1997). However, the facts of Shallal are clearly distinguishable from the present case. In Shallal, the plaintiff told her agency’s president that she would report his alleged wrongdoing “if [he didn’t] straighten up.” Id. at 614. Our Supreme Court found that the threat was sufficient evidence that the plaintiff was “about to report” a violation or suspected violation of the law. Id. at 621. However, the Court concluded that the plaintiff failed to establish a causal connection between her actions and her firing because she used the threat of a report to prevent her termination. Id. at 622. [I]t is clear that plaintiff used her own situation to extort defendant not to fire her. . . . Furthermore, it is clear that the decision to fire plaintiff was made before her threat to [the agency president] and that plaintiff knew of this decision .... Plaintiff cannot use the whistleblowers’ act as a shield against being fired where she knew she was going to be fired before threatening to report her supervisor. To hold otherwise “would encourage other employees to hold off blowing the whistle until it becomes most advantageous for them to do so. Plaintiff has offered no evidence which suggests that the Michigan Legislature intended the Whistleblowers Act to be used as an offensive weapon by disgruntled employees.” [Id. at 622 (citations omitted).] Although plaintiff’s decision in this case to obtain a PPO may have been motivated by personal reasons, plaintiff did not use his protected activity to extort his employer, as did the plaintiff in Shallal. Further, although plaintiff’s primary purpose may have been to protect himself and his girlfriend from harassment, reasonable jurors could conclude that plaintiff was acting in the public’s interest, in addition to his own. Assuming the truth of plaintiffs assertions, Heath-coat’s threatening telephone calls could constitute aggravated stalking, a felony and a serious public safety issue. See MCL 750.41 li. Moreover, in this case there is evidence of a causal connection between plaintiff’s protected activity and his termination, namely, Montgomery’s admission that plaintiff was discharged because of circumstances surrounding Heathcoat’s harassment. Accordingly, we believe that the evidence, viewed most favorably to plaintiff, was sufficient to create a genuine issue of fact regarding whether plaintiff engaged in a protected activity for purposes of the wpa. Therefore, the trial court did not err in denying defendant’s motion for summary disposition. Affirmed. Plaintiff also alleged that (1) defendant terminated him in violation of public policy, (2) his discharge was in breach of a contract with defendant under which he could not be terminated without good cause, (3) defendant discharged him because of his gender in violation of MCL 37.2202, and (4) defendant slandered him. Plaintiff later stipulated the dismissal of his slander claim.	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On Remand Cavanagh, J. In this case, on remand from the United States Supreme Court, we are asked to determine whether the search by the police of the trunk of the vehicle defendant was operating immediately prior to his arrest was permissible. Michigan v Long, — US —; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). I. Procedural History This case needs little introduction. The trial court denied defendant’s motions to suppress evidence of marijuana seized from both the passenger compartment and the trunk of a vehicle defendant was operating immediately prior to his arrest. Thereafter, defendant was convicted by a jury of possession of marijuana. MCL 335.341(4)(d); MSA 18.1070(41)(4)(d). He was sentenced to two years probation, assessed a fine of $750, and ordered to pay court costs of $300. The Court of Appeals affirmed his conviction, finding: (1) that the marijuana seized from the passenger compartment of the vehicle was properly admitted under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and (2) that the marijuana seized from the trunk of the vehicle was properly admitted as the product of an inventory search under South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). People v Long, 94 Mich App 338; 288 NW2d 629 (1979). In reversing defendant’s conviction, we addressed at length only the former issue. Although citing both US Const, Am IV, and Const 1963, art 1, § 11, we merely found that the "warrantless search of the interior of the vehicle * * * violated the constitutional proscription against unreasonable searches and seizures”. People v Long, 413 Mich 461, 471; 320 NW2d 866 (1982). That conclusion was based on our interpretation of Terry, supra, and other federal cases, i.e., "Terry authorized only a limited pat-down search of a person suspected of criminal activity. That case did not authorize the search of an area”. 413 Mich 472 (emphasis in original). As to the search of the trunk, we stated that it "occurred subsequent to the deputies’ decisions to arrest the defendant for possession of marijuana and to impound the car. The defendant’s arrest was based on evidence obtained by unlawful police action. We find that the evidence of marijuana found in the trunk was the 'fruit’ of that illegality which should have been suppressed. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).” 413 Mich 473. Subsequently, the United States Supreme Court granted the prosecution’s petition for a writ of certiorari, Michigan v Long, 459 US 904; 103 S Ct 205; 74 L Ed 2d 164 (1982), and reversed the decision of this Court, finding: (1) that our decision did not rest on an adequate and independent state ground, i.e., Const 1963, art 1, § 11; Michigan v Long, — US —; 103 S Ct 3469; 77 L Ed 2d 1201, 1212-1216 (1983), and (2) that the search of the passenger compartment of the vehicle did not violate the federal constitution. 77 L Ed 2d 1217-1222. Nevertheless, the Supreme Court found a remand to this Court necessary "to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court”. Michigan v Long, supra, 77 L Ed 2d 1222-1223. On August 24, 1983, pursuant to the Supreme Court’s mandate, this Court issued the following order: "The Court having received the mandate of the Supreme Court of the United States, the Court’s order of June 14, 1982, is vacated. The parties are directed to file supplemental briefs in 24 typewritten copies on the question whether the search of the automobile trunk was permissible under South Dakota v Opperman, 428 US 364 (1976), or the Michigan Constitution. Defendant-appellant’s supplemental brief and appendix, if necessary, are to be filed and served not later than October 3, 1983, and plaintiff-appellee’s brief shall be filed and served not later than November 7, 1983.” 417 Mich 1145 (1983). II. Facts Although the facts underlying this case have been summarized by our Court of Appeals, this Court, and the United States Supreme Court, we find our previous rendition to be both accurate and succinct: "Shortly after midnight on August 25, 1977 while Deputies Howell and Lewis of the Barry County Sheriff’s Department were on routine road patrol, they observed a car traveling past them in the opposite direction at an excessive speed. They turned their vehicle around and pursued the speeding vehicle. They saw the vehicle make a left turn, proceed down a side road, then swerve. The vehicle came to a stop with the front of the car in a shallow ditch and the back of the car on the roadway. "As the deputies approached, the defendant, the only occupant of the car, got out of the car, leaving the driver’s side door open, and met the deputies at the rear of the car. Deputy Howell asked the defendant to produce his driver’s license. The defendant made no response. The deputy repeated his request, and the defendant produced his license. When asked for his vehicle registration and proof of insurance, the defendant again made no response. When the request was repeated, the defendant began walking toward the open door. At this juncture, Deputy Howell had formed the opinion that the defendant 'appeared to be under the influence of something’. "The deputies followed the defendant. As they approached the open door, the deputies saw a closed folding Browning knife on the floorboard of the driver’s side. The defendant was told to halt and put his hands on the roof of the car. He did. One deputy picked up the knife while the other deputy conducted a pat-down search of the defendant, which produced no weapons. "Deputy Howell then shined his flashlight into the front seat of defendant’s car to search for other weapons and saw 'something leather’ under the armrest. He knelt in the vehicle, lifted the armrest and observed an open leather pouch containing a small plastic bag of what appeared to be marijuana. According to the testimony of the deputies at trial, Mr. Long was standing by the rear of the car under the control of Deputy Lewis during Deputy Howell’s search. "Deputy Howell removed the pouch and showed it to Deputy Lewis. The defendant was arrested for possession of marijuana. The interior of the car was searched for additional contraband, and the glove compartment was searched for the registration certificate. Neither was found. "The deputies decided to impound the car. Deputy Howell asked the defendant if he had a trunk key. The defendant stated that he had no key. The deputy, noticing that the trunk lock had been punched out, used his pocket knife and reached in and unlatched the latch. Deputy Howell testified as to why he opened the trunk as follows: " 'Number one, because I already found marijuana, suspected marijuana, in the interior of the car, there may have been more in the trunk. Secondly, I check them for valuables. I do.’ "Upon opening the trunk the deputy found two paper bags, which were split open, containing approximately 75 pounds of marijuana. "The defendant was handcuffed, placed in the police car and taken to the sheriff’s department along with the towed car. We also note, as did the Court of Appeals, 94 Mich App 343, that evidence introduced at trial tended to show that defendant did not own the vehicle in question. Obviously, from such evidence, defendant wanted the jury to draw the inference that he did not know that the vehicle contained contraband. III. Analysis The first question for our consideration is whether the search of the vehicle’s trunk was a valid inventory search under US Const, Am IV. We hold that it was not because the police department had no established or standard procedures for conducting inventory searches. In this regard, we adopt in pertinent part the concurring opinion of the late Justice Moody written when this case first appeared here: "[A] different question is presented regarding the marijuana discovered in the trunk of the car. The prosecution limits its argument to the effect that the marijuana discovered in the trunk of the car was validly seized pursuant to a proper inventory search following defendant’s arrest and a deputy’s decision to impound the subject vehicle.2 Relying upon South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), the prosecution contends that '[warrantless inventory searches of impounded cars are a proper caretaking function of the police’. "Yet Opperman and the instant case involve clearly distinguishable fact situations. Accordingly, the reasoning set forth in Opperman does not apply. Therefore, the search of the trunk in the instant case was unreasonable and violated the Fourth Amendment to the United States Constitution. "In Opperman, defendant’s illegally parked car was towed to a city impound lot where a police officer observed a watch on the car’s dashboard and other items of personal property located in the passenger area of the car. These items were visible from outside the car. A police officer inventoried the contents of the automobile using a standard inventory form pursuant to standard procedures of the local police department. Marijuana was found in the unlocked glove compartment. * * * The locked trunk of the vehicle was not searched.3 "The plurality opinion in Opperman concluded that an inventory search without a warrant was not 'unreasonable’ and did not violate the United States Constitution. That opinion emphasized that * * * this was a routine administrative caretaking function performed pursuant to standard department procedures at the impound lot. "The concurring opinion of Justice Powell emphasized that 'the search here was limited to an inventory of the unoccupied automobile and was conducted strictly in accord with the regulations of the Vermillion [South Dakota] Police Department’. 428 US 380. Justice Powell agreed that the constitution permits routine inventory searches. As he observed, '[inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized.’ 428 US 383. 'Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.’ 428 US 380. * * * Furthermore, and '[m]ore importantly, no significant discretion is placed in the hands of the individual officer’. 428 US 384. "In comparing the facts in Opperman and those in the instant case, significant differences emerge. * * * "[The m]ost important [distinction is that] no standard departmental policy was followed, and no inventory form was introduced [in the instant case]. Although the officer testified as to his personal 'standard’ procedure, this procedure does not meet the requirements of reasonableness as suggested in Opperman. A standard departmental practice gives some assurance that the particular vehicle or part of the vehicle was not singled out for a search based upon an improper motive.9 Without a departmental policy, too much discretion is placed in the hands of a police officer. His decision to search may be an arbitrary one. "Whether the Opperman rationale or a more restrictive interpretation of the Michigan Constitution is to be adopted by this Court is left for future determination. Nevertheless, as one commentator concluded after reviewing Opperman: " 'What is needed in the vehicle inventory context, then, * * * is not probable cause but rather a regular ized set of procedures which adequately guard [sic] against arbitrariness.’ " 'Inventories should not be upheld under Opperman unless the government shows that there exists an established reasonable procedure for safeguarding impounded vehicles and their contents and that the challenged police activity was essentially in conformance with that procedure. This means that a purported inventory should be held unlawful when it is not shown, "for [instance], that standard inventory forms were completed and kept for future reference (showing presence or absence of valuables), nor that a place of safekeeping for valuables so secured was maintained.” ’ 2 LaFave, Search and Seizure, § 7.4, pp 576-577, quoting State v Jewell, 338 So 2d 633, 639 (La, 1976). "Accordingly, the procedures followed in this case fail even to measure up to Opperman’s requirements. For the reasons expressed by Justice Moody, the marijuana seized from the trunk was not admissible as evidence at defendant’s trial. Further, given the general jury verdict of guilt, we cannot say that the error in admitting that evidence was harmless beyond a reasonable doubt. Indeed, the general verdict makes it impossible to determine whether the jury found defendant guilty of possession of marijuana on the basis of the marijuana found in the passenger compartment or of that found in the trunk. Consequently, defendant must be afforded a new trial. IV. Conclusion Whenever a motor vehicle has been lawfully impounded, the Fourth Amendment permits the police, absent a warrant, to conduct an inventory search pursuant to standard procedures, so long as the police department has established or standard procedures for conducting inventory searches. The judgment of the Court of Appeals is reversed, defendant’s sentence is vacated, and this case is remanded to the Barry Circuit Court. Upon retrial, evidence of the marijuana seized from the trunk of the vehicle in question shall not be admitted as substantive evidence of guilt. Williams, C.J., and Levin and Brickley, JJ., concurred with Cavanagh, J. Ryan and Boyle, JJ., concurred in the judgment. "[W]hen, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision. "Our review of the decision below under this framework leaves us unconvinced that it rests upon an independent state ground. Apart from its two citations to the state constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Not a single state case was cited to support the state court’s holding that the search of the passenger compartment was unconstitutional. Indeed, the court declared that the search in this case was unconstitu tional because '[tjhe Court of Appeals erroneously applied the principles of Terry v Ohio * * * to the search of the interior of the vehicle in this case.’ 413 Mich 471; 320 NW2d 869. The references to the state constitution in no way indicate that the decision below rested on grounds in any way independent from the state court’s interpretation of federal law. Even if we accept that the Michigan constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears in this case that the Michigan Supreme Court rested its decision primarily on federal law.” 77 L Ed 2d 1214-1216. "Although Terry did involve the protective frisk of a person, we believe that the police action in this case is justified by the principles that we have already established in Terry and other cases. "Contrary to Long’s view, Terry need not be read as restricting the preventative search to the person of the detained suspect. "Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop, although the 'bright line’ that we drew in [New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981)] clearly authorizes such a search whenever officers effect a custodial arrest. An additional interest exists in the arrest context, i.e., preservation of evidence, and this justifies an 'automatic’ search. However, that additional interest does not exist in the Terry context. A Terry search, 'unlike á search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime * * . The sole justification of the search * * is the protection of police officers and others nearby * * *.’ 392 US 29. What we borrow now from Chimel v California, 395 US 752 [89 S Ct 2034; 23 L Ed 2d 685] (1969) and Belton is merely the recognition that part of the reason to allow area searches incident to an arrest is that the arrestee, who may not himself be armed, may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity. This recognition applies as well in the Terry context. However, because the interest in collecting and preserving evidence is not present in the Terry context, we require that officers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry." Michigan v Long, supra, 77 L Ed 2d 1217-1221: See Terry, 392 US 21. '[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Id., p 27. If a suspect is 'dangerous,’ he is no less dangerous simply because he is not arrested. If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Coolidge v New Hampshire, 403 US 443, 465 [91 S Ct 2022; 29 L Ed 2d 564] (1971); Michigan v Tyler, 436 US 499, 509 [98 S Ct 1942; 56 L Ed 2d 486] (1978); Texas v Brown, 460 US 730, 744 [103 S Ct 1535; 75 L Ed 2d 502] (1983) (plurality opinion by Rehnquist, J., and opinion concurring in the judgment by Powell, J.). "The circumstances of this case clearly justified Deputies Howell and Lewis in their reasonable belief that Long posed a danger if he were permitted to reenter his vehicle. "In this case, the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long’s immediate grasp before permitting him to reenter his automobile. Therefore, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous. "IV "The trial court and the court of appeals upheld the search of the trunk as a valid inventory search under this Court’s decision in South Dakota v Opperman, 428 US 364 (1976). The Michigan Supreme Court did not address this holding, and instead suppressed the marijuana taken from the trunk as a fruit of the illegal search of the interior of the automobile. Our holding that the initial search was justified under Terry makes it necessary to determine whether the trunk search was permissible under the Fourth Amendment. However, we decline to address this question because it was not passed upon by the Michigan Supreme Court, whose decision we review in this case. See Cardinale v Louisiana, 394 US 437, 438 [89 S Ct 1162; 22 L Ed 2d 398] (1969). We remand this issue to the court below, to enable it to determine whether the trunk search was permissible under Opper- man, supra, or other decisions of this Court. See, e.g., United States v Ross, 456 US 798 [102 S Ct 2157; 72 L Ed 2d 572] (1982). Long suggests that the trunk search is invalid under state law. See Tr of Oral Arg, pp 41, 43-44. The Michigan Supreme Court is, of course, free to determine the validity of that search under state law. "V "The decision of the Michigan Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. "It is so ordered.” Michigan v Long, supra, 77 L Ed 2d 1222-1223. In addition to briefing the issue directed by this Court’s order of August 24, 1983, defendant also challenges the propriety of the search of the passenger compartment as violative of Const 1963, art 1, § 11. However, besides being outside the scope of this Court’s order, that issue is untimely. Indeed, defendant did not raise any state constitutional claims until he was before the United States Supreme Court and his reason for doing so now is meritless: "The Supreme Court remanded the case for proceedings consistent with its opinion. It would be consistent with the United States Supreme Court’s opinion to hold as a matter of state constitutional law that the searches of Long and the interior of the car he was driving were illegal.” "1 Browning is a brand of knife. This knife had a four-inch blade. The defendant was not charged with carrying a concealed weapon in violation of MCL 750.227; MSA 28.424.” 413 Mich 468-470. Since we conclude that the inventory search was improper under federal constitutional law because of the lack of established or standardized procedures, we need not address defendant’s state constitutional challenge. Furthermore, we need not determine at this time the permissible scope of a routine inventory search, or whether the intent of the officer conducting the inventory is a relevant consideration in determining the reasonableness of the search. "4 US Const, Am IV provides: " 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ "A number of courts have interpreted the search and seizure provisions of state constitutions in a more restrictive manner and have refused to permit various inventory searches. E.g., State v Opperman, 247 NW2d 673 (SD, 1976), and State v Sawyer, 174 Mont 512; 571 P2d 1131 (1977) (inventory search restricted to safeguarding articles in plain view), Miller v State, 403 So 2d 1307 (Fla, 1981) (advice must be given to owner or possessor, if present, that vehicle will be impounded unless such person provides a reasonable alternative). The United States Supreme Court’s remand order directed that we determine whether the search of the trunk was permissible even in the absence of a valid inventory search. Other possible justifications for the search are that it was conducted as part of a search incident to arrest or pursuant to the "automobile exception” to the warrant requirement. The prosecution, however, neither relied upon nor developed any argument that the search of the trunk was a valid search incident to an arrest. Rather, the prosecution merely mentioned the idea in a solitary footnote. See Long, supra, 413 Mich 481, fn 2 (Moody, J., concurring). Further, the prosecution abandoned that claim before the United States Supreme Court and it does not present any argument based on that theory now. Thus, we view that claim as waived. In addition, the prosecution never mentioned the automobile exception to justify the search of the trunk. Thus, although that claim was presented to the United States Supreme Court and is advanced here now, we view it too as waived. "2 Plaintiff, in a brief footnote, concludes that the search of the trunk may have arguably been a search incident to defendant’s arrest. We decline to rule on that question as the argument is not relied upon or developed in this case. Nor does the plaintiff rely upon the 'automobile exception’ to the warrant requirement in order to justify the search of the trunk. Cf. United States v Ross, [456] US [798]; 102 S Ct 2157; [72] L Ed 2d [572] (1982) (search of closed container in automobile). Furthermore, Ross and the 'automobile exception’ do not address inventory searches. Id., p 809, fn 11. "3 In the instant case the unlocked trunk was searched. In Opperman, the unlocked glove box was searched, but not the locked trunk. The fact that a trunk was searched in the instant case does not by itself suggest an unreasonable search. It could be argued that it is more reasonable to inventory an unlocked trunk than a locked trunk. "9 As to motive, the Court of Appeals opinion states: " 'Deputy Howell testified that his inspection of the vehicle’s trunk was motivated by a belief that discovery of the plastic bag of marijuana inside the car suggested the possibility of additional marijuana in the trunk, and because it was his policy to check for valuables to protect himself against subsequent claims by the vehicle’s owner.’ People v Long, 94 Mich App 338, 348; 288 NW2d 629 (1979).” 413 Mich 481-486 (Moody, J., concurring).	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Per Curiam. Petitioner, Florida Leasco, LLC, appeals as of right from the Tax Tribunal’s order dismissing its petition for lack of jurisdiction. The Tax Tribunal dismissed petitioner’s appeal as untimely because it was sent by certified mail within, but received one day after, the thirty-five-day deadline set by MCL 205.22(1). We reverse. This appeal presents an issue of statutory construction, which we review de novo. In re MCI Telecommunications Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). The only statutory provision providing any guidance with regard to what constitutes a “filing” is MCL 205.735, which, in pertinent part, provided as follows at the time that petitioner filed its appeal in this case: (2) The jurisdiction of the tribunal in an assessment dispute is invoked by a party .. . filing a written petition on or before June 30 of the tax year involved. Except in the residential property and small claims division, a written petition is considered filed by June 30 of the tax year involved if it is sent by certified mail on or before June 30 of that tax year. In the residential property and small claims division, a written petition is considered filed by June 30 of the tax year involved if it is postmarked by first-class mail or delivered in person on or before June 30 of the tax year involved. All petitions required to be filed or served by a day during which the offices of the tribunal are not open for business shall be filed by the next business day. In all other matters, the jurisdiction of the tribunal is invoked by a party in interest, as petitioner, filing a written petition within 30 days after the final decision, ruling, determination, or order that the petitioner seeks to review. This statutory section is ambiguous. The first three sentences, which speak of “an assessment dispute” and “the residential property and small claims division,” suggest that its terms are limited to property tax disputes, which are not at issue here. The fourth and fifth sentences, which speak of “all petitions” and “all other matters,” suggest that its application is more general, including the sales and use tax appeal at issue here. In any event, the second and third sentences of this section provide the only statutory indication available regarding when a “filing” occurs, i.e., in certain cases, when it is “sent by certified mail” or, in other cases, when it is “postmarked by first-class mail or delivered.” The specific question presented is whether the Legislature intended, through this ambiguously drafted section, that a filing would be effective, in any case, upon a certified mailing (the more stringent of the mailing options), rather than only upon an actual delivery. In amending the statute to allow these “filing by mailing” alternatives, the Legislature specifically stated that its intent was to “codif[y] the petition filing provisions of Rule 201 ... of the Michigan tax tribunal.” 1985 PA 95, § 2. Rule 201, as in effect in 1985, provided in relevant part that “[a] petition shall be considered filed when mailed by certified mail ... or when delivered in person,” for all matters, not just property tax matters. 1979 AC, R 205.1201. Appellee concedes that the 1985 amendments of the statute were enacted in response to General Motors Corp v Detroit, 141 Mich App 630, 634; 368 NW2d 739 (1985), where our Court concluded that, in the absence of a statutory definition otherwise, “filing” occurs upon delivery rather than upon mailing. Because the statute is ambiguous, we may consider this enacted statement of legislative intent and this legislative history in its interpretation. Joe Panian Chevrolet, Inc v Young, 239 Mich App 227, 234; 608 NW2d 89 (2000). We conclude that, in contrast to the decision in General Motors, supra, and consistent with the referenced Rule 201, the Legislature intended that filing would be effective, in any event, upon either a certified mailing or actual delivery of a petition to the Tribunal. Because appellant sent its petition by certified mail within the thirty-five-day deadline applicable here, the Tax Tribunal had jurisdiction over the appeal. We reverse the order of the Tax Tribunal dismissing appellant’s petition. The statute has since been amended by 2000 PA 165, effective June 20, 2000. We decide this appeal without reference to that amendment or appellant’s argument that it indicated the legislative intent behind the prior incarnation of the statute effective here. In light of this conclusion, we need not consider whether the Tax Tribunal was equitably estopped from asserting that appellant’s petition was not timely filed.	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Levin, J. The principal question presented is whether the distributorship agreement between Lorenz and American Standard is a "contract for the sale of goods” within the meaning of § 2-201 of the Uniform Commercial Code. We hold that it is not and affirm the decision of the Court of Appeals affirming the judgment entered by the circuit court on the jury’s verdict in favor of Lorenz._ I Lorenz pleaded and the jury found that Lorenz entered into a distributorship agreement with American Standard. The only written evidence of this agreement was a letter from American Standard to Lorenz that "welcome[d]” Lorenz "to the numbers of American Standard distributors across the country.” Section 2-201 does not require that the terms of a contract for the sale of goods, other than the quantity term, be expressed in writing. The requirements of § 2-201 are satisfied if the writing indicates that "a contract of sale has been made between the parties” and "specifies] a quantity”. 2 Anderson, Uniform Commercial Code (3d ed), § 2-201:97, p 61. The concurring opinion recognizes that the quantity term of a distributorship agreement is generally uncertain, and to require that it be stated with certainty would put most distributorship agreements out of compliance with §2-201 and, hence, if a distributorship agreement is a "contract for the sale of goods”, make them unenforceable. The concurring opinion seeks to avoid this dilemma by inferring a quantity term. The quantity term must, however, under § 2-201, be specifically stated. A requirements or output term of a contract, although general in language, nonetheless is, if stated in the writing, specific as to quantity, and in compliance with § 2-201. However, not all distributorship agreements are requirements or output contracts. The jury was not asked to decide whether the instant distributorship agreement contained a requirements or output term, and this Court would exceed its role if it were to imply a provision akin to a requirements term. Under the construction advanced in the concurring opinion, American Standard could maintain an action against Lorenz for failure to purchase its requirements whether the parties agreed thereto or not. Because many distributorship agreements are not requirements or output contracts and in such cases the quantity term is generally uncertain, we conclude that the drafters of the Uniform Commercial Code did not intend that all distributorship agreements be regarded as "contracts] for the sale of goods”. II A writing that satisfies § 2-201 does not prove the terms of a contract; such a writing merely removes the statutory bar to the enforcement of the contract whether its terms — other than the quantity term which alone must be specified in writing — be written, oral, or partly written and partly oral. In the instant case, the letter from American Standard to Lorenz welcoming him as a distributor indicates that a contract was made between the parties. If one concludes, as would the author of the concurring opinion, that the letter satisfies the requirements of §2-201, then the terms of the instant agreement, whatever those terms might be, are enforceable. Because the terms of a contract for the sale of goods, other than the quantity term, need not be stated in writing, the declaration in the concurring opinion that § 2-201 applies to distributorship agreements does not bear on the disputed terms of the instant distributorship agreement. HI Turning to another issue, American Standard was not prejudiced by the jury’s apparent misunderstanding of the judge’s instruction that it must bring in a verdict of at least $65,100 on American Standard’s counterclaim; the parties have consented to a judgment on the counterclaim in excess of that amount. The jury’s $45,000 verdict on Lorenz’s claim against American Standard for breach of the agreement for the sale of inventory is not inconsistent as a matter of law with its finding that American Standard breached the distributorship agreement. It is generally a question of fact whether a breach by a buyer, Lorenz, is so far material as to justify the seller, American Stan dard, in terminating their contract. American Standard did not ask for a jury finding on this issue and thereby waived such a finding. This Court would exceed its role if it were to decide as a matter of law that Lorenz’s failure to pay a portion of the amount admittedly owed by Lorenz to American Standard was a material breach justifying American Standard in terminating the distributorship agreement that the jury found was entered into. IV We all agree that the other assignments of error were adequately dealt with in the opinion of the Court of Appeals. Affirmed. Williams, C.J., and Kavanagh, Ryan, Cav-anagh, and Boyle, JJ., concurred with Levin, J. Plaintiff Lorenz Supply Company and defendant American Standard, Inc., entered into an agreement whereunder Lorenz agreed to purchase $420,000 worth of plumbing inventory from American Standard. The jury found that, at the same time, the parties agreed that Lorenz was to become a distributor of American Standard products in the Detroit area. The terms of the inventory sale agreement, but not the distributorship agreement, were set forth in writing. Subsequently, a dispute arose concerning the performance of the inventory sale agreement. Lorenz withheld payments totaling $65,100 for goods received because it believed that it was owed over $70,000 for alleged errors pertaining to the inventory sale. American Standard then refused to supply additional products under the distributorship agreement unless Lorenz paid cash in advance. Lorenz filed the instant action claiming breach of both the written inventory sale agreement and the oral distributorship agreement. The complaint sought $2,000,000 in damages. American Standard counterclaimed for approximately $72,000 for products delivered under the inventory sale agreement. The jury awarded Lorenz $45,000 on the inventory claim and $255,000 on the distributorship claim. Although the circuit judge directed the jury to find for American Standard on its counterclaim in an amount between $65,100 and $72,106.08, the jury found no cause of action on the counterclaim. After the judge ordered a new trial on the counterclaim issue only, the parties stipulated that American Standard would recover $69,873.40 on the counterclaim. The Court of Appeals affirmed. 100 Mich App 600; 300 NW2d 335 (1980). This Court granted leave to appeal. 412 Mich 864 (1981). MCL 440.2201; MSA 19.2201. The Official Comment to § 2-201 provides, in part: "The required writing need not contain all the material terms of the contract and such material terms as are stated need not be precisely stated. All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction. * * * The only term which must appear is the quantity term which need not be accurately stated but recovery is limited to the amount stated. The price, time and place of payment or delivery, the general quality of the goods, or any particular warranties may all be omitted.” (Emphasis added.) It appears that most, if not all, commentators agree with Anderson’s observation that § 2-201 requires that a writing must specify a quantity. See, e.g., Calamari & Perillo, The Law of Contracts, § 313, p 486; White & Summers, Uniform Commercial Code (2d ed), § 2-4, pp 59-60; 3 Duesenberg & King, Uniform Commercial Code Service (Bender), § 2.04[2][a], p 2-59. See fn 4 and Doral Hosiery Corp v Sav-A-Stop, Inc, 377 F Supp 387, 389 (ED Pa, 1974), stating that the written inclusion of a quantity term is "mandatory” under the UCC. See Cox Caulking & Insulating Co v Brockett Distributing Co, 150 Ga App 424, 426; 258 SE2d 51 (1979); 3 Duesenberg & King, Uniform Commercial Code Service (Bender), § 2.04[2][a], p 2-59; 2 Anderson, Uniform Commercial Code (3d ed), §§ 2-201:lÍ3, 2-201:114, p 70. Other courts have refused to hold that a distributorship agreement contains an implied term that the seller will supply the buyer with its requirements. See, e.g, Eastern Dental Corp v Isaac Masel Co, Inc, 502 F Supp 1354, 1364 (ED Pa, 1980); Cavalier Mobile Homes, Inc v Liberty Homes, Inc, 53 Md App 379, 395; 454 A2d 367 (1983). We express no opinion on the question whether a distributorship agreement may fall within the broader category of “transactions in goods” within the meaning of § 2-102 of the UCC, MCL 440.2102; MSA 19.2102. See Farnsworth, Contracts, § 8.16, p 612; 3A Corbin, Contracts, § 700, p 309. Even if Lorenz’s failure to pay $20,100 constituted a breach, it was for the jury to determine the materiality of the breach. It is not for this Court to decide as a matter of law whether Lorenz’s failure to pay $20,100 of the $65,100 admittedly owed to American Standard justified, under the circumstances, American Standard in terminating the distributorship agreement.	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Brickley, J. This case presents the question whether a person receiving work-loss benefits under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., may continue to receive those benefits despite having suffered an unrelated heart attack which independently renders the person unable to work. The Court of Appeals held that statutory entitlement to work-loss benefits continued in such a situation. 108 Mich App 705; 310 NW2d 848 (1981). We reverse. The parties have stipulated to the following facts: "This is an action brought by plaintiff Donald A. MacDonald seeking first party benefits under the Michigan no-fault insurance act from his insurer, State Farm Mutual Insurance Company. "Plaintiff, a 56-year-old self-employed carpenter, while in the course of driving his vehicle, insured through State Farm Policy No. 4650-286-821-228, was involved in a single-car accident in Kalkaska County, Michigan. The date of the occurrence was November 10, 1976. "From the accident plaintiff received injuries to his neck and shoulders from which he was disabled from gainful employment as defined under the Michigan no-fault insurance act for a period of 28 months. "Plaintiff, during the pendency of his disability resulting from the automobile accident, was subsequently disabled as a result of the unrelated myocardial infarction which occurred November 25, 1976; that disability continues as of this point in time. "Either occurrence acting independently of the other would give plaintiff a work-loss disability. "The plaintiff claims he is entitled to work-loss benefits pursuant to § 3107(b) for the period of disability causally related to the automobile accident. "The defendant claims plaintiff is only entitled to work-loss benefits pursuant to § 3107(b) from the date of the automobile accident to the date of the subsequent disability, in this case being approximately 15 days.” Resolution of this case is dependent on the meaning of two sections of the no-fault act, § 3107(b) and § 3107a. Section 3107(b) provides that a no-fault insurer is liable to pay benefits for: "Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured”. If § 3107(b) stood alone, work-loss benefits would clearly be unavailable to plaintiff for the period after his heart attack. Our no-fault act is patterned after the Uniform Motor Vehicle Accident Reparations Act, and § 3107(b) of our act, in relevant part, is virtually identical to § 1(a)(5)(h) of that act. See 14 ULA, Civil Procedural & Remedial Laws, Uniform Motor Vehicle Accident Reparations Act, pp 50, 54. As we have explained previously, by adopting the language of such a model act, it is evident that the Legislature "was cognizant of, and in agreement with, the policies which underlie the model acts’ language”. Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538, 559; 302 NW2d 537 (1981). The drafter’s comments to § 1(a)(5) of the UMVARA, and by extension to § 3107(b) of the no-fault act, are in part, as follows: " 'Work loss’, as are the other components of loss, is restricted to accrued loss, and thus covers only actual loss of earnings as contrasted to loss of earning capacity. Thus, an unemployed person suffers no work loss from injury until the time he would have been employed but for his injury. On the other hand, an employed person who loses time from work he would have performed had he not been injured has suffered work loss * * *. Work loss is not restricted to the injured person’s wage level at the time of injury. For example, an unemployed college student who was permanently disabled could claim loss, at an appropriate time after the injury, for work he would then be performing had he not been injured. Conversely, an employed person’s claim for work loss would be appropriately adjusted at the time he would have retired from his employment.” A reading of both the clear language of § 3107(b) and the drafter’s comment to the uniform act leads us to conclude that work-loss benefits are available to compensate only for that amount that the injured person would have received had his automobile accident not occurred. Stated otherwise, work-loss benefits compensate the injured person for income he would have received but for the accident. In the present case, plaintiff would have worked and earned wages for two weeks, until the date of his heart attack. After that date plaintiff would have earned no wage even had the accident not occurred and, therefore, is ineligible for work-loss benefits after that date under § 3107(b). The meaning of § 3107(b), however, does not end our inquiry. Plaintiff contends, and the Court of Appeals found, that plaintiff had an independent statutory right to recover work-loss benefits under § 3107a of the no-fault act. We find that § 3107a does not support that position. Section 3107a was added to the no-fault act by 1975 PA 311, and provides: "Subject to the provisions of section 3107(b), work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident.” It was added to the no-fault act for the reason that "[the lack of a concise definition of loss of income in § 3107(b)] has given rise to certain problems in connection with persons who are seasonally employed or temporarily unemployed as a result of lay-offs, and who are disabled as a result of an auto accident. In the case of a worker who is unemployed at the time of an accident or during the period of disability, the law might be construed as providing for no work loss benefits since the worker would have had no income at that time, had he/ she not been injured. In addition, disabled workers are not entitled to unemployment compensation since benefits are not payable to a person who is unable to work. An unemployed worker who is disabled in an auto accident may thus find him/herself without benefits of either sort.” Analysis, HB 4221, November 21, 1975. Although § 3107a was added to the no-fault act to allow temporarily unemployed persons to recover work-loss benefits, we cannot find that § 3107a provides an independent source of benefits for plaintiff. Section 3107a identifies an amount which is deemed by that section to be the work loss for temporarily unemployed persons. It allows persons temporarily unemployed at the time of an automobile accident to recover benefits notwithstanding that they have no existing wage, and it allows those already receiving work-loss benefits to continue receiving benefits for those temporary periods when they would have had no wage had the accident not occurred. But § 3107a does not expressly state that persons unable to work for physical reasons are temporarily unemployed, and we cannot read such a meaning into the statute. The phrase "temporarily unemployed”, it is evident to us, refers to the unavailability of employment, not the physical inability to perform work. The legislative analysis of HB 4221 reveals a legislative concern with those who but for their disability could have received unemployment compensation as a substitute income. That concern evaporates with those already disabled, who lose no unemployment compensation when they receive a second disabling injury, and with those who suffer a second disability after being disabled in an automobile accident. In short, those who are temporarily unemployed in the colloquial sense by a disability unrelated to an automobile accident are not "temporarily unemployed” in the statutory sense because they have no income from work or its equivalent to lose. Benefits for "work loss”, therefore, are unavailable. Our result is consistent with the overall purpose of the no-fault act, "to accomplish the goal of providing an equitable and prompt method of redressing injuries in a way which made the mandatory coverage affordable to all motorists”. Tebo v Havlik, 418 Mich 350, 366; 343 NW2d 181 (1984). That goal could hardly be accomplished with an interpretation which required automobile insurers to pay work-loss benefits to persons who would be disabled from working regardless of whether there was an automobile accident. And notwithstanding plaintiff’s contention to the contrary, our interpretation of §§ 3107(b) and 3107a will lead to no less prompt awards or any greater administrative morass than was contemplated in the creation of the no-fault system. The act already provides for the periodic examinations of claimants and requires payment by the insurer only as the work loss to the claimant accrues. See §§ 3110(4), 3142(1), 3151. Our decision today will merely allow insurers to use the act as it was intended and avoid paying compensation not due the claimant. Reversed. Kavanagh, Levin, and Ryan, JJ., concurred with Brickley, J.	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Blair, J. Complainants are the owners of a five-story brick office building in the heart of the business center of the city of Saginaw. The defendants are the owners of a three-story office building upon an adjacent lot. Both buildings are substantially flush with the west line of Franklin street. This street extends north and south, and is one of the main thoroughfares of the city. It was dedicated to the public in 1850, and has been used as a public highway for upwards of 40 years. The street is paved and has cement sidewalks in front of these buildings. The Weaver building has a frontage on Franklin street of 80 feet. The McCormick building has a frontage on Franklin street of 42 feet. The McCormick building is equipped with an elevator, and the offices are rented principally to dressmakers who have a large patronage. On an average, upwards of 800 people daily pass to and from this building. The entrance to the building is on Franklin street. The defendants intend to construct an iron stairway 3 feet wide on the outside of the Weaver building on Franklin street appurtenant to the building, to extend one story high, 15 or 18 feet, on and over the west side of said street. The south wall of the Weaver building is adjacent to the north wall of the McCormick building. The stairway, if built, will occupy 3 feet in width of the west sidewalk of said street. The complainants filed a bill in the circuit court for the county of Saginaw, in chancery, alleging that the construction of such a stairway at this place would be a private nuisance, and asked the court to restrain the defend ants from erecting the stairway over the street as contemplated. Testimony was taken in open court, and the circuit judge dismissed their bill, holding that the defendants were authorized by the common council of the city of Saginaw to erect this stairway. The complainants have appealed from the decree entered by the circuit judge, and claim: 1. That the common council had no power to authorize a permanent encroachment upon this street. 2. That the erection of the proposed stairway would constitute a nuisance. 3. That the complainants have such a special interest in the subject-matter that they may maintain this suit. The important question for consideration in this case is whether the erection of the proposed stairway would constitute a nuisance. If this question must be answered in the affirmative, the case, in our opinion, is ruled by Freud v. Forbes, 139 Mich. 280. As early as 1849 it was held by this court that whether an obstruction of a public street constituted a nuisance presented a question of fact, and not of law, and from that day to this that doctrine has never been questioned, but has frequently been cited with approval. People v. Carpenter, 1 Mich. 273. In Everett v. City of Marquette, 53 Mich. 450, it is said: “But it is not necessary in this case to determine whether the permission given by the village council was in due form for the purposes of a permanent appropriation, or even whether the council had the power to consent to such an appropriation. It is undoubted that the council had general control of the streets under the village charter; and it was a part of its duty to prevent the creation of any public nuisance . within them. It is not to be assumed that consent would have been given to such a nuisance, and when, by formal resolution, the council assumed to give permission to complainant to make the openings and build the stairways complained of, it must have been done in the belief that no public inconvenience would follow. If the permission was effectual for no other purpose, it at least rebutted any presumption which might otherwise have existed that this partial appropriation of the street was per se a nuisance.” The trial judge based his decree dismissing the bill of complaint upon his conclusion that as a matter of law the city of Saginaw had authority under its charter and ordinances to grant permission to defendants to obstruct the public street by the stairway. He does not otherwise express any opinion upon the facts. The provisions relied upon by the circuit judge are as follows: “Title 6, § 1, of the charter (Act No. 465, Local Acts 189?) of the city of Saginaw, provides: “ ‘The common, council of the city of Saginaw shall have full power to lay out, open, widen, alter, close, fill in or grade and vacate or abolish any highway, streets, avenues, lanes, alleys, public grounds or spaces in said city.’ “Section 5, p. 203, of the compiled ordinances of the city of Saginaw, among other things, provides: “ ‘ No person shall erect or maintain any sign, show-case or stand which shall extend more than three feet from the building into or over any street or sidewalk.’ “ Section 20 of said ordinances also provides: “ ‘No person shall erect any balustrade or balcony to extend beyond the line of any street less than twelve feet from the ground without permission from the common council, and in the event of permission being granted, iron braces and railing shall be used in the construction of any such balustrade or balcony, and the same shall not project beyond the line of the street more than three feet.’” Counsel for defendants cites, in addition, section 8, tit. 3, of the charter, which provides: “The common council, in addition to the powers and duties specially conferred upon them in this act, shall Lave the management and control of the finances, rights, and interests of all property, real and personal, belonging to the city, and make such orders and by-laws relating to the same as they shall deem proper and necessary.” The temporary or permanent character of the obstruc tion must necessarily have an important influence in determining whether it was a nuisance or whether the common council had authority to permit it. It satisfactorily appears from the evidence that the improvement contemplated was a permanent one, for the benefit of the People’s Savings Bank, one of defendants’ tenants. The existing inside stairway was to be taken out and replaced with this outside- stairway, which would furnish the only means of access to the upper stories. In our opinion the sections cited from the charter and ordinances do not empower the council to authorize such an obstruction to the street. On the contrary, we think it is expressly prohibited by the provisions of section 8, tit. 17, of the city charter (Act No. 465, Local Acts 1897), which reads: “ The common council shall not grant * * * exclusive privileges to the use of the streets or public grounds of said city.” Taylor v. Railway Co., 80 Mich. 77; Horner v. City of Eaton Rapids, 122 Mich. 117; Detroit Citizens’ St.-Ry. Co. v. City of Detroit, 110 Mich. 384, 388 (35 L. R. A. 859); Freud v. Forbes, supra. Since the stairway in question has not been erected, its effect can only be determined by inference from other facts and circumstances. The great weight of authority holds that a permanent obstruction like the one in question is a nuisance per se, and under our own rule we do not think it necessary to go further than to show the permanent character of the obstruction, the width of the street and sidewalk, the character of the locality, whether business- or residence, the extent of the business or traffic, the amount of travel, and the effect of similar obstructions under similar circumstances. It appears from the record that Franklin street is one of the main business thoroughfares of the city, and that at times the portion of the street in question is much traveled; that on Saturday nights and circus days and other public occasions the entire width of the sidewalk is likely to be required for foot travelers; that, unless prevented, idle people will be likely to congregate about the stairway, expectorate upon the walk, and be offensive to passersby, and particularly to ladies; that numerous complaints have been made to the police force of such stairways; and that it is difficult to enforce observance of the ordinances and prevent obstructing and expectorating upon the walks. We think that the erection of the stairway, in view of the facts and circumstances disclosed by this record, would be a nuisance. It is a necessary consequence of the erection of the stairway that it will obstruct the view of complainants’ building, and complainants are entitled to complain thereof under the rule laid down in Freud v. Forbes, supra. The decree is reversed, with costs of both courts to complainants, and a decree may be entered in accordance with this opinion. McAlvay, Grant, Montgomery, and Moore, JJ., concurred.	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Carpenter, C. J. Early in 1902 Edward Frohlich (plaintiff’s son), doing business as the Edward Frohlich Glass Company, and defendant entered into, a written contract whereby the latter agreed to sell, and the former to buy, upon 60 days’ credit, 15,000 boxes of glass at a stated price; the'same to be, delivered at the convenience of defendant during the following months of May and June. On the 21st of April, 1902, defendant wrote said Edward Frohlich Glass Company “that no specifications have been issued on account of your May and June contract, nor will they be until a full settlement of your unpaid account (for glass sold during the preceding year) * * * is received in this office.” This indebtedness was not paid, and no glass was delivered. The cause of action was assigned to plaintiff, and he brought this suit to recover damages for the breach of said contract. He did recover in the court below a verdict and judgment for the amount of $3,450. He asks this court to reverse that judgment upon the ground that the jury, by the? direction of the trial judge, applied an improper rule in measuring his damages. The trial judge charged the jury that the measure of damages was the difference between the contract price of the glass and its market value on the 21st of April, 1902. (This was the day defendant notified the Frohlich Glass Company that it would not deliver the glass unless an old indebtedness was paid.) Plaintiff insists that the proper measure of damages was the difference between the contract price and the market value of the glass at the time when defendant was bound to perform its contract. ( Defendant was bound to perform its contract June 30, 1902, and plaintiff’s testimony tended to prove that the market price of glass was higher that day than it was on the 21st of April.) The plaintiff’s contention is correct, unless it may be held that defendant’s letter of April 21st changed the time for the performance of the contract. That letter did not change the time of performance unless it amounted to a renunciation of the contract on the part of defendant, and thereby imposed upon plaintiff’s assignor the obligation to take immediate steps to lessen his damages by purchasing glass elsewhere. It is well settled that a statement made by a party to a contract before the time arrives for its performance cannot be considered a renunciation unless it is a “distinct, unequivocal, and absolute refusal to receive performance or to perform on his own part.” 2 Mechem on Sales, § 1087; Wigent v. Marrs, 130 Mich. 609; Dingley v. Oler, 117 U. S. 490. The statement in defendant’s letter of April 21st that it would not perform its contract unless paid an old indebtedness then due was at most. a conditional refusal. It was not a “distinct, unequivocal, and absolute refusal,” «and it had therefore no effect upon the contractual obligations of the parties to this suit. We are therefore of the •opinion that the measure of damages was the difference between the contract price of the glass and its market price at the time the defendant was bound to deliver the .same (viz., June 30, 1902) and that the charge given was •erroneous. To prevent any misapprehension we think it proper to say that it follows from our reasoning that another portion of the charge not heretofore referred to was also erroneous, viz., that part of the charge which permitted the jury to lessen plaintiff’s damages because his assignor did not buy from defendant glass for cash during the months of May and June, 1902. Defendant contends that these errors were not prejudicial for several reasons: First. That defendant accepted the proposition of plaintiff’s assignor to purchase the glass in question “ subject to strikes, fires and delays beyond our control,” that plaintiff’s assignor never assented to this condition, and that, therefore, there was no valid contract upon which this action can be maintained. We are persuaded.that this contention is based upon an erroneous understanding of the testimony. We are unable, after diligent search, to find any testimony which supports it. Even the testimony introduced by defendant tends to prove that plaintiff’s assignor did assent to this acceptance. Second. Defendant contends that the following statement, viz.: “We also beg to advise you that we cannot use any more Barnesville glass (this describes only a small part of the glass made by defendant) at any price, and -trust you will make the assignments with standard tank factories whose produce is up to the usual standard of quality,” contained in a letter written March 28, 1902, by plaintiff’s assignor to defendant justified the latter’s refusal to perform its, contract. This statement did not justify defendant’s refusal to .perform its contract. It was clearly not a “distinct, absolute and unequivocal refusal to receive performance,” and, under the reasoning of this opinion, had no effect upon the contractual obligations of the parties. Third. It is insisted that the refusal of plaintiff’s assignor to pay his old indebtedness destroyed his credit and absolved defendant from its obligation to perform the contract sued upon. We may answer this as we answered a similar contention in F. W. Kavanaugh Manfg. Co. v. Rosen, 132 Mich. 44: “ Nothing short of a breach of contract or actual insolvency would excuse (the defendant) from fulfilling the contract on its part.” Fourth. It is insisted that plaintiff’s' assignor “ having-supplied himself with the glass called for by his contract without showing any actual loss, suffered no damages.”' This contention may be answered by saying that the testimony warrants the inference, if it does not conclusively prove, that plaintiff’s assignor did not supply himself with the glass called for by his contract. Fifth. It is contended that the lower court never acquired jurisdiction because of a fraudulent use of its process. This question was properly raised by a plea of' abatement. This plea was overruled, and defendant pleaded the general issue. By doing this, it waived the. objection made in the plea of abatement. See Griffin v. Wattles, 119 Mich. 346. The error heretofore pointed out was, in our opinion,, prejudicial, and the judgment must therefore be reversed,, and a new trial ordered. McAlvay, Blair, Ostrander, and Moore, JJ., concurred.	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Per Curiam. Plaintiff made application for change of venue under Act No. 309, Pub., Acts 1905. The respondent changed the venue to another county in his circuit, notwithstanding the suggestion of the relator’s counsel that it be changed to some county other than one presided over by him. After this change had been made from the county of Benzie to the county of Wexford, relator made an application on the ground of the prejudice of the presiding judge. This motion was denied, and the relator now asks the writ of mandamus to compel an order for the change. , We think the relator is not entitled, as a matter of right, to more than one change of venue under the statute. We cannot hold that the legislature intended to confer upon a party litigant the right to successive changes of venue from one county to another. It is, however, urged that the prejudice of the judge is sufficient for the second change, and that this was not sufficiently known to the relator in his first application. It was his duty to state in his first application all the' causes he then had for asking the change. We think the record discloses that the reason for the present application was known to the relator when he made his first application. The writ must therefore be denied.	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Per Curiam. This is an application for mandamus to require respondent to grant relator’s petition for leave to filó a supplemental answer in the chancery case of Village of Frankfort v. Schmid, setting forth the status of the case pending at law in said court of Schmid v. Village of Frankfort, 131 Mich. 197, and also to modify respondent’s order setting aside the stipulation of the parties vacating complainant’s default in said chancery cause and providing that the testimony theretofore taken in the case at law might be used on the hearing of the chancery suit: A similar application was denied by this court in Schmid v. Benzie Circuit Judge, 138 Mich. 452, where and in the cases therein referred to the facts are sufficiently set forth. Respondent contends that the orders were within his ■discretion, which cannot, or at least ought not, to be reviewed, and that this court has sustained the ruling of the respondent that the matters involved in the chancery suit should be held in abeyance till the determination of the suit at law. It appears from the record that the court’s opinion that the hearing of the chancery case should await the final determination of the law case was the real basis of his rulings. The construction placed upon our ■decision in 138 Mich. 452, is incorrect. We held in that case that it was within the discretion of the trial judge to refuse to proceed with the hearing of the chancery case when the suit at law involving the same controversy was pending in this court and its determination might settle the entire controversy. Upon the reversal of the judgment and granting of a new trial in the lawsuit [141 Mich. 291], the cases stood upon an equal footing and the defendant in the chancery suit had a right to bring it to a bearing. Under the circumstances, we think both petitions should bave been granted, and the writ will issue as prayed.	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McAlvay, J. Plaintiff sued defendant in assumpsit to recover damages for the nonperformance of a certain written agreement, whereby it is claimed defendant agreed to sell and convey, and plaintiff to purchase from him cer tain land situated in Barry county in exchange for lands to be sold and conveyed to him by her. Defendant pleaded the general issue, and denied under oath the execution of any contract with plaintiff. Upon a trial had in the Wayne circuit court before a jury plaintiff recovered a verdict. This was set aside on a motion by defendant for a new trial, on the ground that the evidence ..did not show that there was a written contract between the' parties relative to the sale and exchange of real estate. Afterwards, by stipulation between the parties, the evidence taken on the former trial was considered as introduced, and the court instructed a verdict for defendant. Upon such action and instructions on the part of the court errors are assigned. The question to be considered is whether the written proposition of defendant to McBride, the indorsement on it signed by plaintiff, and the letter of defendant, constitute a written agreement between the parties to this suit relative to a sale and exchange of real estate. It is immaterial, and therefore unnecessary to state the circumstances surrounding this transaction, for the reason that the case must be disposed of upon a construction of the writings. The following is the proposition in writing made by defendant upon which plaintiff’s acceptance appears: “Detroit, Michigan, Nov."28, 1903. “Louis C. McBride, Esq., “Detroit, Michigan. ‘ ‘ Dear Sir: I will give you or your assigns a warranty deed of my farm, located in Hastings township, Barry county, Michigan, and described as .the northwest one-quarter (i) section 26 (twenty-six), town three (3), range eight (8) west except one acre on the northwest corner, which the school district has the right to use so long as it is occupied for school purposes, for a warranty deed of' the two-story double frame house located on the southwest corner of Hubbard and Brandon avenues, Detroit, Michigan, and the two-story double frame house situated immediately on the rear, all being better known and described as lot one (1) Martin’s subdivision of lots thirty- eight (38) and thirty-nine (39) of Scotten’s subdivision of Hubbard’s subdivision of private claim No. 77, situated on the southwest corner of Hubbard and Brandon avenues, Detroit, Michigan. Said last-mentioned property to be deeded to me subject to mortgages of thirty-seven hundred ($3,700) now on said property,'same being payable on or before two years from their date, and bearing interest at the rate of six per cent. (6;í) per annum, payable semiannually. “ I further agree to place a mortgage for you or your assigns on my above-described property for the sum of twenty-five hundred dollars ($2,500), payable on or before three years from its date, bearing interest at the rate of six per cent. (6* )per annum, payable semi-annually from its date. In case there is any commission to pay for said loan of twenty-five hundred dollars ($2,500) you or your assigns are to pay an amount up to fifty dollars ($50) for procuring same. “I further agree to take a second mortgage on my above-described farm for the sum of seven hundred dollars ($700), for you or your assigns, payable on or before one year from its date and bearing interest at the rate of six per cent. (6*) per annum, payable semi-annually. • “In addition to the warranty deed above mentioned to be given to me, I am to receive one thousand dollars ($1,-000) in cash and the above mentioned seven hundred dollars ($700) mortgage. “ Each to furnish a satisfactory abstract brought down and certified to date and showing good marketable title and property free and clear of and from all liens, taxes and incumbrances, excepting the above-mentioned mortgages of -thirty-seven hundred dollars ($3,700)' on the property located.on the southwest corner of Hubbard and Brandon avenues, it being agreed and understood that I shall have the privilege of removing twenty-one oak trees (21) from said farm. “ Charles F. Burton.” “ I hereby accept the above proposition and agree to ^arry out my part of the same. “M. Kaufmann.” The material facts relative to the' crucial question are practically undisputed. This, written proposition to sell bn the part of defendant was made in duplicate to Mc.Bride and his assigns. It was not accepted or assigned by him. Both duplicates were delivered to McBride. When one of them was returned to defendant an acceptance under the signature of defendant was signed by plaintiff. It is disputed whether prior to this time defendant had any knowledge that McBride claimed to be acting for a third person. Plaintiff contends that because defendant received this paper with plaintiff’s acceptance written thereon without objection, he accepted her as a party to the agreement; and also that his letter to plaintiff’s attorney constitutes a written acceptance. The following is the letter referred to: “Detroit, Mich., Dec. 30, 1903. “Mr. Lemuel H. Foster, “50? Hammond Bldg., “Detroit, Mich. “Dear Sir: In reference to the agreement of which you wrote me on the 28th inst. ‘ ‘As I wrote you yesterday, I have not met Mr. Kaufman, and do not know what relation he has to the property mentioned in the paper. There was brought to me in the course of negotiations an abstract of the property beginning with Mr. Daniel Scotten and closing with Mr. Peoples, such an abstract does not show any title, because there is nothing to indicate where Mr. Scotten obtained title. “On the partial abstract which was presented, there was apparently an outstanding dower interest in Mrs. Peter Lane, I think, anyhow, the wife of the first grantee from Mr. Scotten. “ The partial abstract that was brought me shows that' there is on the property or was on the property one mortgage for $1,800 and one mortgage for $100. The mortgage for $1,800 runs five years, whereas the contract provided for a mortgage to run to be payable on or before two years. I am informed that there are other mortgages on the property not shown by the abstract, that differ both in time of payment and in amount of payment and in terms of interest from that specified in the contract. The full contents of these mortgages I am not informed of, nor did I give the abstract that careful and thorough investigation and study which I should desire to give to a full and complete abstract before accepting the title. “ I will frankly say that the contract was not prepared by me nor under my instructions, it was brought to me in the condition in which it is (I think one change was made after it was first presented), and its full force and effect was not carefully considered at the time it was signed. I think that probably both the signing parties affixed their signatures without a full and careful consideration of the full scope and bearing of the writing. “ I have not and shall not refuse to perform under the contract, but because of the facts I have stated above, I shall insist upon the full and complete performance of all conditions precedent to such performance on my part, and my present opinion is that the conditions precedent to my action cannot be complied with, at least I do not see how they can. “Very respectfully, “ C. F. Burton.” We do not think that receiving this paper signed by plaintiff amounted to a substitution of her for McBride. The writing was made by defendant with a party of his selection. It was enforceable by McBride or his assigns, if properly accepted in writing.. The indorsement was by a stranger to the agreement, and must be considered in the nature of a counter proposition. The claim of McBride that defendant knew he was acting as agent for a person named Kaufmann, even if true, can make no difference. It is fundamental that an agreement relative to the sale or exchange of real estate must be in writing signed by the party to be charged or some person lawfully authorized. The mere receipt of plaintiff’s counter proposition by defendant, and not signed by him, does not create a contract between the parties to this suit.' After an examination of the letter from defendant to plaintiff’s attorney, which is relied upon as an acceptance in writing of plaintiff’s counter proposition we agree with the court below, that “it was not an agreement to enter into contract relations ” with plaintiff, and that the effect of the language “ is a statement on the part of Mr. Burton that the offer to McBride is still open,” and that the evidence did not show a written contract between the par ties, relative to an exchange of properties. It is not necessary to consider other questions raised. The judgment is affirmed. Grant, Blair, Montgomery, and Moore, JJ., concurred.	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McAlvay, J. Respondent was informed against on a charge of an assault with intent to commit the crime of murder. The evidence against him was entirely circumstantial. He was not sworn as a witness in his own behalf. H© was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to a term of not less than five years in the State prison at Marquette. But one question of law is raised in the case. This question was raised in the court below by a request to charge, which was refused, and afterwards by a motion for a new trial based upon the refusal to charge. The request refused was as follows: “ The defendant in this case had a right to go upon the witness stand and testify in his own behalf, if he chose to do so. The law, however, expressly provides that no presumption adverse to him is to arise from the mere fact that he does not place himself upon the witness stand. So, in this case, the mere fact that this defendant has not availed himself of the privilege which the law gives him should not be permitted by you to prejudice him in any way. It should not be considered as evidence either of his guilt or innocence. The failure of the defendant to testify is hot even a circumstance against him, and no presumption of guilt can be indulged in by the jury on account of such failure on his part.” The statute in this State which makes a defendant in a criminal case a competent witness reads: “No person shall be disqualified as a witness in any criminal case or proceeding, by reason of his interest in the event of the same as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility: Provided, however, That a defendant in a criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment. -to be made to or upon such neglect.” Section 10211, 3 Comp. Laws. The consideration of statutes similar to this has been before the courts of several States. It will be noted that the statutes of some of these States differ in some respects from the statute in this State. In Missouri and Minnesota, both court and counsel are prohibited by statute from making any comments whatever upon the fact that a defendant has not testified. State v. Robinson, 117 Mo. 649; State v. Pearce, 56 Minn. 226. In Iowa and Texas, where the statute prohibits the attorney for the State from referring to the fact that defendant has not testified, and makes such reference a misdemeanor and cause for new trial, the courts hold that a charge instructing the jury that such failure to testify raises no presumption against him was not prohibited. State v. Weems, 96 Iowa, 426; Fulcher v. State, 28 Tex. App. 465. See, also, State v. Skinner, 34 Kan. 256. The same was held in Ohio under a statute practically the same as in this State. Sullivan v. State, 9 Ohio Cir. Ct. Rep. 652. In New York, a charge'given by the court, on its own motion, broader than the charge requested in the case at bar, was held not to be erroneous. People v. Hayes, 140 N. Y. 485 (23 L. R. A. 830), citing and approving Ruloff v. People, 45 N. Y. 213. See, also, People v. Fitzgerald, 20 App. Div. 139. In several States it has been held proper to give such a charge, but not error to omit it in the absence of a request to do so. People v. Flynn, 73 Cal. 511; Metz v. State, 46 Neb. 547; Felton v. State, 139 Ind. 531. In Maine and Illinois the question raised in the case at bar was squarely before the courts. In State v. Landry, 85 Me. 95, the court said: ‘ ‘ The requested instruction should have been given. It was in exact verbal accordance with the rule laid down in State v. Banks, 78 Me. 490. The legal proposition was relevant to the issue. It was founded upon the statutory provision that the fact that the person accused does not testify in his own behalf shall not be taken as evidence of his guilt. The respondent was entitled to have the jury know of the existence of the statute and understand the effect of it. If not so, then a statute expressly created for the benefit of a class of persons is wholly useless to them. The natural inclination of the jury would lead them to adopt the presumption which the statute was designed to prevent. * * * ” The request refused by the court was “that, in determining their verdict, they should entirely exclude from their consideration the fact that the defendant did not elect to testify, substantially as if the law did not allow him to be a witness.” The judge did not cover the request in his charge. It also appears in this case that the jury must have been present when the request was discussed. The court said: “The refusal of the judge to give the instruction asked for in the present case must have led the jury to believe that the principle invoked by the counsel for the defense was incorrect, and that belief would naturally be intensified by the remark of the judge that the government’s case was uncontradicted.” In Illinois the statute is identical with the statute in this State. The defendant did not testify, but his codefendant did. We quote from the opinion: “An instruction was asked on behalf of plaintiff in error to the effect that no presumption of guilt should be indulged against him because he had not testified in his own behalf, but it was refused. Section 426, chap. 38, Rev. Stat., expressly provides that the neglect of a defendant, on trial charged with crime, to testify, shall not create any presumption against him. No reason whatever is suggested for the refusal of the instruction asked. The giving of it became doubly important to the plaintiff in error by the giving of one on behalf of the people as to the weight to be given to codefendant Norton’s testimony, by which the attention of the jury was directed to the statute making defendants in criminal causes competent to testify in their own behalf. The instruction should have been given.” Farrell v. People, 133 Ill. 244. The supreme court of Nebraska (which had previously held, under a statute similar to, but not in the exact words of, ours, that it is not error for the court on its own motion to charge with reference to the provisions of the statute and a defendant’s rights under it), in a case where' defendant sought a reversal upon the ground that the charge of the trial court was given without a request and was too indefinite, said: “If counsel for accused did not regard the words, ‘Nothing shall be taken against him because he did not testify,’ sufficiently specific and definite, he should have drafted and presented to the court an instruction embodying his views upon that subject. Having failed to do so, he cannot complain of the vagueness of the instruction.” Ferguson v. State, 52 Neb. 432. And, further, after quoting its own language used in Metz v. State, supra, said: “The fair and reasonable inference to be drawn from this language is that it is discretionary with the trial judge whether he will instruct or will not charge the jury upon the question.where no request has been made to so instruct. * * * When a prisoner is not sworn, it is the duty of the court to inform the jury, if requested so to do, that they are not to draw any inference of guilt from the fact that he did not testify.” In support of this proposition, the court quoted the Illinois statute, and cited the case of Farrell v. People, supra. In the case at bar the learned circuit judge filed an opinion which is before us, and in which he reviews at length some of the cases to which we have called attention. His conclusion was that, nothing having occurred in this case to call attention of the jury to the fact that defendant had not testified, the court was not warranted in making any reference whatever to defendant’s rights under the statute.. He held that “under a reasonable construction of the statute, in ordinary cases, the court itself has no right to make any reference to the fact that the accused has failed to testify.” This question has never been before this court. This statute was considered in People v. Hammond, 132 Mich. 429, where error was claimed because the prosecutor, in answer to statement of respondent’s counsel, had referred to the fact that he had not testified. The majority opinion stated that, under the circumstances,— “We are not, therefore, prepared to hold that it waB error, particularly in view of the fact that the jury were instructed that the fact that the respondent did not take the stand in his own behalf should not weigh against him in any manner.” Eliminating from our consideration those cases where the court is by statute prohibited from referring to or commenting upon the fact that a defendant has not testified, we find from an examination of all these authorities that they may be classified as follows: 1. It is not error for the court on its- own motion to give such a charge as was requested in this case. 2. That the court is not required to give such a charge, in the absence of a request so to do. 3. That, where such a request to charge has been made, it is error to refuse to give it. From the reasoning of the decisions in the first class of cases, it would seem to follow logically that they would hold it erroneous to refuse a request so to charge. If it is proper, as a matter of law, for the court to so instruct the jury on its own motion, the conclusion cannot be escaped that a defendant would be entitled to require such statement of the law. In the second class, the courts of California and Indiana intimate strongly that it would be erroneous to refuse to give such request, and in Nebraska the court has.so held. Ferguson v. State, supra. It is contended that in the Maine and Illinois cases the circumstances were such that such a charge was made necessary, and the decisions are to be accounted for on that ground. We do not so construe these opinions. In both States the courts hold defendants were entitled to have the law in this regard stated to the jury. The peculiar circumstances are mentioned as emphasizing the proposition. Where such request to charge has been made, we find no authority warranting its refusal. The contention of respondent in this case is founded both upon reason and-authority. A respondent is protected in his right under the statute to elect not to testify. A jury, upon his request, should be informed of that right, to prevent the creation in their minds of any presumption of guilt by reason of his silence. The court was in error in refusing to give the request as presented. The judgment is reversed, and a new trial ordered. Grant, Blair, Montgomery, and Moore, JJ., concurred.	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Grant, J. The respondent was convicted under Act No. 210, Pub. Acts 1903, of inducing and directing another to cut and remove certain timber from State tax homestead lands. The statute provides that every person not lawfully authorized, who shall enter upon or induce or direct any person to enter upon such lands and cut timber therefrom, shall be deemed guilty of a felony, and be punished by imprisonment in the State prison for a term not exceeding two years, or by a fine not exceeding $500, or by both such fine and imprisonment. The act which this amended (1 Comp. Laws, § 1394) provided for the punishment of a “willful ” trespass, making it a misdemeanor, punishable by imprisonment for not more than one year, or by a fine not exceeding $500, or both. 1. The main question in the case is: "Was it necessary for the people to show the intent to commit a trespass, or to induce another to do it ? It is admitted that the trespass was committed by the direction of the respondent, that' the State had a tax deed, and that it was recorded in the office of the register of deeds in the county where the land trespassed upon was situated. Respondent claims that he relied upon a quitclaim deed from some third person, without any examination of the title. The legislature evidently intentionally left out the ingredient of willfulness or intent. Experience had shown the difficulty in proving the trespass to be willful or intentional. It is of no consequence that the crime is called a felony. It might as well have been called a misdemeanor. People v. Rotter, 131 Mich. 250. In that case the punishment was not to exceed $500 or imprisonment not more than three years, or both, and the offense was termed a misdemeanor. If the contention of the respondent be sustained, the statute is of little worth, because any one can purchase a quitclaim deed, which of itself is suspicious, and say he acted in good faith. It is just as competent for the legislature to make an act of trespass per se criminal as it is to make the opening of a saloon per se criminal. The saloon-keeper is responsible for the acts of his bartender, though he be ignorant of the act. The power of the legislature to do away with intent in such case is undoubted. People v. Longwell, 120 Mich. 311. In that case we said: “ It is as easy for liquor dealers to employ clerks and agents who will carry out their instructions not to make prohibited sales as it is to employ those who will obey their instructions not to open their places of business contrary to law.” See, also, 12 Cyc. p. 148. It is just as easy for lumbermen to ascertain the title to the lands from which they propose to take timber, especially where the title is a matter of public record. Trespasses upon public lands have become notorious. Considering the law previous to the amendment, and as amended, and the particular mischief to be remedied (Michigan Dairy Co. v. Runnels, 96 Mich. 109), we think there is no difficulty in reaching the conclusion that the legislature intended to eliminate the question of intent. See, also, Clark & Marshall on the Law of Crimes (2d Ed.), p. 63; Caldwell v. Ward, 83 Mich. 14. A similar statute was so construed by the supreme court of South Dakota. State v. Dorman, 9 S. Dak. 528. The court in that case say that it is ruled by State v. Sasse, 6 S. Dak. 212, wherein the respondent was convicted of selling intoxicating liquor to a minor, and it was held that good faith was unimportant. See, also, People v. Rotter, supra, and authorities there cited. 2. The people introduced the State tax homestead deed, dated August 25, 1896, and recorded September 23, 1896, in the office of the register of deeds of Alcona county. The deed recites that the lands were bid off to the State at the tax sales in the years 1877 to 1895, inclusive, and -that they were, in compliance with the law, deeded to the State as tax homestead lands. The people further introduced the State tax land list, which showed the various years for which they had been bid off to the State. The trespass was committed in December, 1904. It was urged that it was the duty of the people to introduce all the tax proceedings upon which this tax deed was based, and to show their validity. The statute (Act No. 84, Pub. Acts 1903) imposes a limitation to the right to bring suit to six months from the time the act took effect. The act took effect in September, 1903. A like statute of limitations was held valid by this court. Semer v. Auditor General, 133 Mich. 569. 3. Error is alleged upon the refusal of the court to permit the respondent to testify to the contents of a letter he claims to have received from the commissioner of the land office some time in the fall of 1904, and which he claimed was lost. He claims that he “wrote the land, commissioner, asking him what claim they had to this land. I got a reply that they did not have any claim against that particular forty.” Before the judge ruled, upon the question, counsel for respondent stated that he had telegraphed for a certified copy of the letter-press copy of such letter, but had not received it. The court then held: “ I think the formal objection is well taken. If there is a letter-press copy, and that letter in the office of the official who wrote it, it could be easily procured.” We are compelled to hold that this was error. There are no degrees in secondary evidence, and for this reason the conviction must be reversed. McAlvay, Blair, Montgomery, and Moore, JJ., concurred.	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Blaib, J. In February, 1904, the plaintiffs, copartners under the name of the “ Traverse City Sprayer Company,” entered into an agreement with the defendant, a 'Corporation, for the manufacture by it of 100 spraying machines. The contract contained, among other clauses, the following: “We hereby propose to enter your order for 100 of your spraying machines complete, which includes attachments for both fruit trees and potatoes, as per sample submitted, at a price of thirty-two dollars ($32.00) each, net cash 30 ■days after date of shipment, it being understood that we, will make any changes without additional charge where •such changes do not increase our cost of manufacture. You, however, to pay us an additional price where any changes made by you will increase our cost of manufacture. * * * We agree to manufacture all machines like sample submitted, or as may be changed hereafter, according to clause 1 above, all to be done in a workmanshiplike manner, we to make good any defects in workmanship or material when called upon during the first •season.” Plaintiff proposed an amendment to this contract before it was accepted and signed, as follows: “It being specially agreed upon and understood that all machines manufactured under this contract shall work equally as well as the machine submitted as a sample.” Defendant refused to accept this clause, saying in its letter: “We cannot accept a condition that throws upon us the responsibility of all of the machines working equally as well as the sample submitted, as we will not have anything to do with the operation of the machines. As manufacturers, the only thing that we can agree to do is to build the machine like the sample you submitted and apply in the construction of the machines good workmanship and materials, being perfectly willing to stand the responsibility of any defects in that particular on our part. It, therefore, would only be necessary to use the clause in the contract that we had in the other one covering this jpoint.” Upon receipt of this letter, plaintiffs signed the contract in its final form cóntaining the clause originally proposed by defendant. The plaintiff copartnership was composed of the following persons, viz.: John Monroe, contractor, dock builder, etc.; Lawrence Doerr, inventor and patentee of spraying machine; Harold S. Kneeland, mechanical engineer; William Loudon, machinist and manufacturer of wagons, carriages, and sleighs; Benjamin Thirlby, William Thirlby, and William Calkins, all competent machinists, doing business under the name of Traverse City IronWorks; C. L. Greilick, engaged in lumber mill business; Arthur E. Wilson, contractor and builder; Dr. Kneeland, well posted in agricultural implements. Each member of the firm was a competent man about machinery. It was agreed between the parties that Mr. Doerr, the inventor of the machine, should go to defendant’s factory at Bowling Green, Ohio, and superintend the construction of one machine as a sample. Mr. Doerr went to the factory at Bowling Green about February 10, 1904, and remained there until about the 1st of March. The first machine was nearly completed when he left the factory. It was made up of the parts of the old machine as far as they could be used with the changes made. The frame and tongue were maple and beech and some of the castings were malleable iron. It is claimed by the plaintiffs that the machine built by Mr. Doerr was to be the sample or model machine, but this machine was shipped to plaintiffs for their use in making sales as soon as completed, about March 16, 1904. The machine the defendant’s employes understood to be the sample machine was made entirely new and was almost completed when Mr. Doerr left the factory. Mr. Doerr testified upon this subject, as follows: “In these conversations with the employés of the factory they expressed it in their judgment that southern pine would be better than maple or beech for these purposes, and they also said that the gray castings would be sufficient for the purpose for which they were to be used on these machines, and I told them if they were sufficient to answer the purpose and the pine was better than hardwood, I had no objections to their being used. I was there for the purpose of superintending the construction of the sample machine and wanted the machine as quick as I could get it. * * * “ When I came back from the factory the second time, I made report to the other plaintiffs in the case, telling them as near as possible how near the sample machine was done when I left and that everything was satisfactory to me as far as the sample machine was concerned. I told the plaintiffs about the use of the pine in the machines. I did not tell them anything about the cast iron because I did not know whether the cast iron would stand the test or not and had no idea whether they would be used. I told the employés of the defendant of what the sample machine was made and that I was the inventor of the machine and understood the mechanism of it and am accustomed to hardware and understand machinery and told the employés of the said defendant in talking about gray castings that if the things were strong enough I had no objection. I wanted a strong and durable built machine. • I told them that [if] cast iron was strong enough, its use was immaterial to me, and I had nothing to say about it. I told them I didn’t think pine was as good as hardwood, but if it was as good I had no objection to its use. The sample machine was all I' had anything to do with. ” The defendant substituted, in constructing the machines, long leaf southern pine for maple and cast iron for certain malleable iron castings. The defendant shipped 25 of the machines April 2, 1904. They were examined by at least three of the plaintiffs, Kneeland, Doerr, and Lou-don. Upon receipt and examination of the machines the plaintiffs wrote a letter complaining of defects in the machines, as follows: Bad painting, small cotter pins, pet cock not at 40 gallon mark, no bolts to fasten seats to frame and no'connecting rods, various parts bunched together, requiring sorting to assemble the machines. The defendant promptly replied, explaining the cause of the defects mentioned, offering to make them good or pay the ex pense of doing so, and sending the parts by express that were missing. The missing parts were so forwarded and were received. No other complaint as to construction of machines was ever made, and no demands were ever made upon the defendant to make good any defects in workmanship or materials. When Mr. Mull, defendant’s president, met the plaintiffs in June and in August, he told them to make a list of the parts they desired and the defendant would send them. The plaintiffs received the first 25 machines about April 9th. On May 31st, they paid the defendant $1,000 on the contract. When Mr. Mull was at Traverse City, on June 25th, 51 machines had been shipped to plaintiffs and 44 were in defendant’s warehouse at Toledo. It was then agreed that if on his return he would wire plaintiffs that the machines had all been shipped, they would pay $2,200 more. This covered the contract price, but not the bill for extra work. On July 1st the plaintiffs paid $1,000, and July 7th, $1,200. Plaintiffs gave evidence tending to show that the machines did not work properly on account of the change of materials, and claimed that they were worthless. Mr. Mull testified that, if the defendant had been required to make good all the defects claimed by plaintiffs in these machines arising from changes in material used in construction or defects in workmanship, the cost to it would have been: For each clutch lever, not to exceed 10 cents. For each clutch, 12 to 15 cents. For each malleable iron crank shaft, 60 to 75 cents. For pitmans for each machine, 10 to 12 cents. For enlarging cotter pinholes, each ■machine, 10 to 15 cents. For maple or beech tongues, each, 80 to 90 cents. For axle boxes, each machine, 5 cents. For new platforms, maple or beech, each, $2.50. Total for each machine, $4.72. If the fault had been solely that of the defendant, it could, under the contract, have supplied the defective parts in the same materials as were used on the old machine, for the entire 100 machines, for $472. No at tempt was made to deny this testimony, and no claim was made by any one that defendant had been requested to make good any defects in workmanship or material, other than the letter calling for certain bolts, and those were promptly sent by express. Plaintiffs’ declaration, after alleging that the parties entered into a written contract, whereby the defendant agreed to construct 100 machines according to a certain sample machine, which said sample machine was well and siibstantially constructed, the wood being of substantial hardwood, the metal part of said machine constructed of wrought, cast, and malleable iron and of sufficient strength, etc., to perform the services it was intended to perform, proceeds, as follows: “ That by the terms and conditions of said contract said defendant was under obligation to construct said 100 spraying machines in a good and workmanlike manner, and of the same material of the sample as furnished by said plaintiffs to said defendant, and as referred to in said contract. That said defendant, disregarding his contract and obligations in that behalf, did not manufacture said 100 spraying machines according to the terms and conditions of said contract; but, on the contrary, wholly failed and neglected to perform said cQntract; that in the attempted performance of said contract the defendant, in place of hardwood, used pine timber for the thills and in place of wrought and malleable iron, in many parts used cast iron, so that said machines when constructed were so poorly constructed and of such poor and weak material that said machines were wholly unsuitable for the purpose for which the same were constructed. “ That at the time said contract was entered into said defendant understood that said plaintiffs desired to sell said machines to farmers and others having use for a spraying machine, and that plaintiffs intended to engage in the business of selling such spraying machines and needed such machines as were provided for by the terms of said contract. That owing to the neglect and default of said defendant in the performance of said contract and owing to the fact that said defendant performed said contract in such a negligent, careless, and unskillful manner, and because said defendant failed to use such material, wood, wrought, malleable, and cast iron as was required by the terms of said contract, whereby and by reason, whereof said plaintiffs were unable to sell said machines, as they otherwise could and would have done; and that owing to such failure on the part of defendant to perform said contract according to its terms, a large number of said machines which said plaintiffs had sold were rescinded and said spraying machines were returned to said plaintiffs, whereby said plaintiffs sustained great damage.” At the outset, defendant’s counsel objected to the introduction of the contract in evidence for the reason that the declaration did not count upon it but upon a different contract, and at the close of the proofs, defendant’s counsel requested an instruction that the jury render a verdict of no cause of action, which motion was based upon the above reason and the following reasons: “The second is: Whatever changes were made in the material that went into the construction of these machines, was done and made by an understanding between the plaintiffs and the employés of the defendant, for which the defendant is in no wise responsible. And, further, that these machines were shipped to Traverse City after the conversation between one of the plaintiffs and the employés of the defendant in regard to materials to be used in the construction of the machines had been reported by him, but whether reported by him or not, he was one of the principals, and his acts would be that of a principal. But they were shipped here and with every opportunity to examine the machines and no payment had been made until all had been manufactured and then payments to the extent of $3,200 were made on the contract to the defendant for the manufacture of these machines.” Defendant’s counsel also requested the court to charge the jury, as follows: “ Under the contract in the case, I charge you that the only liability on the part of the defendant was to make good any defects in materials or workmanship in the manufacture of the machines. There is no claim that plaintiffs requested the defendant to make good any defects in the machines and, therefore, the plaintiffs cannot recover.” The court refused to give this request'and submitted the case to the jury. The reasons given by the court for overruling defendant’s motion are as follows: “ The only question I can see on this motion is whether, under the wording of the contract, this clause. ‘ We agree to make , good any defects in workmanship or material when called upon during the first season,’ is the exclusive remedy provided by the contract, or whether this is simply permissive, that they may do it, that they may make good any defects. Under the facts as shown in this case, I am not so inclined to hold. I think that it was optional with the buyer, that is, 'optional with the plaintiffs whether they would return them or whether they would bring their action at law, and the motion of the defendant is denied.” I think that the defendant’s motion should have been granted. There was an express warranty in this case that all the machines manufactured by defendant should be like the sample, and in such case no other warranty can be implied. McGraw v. Fletcher, 35 Mich. 104. Apart from the general rule that an express warranty excludes an implied warranty, the facts of this case would conclusively negative the implication of a warranty that the machines should be fit for the purpose for which they were to be used. The defendant, in its letter rejecting’ plaintiffs’ amendment to the proposed contract, expressly refused to assume responsibility for the working of the machines. The plaintiffs did not rely upon defendant’s superior knowledge in the construction of the machine, but vice versa. Doerr was the inventor of the machine, and knew from experience about its working. The defendant knew nothing about the machine from practical experience, and undertook to construct it in accordance with the sample or model constructed by Doerr. The rule that manufacturers furnishing articles ordered for a specific purpose impliedly warrant that they are fit for that purpose has no application to the facts of this case. I think it is clear, also, that the parties fixed the damages for a failure to perform the contract. Defendant, in refusing to assume any responsibility for the working of the machines, expressly notified the plaintiffs of their construction of the language of the contract, viz.: “ As manufacturers, the only thing that we can agree to do is to build the machines like the sample you submitted and apply in the construction of the machines good workmanship and materials, being perfectly willing to stand the responsibility of any defects in that particular on our part.” The contract expresses the same meaning except that it limits the time when defendant could be called upon ‘ ‘ to make good any defects in workmanship or material,” to the first season. Under this contract, defendant had a right to be notified to remedy defective materials or workmanship before suit was' brought against them therefor. Sloan v. Wolf Co., 59 C. C. A. 612. The judgment is reversed, and a new trial granted. Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred.	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Moore, J. Stephen Bakker died upon the operating table at a hospital in Grand Rapids, while defendant Apted was administering to him chloroform preparatory to the removal of a tumor by the defendant Welsh. The plaintiff is the father of the deceased, and, after being appointed administrator of the estate of deceased, brought this suit; his counsel stating upon the trial that his claim was under what is known by the lawyers and the courts as the “ Death Act.” The trial judge directéd a verdict in favor of the defendants. The case is brought .here by writ of error. Stephen Bakker was 17 years old. He lived with his father on a farm. He was a large healthy-appearing person. He had a tumor upon his left ear about the size of ■a dove’s egg. Some time before his death he had received treatment, and the tumor nearly disappeared; but prior to the middle of February, 1904, it reappeared, and he came to Grand Rapids to consult some physician about it. He had an aunt about 60 years old and two adult sisters living in Grand Rapids, with whom he went to the office of the defendant Welsh, who was a specialist and had . practiced medicine and surgery a long time. After an ■examination he was told it would be necessary to have a microscopic examination made to determine the character of the growth, and he was sent to Dr. Williams, another ¡specialist, who made an incision and obtained a specimen' from the tumor, and young Bakker returned to his father’s. On the following Saturday or Sunday he again went to the office of Dr. Welsh, accompanied by at least one of his sisters, and was informed of the report made by Dr. Williams, and was told it would be best to have the tumor removed by a surgical operation at the hospital. The testimony is somewhat conflicting as to what was said. The sister claims Stephen objected to taking an •anaesthetic, and was told there was no danger. The doctor- says that he told him there was always some danger in taking an anaesthetic, but that he advised him to have the operation performed. On Tuesday afternoon Stephen, with his aunt and at least one sister, went again to the office of Dr. Welsh and was sent from there to the hospital, where they all understood an operation should be performed the following day. In the meantime Dr. Welsh had .arranged with Dr. Apted, an expert in the administration of ansesthetics, to administer the chloroform. A careful examination of the heart and lungs of the young anan was made. They appeared to be normal, and in the presence of the hospital nurse and the doctors, with the usual appliances for successful operations at hand, young Bakker was put upon the table. Dr. Apted began to administer chloroform by means of the mask and drop method, and had administered about one-third of an ounce, taking from seven to ten minutes in which to do it, and Dr. Welsh was just about to commence the operation, when suddenly the heart of the patient stopped beating. Every means known to the profession was used to revive the patient, but he was already dead. The record shows the father did not know an operation was to be. performed. There were two counts in the declaration-stripped of legal verbiage, the first count stated that Stephen Bakker was a minor and it was known to the defendant Welsh he was a minor, and that it was Dr-Welsh’s duty to inform the father and get his consent before entering upon this operation. The second count charges what is known as malpractice or want of skill in the operation, and that young Bakker died by reason of an improper administration of an anaesthetic. The record, instead of disclosing want of skill in the operation,, shows quite the contrary. We have no hesitancy in saying the trial judge was quite right in so- saying when he. directed a verdict. We then cometo the question: Are defendants liable in this action because they engaged in this operation without obtaining the consent of the father ? Counsel for the plaintiff are very frank with' the court, and say in their brief: “We are unable to aid the court by reference to any decisions in point. We have devoted much time and research to this interesting question, but have been unable to find any decisions of a higher court either supporting or opposing the plaintiff’s contention, and we will therefore have to be content by calling the court’s attention te such general reasoning as leads us to take the view herein contended for.” They then argue at length, and with a good deal of force,, that, as the father is the natural guardian of the child, and. is entitled to his custody and his services, he cannot be deprived of them without his consent. We quote: “We contend that it is wrong in every sense, except in cases of emergency, for a physician and surgeon to enter upon a dangerous operation, or, as in this case, the administration of an ansesthetic, conceded to be always accompanied with danger that death may result, without the knowledge and consent of the parent or guardian. It is against public policy and the sacred rights we have in our children that surgeons should take them in charge without our knowledge and send to us a corpse as the first notice or intimation of their relation to the case.” On the part of defendants it is contended: 1. Consent of the father was unnecessary. 2. The lack of consent was not the cause of the boy’s death, hence not actionable. 3. That if it were, the action does not survive under the death act. 4. That the action, if any, is in the father,' not in the administrator. ■ . We do not think it necessary to a disposition of the case to decide all of the defenses interposed by the defendant. The record shows a young fellow almost grown into manhood, who has been for a considerable period of time, while living with his father, afflicted with a tumor. Ho has attempted, while at home, to have it removed by absorption. It does disappear, but after a time it reappears. He goes up to a large city, and with an aunt and two sisters, all adults, submits to examination, receives some advice, and goes back to his father with an agreement to return later to receive the report of the expert who is to make the microscopic examination. He returns accordingly, and, with at least some of his adult relatives, arranges to have .a surgical operation of a not very dangerous character performed. Preparations are made for its performance. There is nothing in the record to indicate that, if the consent of the father had been asked, it would not have been freely given. There is nothing in the record to indicate to the doctors, before entering upon .the operation, that the father did not approve of his son’s going with his aunt and adult sisters, and consulting a physician as to his ailment, and following his advice, We think it would be altogether too harsh a rule to say that, under the circumstances disclosed by this record, in a suit under the statute declared upon, the defendants should be held liable because they did not obtain the consent of the father to the administration of the anaesthetic. Judgment is affirmed. McAlvay, Grant, Ostrander, and Hooker, JJ., concurred.	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Moore, J. This is an application for a writ of manda< mus to compel the respondent to vacate an order changing the venue in the case of Robert S. Moreland and Eugene W. Crane v. American Electric Fuse Company, which was commenced in justice’s court, and appealed by the defendant to the circuit court on December 29, 1905. This order was based upon an application, duly served, filed in said court on March 12, 1906, which application was accompanied by a notice dated March 5, 1906, that the defendant would move the court on March 19th for a. change of venue. It was also accompanied by a motion for a change of venue dated March 7, 1906, and by the affidavit of Theodore M. Joslin, dated March 12, 1906, who stated therein that he is the attorney for the above-named defendant and appellant. The question involves a construction of Act No. 309 of the Public Acts of 1905. It is claimed: First. That this statute does not apply to appeals in justice’s court. Second. If it does not apply, that there was no proper motion made for the following reasons: (a) The notice of the motion was dated March 5th, the motion was dated March 7th, the affidavit upon which it is claimed the motion was based is dated March 12th; (6) because the notice stated that the motion would be based upon the affidavit of Mr. Jones, when he in fact made no affidavit, but the affidavit was made by his attorney, Mr. Joslin. Third. Because the statute provides that a change of venue may be made upon the application of either party, and in this case the affidavit is not made by the party, and cannot be treated as an application made by the party. Fourth. Because said motion was not entered and notice of application served within 10 days after issue joined, nor within 20 days after Sup. Ct. Rule 58 took effect. We will consider these objections in the order in which they were presented. First. A reference to Act No. 309 will show that it was intended to apply to any civil action pending in the circuit court. The language of the statute is broad enough to include cases appealed from justice’s court which were then pending in the circuit court. Second. The return of the respondent shows that the notice, the motion, the affidavit, and the application, though bearing different dates, were all filed with the clerk on the 12th of March, and were presented on that day, and we think the judge very properly considered them as one proceeding. It is true the motion stated it was based upon the files and affidavit of Frank G. Jones hereto annexed, but it is also true that the affidavit annexed to the motion when made and the copy which was served, was not the affidavit of Frank G. J ones, but was the affidavit of his attorney. No one was misled thereby. The statute itself does not restrict the making of the affidavit to one of the parties to the suit, but states that the change of venue may be made upon the application of either party made upon affidavit, etc. Third. It has already appeared that the statute does not require the affidavit to be made by one of the parties to the litigation, and we think in that respect an affidavit made by the attorney of one of the parties to the litigation is a compliance with the statute. Fourth. Supreme Court Rule 58 was adopted February 16, 1906. It took effect February 20, 1906. It provides that in cases pending and at issue when this rule should take effect said motion shall be entered within 20 days therefrom. The 11th of March came on Sunday. The motion was made on Monday, the 12th of March. We think it was made in time, under Supreme Court Rule 58, construed in connection with Circuit Court Rule 36, and Supreme Court Rule 25. The application for the writ of mandamus is denied. Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.	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Campbell, J. Laing, as mortgagee from one Lewis Berger, sued Perrott in trover for the conversion of part of the goods mortgaged, by seizure and sale of them specifically and separate from the entire stock, under execution against Berger. It has been uniformly held that such a levy and sale cannot be justified. But the question chiefly disputed here is as to the proper form of action. The court below held that trover could only lie where plaintiff had a possessory right, and that in this case there was no such right, because the mortgage was not due when the property was sold, and the mortgagee had no right to assume possession until then, unless one of the conditions of retaining the property should have been broken. The mortgage was made on a stock of goods in a store, and was in the usual form, recognizing the business as existing. There was no agreement that the mortgagor should retain possession, but there was a condition, such as is very common in such forms, that if the mortgagor should “ sell, assign, or dispose of, or attempt to sell, assign, or dispose of, the whole or any part of the said goods or chattels, or remove or attempt to remove the whole or any part thereof from the said city of Bay City without the written assent of the party of the second part,” he might take possession and dispose of the property. • There was evidence that previous to the levy and without such assent of the mortgagee, Berger had used a considerable amount of goods to pay an existing debt of $109. "Whatever may have been the right of the mortgagor to make sales in the ordinary course of retail business, and to keep possession while doing so — upon which we need not express any opinion — it is very clear to us that a sale of such an amount not for pay but to apply on a debt is not .such a sale as he could lawfully make, and was a distinct violation of the condition, which gave the mortgagee a right of possession. If lie could make such a disposition he might easily strip the mortgagee-of his whole security. Sales in the ordinary way would give an equivalent and aid in raising money to pay the mortgage, but dispositions which brought in no equivalent would destroy the security and have no tendency to help the mortgagor to funds. As the .court below ruled otherwise the judgment must be reversed with costs and a new trial ordered Cooley and Marston, JJ. concurred.	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Cooley, J. This is an action on a replevin bond, and has been twice tried. Quackenbush was plaintiff in the replevin suit, and Henry set up a special property under an execution against one Parmlee. Quackenbush failed in his replevin suit, and as the property had been delivered to him, Henry waived return, and took judgment for the amount of his lien. He then brought suit on the replevin bond against Quackenbush and Peter and Charles Ferguson, who were his sureties. This is the second trial of that suit. On the first trial the Fergusons undertook to show that Henry had never made any valid levy of his writ. Their right to make this showing was conceded by the plaintiff, and the case was made in the circuit court to turn upon it. Henry obtained judgment which this court reversed for erroneous rulings in respect to the levy. Quackenbush v. Henry 42 Mich. 75. When it went down to trial again the plaintiff changed front and took the position that the judgment in the replevin suit was conclusive of Henry’s special property as against Quackenbush and his sureties;. and'so the circuit court held. The Fergusons undertook to-show that one of them held a chattel mortgage on the property which antedated the levy, but they were not permitted to do so, and Henry again had judgment. We of course are not precluded by our judgment on the former record from questioning in any other case the legal soundness of the concessions then made by counsel; but it does not follow that the party himself, in the same litigation,, is at liberty to dispute the grounds of our judgment. There is certainly no more reason for permitting him to do so when his own concessions entered into the judgment, than there would be if it were entered as the result of our independent conclusions. The case is within Great Western R. Co. v. Hawkins 18 Mich. 427, 432. Our former decision affirmed the right of the sureties to make this defence; and although we expressly refrained from questioning what counsel conceded, the rule laid down must govern the case throughout. But speaking for myself only I am of opinion that if the point were undecided, the sureties should be held entitled to make the defence. The statute I think has expressly provided for it. It declares that “In any action, prosecuted on such bond given by the plaintiff in an action of replevin, for the deliverance óf any property, the defendants may show, in mitigation of the damages, that the obligee in such bond had only a lien upon, or special property, or part ownership in, said property at the time of commencement of suit in replevin, and that the defendants, or either of them, had at the same time a part ownership or other valuable interest in said property; and if such lien, special property, part ownership, or other interest of said obligee, with interest thereon, amount to less than the value of the property replevied, a corresponding reduction shall be made from such value.” Comp. L. § 6766. This section seems plain enough and seems expressly intended to protect the sureties against being concluded by a judgment against their principal in a replevin suit, as they would have been before this statute was passed. Williams v. Vail 9 Mich. 162. The old rule operated sometimes with great oppressiveness; for a party having an interest but not a present right of possession could not become surety on a replevin bond without putting his interest at the risk of a suit to be managed by another and which might go off on some technicality or because of negligent attention. But a person thus interested is obviously the proper person to become surety, rather than a mere stranger. It is not questioned that the defence might have been made if the defendant in the replevin suit had taken a return of the property instead of a judgment for damages; but a distinction of this sort rests upon no sound reason. It would be grossly unjust if it should be at one party’s mere option to cut off the rights of another by electing as to the form of judgment he would take ; and a statute that would permit it would savor so much of making the party a judge in his own cause that its •constitutional validity might well be questioned. But this statute makes no such distinction. It expressly provides that “In any action prosecuted on such bond given by the plaintiff in replevin for the deliverance of property ” the defence may be made. It is impossible to make use of more comprehensive terms. It is said, however, that this court decided otherwise in Ryan v. Akeley 42 Mich. 516. The decision in that case only went to this extent: that in a suit on the replevin bond, given to an officer from whose possession property he had levied upon had been taken, it was not competent to show that the defendant in his writ had no leviable interest as between him and the plaintiff in replevin ; that that was a question necessarily involved in the replevin suit and deter mined by it. But tbe case does not determine that sureties may not in a suit on the bond set up rights in themselves. They have no other opportunity to set them up; for the section of the statute sometimes supposed to reach the ease —Comp. L. § 6754 — provides only for the investigation of the claims of the parties to the record in the replevin suit. The judgment should be set aside and a new trial ordered. Marston, J. concurred. 'Campbell, JJ. concur on the ground first stated.	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Graves, C. J. The corporation having sued and recovered on the common counts the defendant below asks a review upon writ of error and bill of exceptions. ' According to the plaintiff’s theory of the action what was-demanded consisted of two classes of items, the first an sing-as follows: Both parties were engaged in manufacturing lumber at Big Rapids, — running mills for that purpose; and in the course of their business considerable exchanges of lumber had occurred between them, of which a running-account had been kept, extending from December, 1871, to 1878. This account included a few items besides lumber. The second class arose in this manner: In the spring of 1872 each party had a large quantity of logs in- the west branch of the Muskegon river, and wishing to run them out to the main stream, they agreed to join and run them out in a common mass by joint efforts, each party furnishing his-due share of the required labor, implements and provisions, such share to be in proportion to the quantity to be run down for each, and in case of its turning out on final settlement that one had exceeded his proportion, the other in that-case should make it up by payment. The corporation did supply more than its quota under the contract, which on investigation by the parties was found to be $875. Such is in substance the construction of the case as stated by the counsel for the corporation. Whether on this explanation a portion of the claim would not be unrecoverable on the common counts is a question not presently important. Neither is it now material to consider the conflicting evidence adduced by Stimson. The first subject of inquiry is whether the judgment can be defended on the circumstances brought out to obtain itr and on recurring to those circumstances the first matter which challenges attention is whether in the evidence for the corporation there was any tendency to prove that the parties completed an adjustment of their operations relative to running the logs under the contract, and struck a balance in favor of the corporation which Stimson undertook to pay, and whether on the showing by the corporation itself in regard to the running of the logs and the contract therefor and the incidents relating thereto any case was developed making Stimson liable under the common counts. "Waiving questions on evidence the case made by the corporation on this part of the litigation is open to no doubt. It is that the parties made an express contract to unite in running down their respective logs in a common mass to the main river and that each should furnish in labor and necessaries a given portion of the quantity needed for the whole operation; but it was not made a condition that if one failed to provide his full quota the other should be bound to supply the deficiency and charge it over; that the logs were run to the main river under this agreement, but that Stimson failed to provide his full share of labor and necessaries thereunder and therefore failed to perform to the full extent his share of the contract, and that the corporation kept the business going by at once supplying the deficiency caused by Stimson’s non-performance; that differences arose thereafter in regard to this and other transactions having reference to the running down the main river and to lumber exchanges, and the parties met to adjust and close up all subjects of dispute between them; that they proceeded to liquidate one after another of their mutual claims until reaching one made by Stimson of $500 for running the logs of the corporation down the main river, and this the corporation utterly rejected. They had gone over the lumber exchange business and the transactions relative to the drive to the main river, but had not considered all the subjects involved. This claim of Stimson’s now introduced remained to be disposed of. The parley had proceeded on the faith that whatever adjustment, if any should be made, should cover all claims, and that no matter or question brought under consideration should be deemed settled if any one in the series was the subject of disagreement and should be left unadjusted. The purpose was not to pick out this or that claim or item and agree upon it and leave others unsettled. On the contrary the consultation had for its object the settlement of all matters as an entire arrangement and producing a single and definite result. And when the corporation refused to consider this claim of $500 Stimson at once drew back and announced that the controversy would have to be settled by arbitration. He was still in a situation to withdraw. As yet the whole business was open. The parties had not passed the stage of trying to agree, and the failure on the claim of $500 involved the whole parley in failure. Now it is not difficult to see that the theory of the action was not sustained and that on the showing of the corporation itself there was no basis for recovery under the common counts for anything which may have been provided by the corporation under the special contract or to secure its being carried out. Accepting the version given on its behalf, and that submitted-on the other side is less favorable to the judgment, the rights of the parties relative to the outlay for running the logs must depend on the express contract. Each agreed with the other to contribute a certain quantity of labor and necessaries to accomplish a common enterprise, and the complaint in effect is that one kept the contract while the other ■broke it by failing to furnish his share. Assuming this to have been so it would have entitled the party not in fault to sue on the contract for the damage to him caused by such breach, and if the fact was as claimed, that the party complaining actually supplied the deficiency yhich the other was bound to furnish, the genuine cost of such supply, if found reasonable and just under the circumstances, or if found to have been acquiesced in by the defaulting party, would afford a criterion of damage to be recovered. The gist of the action is an alleged breach of Stimson’s stipulation to furnish labor and necessaries for the joint benefit and not for the individual benefit of the corporation. ¡mil it excludes the idea of a distinct legal interest of •the corporation, as against Stimson in the labor and necessaries supplied. They were intended for the joint benefit, and the facts will not allow any particular part to be. considered as separated for the purpose of being dealt with as labor supplied and goods sold and delivered by one individual to another. The endeavor to effect a settlement exploded, and no debt was liquidated on which indebitatus assumpsit might be based. In short, no conditions appear ■on which to found any right to institute a claim by the common counts. They are not applicable and the court erred in holding otherwise. It is needless to discuss all the rulings the court would not be at liberty to approve, because there is no likelihood they will be repeated. One or two may be briefly noticed. A witness for the corporation was allowed to use its private •account books to support its bill of particulars and was then permitted, on testifying, to make use of the latter as competent and trustworthy for the purpose of charging Stimson for labor and articles claimed to have been furnished by it in carrying out the contract for running the logs. These entries in the books not being shown as against 'Stimson to be rightly there, were purely self-made testimony and wholly ineffectual to help the bill of particulars. It was an attempt to prop up one broken reed with another. At another stage of the trial the jury were allowed to ■charge Stimson with the value of two canoes, when there was not only no evidence at all of an express sale, but when the facts were repugnant to one by inference, implication or presumption. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.	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Marston, J. This was a bill filed to set aside an execution sale of certain lands claimed as a homestead. The complainant purchased and obtained a deed of the premises in ■question April 3d, 1879. At this time and until December 16, 1879, complainant, with his family, was residing upon another parcel of land in an adjoining county. He had, however, after his purchase, and before removing upon the land, placed a third person in possession of the land to take charge of and till it for him. On July 21, 1879, a writ of attachment was issued out of the circuit court of Lapeer county, in a cause wherein Stephens was the plaintiff and this complainant the defendant, and a levy by virtue thereof was made upon this land. The cause proceeded to trial and judgment, execution was issued, and these lands levied on by virtue thereof January 27, 1880. It is claimed that as the complainant was in the actual possession of the premises, claiming the same as his homestead prior to and at the time of the execution levy in January, 1880, the same was exempt from levy and sale under the execution. The defendant in this case claims that as this was not the homestead at the time of the attachment levy, the lands were not then exempt, and that the defendant in that case could not afterwards defeat the levy so made, by taking actual possession and claiming the lands as a homestead. It is not and could not successfully be claimed that these lands constituted complainant’s homestead, prior to the time he with his family took actual possession thereof in December. Hp to this time his domicile and place of residence was with his family, in an adjoining county. And had an •execution been issued and a levy been made thereunder previous to December there can be no 'doubt whatever but that the levy would have been good, as the essential requisites of a homestead up to this time were wanting. The statute provides that the writ of attachment shall command the sheriff to attach so much of the lands, etc., of the defendant not exempt from, execution, wheresoever the same may be found within the county, and the sheriff is directed to execute the writ by seizing the lands. §§ 6101, <‘>402. The statute farther declares that real estate shall be bound, and the attachment shall be a lien thereon, from the time when it was attached, on complying with certain provisions, which was done in this case. § 6406. Where due diligence has been observed by the creditor in the prosecution of his claim, this lien continues until a reasonable time has elapsed for the issuing of an execution and levy thereimder, and there can be no doubt but that the execution levy relates back to the time of the attachment and holds the interest which the debtor then had. It would seem to be too clear for controversy, that the debtor by his own voluntary act could not by taking possession and claiming the property as his homestead defeat the attachment lien thus created. If he has this power, then in most-cases where real estate is levied on by virtue of an attachment, the debtor, by a sale of part of his property, can in many cases defeat the security thus obtained. In like manner, where personal property hot exempt has been seized, by a sale of exempt property prior to an execution levy the debtor could release property from the levy made by claiming it as exempt. It is not thus in the power of the debtor to deprive the creditor of the benefit of a security which the law gives to him, and the authorities' cited in the brief of counsel for defendants fully sustain the views thus expressed. We find nothing in the Constitution that would give any color whatever to the right of the creditor to defeat the lien so acquired under an attachment. It is true that the Constitution only exempts the homestead from a forced sale on execution or other final process, but this does not by implication, even, destroy a levy previously made. Were this provision construed literally, it would only prevent a sale under an execution or other final process, while permitting a levy by virtue thereof. No such construction can be given this clause, and the practical construction always has been otherwise. The decree of the cornt below dismissing the bill must be affirmed with costs. The other Justices concurred.	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Campbell, J. The controversy in this case arises out of proceedings begun in the probate court and appealed to the circuit court of St. Joseph county, for the payment or delivery over to Mrs. Langrick, who is widow of the decedent, of an annuity, and of the possession of personalty and realty. The questions raised related (1) to the amount of an annuity; (2) to her rights in the general personal assets; and (3) to her rights in realty. It is claimed on her behalf that the will did not cover the realty during her life, and that there is an excess of personalty which is also not willed during the same period. The circuit court directed the payment to her of an annuity at the rate of $50 a month, and the possession of the land during life; but declined to give her the personalty, except the statutory allowances and property bequeathed. The estate of decedent consisted of a large amount of land, valued at about $30,000, and of personalty valued at nearly $12,000. The will gave money legacies to a brother and two sisters of $1000 each, and a small fund for cemetery purposes. It also gave to the daughter of Jane Gospel certain items of personalty in present or future enjoyment. The legacies and devises which we are called on to construe are those to Mrs. Langrick and Jane Gospel. There was given to Mrs. Langrick by express provision a life estate in the homestead and furniture, “ with an annuity of fifty dollars payable monthly from the date of my decease, out of any money which comes into the executor’s hands, by their rights as executors of my last will and testament, which I direct to be paid through my executors, whom I shall hereafter name.” We think this clearly indicates a continuing annuity-amounting to $50 a month. We also have no doubt that the fund from which it is to be paid is the personalty of the deceased, inasmuch as that is the property which absolutely belongs to the executors officially for disposal. The will containing no directions confining payments to the income- or interest of this fund, we are of opinion that it sets apart the whole not required for other purposes as a trust fund to-secure this annuity, and that there is no intestacy as to any of it. Any balance unexpended for this purpose would accrue as a resulting trust and not as intestate property, to the legatee, Jane Gospel. To Jane Gospel the legacy is as follows: “I give and bequeath to my niece, Jane Gospel, the balance of all my estate, both real and personal, after Jane E. Langrick’s (my wife’s) death, to have and to hold forever.” No devise is made of the estate during Mrs. Langrick’s life — beyond the homestead — unless implied in this devise to Mrs. Gospel. If not so devised it is admitted to be intestate property. Under our statutes any intestate property left out of a will by a testator is dealt with precisely as if there were no will. This is not seriously questioned. Our statutes of descents give to the widow, where there are no descendants, a life estate in the land whereof the husband dies seized in fee. Comp. L. p. 1367 § 4309. In this case the will does not affect this life estate in any way expressly, but it devises the remainder in fee to Mrs. Gospel. We are not at all satisfied that according to the general presumption against intestacy this may not fairly imply that the life estate was to go to the wife, at whose death Mrs. Gospel should succeed her in the enjoyment. But inasmuch as the intestacy would make the same disposition it is not important to consider the construction. In our opinion the wife, Mrs. Langrick, is entitled to the life use of the land. Inasmuch as the probate court has power to order the ■executors under proper circumstances, such as are shown in this case, to relinquish possession of the lands, (Laws 1881, p. 278,) that court had jurisdiction to hear the petition in the cause, and so had the circuit court on appeal. The decision of the circuit court, being in accord with the views we have expressed, it must be affirmed and the proper certificate made accordingly. We think the case a proper'one to have the taxable costs allowed out of the •estate, and therefore no costs are awarded against either party. The other Justices concurred.	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Marston, J. The statute relating to primary schools gives to the township board power to remove from office upon satisfactory proof, any district officer who shall have illegally used or disposed of any of the public moneys •entrusted to his charge, or who shall persistently and without sufficient cause, refuse or neglect to discharge any of the duties of his office. Act No. 164, Laws 1881, ch. 13, § 8. Mrs. Hazen was holding and exercising the duties of the •office of moderator, and the board undertook to remove her upon a written complaint, charging — yirsi, that she was not duly elected; and secondly, that she was guilty of a gross-violation of duty in hiring her husband to teach the school and in agreeing to pay him more wages than was requisite to have obtained a good or .better teacher. It is sufficient to say, that the statute does not authorize-a removal on any such charges, and even if it did, the evidence introduced did not tend to support the charges made.. The proceedings therefore must be quashed .with costs. The other Justices concurred.	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Cooley, J. Johnson sued- HoLensworth upon a covenant contained in a deed of conveyance, which he counted upon as a covenant against encumbrances. The only question which the record presents is, whether the plaintiff was correct in his construction of the covenant. The deed bears date November 13, 1875. It purports to-convey a certain lot of land in Washington, D. C., “subject to the sum of sixteen hundred dollars, existing as an encumbrance on said lot, and secured by two deeds of trust; ” and it contains the following covenant: “ And the said parties of the first part [Hollensworth and wife] for themselves and for their heirs, executors and administrators do hereby covenant promise and agree to and with the said party of the second part, his heirs and assigns, that they, the said parties of the first part and their heirs shall and will warrant and forever defend the said piece or parcel of ground and premises and appurtenances unto the said party of the second part, his heirs and assigns, from and against the claims of all persons claiming or to claim the same or any part thereof by, from, under or through them or any of them, and against all persons whomsoever and all claims whatsoever except the sum of sixteen hundred dollars hereinbefore assumed by the party of the second part, with the interest thereon.” Following this was a covenant for further assurance. To show a breach of the covenant the plaintiff gave evidence that the encumbrances by the two deeds of trust exceeded the sum specified by nearly three hundred dollars. He also showed that the whole amount had fallen due, and that he had made ■ payment in full, without awaiting foreclosure or other proceedings for collection. This constituted the plaintiff’s case. On the other hand the defendant contended that the •covenant in question was not a covenant against encumbrances, but only a covenant of warranty of title except as .against encumbrances to the specified amount of sixteen hundred dollars. As a warranty of title it would be broken •only when there had been eviction of the grantee, or those claiming under him, or when acts had occurred which were the legal equivalents of eviction; such as the actual assertion of some title or claim against which the warranty undertook to protect, and a surrender to it. It was conceded that if this could be held to be a covenant against encumbrances it was broken immediately and the covenantee might recover substantial damages on making payment. Post v. Campau 42 Mich. 90; Norton v. Colgrove 41 Mich. 544. It must be conceded that the covenant is peculiar in form. It is a warranty of title as against the grantors and all persons claiming under them or either of them, and as such would run with the land in subsequent conveyances. If this were all, the existence of an encumbrance would be no breach, though it might result in a breach if it should ■ever be enforced against the land. But we think there is something more here than a warranty of title. There is no fixed or essential form for any covenant; a* covenant is merely a promise under seal, and to ascertain what it is in legal import, we have only to see what the promissor has undertaken for; in other words, what is the legal interpretation of the language in which the promise is expressed. In ordinary deeds of conveyance several covenants are usually contained, and some of these are likely to be such as will run with the land and some not. Each covenant may constitute a separate sentence, but they may all be blended in a single sentence as well, and a single promise may embody the substance of several covenants, and thus constitute an undertaking to protect against existing claims or defects, and also to give assurance for the future. The promise now under consideration is one of this peculiar form. The same promise constitutes a covenant of warranty and also an undertaking to protect tlie title conveyed “ against. all persons whomsoever or claims whatsoever ” ■except the specific encumbrance of sixteen hundred dollars. “Claims” is a broad term, and to the common understanding w&uld embrace encumbrances, at least where they are in the nature of money charges. No man of ordinary intelligence could fail to understand this promise as a warranty against all claims of a pecuniary nature existing against the land, with the exception mentioned, “ and this is equivalent to saying that, in the opinion of all men of ordinary intelligence, a contrary construction would be wrong.” Smith v. Lloyd 29 Mich. 382, 386. How much further it would extend its protection we need not speculate. The conclusion is that the judgment entered for the plaintiff should be affirmed with costs. The other Justices concurred.	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Per Curiam. This ease is brought here by writ of error.. There is no finding of facts and no special exception. The exception relied upon is a general exception to the judgment. It is now claimed that error appears by a comparison of the judgment with the declaration and the bill of particulars ; in this way, that by that comparison the judgment is shown to be more than could regularly have been given under the bill of particulars. But nothing appears by the record to show that the attention of the circuit judge was ever called to any such question, or that he ever saw the bill of particulars. We review only the rulings of the circuit judge; and to enable the party to raise this question he should either have obtained special findings, which he could then claim do not support the judgment, or he should have had a ruling upon the point and taken his exception to the-ruling. Motion denied.	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Campbell, J. Plaintiff sued in a justice’s court to recover for injury caused to his building by rain dripping from defendants’ neighboring house, and by snow thrown between the buildings and on his land from the latter. The chief injury being consequential and not direct, we think there can be no objection to the form of action, which was case. So far as the damage from snow is concerned there was proof that it was shovelled upon plaintiff’s land from defendants’ house by defendants’ order, and by their servant in the course of his service. We think there was no error in holding defendants liable for this. But the court did not qualify the liability under all circumstances for the consequences of rain dripping from defendants’ roof, and held it was absolute. This liability does not exist unless it arises from some fault or neglect of duty, and it was so held in Underwood v. Waldron 33 Mich. 239. Eor this error the judgment must be reversed and a new trial granted. The other Justices concurred.	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Cooley, J. Tlie plaintiff on an affidavit that “ be has, as-be has good reason to believe, a just cause of action against John Williams and Jonathan D. Wright in said county, against whom he applies for process by warrant for wrongfully trespassing on the north 60 acres of the northeast quarter of section two, range four north, six west, to the damage of one hundred dollars or under,” obtained a warrant from a justice of the peace on which the defendants were arrested. On being brought before the justice the defendants were required to plead immediately, and they did plead the general issue, and the suit was then adjourned. On the day to which the suit was adjourned the parties appeared with counsel and the defendants made a motion to quash, which was overruled. The plaintiff then moved for a continuance, which was also overruled. The defendants then asked leave to amend by giving notice under the general issue, that the supposed trespass was lawfully committed in the service of an execution issued on a judgment rendered against one Pratt and placed in the hands of defendant Williams, who was a deputy of the sheriff of the county, for service. The justice refused leave unless the defendants would consent to an adjournment, which they declined to ■do. The case therefore proceeded to trial, and the plaintiff had judgment which was reversed on certiora/ri. The plaintiff now brings the case to this court by writ of error. The circuit court is supposed to have reversed the judgment upon the ground that the defendants were of right •entitled to give notice of justification under the execution; .and the plaintiff insists that this is an error; that they could give the notice by favor only, and that they put themselves in the wrong when they refused to consent to the condition the justice imposed. But there were errors preceding that action. In the first place the affidavit on which the warrant issued was fatally defective, in that it failed to show “ probable cause ” on oath. Const. Art. vi § 26. “ Good reason to believe ” is not probable cause; but facts must be sworn to. DeLong v. Briggs 47 Mich. 624. In the second place the justice should not have required the defendants to plead immediately on their being brought before him, but should have allowed them a “ reasonable time ” to consult counsel .and put their defense in proper form. Comp. L. § 5309. The injustice of requiring an immediate plea in this case is manifest; for it not only gave the justice jurisdiction of the persons of the defendants which otherwise he would not have had, but at the same time it cut them off from their justification. Under the circumstances we think the circuit •court was correct in holding that the defendants were -entitled of right to put in amended pleadings on the adjourned day; the first plea having been put in under comjDLilsiou. It may be that the defendants should have con■sented to an adjournment; though why the justice should have required their assent when he might, on plaintiff’s motion, have granted it without; we do not understand. But as the defendants had been brought into court on a wrongful arrest, we are not inclined to criticise with severity an ungracious act on their part, or to deprive them of rights because of it. The judgment of the circuit must stand affirmed with costs. The other Justices concurred.	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Grates, C. J. The plaintiff sued defendant by summons personally served, whereupon Sarah J. Harrison, appearing as defendant’s guardian, joined with him in pleading in abatement of the service that at the time of its occurrence he was under guardianship as an insane person. The plaintiff demurred, but the court sustained the plea and quashed both service and process. The sole question raised is whether the existence of the guardianship took away the defendant’s legal capacity to be served with the summons, and we think it did not. He continued liable to suits and liable to notification of their institution. Sternbergh v. Schoolcraft 2 Barb. 153, and authorities cited; Crippen v. Culver 13 Barb. 424. See, also, Bush v. Pettibone 4 Comst. 300; Ibbotson v. Lord Galway 6 Term 133; Cock v. Bell 13 East 355. The judgment is reversed with costs and the plaintiff will have judgment on the demurrer, that the plea is overruled, and the cause will be remanded to be proceeded in according to law. The other Justices concurred.	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Graves, C. J. For many years prior to May 14, 1878, •complainant and defendant Cummin owned in common the S. óf sec. 13 and tbe N. E. J of see. 24 in township 5 N., of B. 2 E., Shiawassee county. Cummin’s interest was under mortgage to defendants Gallagher and at the date mentioned the complainant filed his bill against Cummin and said mortgagees in the circuit court for the county of Shiawassee, in chancery, to obtain partition. Such proceedings were had that partition was decreed and on the nomina tion of the parties through their solicitors the defendants Gale, Dawson and McKellop were appointed commissioners. January 7, 1880, they reported that they allotted to Cum-min the south quarter of the south half of section 13 and all the northeast quarter of section 24, and to complainant the north three-quarters of said south half of section 13, and that the lien of the mortgage held by defendants Gallagher should remain attached exclusively to the premises so allotted to Cummin. The report was not objected to and the court entered a decree confirming it and establishing the partition as made by it, and on the 19th of February, 1880, the ■decree was enrolled. In September following the complainant petitioned the ■court for leave to file a bill impeaching the decree for fraud and in October the- court passed an order granting leave and this bill was then filed. The defendants Gale and Cummin suffered it to be taken as confessed, but the others answered. The bill called for answers on oath, but those put in were not sworn to and complainant raised no objection and filed the usual replications. The effect was to permit the answei-s to stand as unsworn pleadings. Morris v. Hoyt 11 Mich. 9. The parties actively contending went into evidence and on final hearing the court set aside the decrees, both interlocutory and final, as vitiated by fraud, and decreed that complainant and defendants Cummin and Gallaghers were restored to their former respective rights. The defendants Gallaghers and Dawson and McKellop appealed. The record contains no evidence that defendants had notice of the hearing of the petition which preceded the bill and it is now objected that the omission of it involves the failure of the whole case. It does not seem that any question on this ground was suggested in the court below, although the appellants must háve known whether they had received notice or not. They did not deny being notified, but went on and- answered and proceeded as though they had been, and now they cannot go back and allege the contrary whereby to impeach their own practice as well as that. ■of complainant. The case is that of an original bill in the nature of a bill of review, and the essence of it is that the commissioners appointed by the first decretal order acted fraudulently in dividing the property and deceived the court and led it to cover their misconduct with the formal sanction of a decree and that the mortgagee defendants and Cummin support and ratify this misconduct and insist on having and retaining the benefit of it. The aptness of the bill in view of the equities relied on is clear enough. Eveland v. Stephenson 45 Mich. 394; Richmond v. Tayleur 1 P. Wms. 734; Galley v. Baker Cas. Temp. Talb. 199; Barnesly v. Powel 1 Ves. Sr. 119; Manaton v. Molesworth 1 Eden 18; Mussel v. Morgan 3 Brown Ch. 74 (Perk. ed.) 65; Kennedy v. Daly 1 Sch. & Lef. 355; Harrison v. Corporation of Southampton 21 E. L. & E. 343; Pearse v. Dóbinson L. R. 1 Eq. Cas. 241; Colonial Bank of Australasia v. Wiliam L. R. 5 Privy Council Cases 417: 9 Eng. 225; Flower v. Lloyd 6 Ch. Div. 297: 22 Eng. 824; French v. Shotwell 5 Johns. Ch. 555; Loomer v. Wheelwright 3 Sandf. Ch. 135; Pitcher v. Carter 4 Sandf. Ch. 1; Galatian v. Cunningham Hopkins 48; Dobson v. Pearce 2 Kern. 156; Hackley v. Draper 60 N. Y. 88; Verplanck v. Van Buren 76 N. Y. 247; Carneal v. Wilson 3 Litt. 85; Terry v. Commercial Bank of Alabama 92 U. S. 454; Pratt v. Northam 5 Mason 95; Clark v. Underwood 17 Barb. 202; Mitf. Pl. 93; Story Eq. Pl. §§ 426, 428; Daniell Ch. Pr. 173 note 2, — 1584, 1585; Adams Eq. top paging 33 ; Earl of Bandon v. Becher 3 Cl. & Fin. 479. Some of these authorities have a very close application. The cause of action here is not the same as in the partition case. The matter in question there was on the existence of a state of things giving the right to partition and on the principles which should govern in making it. But the question here is whether the commissioners did not in fact contemn those principles and commit what amounted to a fraud on the court and on complainant, and whether Cummins and the mortgagees have not connived and in the view of equity made themselves parties to the wrong. The case assails the decree as vicious on account of the alleged vice' through which it was brought about and on which it was founded, and it cannot be set up to bar proof of its own fatal contamination. When the matter which is being tried is whether the ground of a decision can or cannot sustain it the decision itself is no authority. The charge against the-commissioners carries with it a necessary implication that their authority ought to be revoked and hence it was proper to ask an extension of the relief to the abrogation of the order by which they were appointed. The theory of the case would not authorize anything less radical. It may not have been necessary to join the commissioners, but the-doing so was not error. Daniell Ch. Pr. 297, 298, 322; Story Eq. PI. § 232. There seems to have been no serious-fault in the procedure by complainant. The case is next to be considered with reference to the facts and circumstances. The circuit judge was convinced by them that the assailed proceedings were fraudulent, and the general question, which cannot be turned aside, is whether this court is ready to disagree with him and by setting his decree aside to virtually restore the partition. The commissioners were not clothed with any despotic power. They were in a situation of trust and confidence described by statute and subject to the principles which vitalize the moral equity of the law. They were bound to-apply their experience and judgment faithfully and fairly to the case, and to execute honestly and impartially the trust reposed ; and by such means to divide the estate and allot the portions and shares to the parties, quantity and quality relatively considered, according to the respective rights and interests of the parties. We have seen already what division they made. But how it is in point of justice, and whether in making it they acted in good faith or otherwise is yet to be considered. If it so happened that they innocently went astray in the forum of judgment, and fell into error through mere injudiciousness, the result is not impeachable on this bill. On the contrary if they went seriously wrong with their eyes open and made a division which plainly affronts common sense and all onr ideas of justice a case for relief is presented. In order to settle this and find whether they did or'’did not ignore their duty and proceed fraudulently we are to judge by the surrounding facts and the course they elected. We are to look at their act and see whether it can be rationally credited either to good faith or a mere blameless lapse from propriety, or whether we are bound to regard it as a fraud in the sense of equity. To fix the latter character upon it the evidence need not be specific. The conclusion may be drawn from incidents. Rea v. Missouri 17 Wall. 532; Humes v. Scruggs 94 U. S. 22; Hennequin v. Naylor 24 N. Y. 139. The complainant resided in Detroit. lie was not acquainted with the character of the land and was not able to form any opinion of the equity of the division from the statement specifying the tract assigned to each party. Ilis solicitor having charge of the case resided in Detroit and was no better informed; and it does not appear that another gentleman who seems to have been loosely connected with complainant’s interest, either knew much about the matter or felt any special solicitude in regard to it. In any view which the facts will authorize his relation to the case has no special importance. The entire premises,. as we have seen, consisted of 180 acres, and the award, as formerly noticed, gave to each co-owner one equal half in quantity. The quality is seen at once by going upon the land. Of the share allotted to complainant about sixty acres are upland with some nine acres cleared, while the residue of about one hundred and eighty acres is’marsh and swamp. The part assigned to Cummin on the other hand embraces two hundred acres of upland with one hundred and seventy-four acres under cultivation, and thirty acres only of lowland and about twenty of swamp. But the inequality thus indicated by the disparity in character of the land and in the quantity under improvement is further illustrated by the difference in value. Seven witnesses testify on the subject and according to their evidence the share assigned to Cummin is worth all of twice and a half as much as the share set off to complainant. The entire showing respecting the quality and value of the property and the inequality of the partition was made by complainant, and the way was clear for appellants to make-a counter showing or to adduce mitigating evidence if the truth permitted. But no attempt has been made to break the force of complainant’s evidence or to furnish ground for argument that the commissioners kept within the range allowed for diversity of opinion. The accuracy of complainant’s exposition is therefore substantially acknowledged. Page v. Stephens 23 Mich. 357; Wallace v. Harris 32 Mich. 380; Smith v. Brown 34 Mich. 455; Heath v. Waters 40 Mich. 457; McDonough v. O’Niel 113 Mass. 92. The greatness of the inequality in value did not depend upon obscure causes which might escape attention; but on conditions no observer could overlook. It was so evident that no man of common sense could fail to discern and mark it after inspecting the property, and there is no pretence that the appealing commissioners were not perfectly aware of the proved difference between the shares. Mr. Gale was somewhat enfeebled and he confined his inspection to such view as he was able to obtain in passing along the road bordering the land on a part of one side-. The others made a more particular examination, as the proof indicates, and he confided in their representations; and finally acceded to their wishes and explanations and gave up a scheme of his own and accepted theirs, which is the same that is the-subject of complaint. They represented, as he testifies, that if any choice existed, their allotment was more favorable toeorbplainant than to Cummin, and he relied on'their repre> sentation, and soon after the award was handed in he expressed his opinion of -the justice of the partition to the-solicitor of complainant and repeated what his associates had said. The solicitor communicated this information to complainant, and no reason presenting to induce suspicion of any misdoing the proceeding was allowed to be silently confirmed. The complainant was not in any fault for assuming that-the commissioners had acted faithfully and blamelessly, and that the partition, they had made was impartial and wfell considered. He was not to suppose that the division they had made and solemnly reported to the court as one that was just and equal and had recommended to him as eminently in accord with his interest was yet most intemperate and injurious, and that the formal representation to the court and the informal information to himself were alike deceptive and misleading. We see from what has been said that the alleged demerit of the allotment is not only undisputed but is substantially confessed, and that no defence whatever of the act itself is found in the record. Had the truth about the proceeding been made known to the court there would have been no confirmation. On the contrary the partition would have been rejected instantly on account •of its glaring injustice. This is not denied. But the claim is asserted that the court is now powerless to redress the wrong. We think differently and are disposed to agree with the court below that the misdoing amounted to fraud •and is sufficient to justify ample relief. It has long been admitted by the courts of common law that a fatal bias in the jury may be inferred from the extreme unreasonableness of the verdict. 1 Grraham & Waterman on New Trials M2 ■et seq. And it is a well-known rule in equity that where there is such gross inadequancy of consideration as shocks -the conscience it is sufficient to imply fraud. Byers v. Surget 19 How 303-311; Van Cortlandt v. Underhill 17 Johns. 405; Story’s Eq. § 246. By fair analogy the case before us is subject to similar reasoning. The award is so extravagantly one-sided as to shock the conscience, and considering all the circumstances the inference must be of the same nature as both law and equity draw from kindred premises. Indeed, the case seems to be impelled to this end by its own gravity. There is no pretence of vindication and the unquestioned wrong is abandoned to the inference that it originated in the will of those who were engaged in the act. The record will tolerate no other explanation. In conclusion it may be just to observe that it is not the meaning of the court that the commissioners Were really actuated by a specific and sedate design to perpetrate a cheat. But the view is that they fully intended to act precisely as they did, and that whatever notion was in point of fact in their minds the court in judging of the proceeding in reference to its quality in equity is bound to construe it as fraudulent. The result is that the decree should be affirmed with costs. The other Justices concurred.	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Cooley, J. Complainant filed his bill for a divorce from the bonds of matrimony for the cause of extreme cruelty. The defendant, with an answer denying the cruelty, filed a cross-bill charging the husband with extreme cruelty, and praying a divorce therefor. The circuit judge found both cases made out; awarded a divorce on each bill, and gave the wife $800 for alimony. The wife has appealed. When the circuit judge reached the conclusion that each party had been guilty .of such conduct as under the statute was cause for divorce, he should have dismissed both bills and left the parties where their misbehavior had placed them. A proper administration of justice does not require that courts shall Occupy their time and the time of people who are so unfortunate as to be witnesses to the misdoings of others in giving equitable relief to parties who have no equities. And it is as true of divorce cases as of any others that a party must come into a court of equity with clean hands. Divorce laws are made to give relief to the innocent, not to the guilty. But as the case now presents itself in this court we cannot do with it what the circuit judge might and should have done. The wife alone has appealed, and according to the settled practice of the court we cannot, without appeal by the husband, modify the decree to her prejudice. Proctor v. Robinson 35 Mich. 284; Match v. Hunt 38 Mich. 1; Heath v. Waters 40 Mich. 457. The decree awarding her a divorce on her cross-bill must therefore stand, and the allowance for alimony must also stand to the extent made below. What we can consider is, whether the husband’s divorce on the original bill shall stand also. A review of the evidence satisfies us that the most serious misbehavior proved was not on his part, and that the proofs establishing it, unconnected with the recrimination which was set up, would fairly entitle him to a divorce. And we are also of opinion that as the circuit court gave effect to the recrimination by making an original and independent case of it, and awarded to the woman a divorce upon it, it should now be considered, for the purpose of disposing of the appeal, as eliminated from the case. The decree for a divorce in his favor will therefore be allowed to stand. The question of the sufficiency of the alimony is also an open question here. As it-is settled by the decree in her favor that she had cause for a divorce, the right to reasonable alimony is settled also. But alimony may be larger or smaller according to the behavior of the parties, and this ease is not one in which the sympathy is enlisted for either party.' The husband is a farmer, having real estate which we estimate at $3000; his personal estate is proportionate to this small domain, and he owes some debts. The allowance of $800 to the woman seems to us rather small, and it will be increased to $1200. But we make no allowance to her for expenses on the appeal. The husband must also make equal division with her of the household furniture. The details of the decree will be settled on drafts being submitted. Campbell and Marston, J J. concurred.	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Marston, J. This case was tried in -justice’s court, the set-off allowed and judgment rendered against the plaintiff, which on cerbiora/ri to the circuit court was affirmed. There is no evidence tending in even the slightest degree to show that the plaintiff was legally liable for the suit of clothes furnished by the defendants to Capt. Jones. There was no gift of a suit of clothes, no authority given to Capt. Jones to order them and have them charged to the plaintiff, and no written or verbal promise by the plaintiff to pay for them. The judgments of the circuit and justice’s courts must be reversed with costs of all courts to the plaintiff. Cooley and Campbell JJ. concurred.	[ 14, 36, -23, -8, -22, -29, 31, -10, 21, 61, 63, 10, 23, -15, 2, -56, -4, -21, 41, -2, -4, 2, -19, -65, -1, -30, 19, 21, -34, 7, 16, 5, 21, 13, 23, 44, -14, -10, -9, -51, 6, -13, 33, 3, 18, 8, 26, -8, 2, -30, 1, -22, -16, -2, -39, 15, -31, 9, -23, -34, 7, -19, 26, -3, -68, 9, -22, -10, -32, 18, 18, 37, 53, 2, 14, -15, -33, -19, 13, 2, 17, 0, 14, -28, -28, -9, -4, -1, -38, 5, -24, 68, -31, -30, 0, 40, -19, -20, -12, 36, -3, 3, -53, 13, 9, 37, -1, -81, -75, 31, 23, 35, 22, -10, 6, -10, 8, -82, -6, -12, 21, 13, 21, 5, 9, -33, -1, -32, -9, -7, 11, -23, -11, 28, -49, -6, -3, 33, -70, -46, 39, 3, 7, -18, -6, 45, 34, 19, -39, -29, -28, -14, -16, 0, 44, 16, 45, -38, 17, -17, 41, 9, -2, -17, 16, -15, 3, 14, 50, 7, -3, -33, 0, 45, 16, 68, -31, -35, 0, 5, -11, 30, -23, 6, 19, 18, 75, -6, -8, 35, 0, -9, -32, 11, 5, 34, 48, -22, 20, -27, -26, 22, -36, -21, 35, -11, 42, -33, 6, 24, -11, 14, 19, -42, -17, 39, -72, -17, -35, -35, -11, 4, 34, 35, -21, -50, -26, 52, 57, -7, -52, 28, 9, -15, -1, -51, -38, 25, 12, -27, -42, 13, -11, -30, 23, 14, 27, 7, -59, 23, 9, 19, 59, -13, -21, -45, 28, 34, -31, 29, -11, 30, -65, -4, 13, -43, 20, 28, 1, 35, -60, 21, 24, -8, 0, -30, -32, 17, -22, 24, 15, 12, 36, -3, -20, -49, 25, 13, 5, 30, 2, 12, 34, 1, 35, 27, 24, 36, -14, 3, -6, -6, -3, 49, -8, 22, -16, -5, -12, -2, -12, 19, 9, -8, 21, 24, -36, -28, 28, -9, -64, 26, 27, -27, 7, 0, 41, -35, -21, -13, -17, -10, -5, -44, 31, 30, 29, -22, 20, 14, -47, 37, -23, -19, -46, 35, -16, -16, -13, 9, -56, 13, 16, 1, 1, 52, 3, -10, -12, 16, 29, 0, 22, -37, 34, 0, 0, -14, 5, 37, 38, 5, -19, -31, -66, -23, 0, 14, -16, 44, -27, -4, -6, -36, 16, -2, -3, 5, -21, -34, -43, 10, 38, 4, -63, -12, -61, 5, 7, 48, 0, 21, -23, -67, -93, 8, 0, -2, 29, -54, -16, -11, 26, 16, -16, -64, 4, -16, 8, -53, 39, -16, 2, -33, 2, 8, 27, 28, -23, -2, -11, 5, 22, -48, -11, 4, -33, 5, 5, -8, -8, 18, -32, 25, 19, -59, 1, 32, -2, -3, 25, -10, 31, 28, 16, 35, -21, -35, 42, 5, 0, -19, -21, 26, 6, -13, -13, -29, 8, -33, -24, 40, 2, -3, -16, 4, -39, 18, 16, -1, 30, 38, 10, 4, -4, 26, -25, -28, 36, 29, -13, -7, 7, 10, 21, -1, -34, -2, -51, 28, -47, 22, 4, -61, 11, 19, -3, -24, 40, 15, 15, 36, 18, -4, -44, -2, 2, -5, 30, 38, 2, -21, -2, -30, 24, 68, -8, -47, 18, -42, 6, 50, 5, -30, -11, 6, 46, -52, 59, -19, -19, 27, -16, 15, -35, -5, -20, -44, 14, 55, 28, 54, 34, -26, -18, -8, 33, -16, -12, -27, -3, -21, -7, 43, 75, -23, 30, -49, 46, -35, 38, 11, -30, -5, -10, -4, -4, 34, 0, -6, -25, -4, -23, -68, 0, -57, 30, 22, -42, -10, -61, 8, 1, 2, -30, -42, -18, -39, -9, 6, -16, 5, 0, -22, 12, 25, 13, 7, -20, 61, 30, -15, 32, 5, -37, 7, -41, -10, 4, -31, 11, -5, 10, 15, 27, -5, -11, -21, 1, -27, -23, 1, -33, 2, -53, 21, -63, 27, -85, -14, 7, 9, 19, 11, 4, 7, -26, -13, -13, -32, 2, 39, 12, 42, -3, 13, 15, 9, -32, -17, 19, -22, 5, 53, -4, 36, 27, 3, 19, 7, -22, -67, 52, 10, 8, -28, -6, -10, -47, 41, -6, -31, 21, -81, -2, 64, 8, -12, 7, -29, 9, -13, -32, -19, 38, 5, 82, 19, -3, 26, 0, -60, 14, 20, 2, 21, 0, 25, 53, 31, -67, 49, -13, 0, 16, -29, -11, 30, -55, -7, -9, -42, 58, -10, 3, -38, 13, 12, 6, 23, 30, 26, 27, 4, 9, -36, -4, -33, -5, 1, -25, 21, 14, 0, 19, 7, 38, 6, 25, 45, 20, -1, 38, -4, 9, -37, 0, -20, -42, -51, 4, 21, -20, -14, -4, -15, -46, -1, 30, -5, -18, -30, 26, -61, 7, 14, 51, 37, -3, -22, 3, -7, -57, 66, -12, -9, 4, -42, -45, 19, 31, 39, -11, 52, -29, -10, -8, 73, -1, -8, -36, 35, 22, -17, 47, 26, 17, -5, 3, 14, 0, -36, 3, -18, -13, 30, -20, -13, -20, 34, -1, 21, 22, 22, 39, 16, -13, -43, -42, 8, 35, -37, -22, 39, -21, 10, -3, -66, -10, -32, -36, 17, 15, 7, 46, 5, -10, -23, -53, 34, 3, 36, 11, 48, -5, -14, 3, -27, 46, -49, -27, 12, -15, 9, 28, 17, 21, -42, -5, -34, 45, 65, -14, 0, -40, 12, 13, -52, 9, 14, 5, -23, 4, 74, -18, 12, -2, -56, -20, 30, 44, -40, 57, 37, 3, 16, -42, -18, 16, -46, 30, -1, -42, 1, 26, -48, -10, -27, 0, 57, 14, 11, -15, -4, 8, 81, -43, -14, 17, -41, -7, -40, 25, -11, -4, -1, 38, -31, -31, -21, -60, -12, -1, 27, 26, -50, 44, 11, -23, 47, -3, -26, -3, -17, -27, 7, -10, 55, 40, 27, -8, 27, 18, 35, -61, -30, -47, -11, -32, 24, -34, 44, 18, 21, -1, 46, 1, -3, -30, -10, 9, 6, 2, -79, 33, -11, 57, -11, -17, -5, -4, -18, -57, 51, 15, -29, -27, -21, -48, -2, -24, 0, 25, -31, 11, -52, -70, 45, -23, -24, -5, 6, -5, 24, 16, 11, 21, 88, 20, -22, -26, 43, 25, 54, -48, 7, -36, 6, 1, 50, 58, 22, 57, 2 ]
Cooley, J. Defendants were sued in justice’s court as-makers of a promissory note. The note was signed “ Arnold & Ackley,” and defendants were declared against as partners. Arnold alone was served with process. To cast upon the plaintiffs the burden of proving the note, Arnold made and filed with the justice an affidavit in which, referring to the note which was on file, he affirmed that “ he did not sign the same, neither did he authorize any person to sign it for him.” The justice held that this was not a sufficient denial of the execution of tbe note by tbe alleged partnership, and entered up judgment upon it as upon admission. The circuit court reversed the judgment. It lias seemed to me that this affidavit was evasive, and that Arnold in making it intended to make his denial of individual execution accomplish the purpose of a denial of partnership execution, which perhaps he could not truthfully make. But my brethren think the affidavit sufficient,, and it must be so held. They think that a denial of execution by himself or by any one authorized by him is at least an argumentative denial of execution by any partnership of' which he was a member; and that that was sufficient to put the plaintiffs to the proof of the instrument. We all agree that the affidavit should not be technically construed, but should be held sufficient if in good faith it seemed to be intended to meet the plaintiffs case. McCormick v. Bay City 23 Mich. 457. The judgment will be affirmed with costs. Graves, C. J. and Campbell, J. concurred.	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Campbell, J. Plaintiffs sued defendant for not carrying-out an agreement to furnish them with shingles. The agreement made by Morehouse was to “ sell to said Baker & Murray all the shingles made by him at his shingle mill out of his own timber, and his one-half made from Seaman’s timber, in the township of Colfax, during the year 1880.” The contract contained some provisions as to size, quality, and handling, and payment of price, which do not become material. As the case was given to the jury they must have found that all the shingles made by Morehouse out of his own timber, and out of his half of Seaman’s timber, in Colfax, were delivered. The court below refused to allow parol evidence that it was agreed the mill should be kept running continuously and that shingles should be made from timber in other towns also. The whole ground of complaint seems to have been the failure to do this. The contract contains no such agreement, and the parties were governed by their written agreement. There was no error in the rulings, and. the judgment must be affirmed with costs. Cooley and Marston, JJ. concurred.	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Campbell, J. This action was brought to recover a penalty of $200 against defendant, who was a deputy sheriff of Wayne county, for refusing for more than six hours to deliver to plaintiff a copy of a warrant under which he had arrested him, after demand and tender of legal fees. The case was made out by testimony in the court below, but the court ordered a verdict for defendant, which is now sought to be justified on- the ground that the law is unconstitutional because including more than one subject, and not including this subject under its title. Comp. L. § 7042. The point is made that this section is included in the Compiled Laws in a general chapter relating to writs of habeas corpus and cerüorcvri, and that there is nothing under these heads or under any of the sub-titles of the chapter relating to such an action as this. But the Compiled Laws are in no sense a re-enactment or an original enactment of the provisions contained in them. The Constitution expressly forbids a revision of the laws, and in providing for a compilation confines it to existing laws; and the approval of it is made by commissioners and not by the Legislature. Const. art. 18 § 15. It is the original law which continues to exist, and the Compiled Laws have no force except as a compilation of existing statutes properly arranged but not altered. There is nothing in the Constitution applying the rule of single subjects and explicit titles to any but future legislation. The statute now in controversy is an ancient one, which has been adopted in this State under both revisions •of 1838 (p. 519) and 1816 (p. 586) as a part of the habeas corpus act; and it is a very important safeguard against wrongful arrests, which the courts are bound to enforce. It is too clear and precise to leave any room for construction. The plaintiff ought to have recovered the penalty. The judgment must be reversed with costs and a new ■trial granted. The other Justices concurred.	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Campbell, J. This bill is filed to enforce a mortgage made in August, 1.865, by Levi Wheelook, deceased, to one Devens to secure certain, promissory notes payable to Devens, or bearer, in one and two years. On the 26th of December, 1865, Devens assigned to complainant, who in August, 1866, made a colorable assignment to Ives G. Miles and John Culp, which the bill states was for complainant’s own purposes, and they reassigned in 1869. The mortgage was recorded erroneously, so as not to show the true description of the land. In March, 1869, it was recorded anew correctly. The assignments from Devens and to Miles and Culp were seasonably recorded. The reassignment was not recorded. ■ In July, 1868, Wheelock made a second mortgage to defendant Bennett, who afterwards assigned it to defendant Babcock, which was duly recorded, and thereby obtained record precedence, as to the land described, over the first mortgage. In February, 1871, the land was sold on chancery foreclosure of the second mortgage to Babcock, the complainant in foreclosure. All persons having record interests were properly brought in, and the proceedings were regular. Complainant was not made a party, but Miles and Culp were, and the decree is admitted to have been warranted by the rules of practice. In the latter part of November, 1873, Babcock conveyed to Wheelock, and some conveyances and reconveyances are set up which need not now be recited. All of the property became ultimately revested in Levi Wheelock except one small parcel in his son Levi A. Wheelock. Some homestead questions are also raised which we do not refer to. Levi Wheelock is dead and a part of the defendants are his widow and children. The bill is filed on the theory that the Bennett mortgage and all the subsequent transactions through which the property passed were purposely fraudulent and collusive, to protect Wheelock .and defraud complainant. The bill does not rely on any general disability of a mortgagor to become purchaser under titles derived from a foreclosure of a second mortgage, and therefore we need not discuss how and when such a disability exists. In the present case, when he purchased, the claim against him personally was outlawed, and he had no remaining duties to his mortgagee. The bill rests on nothing but fraud. There is nothing in the case to indicate that any fraud has been committed by Wheelock or by any of the defendants. Their conduct appears to have been honest and fair throughout, and it is not open to criticism. On the other hand, a delay of more than twelve years to enforce complainant’s mortgage, and of more than six years after Wheelock purchased from Babcock, and the postponement of suit until Mr. Wheelock’s death, might very well lead to some hesitation in allowing so stale a claim to be urged under any but satisfactory circumstances But we think the theory of the bill fails entirely, and all other questions may be passed. The decree dismissing the bill should be affirmed with •costs. Cooley and Marston. JJ. concurred.	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Graves, C. J. The defendant hired the plaintiff’s horse ••to drive from Milford to Holly and back and the animal became sick and died. The plaintiff claimed that this was ■caused by defendant’s ill-usage and neglect and he sued for damages. The jury found against him and he brought this writ of error. Only two rulings are complained of and both were made in admitting evidence. The defendant proved that he left Milford soon after nine o’clock in the morning to go to Holly some fifteen miles away in company with Clark Crawford, and stopped at Buckthorn to give the horse water. He. offered to show a conversation which occurred at that place between himself and Crawford about the appearance and condition of the horse at that time; the object being to-establish that he acted considerately and exercised due care and prudence. The plaintiff’s counsel objected, but the court overruled' the objection and we think rightly. What occurred at that time between Crawford and defendant in reference to the ■ state and condition of the horse was pertinent and proper.. It bore upon the question whether the defendant was rash,. heedless and indifferent, or awake, watchful and circumspect; and how he stood and acted in this respect was involved in the case alleged against him. If he felt and acted as he ought, ho was not liable. The defendant gave evidence that on two former occasions the horse when, driven by other persons fell sick of colic, and adduced other-testimony to raise an inference that the horse’s death was ■ owing to the same difficulty. The plaintiff produced a witness who swore that he was a veterinary surgeon of twenty-five years’ standing, and his opinion as an expert being called for he swore that in his opinion the horse died from, being overfed when too hot, which would produce colic. On cross-examination he said that colic was caused by over-driving and feeding when the animal is too warm ; that all works of good authority spoke of it and that the “ Modern-Horse Doctor, by Dr. Dodd,” was a work of that kind. The defendant then offered to show from this work of' Dr. Dodd, where the author treats of colic, the passage following: “In nine cases out of ten colic is the result of' impaired digestive organs; the food runs into fermentation, and evolves carbonic acid gas.” This evidence was offered to discredit this expert in connection with his cross-examination. The plaintiff objected to its introduction but the-court admitted it. The rule is acknowledged in this State that medical books are not admissible as a substantive medium of proof of the-facts they set forth. But the matter in question was not adduced with any such view. The witness assumed to be a person versed in veterinary science; to be familiar with The' best books which treat of it and among others with the, work of Dodd. He professed himself qualified to give an opinion to the jury from the witness stand on the ailment of the plaintiff’s horse and its cause, and the drift of liisopinion was to connect the defendant with that ailment-He borrowed credit for the accuracy of his statement by" referring his learning to the books before mentioned and by implying that he echoed the standard authorities like Dodd. Under the circumstances it was not improper to resort to-the book, not to prove the facts it contained, but to disprove the statement of the witness and enable the jury to' see that the book did not contain what he had ascribed to it. The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a* false light. The case is a clear exception to the rule which, forbids the reading of books of, inductive science as affirmative evidence of the facts treated of. Ripon v. Bittel 30 Wis. 614; 2 Whart. Ev. § 666. We think the court committed no error and that the-judgment should be affirmed with costs. The other Justices concurred.	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Graves, C. J. Kroll brought a claim before commissioners who disallowed it, and he appealed. In order to give it a more formal shape he filed a declaration, but-counsel for the estate objected that the declaration made a different case from that determined by the commissioners. The question is practically unimportant, because the original form was produced and now appears in the record, and the controversy is fixed by it. No pleading conld change the identity of the case. Patrick v. Howard 47 Mich. 40. • The demand alleged for certain commissions was not supported by any testimony, and there is no occasion to comment upon it. The actual subject of contention is a claim set forth and explained in substance as follows: That Xroll had contracted with Chappell for a parcel of land of about eighty acres and then orally agreed with the firm of C. & E. Ten Eyck, composed of decedent and Isabella Ten Eyck, that the title should be taken in the name of said firm and that he should retain an interest in the land and should be paid by the firm at the rate of fifty cents per thousand feet for all merchantable pine timber standing and growing on the land, whenever it should be thereafter lumbered. That pursuant to this agreement the land was deeded to said O. & E. Ten Eyck and that there was some two million feet of timber on it of said quality. That ho lumbering was done during the life-time of decedent, although the title was retained until 1880. That the property was then transferred to a firm of the same name, but composed of said Isabella Ten Eyck and two others of the name of McCormick, and that such last firm have been and are lumbering the land, wherefore the claimant demands $1000 and upwards. Considerable testimony was given, but the circuit judge directed a verdict for the estate, and the general question is presented whether this result ought to be disturbed. The controversy suggests several points possessing interest, but the decision may be placed on very familiar ground. The only testimony produced by the claimant to make out the alleged oral agreement with the old firm consisted of the oral testimony of Cogswell and of a letter from decedent to McCormick, and each of these pieces of evidence had its own office and was intended to coroperate with the other for the purpose of an accurate development of the entire transaction. Taken together they were the claimant’s proof to show the true arrangement. They were not alike in regard to the particulars which they tended to establish; but there was no antagonism and neither could be rejected. It was necessary to act on their combined effect. Anything shown by one and not shown by the other would have to be considered as an increment of the case brought out by the claimant himself, and not as any intruding incident to be suppressed for his benefit. It only remains to see whether this evidence so received and considered as a whole is open to any construction which is consistent with the case presented by the claimant according to the letter before referred to.' Kroll’s right to be paid fifty cents per thousand feet was made conditional on his doing “ all the work, lumbering, and delivering it to the boom.” Cogswell swears to what he overheard of what the claimant and decedent said in making the bargain. He does not profess to have heard all that occurred nor pretend to remember all that he heard. It is of no importance that he does not mention the condition as something he recollects to have heard specified. It is sufficient that the claimant shows the fact by means of the letter, which agrees with the oral evidence for the estate. The variance is radical. The case alleged contains no condition of the kind. The result is that the testimony did not conduce to make out the claim set up, but a transaction entirely different and subject to different principles, and hence the ruling below should not be disturbed. The order appealed from is affirmed with costs. The other Justices concurred. Cogswell was an employee of C. & E. Ten Eyck.	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Cooley, J. Tbis is an injunction bill. Tbe object is to liave the rights of complainant in the water-power of tbe Tliornapple river at Ada declared and protected, and certain obstructions which are said to be maintained by tbe defendants in tbe mill-race at that point removed. Tbe bill was filed July 30, 1811. It sets forth that prior to July 19, 1858, one Samuel Clements was owner in fee-simple of a certain parcel of land particularly described, lying upon the Thornapple river, together with a grist mill and flumes erected thereon, with the first right of use of the water from the adjacent mill race sufficient for four run of millstone, with the necessary machinery for a grist and flouring mill by the use of water-wheels that should be as economical in the use of water as those in use in said mill on the day last aforesaid. That the said mill was then used as a grist and flouring mill and was operated by means of said water-power, and from that time has been so continuously operated. That the Thornapple river flowed by and through said land, and there was a dam across the same above said land which created a pond from which the water was conducted by a race to and through said mill, and created the motive power by which the mill was operated. That on the day mentioned Clements sold and convoyed all said described property by warranty deed to Electa Bradfield, and on the fourteenth day of October, 1870, Electa Bradfield by like deed sold and conveyed the same to complainant. That by virtue of said conveyances, complainant became on the day last mentioned and' still is the owner of the first right and interest in the water of the Thornapple river as it flows and of right ought to flow through said race, in amount sufficient at all times and in all seasons to propel four runs of millstones, with the necessary gearing and machinery for a grist and flouring mill by the use of waterwheels as economical in the use of water as those in use in said mill on said premises on July 19, 1858. . That on said October 14, 1870, complainant formed with others the partnership known as E. Bradfield & Sons, which ever since has been running and operating said grist and flouring mill. That some time after said conveyance by said Clements to Electa Bradfield other parties purchased some land and some right to use water from said river and said race, out of what there should be beyond that so conveyed to her, and erected a mill upon said race above complainant’s mill, and that the mill so erected has ever since been operated by means of water taken from said race as the motive power; and since the water comes from said mill before it reaches complainant’s mill, the owners thereof have an opportunity to use and control the water flowing in the race. That in the month of February, 1872, said upper mill property was purchased by and conveyed to James D. Dewell, and on July 1,1876, Cornelius K. Bussell became joint owner with him. That ever since said purchase by Dewell he and others acting with him have kept, supported and maintained in said race a large amount and variety of obstructions to the running and flowing of the water therein to complainant’s mill; the obstructions consisting of posts, timber, stones, etc.; and that by means thereof, said Dewell and his associates have so detained the water as to prevent complainant obtaining the quantity to which he is entitled, and he has been greatly obstructed and injured in his business in consequence. That said Bussell was then engaged in making some radical change in said premises, and in making excavations and embankments, and putting in a stone wall evidently intended to be permanent. and with the- aid of said stone wall and embankments was filling and blocking up the channel and race so as seriously to impede the flow of water to complainant’s mill, and that complainant had remonstrated without avail. And the bill prayed that said Dewell and Bussell “ be restrained from keeping, maintaining and supporting any obstructions to the flow of water through said race to your orator’s mill in amount sufficient to equal what is owned by your orator, and from using any of the water belonging to your orator and from preventing in any manner the coming to your orator’s said mill through said race at all times the amount of water so owned by your orator, and water enough to propel four runs of millstones with the necessary gearing and machinery for a grist and flouring mill using wheels as economical in the use of water as those in use in said mill on the 14th day of February, 1858, and that they be compelled to remove or allow your orator to remove all obstructions that interfere with the flow of the water owned by your orator to your orator’s said mill.” By supplemental bill "William Currie, William Bennett and Thomas C. Broadbent were brought in as additional defendants, as having acquired interests in the upper mill property during the pendency of the suit. The defendant Bennett answered and disclaimed, and the bill as to him was dismissed. The other defendants answered to the merits. They admitted the conveyances under which the complainant claimed, and the purchases and occupation by themselves, but they denied that they had ever encroached upon his rights. They charge hiin with great and extravagant waste in the use of the water, and with neglect and refusal to do his share and pay his proportion towards keeping the dam in condition for use, and aver that there has been at all times since the mills were built an abundance of water running and flowing in the Thornapple river to supply both of said mills with all the water that they are entitled to use if the dam was kept properly in repair, and the head of water kept at six feet as was originally contemplated. They aver their own readiness to contribute their proportion to the repairs at all times; and deny that any obstructions by them maintained materially obstruct the flow of water to complainant’s mill. Yoluminous testimony has been taken in the case, from which it appears that the dam by means of which the power in question is obtained is what is known as a brush dam, made of brush held in place by earth and stones; that by the contract under which it was originally constructed it was to raise the water six feet above low-water mark, and it could not be raised higher without interference with the rights of third parties; that the dam is likely to need annual repairs; and that in respect to what was needed and the cost of making them the parties have had frequent and angry controversies. On his part complainant produced evidence to show that for several years he had been unable iu his mill to do nearly so much business as formerly, which he attributed to the water being wrongfully obstructed or drawn oif by defendants, while they on their part produced evidence to show that it was due to his wasteful use of water, and his failure to unite with them in repairs. To an understanding of what follows it will be necessary to give the decree in full. The recitals in the decree, it will be seen, go quite beyond those contained in the bill. Tbe date of the decree is December 23, 1880. From its recitals it appears that some of the wrongful obstructions to-the flow of the water to complainant’s mill were made “ soon after ” the conveyance by Clements to Small in October, 1864, and presumably therefore long before defendants had possession or were claiming rights in the property. The decree is a mandatory injunction for the removal of these, though they are not specifically described or even referred to in the bill. To justify equitable interference after so groat a lapse of time, a very strong case ought to be made by the bill; and it ought either to be shown that com' plainant protested at the outset, or that circumstances existed which excused the failure to protest. The reasons which excuse the delay in applying for redress ought also to have been set forth. In the record we find evidence tending to explain and excuse the great delay, but there are no averments in the bill to which the evidence is applicable. One method of testing whether a mandatory injunction is proper in the case may be to Consider what the proceedings would be if it were claimed that its command was not obeyed. One branch of the injunction, is that the defendants be restrained from “ maintaining any obstructions in said race” whereby complainant’s right to the use of the specified quantity of water may be wholly or partially interfered with. This must refer in part at least to the obstructions created by Small, and perhaps these are sufficiently described in the decree so that, if their removal were ordered, the decree would be a sufficient guide for the purpose. Their removal, however, is not ordered; only their maintenance is forbidden if it interferes with the passage to complainant’s mill of the water to which, he is entitled. But the defendants are further enjoined “ from interrupting or interfering with the said supply of water for complainant’s mill from ■said mill-race sufficient for four runs of mill-stones, with the necessary machineiy for a grist and flouring mill by the use of water-wheels that shall be as economical in the use of water as those in use in said grist-mill at the date of the -deed from Samuel Clements to Electa Bradfield,” etc. If, therefore, the complainant were to claim at any time hereafter that by some disregard of the injunction he failed to .receive the requisite quantity of water, and were to move for an attachment, there would not only arise on that motion the question whether his machinery was as economical in the use of water as his grant requires, but if that was decided in his favor, then the further question whether the failure to receive the water was due to obstructions created or maintained by the defendants. The decree points out no method-of determining when the exigency of the injunction -is complied with; there is nothing definite in its provisions except that the flow of water sufficient to accomplish a certain-result shall not be interfered with; and the result itself is to-depend upon machinery in respect to which there may be frequent occasion for repairs or changes, so as to open anew the questions of fact which are largely considered in the-record in respect to the economy of the machinery in the-use of water. But an insuperable difficulty with the decree is, that while-in its recitals it recognizes the fact that complainant is under obligation to bear a certain proportion of the expense of repairing the dam, the mandatory clauses assume that complainant has an absolute and unqualified right to the specified quantity of water to be drawn from the race, and forbid, -any obstructions by defendants that will interfere with the-flow to him. What has already been said is sufficient to-show that complainant has no such absolute right. He is-not only under obligation to bear his proportion of the cost of repairs, but his right to use the water is qualified by the-obligation. If therefore the defendants should perform their duty in respect to repairs, and complainant should fail' to pex-form his, it may be that the defendants would be-entirely justified in operating their mill with the water froxn the race, even though the complainant failed to obtain the quantity specified in his conveyance, or any quantity whatever sufficient for any valuable pux-pose. Any question of a breach of the injunction is therefox-e complicated, not mex-ely with the other questions which have been refei’X'ed to, .but also with questions concerning the perfox-mance by the respective parties of their obligations to repaix-. If the dam were a substantial and pennanent stx-ucture, of definite form and height, needing repaix’s but seldom and. under exceptional circumstances, the obligation to divide the cost of repairs might not raise any very troublesome questions after the relative proportion of the cost was once ■determined. But this dam is one of those primitive structures which, though answering a valuable purpose, is very well calculated to be a source of perpetual contention when .there are interests in common in it. It is always expected to be leaky, and is very liable to be partly washed out in freshets. This dam has always been the occasion fpr dispute .and controversy. It does not appear from the evidence that .there is any known and understood standard of excellence for a brush dam, and it is very certain that the parties have never agreed upon any. At times they have disagreed respecting the height at which it should be maintained; they had a right to keep it at six feet, but were not under obligation to do so. Each was interested that it should give him the quantity of water required for his mill, and when complainant failed to obtain his proportion, the question of the responsibility for this involved of necessity the matter of repairs quite as much as the matter of obstructions. But in order to understand all the difficulties of the controversy it is necessary to consider that complainant is Or may be interested in an economical use of water by defend.ants, as much as they are in an economical use of the water by him. He has the first right; but there seems to be water enough in the river for all, and all are to be supplied by means of a dam maintained at the common cost. This dam should give them water through the race sufficient for .seven runs of stone; and complainant cannot be required by defendants to do more than to assist in keeping up a dam sufficient for three runs of stone in addition to his own quantity. Having the first right he is personally interested •only in having a dam sufficient to supply him, and a poor, imperfect and leaky dam might therefore answer his purposes if all the water which it turned into the race was suffered to flow to his mill. The interest of the defendants begins where his interest ceases; as they require for their purposes a dam that shall give them water sufficient for three runs of stone after his greater quantity has been furnished. The dam that answers his purpose may not therefore answer theirs; and if the quantity supplied by the dam constructed jointly proves insufficient for the purposes of both, there is the same opportunity for complainant to raise a controversy over excessive or extravagant use of water by the defendants that they have to accuse him of the like excess or extravagance. A decree should define with precision the rights which it assumes to declare and protect. The necessity for this is-especially imperative when as a part of the relief given a mandatory injunction is awarded for the demolition of structures which have long existed. A decree which requires the defendants to suffer water to flow to complainant sufficient to accomplish a certain result, when his right to it is-dependent on contingencies not specified and which í-equire important action by himself, is wanting in the precision requisite for a judicial determination of rights. How is the-court to give effect to such a decree as we have before us % If what was required was that the parties should jointly maintain a dam that should give a certain head of water, or that should cause a certain quantity in a specified time to flow through a defined canal, and then that the parties-should share the water in specified proportions, there would be in the case elements of certainty which would be guides-to the parties and also to the officers of the court, if the intervention of the court should ever be called for in the enforcement of the decree. But no such elements of Certainty are to be found in the mandatory clauses of this decree. As has been already pointed out the decree fails to-define the obligation of complainant to make repairs, upon which his right to water at any time may depend. Without enjoining the performance of that obligation the decree is quite as likely to breed new litigation as to put an end to-that which before existed; for the real trouble in the case was as much to be looked for in an insufficient or defective dam as in an improper appropriation of the results of the dam. The dam then required the attention of the court as- much as the alleged wasteful appropriation of the water which the dam turned into the race. Unless a dam was maintained which would give to the complainant the quantity of water to which he was entitled, the removal of obstructions from the race could not possibly give him effectual redress. And if, by the fault of both parties, or of complainant alone, the dam should fail to turn through the race the quantity required by both, the defendants might have as much and possibly a better right, to what should flow in the race, than the complainant could have under the circumstances. If so they would be justified in appropriating it notwithstanding this undiscriminating decree. A judgment in the case of such common rights, which is intended not only as a settlement of present controversy, but as a guide for the future, should be as particular to define the rights and obligations of one party as of the other, and should not assume that the violations of right will be on one side exclusively. But wo think the complainant has -been wholly in error in his view of the extent of the obligation resting upon him to make repairs. The error has sprung from the peculiar terms employed in the deed from Clements to Electa Brad-field. That deed conveyed the right to take from the race water sufficient for four runs of millstones, with the necessary machinery for a grist and flouring mill, “ subject to assessment of its just proportion of all expenses on the dam and mill-race that supplied it with water;” but it also contained a further statement that it was estimated by the parties that the whole amount of, water in the stream was sufficient for sixteen runs of stone. Erom this clause the conclusion has been reached by complainant that the “ just proportion of repairs ” to be borne by him was one-fourth, and the court in its decree accepts this conclusion. If there is error in this the complainant has erred from the beginning; and his error is probably chargeable in some degree at least with the litigation. It is probable that when Clements conveyed to Bradfield it was expected that the whole water-power in the stream at tlie point where the dam and race was constructed, would be sold and utilized. If sales had been made of all with provisions in the deeds in respect to repairs like that in the deed to Bradfield, each purchaser would have been under obligation to make repairs in proportion to the power owned by him, and any prior right to water would have made no difference in this regard. Any expectations of a sale of the whole seems however to have been disappointed. Sufficient power for four runs of stone was sold lo Bradfield, and sufficient for three runs to Small, and here the sales stopped. The remainder of the water is not utilized and nothing in this record informs us that any person is under obligation to share the expense of maintaining the dam, except the parties to this suit, and their obligation is not absolute, but only contingent and conditioned on their making use of the water. If complainant should cease to use the water, defendants could not call upon him to aid in making repairs, and if defendants should cease to make use of their mill, the complainant, as we are now advised, would have no alternative but to bear the whole burden. As the interest of the defendants in the water is one-fourth less than that of complainant, the proportion of the cost of repairs to be borne by them, if the whole power was utilized, would be to that borne by him, as three to four. But it is claimed by complainant and conceded by the defendants, that by his purchase he has acquired a right to the power granted to him which, as respects repairs, is not affected by the sale or failure to sell the remainder, and that as between himself and a subsequent grantee he is entitled to water sufficient for four runs of stone, if he makes the proportion of repairs which is specified in his conveyance. The result of this claim is that defendants, as a condition to obtaining the water needed for their purposes, must bear the burden of all the repairs except to the extent that by the Bradfield conveyance they were thrown upon the grantee named therein. And had there been in the stream the water that was estimated when the Bradfield conveyance was made — namely, sufficient for sixteen runs of stone— •one-fourth the cost of repairs would thus be cast upon complainant and three-fourths for their lesser interest upon ■defendants. It appears, however, that the quantity of water in the river is much less than was estimated and instead of being sufficient for sixteen runs of stones, it is only sufficient for ten runs. This deficiency raises the question whether complainant’s proportion of repairs is to be estimated according to the water actually in the river or according to the quantity which was erroneously assumed to be there when Clements conveyed. The difference as is evident is very important, as under one view the complainant must bear perhaps two-fifths of the cost of repairs and under the other ■one-fourth only. Complainant contends that his “ just proportion ” of the ■expenses of repairs is determined by the deed itself whereby there was conveyed to his grantor one-fourth the estimated power. But if the estimate was intended to fix the proportion definitely it is remarkable that the draftsman, instead of saying that the power conveyed shall be subject to assessment for its “ just proportion,”, did not expressly define the proportion and fix the amount definitely, and beyond question at one-fourth the cost. Fewer words than he has employed would have expressed the intent conclusively and directly, while now if it is expressed at all, it is in ambiguous language and by circumlocution. But the terms employed are much better calculated to convey the meaning that the just proportion was subject to contingencies, than that it was definitely fixed ■ and settled by the deed itself. Bradfield purchases power for four runs of stone; the whole is estimated at sixteen runs, and the grantee shall bear a proportion of the repairs which is not expressly named, but shall be determined by right and justice. An estimate, it is always assumed, may not be accurate, and so long as the quantity is only estimated. and not more definitely determined, if it were intended that the grantee shall bear with others a proportional share of the cost of repairs, the proportion could not be more conclusively fixed than by the use of terms requiring that it should, be just. But what would be just could only be determined when the quantity had ceased to be estimated and had become known. And when the quantity is known it is made evident that any apportionment according to the very inaccurate estimate would be' altogether unequal and unjust. But there is the further error" in the complainant’s view that it assumes that his proportion of keeping the dam and race in repair is just the same when only a part of the power is utilized that it would be if the whole were utilized. This would be so if the same dam and race were required to give to him and to the defendants the power they have purchased that would be necessary to utilize the whole power,, but otherwise it would not. The fact that three-tenths or so of the power is now wasted may have an important bearing on this point; for when complainant takes advantage of the fact that the power is not all utilized, to throw upon defendants, as a condition to any use of the water whatever, a proportion of the repairs much larger than he assumes, they have a right to insist that he at least shall not be gainer at their expense, by reason of the same non-use of power whereby they are losers. Now complainant was h> have his power' subject to an assessment that contemplated the use of all the rest; and if less than all is utilized, at a less cost, the saving does not belong to him but to those whe were subsequent purchasers. If he obtains his proportion of the power subject to such proportion of the expense as he must bear if all were utilized, that is all he can claim and all that justice can concede to him. It may be that there would be no considerable difference in the expense of maintaining the dam and race to give power sufficient for seven runs of stone, or to give all that can be obtained; but the difference in the obligation is not to be overlooked and it is conceivable that it may be of considerable practical importance. As Bradfield took from Clements no covenant 'that the latter or his grantees would be at any expense in keeping up the dam and race, it is the good fortune of complainant that any one else by a subsequent purchase^has put himself in position to be under obligation to share with him that expense. But under no circumstances can his just proportion he less than the proportion the 'water he uses bears to the whole water in the stream; and for reasons just given it may be greater if all the power is not utilized. In Hoxsie v. Hoxsie 38 Mich. 78, we had occasion to say that an “ injunction ought not to be granted to regulate the relative rights of mill-owners upon the same stream, except in very clear cases of the intentional violation of such rights.” This case is a forcible illustration of the remark. The questions at issue are such as the parties ought to settle for themselves; but if this is found to be impossible, it must be because of difference of opinion in respect to their rights and obligations, which in the nature of things cannot be definitely settled by an injunction. We are of opinion that complainant has failed to make out a satisfactory case for equitable relief. If under the views expressed in this opinion he conceives himself entitled to redress at law, he is at liberty to pursue the legal remedy. If he should recover at law, he might possibly, on the basis of that recovery, have relief in equity. The decree must be reversed and the bill dismissed with eosts of both courts. The other Justices concurred. The Decree. “This cause came on to he heard on the pleadings and proofs therein, ■and was argued by counsel, and the court, having considered the same, doth find and declare that on the nineteenth day of July, A. D. 1858, Samuel Clements was the owner of certain land and water-power at Ada, in said county of Kent, created by a dam constructed across Thornapple river, and of a grist-mill, mill-race or flume connected therewith; that said grist-mill was propelled by water-power, which water was conducted from said dam by means of a race or flume to said mill; that the waterwheels then in use in said mill were what is known as the “Yale wheel; ” that on the said nineteenth day of July, A.- D. 1858, the said Samuel ■Clements did, by warranty deed, for the consideration of 5037.18-100 dollars sell and convey to Electa Bradfield parcel of his said lands and waterpower, described as follows: All that certain piece or parcel of land situated in the township of Ada, Kent county and State of'Michigan, and being a part of section thirty-four (34), of township seven (7) north, of range ten (10) west, and bounded and described as follows, to-wit: Commencing at a Stake on the south line of the Detroit & Milwaukee Railway 148 feet eastwardly from the center of the first road crossing ■east of the Thornapple river, and running west 19 degrees south 19 rods and 9 links to a hackberry tree on the right bank of the Thornapple river; thence down said river, on the right bank thereof, to the south line of the aforesaid railway; thence eastwardly along said line to the place of beginning; together with the grist-mill and flume erected on said premises, with the first right of use to the water from the adjacent mill-race sufficient for four runs of millstones, with the necessary machinery for a grist and flouring mill, by the use of water-wheels that shall be as economical in the use of water as those now in use in said mill; (reserving to the party of the first part the free right of ingress and egress across said premises, on the south side thereof; and further, the right to cut a race, or erect a flume, across said premises, provided such race or flume shall not. obstruct the discharge of water from said gristmill or interfere with the privileges of .said mill); provided further, that the water-power herein conveyed to the party of the second part, shall at all times be subject to assessment of its just proportion of all expenses for repairs on the dam and mill-race that supplies it with water, it being-understood by the parties thereto that the whole amount of water in the stream (Thornapple river) is estimated as sufficient for 16 runs of millstones; that said deed was duly recorded in the office of the register of ■deeds, for the county of Kent, on the 6th day of September, A. D. 1858, in liber 13 of deeds, on pages 219, 220 and 221. “And this court doth further find and declare that afterwards, on the 18th day of October, A.' D. 1864, said Samuel Clements did, by warranty deed, for the consideration of $2000, sell and convey to Shad-rack Small, Jr., other parcels of said lands and water-power described as follows: Lots four (4) and five (5), in block four (4), bounded as follows: Beginning at the southeast corner of land deeded to E. Bradfield, known as lot six (6) in said block four (4), on the south line of the Detroit & Milwaukee Railway; thence east 36 degrees south along said railway line (excepting two rods wide for a street known in the plat of the village of South Ada as Mill street) 17£ rods or thereabouts; thence south 36 degrees-west about 9 rods from said railway line to the light bank of the Thorn-apple river; thence following the meanderings of said river at low-water mark and down said stream to the point where the land of E. Bradfield intersects said river; thence east 19 degrees north along said line to the place-of beginning, together with the saw-mill situated on lot five aforesaid,' with the fixtures and appurtenances and water to be drawn from the mill-race on said lot sufficient for three runs ®f millstones, with necessary machinery for a grist-mill and flouring-mill; reserving to the party of the-first part, his heirs and assigns, the right to cut a mill-race across said lot 5, block 4, forty feet in width, for the purpose of convoying water from the mill-pond to propel machinery; the party of the first part, his heirs and assigns, to bridge said mill-race (when so cut) sufficiently for a roadway for loaded teams, and to keep said bridge in repair; also lot 6 in block 1 in the said village of South Ada, reference being hereby made to the recorded plat thereof, in the office of the register of deeds for said county of Kent, for all descriptions of lots and blocks in the foregoing description; the same being lots four (4) and five (5), in block four (4); also lot six (6) in block one (1), according to said plat; and further, the small building now situated on lot five (5), in block one (1), is embraced in the above purchase of the party of tbe second part. “This court doth further find and declare that -by two deedSi one dated October 14th, 1870, and recorded May 11th, 1872, and the other dated February 14th, 1875, and recorded February 19th, 1875, all the rights, title and interest of the said Electa Bradfield in the premises and water-power first above described were conveyed to and became vested in Edward Bradfield, the complainant in this suit. And by deed dated August 17th, A.D. 1868. and recorded August 18th. 1868, Shadrack Small, Jr., conveyed all of his right, title and interest in the premises second above described, to Eliphalet Averill, in trust for himself and Nathan T. Bushnell and James D. Dewell, composing the partnership firm of E. Averill & Co., and on the 24th day of April, 1871, the said Eliphalet Averill personally, and also as trustee for himself and Nathan T. Bushnell and James D. Dewell composing the partnership firm of E. Averill & Co., by deed of that date and recorded April 25th, 1871, conveyed said premises as-above secondly described to Nathan T. Bushnell and James D. Dewell; and that on the seventh day of February, 1872. said Nathan T Bushnell .lid by deed recorded February 29th, 1872, convey said premises to James D. Dewell; and that on the first day of July, 1876, said James D. Dewell! did by deed recorded on the 18th day of August, 1876, convey to. Cornelius K. Russell an undivided half of the said premises; and that on the 19th day of July, 1879, said James D. Dewell and Cornelius-11. Russell did by deed convey said premises to William Currie; and that the defendant Thomas C. Broadbent was, at the the time of the filing the supplemental bill in this cause, using and operating the mill erected on said last described premises, under said other defendants, or one of them, and has diverted the water from said race of which said complainant was-entitled to the first use, so as to prevent said complainant from receiving the quantity of water he is entitled to under said deed. 1 ‘ The court doth further find and declare that the complainant, Edward! Bradfield, is, and since the fourteenth day of October, 1870, has been, entitled to the free and uninterrupted enjoyment of the supply of water' from the race or flume mentioned in said deed from Samuel Clements to> Electa Bradfield sufficient for four runs of millstones with the necessary machinery for a grist add flouring mill by the use of water-wheels that are as economical in the use of water as the wheels in use in said mill on the 19th day of July, 1858, and doth further declare that complainant’s right to use said quantity of .water is first and superior at all times-to that of defendants to use water from said race or canal at any and all. stages of water in said Thornapple river or in said race. That the said water-power conveyed by said deed from Samuel Clements to Electa Bradfield, and the complainant’s rights thereunder, is subject to assessment of its just proportion of all expenses for repairs on’ the dam and mill-race, which this court doth declare to be one-fourth part of such expense, and the court finds that said'complainant has always been ready and willing, and has paid his just proportion of all expenses for repairs on the said dam and mill-race. “ And the court doth further find and declare that at the time of the execution of the deed from Samuel Clements to Electa Bradfield the water which furnished the power for the mill therein conveyed was conducted to the mill by means of a race from the pond caused by the dam across Thornapple river, near the upper end of which race were head-gates to regulate the flow of water into said race; there was another head-gate to the flume of the mill at the lower end of the race, and near the mill conveyed by said deed. The distance between these head-gates was and is 113 feet; that soon after the date of the deed from Samuel Clements to Sliadrack Small, Jr., said Small erected a grist and flouring mill on said race, the superstructure of which extended entirely across said race, and was 36 feet in width, and a distance of 22 feet from the upper head-gates of said race. That portion of the mill which is over the race is supported by two rows of posts, four posts in each row, extending from the bottom of the race to the mill above. On the right bank of the race the mill is supported by a stone wall, and in the race and adjoining the stone wall are six posts. The stone wall at the lower end makes a right angle and projects three feet into the canal or race. The water used to propel the wheels of this mill is drawn from the race through gates directly under the mill. Soon after the mill was erected by Small the water broke through under the gates of his mill, and he thereupon filled in with plank, stone and gravel, the race along in front of his gates, the bottom of the race nearly three feet deep, and extending back near to the center of said race. There are two bridges across said race adjoining-said mill, one on the upper side, which is supported by two posts extending from the bottom of said race, and one on the lower side of said mill is supported by three posts extending from the bottom of said race. “ And this court doth further find and declare that the filling in of said race, and the said posts and stone wall erected and maintained in said mill-race, are obstructions to the free and uninterrupted flow of water in said mill-race to said complainant’s mill, and in low stages of water in said mill-race interferes with and obstructs the free flow of said water to complainant’s mill to such an extent as to deprive him of the quantity of water secured to him by said deed from Samuel Clements to said Electa Bradfield. That said obstructions were not placed in said race by or with the consent or assent of said Electa Bradfield or said complainant, but against their protest. “ And this court doth further find and declare that the said defendants, James D. Dewell, Cornelius K. Russell, William Currie and Thomas C. Broadbent, have dx-awn away thx-ough their gates the waters from said mill-race and diverted the same from the said complainant’s mill during the times sot forth in said complainant’s original and supplemental bills of complaint so that said complainant has not had sufficient water from said mill-race for four runs of millstones with the necessary machinery for a grist and flouring mill by the use of water-wheels that were as economical in the use of water as those in use ixx said mill on the 19th day of July, 1858, and have interfered with the x'iglxts of said complainant to the first right to use the water from said mill-race within the. limits and quantities granted in and by said deed from Samuel Clements to said Electa Bradfield by diverting said water fx-om said mill-race, and drawing the same from said mill-x-ace through their gates xxnder their said mill, as well as by maintaining said obstructions in said mill-race as aforesaid. “ And this court doth further find that the wheels in use by complainant during the time mentioned in said bill of complaint were and are as economical in the use of water as were those in use in said mill on the 19th day of July, A. D. 1858, and that he has not used and does not use water exceeding the quantity to which he is entitled under said ■grant from said Samuel Clements to Electa Bradfield. “ And this court doth adjudge and decree that the bill of complainant be dismissed as to the defendant William Bennett, and that he recover as •costs against the complainant a solicitor’s fee of thirty dollars. “And it is ordered, adjudged and decreed that the said defendants, James D. Dewell, Cornelius K. Russell, William Currie and Thomas C. Broadbent, their agents and servants and each of them be and are perpetually enjoined and restrained from interrupting or interfering with the said supply of water for complainant’s mill from said mill-race sufficient for four runs of millstones, with the necessary machinery for a grist and flouring mill by the use of water-wheels that shall be as economical in the use of water as those in use in said grist-mill at the date of the -deed from Samuel Clements to Electa Bradfield, namely, July 19th, A. D. 1858, and from interrupting or interfering with the first right to the use of said supply of water by said complainant at any and all times,, and from diverting or drawing off said water from said mill-race so as to interrupt or interfere with said supply of water or the first right to the use thereof at complainant’s mill. “ And the said defendants, James D. Dewell, Cornelius K. Russell and William Currie are hereby enjoined and restrained from placing obstructions in said race and from maintaining any obstructions in said race whereby said supply of water is or may be wholly or partially interfered with, and from in anywise infringing or permitting to be infringed said complainant’s right to said supply of water. But nothing in this order ■or decree is to extend to dimmish, lessen, hinder or prejudice the using or enjoying by defendants the water and rights granted by Samuel Clements to.Shadrack Small, Jr., by deed bearing date October 18th, 1864, out of any surplus of water there may be in said mill-race over and above the supply and rights as herein declared granted by said Clements to Electa Bradfield by deed dated July 19th, 1858. And it is further ordered and decreed that a writ of injunction be issued in accordance with this decree enjoining and restraining the said defendants as aforesaid. “And it is further ordered that complainant do recover of the said defendants, Dewell, Russell, Currie and Broadbent, his costs of this suit to be taxed, and that he have execution therefor.” Birmey Hoyt, Circuit Judge.	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Ooolet, J. This is a foreclosure suit. After decree entered for the complainants, sale was made under it, and subsequently on petition of the defendant it was set aside. From the order setting it aside appeal is taken by the complainants and also by the purchasers. From the petition it appears that defendants had filed an answer in the case, and after the cause was put at issue, •complainants’ solicitor gave notice for the taking of testimony before a commissioner in a different county from that in which the suit was pending. Defendants’ solicitor, not recognizing the right to take testimony out of the county, paid no attention to this notice; and one of the supposed errors in the proceedings on which the petitioners roly, is the taking of testimony under this notice. But it is familiar practice to take the testimony of witnesses in chancery cases in the county where they reside; and there is no doubt of ■the right. Another objection is that the defendants’ solicitors had no notice of final hearing. They admit, however, that notice of hearing was served upon them for the October1 term of the court, 1880, but they say that they watched the proceedings of that term and were not aware that the case was ever called up. The decree entered in the cause is-entitled of the October term, and recites that it was made-after an argument in which defendants’ solicitors participated, but it was not actually filed until the January following ; and an error in it being then discovered, complainants’’ solicitor served notice of an application to correct it for the-March term, 1881. No notice was taken by defendants of’ this application, and the decree was corrected. If defendants had in fact been taken by surprise in the previous proceedings, this application afforded them an opportunity to make known the fact and have errors and especially the* false recital in the decree corrected, and if they expected to rely upon previous errors, they were guilty of laches in not' moving at the March term. The only excuse now made-for their delay is that they supposed the appearance on that application would operate as a waiver of rights; but it is scarcely credible that this is seriously presented. It certainly does not deserve serious consideration. A sale was made under the decree May 31, 1881, and the petition to set it aside was presented August 8, 1881. It is-manifest from these dates that if defendants had anything to complain of in the proceedings antedating the sale they had ample opportunity to interpose objections and have the-sale stayed, and they ought to be able to present some very satisfactory reasons for permitting a sale to be made under-such circumstances if they intended to contest it afterwards. But they give no excuse -whatever, and have therefore-no equity for relief unless it is to be found in the sale-itself. The complaint of the sale is that the lands were sold for an inadequate price. The showing is not satisfactory, and. when all the affidavits are considered, we do not think any fair case has been made against the sale. Moreover some of the defendants have released since the petition was-presented. We think the order setting aside the sale should be; vacated with costs. The other Justices concurred.	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Graves, C. J. The only question presented by this case is whether the wife during the continuance of the state of marriage is a competent witness for her husband in a suit for criminal conversation. By the common law she was incompetent, and she still remains so unless the rule has been abrogated by the Legislature, and we think this has not been done. The enactments to remove disabilities and liberate the law of evidence from many of its ancient fetters must be considered together. They compose a common scheme intended to prescribe in more or less general terms the doing away of common-law rules of incompetency, and at the same time are intended to declare certain limitations and- excéptions which should not be passed or disregarded. It may be admitted that the broad terms used in that part of the scheme which is employed in taking away disabilities, would, if viewed entirely by themselves, so operate as to render the wife competent in an action of this kind. But such an application of the statute would be a plain misuse of it. Recourse must be had to those parts intended to restrain and cut short the generality of the others and make exceptions thereto. Of that kind is the last clause of Oomp. L. § 6969, which provides that in “ any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.” This appears to the Court as a clear expression by the Legislature that the clauses removing incompetency should not extend to such a case as this. The ruling below was correct, and the judgment is .affirmed with costs. The other Justices concurred.	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Cooley, J. Replevin for a stock of drugs and groceries. The property was taken on the writ and delivered to the plaintiffs. The defendant was personally served with process, and appeared and pleaded the general issue to the -declaration. On the trial the plaintiffs claimed a right to the possession of the property under a chattel mortgage given by one ■Silsbee, the former owner; but it appeared that one Lewis had a prior mortgage covering a considerable portion of the goods, if not all of them, and that Lewis claimed to have taken possession under it. The question, therefore, on the merits was, whether Lewis or the plaintiffs had the better right under their respective mortgages. The defendant not only set up no right in the goods himself, but he denied that he was in possession of them when the writ was issued or when it was served; and on the trial he gave very positive and circumstantial evidence in support of the denial. In submitting the case to the jury the circuit judge called attention to this evidence, and instructed the jury that if defendant was not in possession, as he testified he was not, the action could not be maintained, for in that case he was not guilty of the detention. He also gave appropriate instructions respecting the rights claimed by the'plaintiffs to govern the action of the jury in ease they found an unlawful detention by the defendant. The jury returned a verdict finding simply that the defendant did not. unlawfully detain the goods. Under the evidence and the instructions given to them they could have meant by this no more than that the defendant was not in possession when the suit was instituted. The trial judge, however, supposed the verdict incomplete, and sent the jury back with instructions to assess the value of the replevied property. This they did, and judgment was entered for the defendant for the return of the property. Now it is apparent that the defendant can have no just claim to collect this judgment. Weber v. Henry 16 Mich. 399. He set up no claim to the goods, or to any interest therein, and he did not defend in the right of any one' else. He had no claim to have the goods restored to him, because they were not taken from him. And surely he can have had no right to make them indirectly his own, and recover their value by showing that he had been wrongfully charged with intermeddling with them. When the defendant established the fact that he was not in possession when suit was instituted, he showed that he was entitled to have the ease dismissed out of court, and to recover his costs. But this was the extent of his right. The first verdict of the jury was correct, and the judgment is right so far as it follows that verdict. But the judgment for the return of the property must be reversed with costs-of this court. The other Justices.concurred.	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Cooley, J. This is a summary proceeding for the recovery of the possession of lands. It was begun before a circuit court commissioner by a complaint, sworn to March 6, 1880, upon which a summons issued the next day. The defendant pleaded in abatement the pendency of a former proceeding, begun October 1, 1879, before a justice of the peace, tried October 15, 1879, resulting in a judgment for complainant, which was appealed to the circuit court, where it is now pending and undetermined. The complainant took issue upon this pléa, and the commissioner returns that he overruled it and gave judgment for complainant. The defendant then took an appeal to the circuit court, and in that court moved to dismiss the proceeding, which was-done. The complainant has thereupon brought the ease to this court. The dismissal is claimed to be correct — First, because the-complaint in this case was so defective as not to confer jurisdiction ; and second, because of the pendency of the former proceeding. The supposed defect in this complaint is that it fails to-show a cause of action at the time the proceeding was instituted ; it being sworn to one day before the writ issued. This is supposed not to be in compliance with the statute,, which requires a complaint in writing showing that the person complained of “ is in possession,” etc. Comp. L. § 6707. There are some cases where it has been held that a statute-requiring a certain state of facts to be shown at the time-suit was instituted was not complied with by a showing that the facts existed on a prior day; Wilson v. Arnold 5 Mich. 98; but in this case the statute merely prescribes what the-complaint shall set forth; and it is not suggested that the complaint itself is defective. The argument is that, though sufficient to support a warrant on May 6th, it was not sufficient on May 7th. We do not agree in this. Had there-been any considerable delay the complaint might be deemed abandoned, and so have become functus officio, but there is-no valid reason for so holding where the delay is for a day only. We also think the circuit court should not have dismissed the case because of the supposed pendency of another proceeding for the same cause. The issue upon the plea in abatement was not tried, and it could not be known until trial that if such a former suit was still pending the causes of action were the same. It was legally possible that a new cause of action had originated since the institution of the former proceeding. The order of dismissal must be reversed with costs, and! the record remanded. Campbell and Marston, JJ. concurred.	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Marston, J. Delator applied for a mandamus commanding the respondent to approve'the administrator’s bond in the matter of the estate of Miriam Harris executed by relator as principal and Pathbun and Burch as sureties, and filed in said court November 23, 1880, and to issue to the relator letters of administration in the matter of said estate. In obedience to an order to show cause, the respondent makes return, denying upon information and belief the responsibility of the principal and sureties mentioned, and that he had previously informed the relator that he, the judge, should require the sureties to justify on oath, unless they were known to the court, and especially if either of them resided out of the county of Ottawa. The principal and sureties resided in Kent. Many things are set forth in the petition and answer wholly foreign to the matter at issue; the simple question being whether the respondent should be directed to approve the bond of November 23d and issue letters to relator. That the probate judge should exercise a sound discretion in passing upon the question as to the sufficiency of bonds submitted to him for approval is evident. And he may in the exercise of such discretion require the sureties to justify as to tbeir pecuniary responsibility, and certainly should do so, where unknown to him or where he has any doubts as to their financial standing. He has no right to act arbitrarily in the matter and refuse to approve a bond about which no reasonable doubt could exist, and in the absence of a clear showing to the contrary we cannot presume that lie would do so. In this case the answer satisfies us that the judge acted properly. Had the sureties appeared and justified, it might appear therefrom that the bond should have been approved. It could only be in a case involving an abuse of discretion that this court would interfere. The writ must be denied. Cooley and Campbell, JM. concurred.	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Marston, J. The complainant, as a judgment creditor of Alvin Hosmer and others, filed the bill of complaint in this case to reach two parcels of real estate alleged to have been fraudulently conveyed by said Alvin, one parcel to defendant Harriet Hosmer and the other to defendant Mary Westbrook — or rather, in regard to Harriet Hosmer, to reach certain property purchased with the avails of the farm alleged to have been fraudulently conveyed to her. It appears that on the 8th day of March, 1876, and for a long time prior thereto, Alvin Hosmer was the owner of what is called the “ Home farm,” which was unencumbered and of the value of eight thousand dollars and upwards, and also of a certain eighty-acre lot, held on a University Land certificate on which there was upwards of six hundred dollars unpaid. On March 8th, this certificate was assigned by him to his sister Mary Westbrook in consideration, it is claimed, of $1000, and on the same day the Home farm was conveyed to Harriet Hosmer, another sister, for a consideration as agreed upon, and as set forth in the deed, of $8000. On the twenty-third of June, 1876, Harriet sold the Home farm to Joseph Bently for $9000, and on July 17th the city lot which is sought to be reached was purchased in the name of Harriet Hosmer, and improvements afterwards ■made thereon, amounting in all to over twenty-five hundred dollars. * In so far as these several' transactions are in issue, we have no doubt whatevei’, from the testimony touching the facts relating thereto, but that complainant is entitled to the relief sought. When we consider all these matters, the pecuniary circumstances of all the parties, their relation to each other, that two important sales of all Alvin’s property were made on the same day — one of them without any previous negotiations or even reference thereto having taken place, and the parties as to that parcel, the University lot, having met, as though by chance, on that day, at the house of a relative, and that but little had been said previous to that day about the sale of the Home farm, — and when we look at the way in which the respective considerations were paid, and trace a large part of the Bently consideration for the Home farm into Alvin’s hands and the expenditure thereof upon the improvement of the city lot, we can have no doubt upon this branch of the case. An extended discussion of ail the facts we consider unnecessary in this class of cases. Several legal objections are raised to the right of complainant to obtain relief, and these so far as deemed important will be considered: First. It is claimed that the bill sets forth the recovery of judgments in the two suits referred to therein, while the proof shows that the judgments recovered on that day were afterwards vacated and judgments entered in the same cases on March 19th, which was beyond the power of the court,, without a new inquest or trial. An examination of the record shows that the judgment of March 19th was for the purpose of correcting the judgment entry of March 7th so that it would conform to the- judgment ordered by the court on that day. It does not appear that counsel had no notice of such correction or that it should not have been made, and the only question that can arise in relation thereto in the present controversy would be one of variance between the date of the judgment as set forth in the bill of complaint and proven on the trial. It is not claimed, and indeed could not very well be, that counsel were at all misled by this variance in dates, and were it material an amendment could have been made at any time during the proceedings in the present case. This, however, we do not deem necessary, as the complainant was not confined to the exact date alleged in the bill. In all other respects the judgment was correctly referred to and was sufficient to permit the introduction of the .proofs upon that matter. Second. It is next urged that complainant did not show proper diligence in the pursuit of his remedy at law upon the executions. The fact that the sheriff may have levied upon personal property claimed by and afterwards replevied by third parties, could not bind the complainant to either await the result of sueli suit or to defend the same. If the complainant herein, — the plaintiff in the judgments and in whose favor the executions issued, — had directed the levy, or that the property levied upon belonged in whole or in part, at the time of the levy, to the execution defendant, it might then become material to examine the effect of such a levy, but no such showing has been made. It is a levy upon the debtor's goods that operates prima facie, as a satisfaction, and the facts do not show such a levy to have been made in this case. Neither would the fact that real estate of one of the defendants in the judgments was levied upon, — which it is alleged and admitted, by the answers in this case, had been fraudulently conveyed before such levy, — prevent complainant from proceeding in the present case. The complainant is under no obligation to follow all the fraudulent conveyances made by the several execution defendants, but may seek to have some of them set aside and permit the others to stand. The fraudulent grantees cannot insist upon any such equity in their behalf. Neither would a levy upon the judgment debtor’s equity of redemption in certain real estate about to be sold under a mortgage foreclosure, and which equity expired before a .sale could be made under the execution, prevent the complainant from proceeding in this case. The mortgage was foreclosed in chancery, and the property sold and bid in by the complainant in that case, before a sale could be made by the sheriff under his levy. The execution creditor’s right is not thus cut off from looking to other property of his debtor which had been fraudulently conveyed. After a careful examination of the record, and consideration of the questions raised by counsel in behalf of the defendants, we are of opinion that the decree of the court below must be affirmed with costs. Cooley and'Graves, JJ. concurred. Campbell, J. I do not think any fraud is made out ■against Harriet Ilosmer or Mrs. Westbrook, who are the parties chiefly concerned on this hearing. Both of them paid a full price for the land they purchased, and there is nothing that has impressed me with the idea that any one •whatever had then any wrong purpose. When the sales were made Alvin Hosmer was ont of debt, and did not contemplate incurring any on his own behalf. If he then expected — and of this'there is no satisfactory proof — to join the other parties as endorsers or sureties on the paper subsequently given, there is nothing to indicate that his-grantees knew it, and nothing in my judgment to show that he designed or supposed that the sales could in any way jeopard the bank. Nothing but actual fraud, in which the grantees shared, could avoid their grants, and I do not-think it made out.	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Cooley, J. The plaintiff, who is guardian for William Henry Fairman, an incompetent person, sues to recover a sum of money claimed to be due to the ward on a sale of land to the defendant by one Iliram Fairman. The evidence for the plaintiff is as follows: Mrs. Lydia Fairman testified: • “Iliram Fairman was my son. He is now dead. William Henry Fairman is my. son, and is now living. My son, William Henry Fairman, had some property left by my husband ; a small piece of land which had been set out to him. He had some money from his father’s estate. Never had any money after his father’s death,only a little I gave him. This three hundred and fifty dollars he loaned his brother. That was his own money. lie let his brother Iliram have that $350 for the purpose of paying towards his land. He let him have it with the agreement that when he sold it ho would pay him back his money. William Henry was to have his money back again when Iliram sold it; between us there was no writing, but between us, it was the agreement that when he sold it he should have his money'back again. His brother Iliram had some money belonging to William Henry, for the purpose of paying it on a piece of land, which he did. Iliram afterwards sold the land to the defendant, Mr. Chappel. William Henry was to have his portion of the money out of the land when it was sold. The land was taken in Hiram’s name. William Henry-put in there or loaned Iliram three hundred and fifty dollars towards the purchase of that land, and it was held by him two or three years. The amount of William Henry’s money which was invested in this land in Hiram’s name was three hundred and fifty dollars. This land was conveyed by Hiram Fairman to the defendant, Mr. Chappel. William Henry did not get his money back again out of the land.” Nathaniel Kenyon testified: “ Know the defendant in this case ; know William Henry Fairman; knew Iliram Fairman in his life-time ; knew the piece of land spoken of by the last witness, Mrs. Lydia Fair- man, which was purchased in the name of Hiram Fairman ; Hiram Fairman sold that land to the defendant, Lester Chappel; at one time the defendant, Hr. Chappel, and I were talking about the land; it was at the time that Hiram was talking about selling it and before he sold it; I told the defendant that "William Henry had an interest in that land; he said he knew it. I told him he must not buy unless William Henry’s money was secured, as William Henry was not competent to do business for himself; that is a fact; William Henry was not competent, and has not since then been competent to do business for himself; he was an incompetent at the time of the conversation, which was before the sale to the defendant, and has been an incompetent ever since.” George A. Starkweather testified: “ I drew a deed of some land situated in the township of Plymouth, by which Iliram Fairman conveyed the land to Lester Chappel, the defendant; at the time of making that deed there was a conversation between Hiram Fairman and the defendant, Lester Chappel, in relation to an interest Hiram Fairman’s brother had in the land ; the brother was William Henry Fairman ; he was regarded as an imbecile; the arrangement between Hiram Fairman and the defendant was that defendant should not pay the full consideration for the land ; a portion of it was to remain in defendant’s hands; the sum mentioned to thus remain was five hundred dollars; it was to belong to William Henry Fairman, and was to be paid to him whenever the opportunity occurred, so that it could be properly paid, or whenever there was. any person who could properly and legally receive it.” The circuit judge instructed the jury that plaintiff’s evidence made out no case; and they accordingly gave their verdict for defendant. It is plain that no case is made out on the the testimony of the mother. The original transaction manifestly was in the nature of a loan by William Henry to Iliram, and the former had no interest in the land, but merely expected to be paid from the proceeds when the land was sold. The case then must stand on the evidence of Starkweather as to the arrangement made when the land was sold. This evidence is supposed to show money in defendant’s hands belonging to the plaintiff; but it shows nothing of the sort. It shows only that on a sale of land by Hiram upon which a sum of money became due to him from defendant, it was understood this obligation should be discharged by payment to a third party. The case is therefore strictly within Pipp v. Reynolds 20 Mich. 88, and the cases which have followed it. See Hunt v. Strew 39 Mich. 368, and cases cited. The action is not maintainable. There is nothing else in the case and the judgment must be affirmed with costs. Graves, C. J. and Campbell, J. concurred.	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Marston, J. This case was tried by the court without a jury. A bill of exceptions was settled, but no written finding of facts was asked for or made. Exceptions were taken to rulings made upon the admissibility of certain testimony, but no reference whatever is made thereto in the brief of counsel. We must assume therefore that they have been abandoned. The argument submitted is upon the merits, based upon facts appearing in the bill of exceptions. It is almost needless to say that this court cannot review the facts or evidence in the case. As no question has therefore been presented to this Court which we can consider, the judgment must be affirmed with costs. The other Justices concurred.	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Graves, C. J. Keith & Holland claimed that in January, 1877, they concluded an agreement with Pea & Hale, by which they, said Keith & Holland, were to furnish during that winter at or near Stony Point, on the shore of Lake St. Clair, in Ontario, at the rate of $3 per M. feet, 500 M. feet more or less of good sound elm logs of first-class quality and fourteen feet and a half in length and not less than eighteen inches in diameter; and that Pea & Hale were to take the logs so furnished and pay therefor in Canada currency or its equivalent in United States currency, that is to say, $500 down and the remainder on delivery of the logs. They further claimed that pursuant to this agreement they furnished 473 M. feet and that the supply of that quantity constituted full performance on their part and entitled them to require Pea & Hale to take said quantity as a fulfilment of the agreement and to pay therefor according to the rate and manner stipulated. That 300,000 feet were actually taken and paid for, but the remaining 173,000 feet were refused. They brought this action on the contract to recover damages of Pea & Hale for their failure to take and pay for said residue and were allowed to recover, and the defendants below, being dissatisfied, have brought error. Among the points specially noticeable two relate to the terms of this agreement. The first is that the description of quantity, viz.,’“500,000 feet more or less” was incurably indefinite and rendered the entire agreement non-obligatory; and the second is, that supposing the agreement was binding, still the deviation from the positive quantity named was greater than the qualifying expression authorized, and hence the defendants in error were, by their own admission, in default, and the plaintiffs in error were not bound to take any more than suited their pleasure. Neither of these positions requires many words. As to the first, it was a distinct part of the understanding of the parties that the agreement in regard to quantity shoiild not fix the precise number of feet which the defendants in error should be bound to furnish. The intent was that they should be allowed to deviate somewhat from 500,000 feet and that the plaintiffs in error should be bound to take whatever quantity should be furnished within the limits to which the deviation might properly extend, and it was certainly competent for the parties to bargain in that way. The agreement was not prima fcieiev oid. Brawley v. United States 96 U. S. 168; Cabot v. Winsor and another 1 Allen 546; Moore v. Campbell 10 Exch. 323: 26 E. L. & E. 522; Bourne v. Seymour 16 C. B. 337: 32 E. L. & E. 455; Cockerell v. Aucompte 2 C. B. (N. S.) 440: 40 E. L. & E. 279; Morris v. Levison 1 C. P. Div. 155: 16 Eng. 496; McConnel v. Murphy L. R. 5 Priv. C. 203; 8 Eng. 164; Benj. on Sales §§ 691, 692. The question of construction is distinct and the second point presents it. It is not difficult. Where parties enter into executory arrangements for the sale of chattels to be obtained subsequently by the seller and designedly leave the exact quantity unfixed and see fit to remit its ascertainment to the future act of the seller under and subject to a stipulation that it is to be so much “ more or less,” their practical construction of it ought to have great weight. Several facts of importance are undisputed: Keith & Holland informed Rea & Hale that they had furnished 413,000 feet and that the agreement was thereby fulfilled. What did Rea & Hale do ? Did they object that the quantity was not sufficient to satisfy the agreement? Did they refuse to have any of the logs and repudiate the arrangement? Nothing of the kind. They sent Baxter and Fairchild to scale the logs and the former scaled 358,000 feet and the latter a further quantity. But this is not all. They broke in upon the mass and actually took away some 300,000 feet and not only paid therefor, but for several thousand feet more. It would be difficult to reconcile this conduct with the notion that the 473,000 feet were not mutually considered as meeting the call for 500,000 feet, more or less. But if it be regarded as a question to be settled on authority, the result is the same. The deviation was quite within the degree the courts have held to be reasonable. Cabot v. Winsor and another, and Morris v. Levison, and McConnel v. Murphy, supra. It appeared that in March, 1877, one Aubin, who had got out a parcel of the logs and was employed also by Keith & Holland as their agent in some other matters, sold 21,000 feet to Pike & Kichardson. And among the requests refused were two which proceeded on the assumption that the case contained evidence showing or tending to show that these logs never belonged to Keith & Holland and were not under their power to tender on the agreement. The assumption was not authorized. The evidence was clear and not open to controversy that these and all the other logs were got out by third persons with the express understanding that they were to meet the •contract with Rea & Hale, and be handed over to them in execution of that agreement as soon as ready, and the showing was equally explicit that when Rea & Hale were informed in February that the whole quantity was ready ■and they were requested to take the logs away and make payment, this lot was included and at their disposal, and besides this showing, the further fact was testified to, and not denied, that the sale made by Aubin to Pike & Kichardson in March, and after said notification to Kea & Hale, was with the express assent of the latter. The agreement sued on was oral and on its completion the parties separated. Kea afterwards drew up a writing which he claimed to be an exact embodiment of the unwritten agreement, and desired Keith & Holland to sign it. They did not assent to its accuracy and refused to sign it. On the trial Kea produced a paper which he claimed to be the .same and offered to make it evidence of the true agreement. The court on objection excluded it. This was correct. It was no more than Ilea’s personal declaration. He had prepared the paper and retained it, and no assent by Keith & Holland had been given to it. Moreover if it was the same that he had tendered for their acceptance they had expressly dissented. It was not within any rule permitting writings prepared and kept exclusively by the party offering them and unassented to by the other, to be put in evidence. Flood v. Mitchell 68 N. Y. 507. In connection with the offer of this writing or as part of the same general subject certain notes, by the stenographer, of Holland’s testimony on a former trial were read and immediately stricken out on motion. This was right. They had no place in the actual contention. It is not certain they would have been admissible in any view. But apart from the writing referred to they were wholly irrelevant. It is also a matter of complaint that the court neglected to direct the jury, as requested, to allow nothing for difference between the money of the United States and of Canada. It is not pretended that there was any difference in point of fact and the effect of the charge was to leave the case as though none existed. The exception has no force. There was evidence that after Kea & Hale made default the remaining logs were sold by Keith & Holland to another, and among the numerous requests to charge the following was preferred: “ That the plaintiff's had no right to sell the logs in question without notice to the def endants? and if the jury believe they did so, that was a rescission of the contract in this suit and the plaintiffs cannot recover. ” It is now generally assumed that where the agreement is silent in regard to it and no special incidents appear to con tend for it and where the extent of the vendee’s liability is not to be unalterably decided by the price obtained, no-notice of the re-sale itself is necessary. On the other hand it is held by high authority that to entitle the vendor to proceed by re-sale instead of rescission or by action for the whole agreed price or actual consideration, he must manifest his election.by preliminary notice that he intends to sell and hold the vendee for the loss, or notice to that effect. This notice it will be observed is not a notice of re-sale, but a notice that the vendor will assert the right of re-sale and bind the vendee by the price obtained. The application of this doctrine, requiring notice of an election to re-sell, is now urged by Rea & Hale, who insist that the trial judge in neglecting the above request disregarded it and committed error. No complaint as we understand is made of the treatment of the request as one dealing with the subject of notice of re-sale itself, and it is plain that no ground exists for any. Are these parties entitled to-question the action of the trial judge on the other ground ? We think not. Hnder the practice pursued the subject is-not open. The request was equivocal. It fell short of indicating with any distinctness that the notice alluded to was-notice of election to re-sell rather than notice of actual re-sale itself, and the inference is pretty strong that the judge understood the request as referring to a notice of re-sale only, and shaped his directions to the jury on that understanding and no exception was taken to the charge actually given on this part of the case. As the request was fairly open to such construction and the conception of it by the judge was apparent,. or it was obvious at least that the request had not drawn his mind to the application of it now insisted on, and no offer whatever was made to explain it, it would be hardly reasonable to permit it to be read' herein another sense for the purpose of breeding error, if such would be the result. But this is not all. The very fact that the request was ambiguous and liable to mislead is a. sound reason for deeming its rejection not sufficient for a charge of error. The request should have clearly shown, which notice was meant. Error is alleged on the exclusion of the offer of certain evidence. The complaint is that Eea & Hale were cut off by it from recouping damages. The point is not maintainable. Had the facts embraced in the offer been established' the event would have been the establishment of an agreement wholly distinct and different from that set up by Keith & Holland, and which they were bound to substantiate or fail in the action, and no damages arising from the breach of another and wholly different agreement could be recouped. Thompson v. Richards 14 Mich. 172. The claim seems to be made that the refusal of certain requests in some way prejudiced Eea & Hale’s right of set-off. The suggestion is not very clear. -But it is enough to say without going further that the case did not authorize the remedy by set-off. The action was for the breach of a, special agreement and brought to recover unliquidated damages, and was therefore founded on a demand incapable of being the subject of set-off. Comp. L. § 5796; Smith v. Warner 14 Mich. 152. All the questions worthy of notice have now been considered. The charge to the jury was fair and there is nothing in the record to call for any interference with the-result. The judgment is affirmed with costs. The other Justices concurred.	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Per Curiam. Defendant corporation owned a large tract of land situated in tlie township of South-field, county of Oakland, Michigan. On June 17, 1968 the parties entered into an agreement for the sale and purchase of the property in question. Paragraph 5 of the agreement contained the following language: “If objection to the title is made, based upon a written opinion of purchaser’s attorney that the title is not in the condition as required for performance hereunder, the seller shall have 30 days from the date he is notified in writing of the particular defects claimed, either (1) to remedy the title, or (2) to obtain title insurance as required above, or (3) to refund the deposit in full termination of this agreement if unable to remedy the title or obtain title insurance. If the seller remedies the title or shall obtain such title policy within the time specified, the purchaser agrees to complete the sale within 10 days of written notification thereof. If the seller fails to remedy the title or obtain such title insurance or to give the purchaser the above written notification within said 30 days, the deposit shall be refunded forthwith in full termination of this agreement.” Before execution of the land contract, defendant discovered that it could not convey a valuable portion of the land Avhich constituted 0.241 acres. Defendant could not remedy the title and after negotiation notified the purchaser that the agreement was terminated without liability according to the terms of the contract. There was no return of the down payment because defendant never accepted the down payment. The only question presented in this appeal is whether the court erred in construing the terms of the purchase agreement giving to defendants the right to terminate the agreement. This case is squarely controlled by DePropris v. Smith (1955), 342 Mich 457. In that case the Supreme Court answered the identical question in the negative. That decision is binding on this Court. Affirmed. Costs to defendant.	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Levin, J. The question presented in this action by a bank against a guarantor of payment of a promissory note is whether the parol evidence rule bars testimony that the bank agreed that it would not honor any check drawn on the borrower’s checking account with the bank unless it was countersigned by the guarantor. The bank commenced this action on a $12,000 promissory note signed by one of the defendants, William J. Kahlich, Inc., the borrower. Also named as defendants were Craig Holland and William J. Kahlich who signed a separate written guaranty of payment. The bank obtained a judgment against the borrower for the entire indebtedness, and partial payment reduced the balance owing to $9,665.10. The bank then moved for summary judgment against Craig Holland, claiming that he had not stated a valid defense and that there is no genuine issue of material fact. The motion was denied and the bank appeals on leave granted. In his answer to the complaint Holland admitted execution of the guaranty agreement but denied “any inference that said guaranty is the only instrument or agreement pertinent to such guaranty being issued”. His answer also states a counterclaim; he alleged that in connection with the execution of the guaranty and to secure him against possible loss the bank agreed that his signature would be required on all checks issued against the borrower’s commercial checking account with the bank, and that pursuant to this agreement a signature card was signed by William J. Kahlich and Holland. Holland further alleged that subsequently William J. Kahlich signed a new signature card providing for the countersignature of his wife and that thereafter the bank paid checks not countersigned by Holland. Holland claims that when he learned this he complained to a bank officer and was informed that until the matter was resolved no further checks would be cleared against the account, in which there was then a balance of approximately $8,000. Nevertheless, Holland claims that these funds were later paid out without his authorization. Neither the bank’s motion for summary judgment nor the supporting affidavit challenges the factual allegations in Holland’s answer and counterclaim. Holland responded to the motion for summary judgment by admitting liability under the guaranty but denying that he was liable in the amount stated. He reasserted the allegations in the counterclaim regarding “the establishment of the dual signature checking account and the guaranty by the bank to hold the approximate sum of $8,100 after notice [and contended that this] constituted the establishment of a constructive trust” and that there was a genuine issue of material fact concerning the amount of his indebtedness to the bank. The bank contends that the parol evidence rule bars admission of testimony in support of Holland’s claim that the bank agreed that his signature would be required on all checks drawn against the borrower’s cheeking account. The bank additionally contends that since Holland had no interest in the funds in the borrower’s bank account he has no standing to ask that a constructive trust be established in respect to such funds. Holland’s claim of a constructive trust is, we think, a clear misnomer. A constructive trust arises by operation of law. It is a remedial device “through which the conscience of equity finds expression”. It does not depend on the agreement or intention of the parties. Professor Scott writes that, “A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. # # * A constructive trust is not based upon the intention of the parties but is imposed in order to prevent one of them from being unjustly enriched at the expense of the other”. 5 Scott on Trusts (3d Ed), § 462.1, p 3415. (Emphasis supplied.) Holland relies on an express agreement. He does not claim that the bank unjustly enriched itself when it honored directions from the Kahlichs to pay funds in the checking account without Holland’s signature. The trial judge did not clearly err in ignoring this misnomer. It is apparent, both from Holland’s answer to the complaint and his answer to the motion for summary judgment, that he was relying on an express agreement. We now address ourselves to the bank’s contention that the alleged oral agreement regarding Holland’s countersignature may not be proved because of the parol evidence rule. Under the parol evidence rule, a writing that has been adopted as a complete integration of the terms of a contract may not be varied by evidence of negotiations or understandings that preceded its adoption. However, implicit in the premise that the rule applies only to the extent the writing has been adopted as a complete integration is the concept that contracting parties can agree to reduce some provisions to written form and leave others unwritten, trusting the latter to oral expression. Since a writing cannot prove its own completeness, parol testimony is admissible to show the circumstances under which an agreement was made: “The very testimony that the ‘parol evidence rule’ is supposed to exclude is frequently, if not always, necessary before the court can determine that the parties have agreed upon the writing as a complete and accurate statement of terms. The evidence that the rule seems to exclude must sometimes be heard and weighed before it can be excluded by the rule.” 3 Corbin on Contracts, § 582, p 450. We recently said: “The parol evidence rule is not designed to preclude proofs of other agreements between the parties not expressed in the writing or inconsistent therewith.” S. F. A. Studios, Inc. v. Docherty (1968), 12 Mich App 170, 173. The principle that parol evidence is admissible to show a separate agreement when the writing relied on represents a partial, not a complete, integration of the entire agreement is applicable to contracts of guaranty as well as other contracts. In Piasecki v. Fidelity Corporation of Michigan (1954), 339 Mich 328, the plaintiffs had assigned the mortgagee’s interest in personal property to the defendant and had in writing guaranteed payment to the defendant of the secured indebtedness. The rights of other creditors intervened before the mortgage and the assignment were recorded. The plaintiffs commenced the action to recover for the diminution of the security and increase in their exposure to liability to the defendant caused, they said, by the defendant’s breach of a duty to record the papers. The Michigan Supreme Court held that the plaintiffs should be allowed to prove by parol evidence that the parties intended that the defendant (the party guaranteed) would have the obligation of promptly recording the papers. We are in agreement with the trial judge that the question whether the written guaranty was adopted by the parties as a complete integration of their agreement could not be resolved without hearing the testimony of the parties. He therefore properly denied the motion for summary judgment. The bank’s reliance on Reyburn v. Goodrich (1940), 292 Mich 91, is misplaced. There the defendant guarantor sought to prove that the plaintiff (the person guaranteed) had orally obligated himself to sell pledged collateral upon default in payment of the guaranteed note in the face of a provision in the written pledge agreement authorizing the plaintiff to do so. Here, in contrast with the cited case, Holland does not seek to establish an agreement inconsistent with any provision in the written guaranty, but rather to show a separate agreement regarding the disbursement of funds from the borrower’s checking account. The bank further claims that there is a provision in the guaranty agreement relieving it of responsibility for paying funds from the checking account. The provision relied on reads: “Failure of bank to preserve any rights which it may have in, or to any collateral security shall not constitute a defense hereunder to any claim against the undersigned.” Apart from the fact that it has not been shown by affidavit or otherwise that the funds in the checking account were collateral security for the payment of the borrower’s indebtedness to the bank, Holland’s counterclaim and defense is not based on the bank’s failure to preserve any right which it may have in collateral or to resort to the funds in the account for the payment of the indebtedness. Rather it is Holland’s claim that the bank permitted this asset of the corporation to be depleted without his authorization in violation of an express agreement. It may be, as the bank contends, that the alleged agreement relied on by Holland would be inconsistent with its contractual obligations to its customer, the borrower. However, such a conflict does not preclude the possibility that it, nevertheless, entered into the claimed competing agreement with Holland. Affirmed. Costs to defendant Holland. All concurred. It appears from a photocopy of a signature card in the record that Mrs. Kahlich may have signed the signature card previously signed by her husband and Holland. This signature card provided that two signatures were required on each check. Beatty v. Guggenheim Exploration Co. (1919), 225 NY 380, 386 (122 NE 378). Kent v. Klein (1958), 352 Mich 652, 656; Digby v. Thorson (1948), 319 Mich 524, 539; Stephenson v. Golden (1937), 279 Mich 710, 740; Union Guardian Trust Co. v. Emery (1940), 292 Mich 394, 404; McCreary v. Shields (1952), 333 Mich 290, 294; Transamerican Freight Lines, Inc. v. Quimby (1968), 381 Mich 149, 170, 171 (per Black, J); 22 Michigan Law and Practice, Trusts, §51, p 564; Bogert, Trusts (2d ed), § 55, p 194; Bestatement, Bestitution, § 160, comment h, p 642. Cf. Detroit Trust Co. v. Hartwick (1936), 278 Mich 139, 144, 145. 3 Corbin on Contracts, § 573, p 357. That the terms of a written guaranty cannot be varied by parol, see St. Joseph Valley Bank v. Napoleon Motors Co. (1925), 230 Mich 498; Morris & Co. v. Lucker (1909), 158 Mich 518; State National Bank of Albuquerque v. Wernicke (1915), 185 Mich 281; Richard v. Lee (1919), 205 Mich 92; R. L. Polk Printing Co. v. Smedley (1908), 155 Mich 242; Contrast R. L. Polk Printing Co. v. Smedley (1908), 155 Mich 249; National Building Supply Co. v. Spencer (1920), 211 Mich 228; The Columbus Sewer Pipe Co. v. Ganser (1885), 58 Mich 385. 3 Corbin on Contracts, § 581, pp 440, 441. Similarly, see Massachusetts Bonding & Insurance Co. v. Transamerican Freight Lines, Inc. (1938), 286 Mich 179, 198; Brady v. Central Excavators, Inc. (1947), 316 Mich 594, 608; Martin v. Miller (1953), 336 Mich 265, 276, 277; Beld v. Darst (1906), 146 Mich 143; Stahelin v. Sowle (1891), 87 Mich 124; Antonoff v. Basso (1956), 347 Mich 18, 27. See Anno: Parol evidence rule as applied to written guaranty, 33 ALR2d 960, 979, § 9, and eases there cited. Plaintiff’s motion for summary judgment and supporting affidavit do not assert the absence of a genuine issue of material fact regarding Holland’s countersignature claim. He had, thus, no obligation to show in his answering affidavit that there was a genuine factual issue whether such an agreement was entered into. See Hollerud v. Malamis (1969), 20 Mich App 748, 762, 763. The Supreme Court ruled that the claimed oral agreement was inconsistent with the provision in the note which recited that the security was pledged “with authority to sell same” because there is a marked difference between such an “authorization” and an agreement that the obligee “shall sell the collateral upon default in payment.” (Emphasis by the Court.) Contrast: Piasecki v. Fidelity Corporation of Michigan, supra, p 331.	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Per Curiam. Plaintiffs, abutting property owners, petitioned Livingston County Circuit Court to alter the plat of “Kirk’s Landing Long Lake” by closing the stub-end of Lakeside Drive on October 29, 1968. After investigation by the Conservation Department and filing of a consent by the Attorney General the petition was granted by judgment dated January 28, 1969. Over nine months later non-abutting lot owners petitioned to intervene and to have the judgment set aside. An order was entered October 1, 1969, granting the petitioners the right to intervene and setting aside the judgment. From this order plaintiffs attempted to appeal by filing a claim of appeal on October 3, 1969. An order setting aside a judgment is interlocutory and may be reviewed only after grant of leave to appeal by this Court. An order setting aside a judgment has the same effect as an order granting a new trial and the latter is reviewable only by way of leave to appeal. MCLA § 600.308 (Stat Ann 1970 Cum Supp § 27A.308), GCR 1963, 801, 806. Benmark v. Steffen (1968), 9 Mich App 416; Solner Investment Company v. Thoms (1966), 2 Mich App 189; Sears, Roebuck & Co. v. Holmes (1966), 2 Mich App 190; see also, 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 193. No application for leave to appeal was filed in this case, and this Court is without jurisdiction to entertain this appeal. “When a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void.” Fox v. Board of Regents of the University of Michigan (1965), 375 Mich 238, 242; Standard Building Products Company v. Woodland Building Company (1965), 1 Mich App 434; City of Dearborn v. Pulte-Strang, Inc. (1968), 12 Mich App 161; Earp v. City of Detroit (1968), 11 Mich App 659; Hope v. Weiss (1968), 12 Mich App 404; Chevrolet Local 659, UAW-CIO v. Reliance Insurance Companies (1970), 21 Mich App 123. The appeal is therefore dismissed. No costs, appellees not having initiated a motion to dismiss pursuant to GCR 1963, 817.5.	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T. M. Burns, P. J. This is an appeal from the granting of judgment of directed verdict for defendants on plaintiffs’ suit to enjoin foreclosure and sale of plaintiffs’ house for default on a mortgage. The facts appear to be as follows: The plaintiffs purchased their home on a land contract for $12,500 from Paul and Mary Duika in July of 1953. On October 7, 1953, the Duikas assigned their vendors’ interest in the contract to David and Henry Rott. For the next ten years, plaintiffs paid on the contract, making approximately $8,500 in payments. In late 1963, however, plaintiff, James I). Cullins, became ill and was unable to keep up the payments. When the plaintiffs were behind $500 in payments, the Rotts instituted proceedings and foreclosed on the land contract on January 29, 1964, at which time the land contract showed an unpaid balance of $4,200. With the period of redemption about to expire, plaintiffs, in response to an advertisement which indicated that it would stop land foreclosures and repossessions and lend on mortgages, contacted defendant, Magic Mortgage Company. The plaintiffs were told to come into the office and to bring all their papers related to the property and foreclosure. At this first meeting although defendant, El-Chonen, told plaintiffs that he would not let the Rotts get their home for $500, he did not offer, however, to lend them the money needed to redeem. El-Chonen instead discussed the possibility of a mortgage in the approximate amount of $8,500 which was to pay off the balance of $4,200 owed to the Rotts, to pay back taxes on the property, and to pay some $2,000 of accumulated bills with the $2,500 difference to be defendant’s profit. Although no agreement was reached, the plaintiffs did agree to return the next day. When the plaintiffs returned the next day, they found out that the defendants had in the interim purchased the Rotts’ interest in the land contract. El-Chonen then offered the plaintiffs the following arrangement.- He would keep the title to the property. Plaintiffs, in order to demonstrate good faith and reliability, were to make monthly payments of $100. At the end of a year, defendant was to convert the land contract into an $8,500 mortgage, transfer title to plaintiffs, and credit them with the $1,200 in payments. James Cullins testified that he assumed that a personal loan of $2,000, discussed the previous evening when the $8,500 mortgage was mentioned, would be made by defendant to plaintiffs at that time. Plaintiffs agreed to and followed the provisions stated above for over a year, during which time, according to testimony on the record, several of the monthly receipts which were given to plaintiffs indicated that the monthly payments were rent, rather than on the contract. When the plaintiffs objected that they were making purchase payments and not rent payments, they were told to disregard the nomenclature on the receipts. With the passing of a year, plaintiffs sought to have defendants convert the land contract into a mortgage. A dispute arose between the parties concerning the amount of the mortgage. In consideration of the $4,200 contract purchase price, defendants sought an $8,500 mortgage. Plaintiffs, however, considered that since the defendant had never loaned them the $2,000 for personal bills, a mortgage of $6,500 would be fairer. After some negotiations, a mortgage for $7,500 was signed by the plaintiffs. Five months later, James Cullins became ill and being unable to meet the payments, defaulted. Defendants then began foreclosure by advertisement. Plaintiffs started this suit to enjoin the foreclosure by defendants. A temporary injunction was entered and plaintiffs were ordered to make monthly payments to the court. At the time of the trial, plaintiffs had, pursuant to this order, deposited $2,250 with the court. Adding the money deposit with the court to that already paid, plaintiffs’ total investment in their home comes to approximately $12,500. This figure represents $8,500 paid to the original vendors and their successors, the Rotts; $1,200 paid to defendants from August 1964 to August 1965; $500 paid to defendants under the mortgage; and $2,250 paid to the court. At the close of plaintiffs’ proofs, defendants made a “motion for judgment.” The trial court treated it as a motion for directed verdict, GCR 1963, 515.1, and granted it. This motion should properly have been considered as a motion to dismiss. GCR 1963, 504.2. There fore, the trial court erred in considering the motion as one for a directed verdict. The difference between the two motions is significant because of the responsibility of the trier of fact. If there is a jury, the trial judge must not invade their province. Thus, if he is faced with a motion for directed verdict, he must view the evidence in the light most favorable to the party against whom the motion is directed. State Automobile Mutual Insurance Company v. Ropp (1967), 7 Mich App 698, 701. When sitting’ without a jury, however, the trial judge as the trier of fact, Avhen considering a motion to dismiss, must weigh the evidence before him. Mutual Benefit Life Insurance Company v. Abbott (1968), 9 Mich App 547, 552. The motion to dismiss when granted against a plaintiff, therefore, must be accompanied by findings of fact. GGR 1963, 504.2. There were no such findings of fact in this case. Although we might remand for findings of fact, such a remand would leave the substantive question raised by this appeal unanswered. Therefore, we turn to whether the trial court erred in relying on the cases of Gerasimos v. Continental Bank (1927), 237 Mich 513, and Sanderson v. Ressler (1923), 223 Mich 232, 234, in finding that the defendants could sell to plaintiffs or whomever they choose, at any price they choose, without the agreement being declared usurious since they had purchased the vendors’ interest and plaintiffs had failed to redeem. The plaintiffs contend that since the defendants knew of plaintiffs’ plight, an equitable mortgage, was imposed upon them regardless of the form of the transaction. We agree. The trial court erred as to the law. He was, and we are, hound by the decision of our Supreme Court in Wilcox v. Moore (1958), 354 Mich 499. Although the transaction between the plaintiffs and defendants did not take the form of a loan, neither did the transaction before the Court in Wilcox, supra. Yet, an equitable mortgage was established with resultant application of the law of usury. The Court in Wilcox, supra, said on pp 504, 505: “There is no need, at this late date in the law of usury (see Leviticus 25: 35-37; Deuteronomy 23: 19, 20; Saint Chrysostom’s Fifth Homily on the Gospel of St. Matthew; CL 1948, § 438.52 [Stat Ann § 19.12]) to discuss its rationale. Suffice to say that its purpose is to protect the necessitous borrower from extortion. In the accomplishment of this purpose a court must look squarely at the real nature of the transaction, thus avoiding, so far as lies within its power, the betrayal of justice by the cloak of words, the contrivances of form, or the paper tigers of the crafty. We are interested not in form or color but in nature and substance. “It is insisted on the part of appellee that all we have here is a good-faith purchase of property for $15,000 and a subsequent good-faith sale thereof for $21,000, ‘an outright sale on land contract.’ It is not to be denied that there are numerous common characteristics existing between the contract of sale and purchase on the one hand, and that of loan and mortgage on the other. But as has so often been pointed out by discerning courts there is one situation (possibly above all others) in which ‘an atmosphere of doubt at once arises.’ (Judge Denison in Stark v. Bauer Cooperage Co. [CA6, 1925], 3 F2d 214, 216, certiorari denied, 267 US 604 [45 S Ct 464; 69 L Ed 809].) This is where we find, again in the words of Judge Denison, that ‘one recently the indebted owner has shifted his position and become merely an executory purchaser.’ The court continues (p 216): “ ‘If there is an absolute promise to pay the same amount that he was formerly owing, and to do so as a condition of getting back the title with which he had just parted, the inference that there is nothing but a debt with security for its repayment becomes a strong one; but the debt which creates this atmosphere of doubt is not the new debt, it is the old one. “ ‘So far as we can find, every case in which the existence of an absolute promise by an ostensible vendee to pay the sum involved has been thought to indicate that the transaction was merely a loan instead of having the character in which it was made to appear, is a case where the contract vendee had parted with his recent title and was arranging to get it back again.’ ” The principle established in Wilcox v. Moore, supra, which applies here was extended to “credit purchasers” in Matthews v. Aluminum Acceptance Corporation (1965), 1 Mich App 570. Although the defendants assert that the Supreme Court repudiated Wilcox in Ellis v. Wayne Real Estate Company (1959), 357 Mich 115, 120, a careful reading of that case divulges that all the Court said about Wilcox is that “no question of usury has been raised,” there. The central question in cases such as this are whether the plaintiff borrower is “hard pressed” (See Borinstein v. Raycon Land Company (1963), 370 Mich 359, 361), and whether the lender -has knowledge of this predicament and has taken advantage of it unfairly. We find such to be the positions of plaintiff and defendant here. Because of our decision herein, we do not pass on the issue raised by plaintiffs that the payment by defendant of the balance of $4,200 in July, 1964, owed to the Rotts under the land contract was paid on behalf of plaintiffs and established an equitable mortgage. Here, we only reverse the order of the trial court and remand with the direction that the trial court apply the principles of Wilcox to the entire transaction in establishing the amount fairly due. Viewing the case as we do, and in response to defendants’ assertion that a valid compromise was entered into in August of 1965, thus removing the taint of usury from the equitable mortgage, we direct the trial court’s attention to Union Guardian Trust Co. v. Crawford (1935), 270 Mich 207. The Court in Union Guardian Trust Co. v. Crawford, said at pp 210, 211: “It seems to be the rule that the general principle determining when an indebtedness infected with usury is to be deemed disinfected that if the tainted obligation is, with full knowledge and consent of the borrower finally canceled or abandoned, and a new obligation, containing no part of the usury, is executed in legal form, and supported solely by the moral obligation resting upon the borrower to pay the money actually received with legal interest thereon, such new obligation is valid and enforceable. But so long as the original usurious obligation continues to exist, based upon a consideration in which usury inheres, the taint of usury persists whatever be the form which the subsequent dealings of the parties may cause it to asstime, and even though new parties may have been introduced, or the borrower allowed to asume a different relation to the security affected with usury. Carr v. Taylor (1900), 30 Misc 617 (62 NY Supp 849); 39 Cyc 1002; Gladwin State Bank v. Dow (1920), 212 Mich 521 (13 ALR 1233).” (Emphasis added.) Eeversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant. All concurred.	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Per Curiam. Plaintiff brought this action in Ottawa County circuit court for reformation of a land contract to include his name as a tenant by the entireties. The land was purchased with joint funds by his wife, Dean Coeling, from her parents, the other defendants. According to the defendant’s testimony, she conducted all the business for the two of them. She made a practice of endorsing checks made out to plaintiff and depositing them in their joint account. The testimony of both plaintiff and defendant clearly shows that they both contributed their efforts to the acquisition of the moneys in the joint account. The trial court, relying on this joint contribution and the fact that defendant allowed plaintiff to prepare a home site on the purchased land plus the fact that she allowed him to share the 1966 rent ordered reformation of the contract to include the plaintiff’s name as a tenant by the entireties. After a review of the transcript and record on appeal, we find that the trial court’s findings of facts were supported by competent evidence and are not clearly erroneous. G1CR 1963, 517.1. The law applicable to this case is stated in Ridky v. Ridky (1924), 226 Mich 459, 473: “In purchasing this property Mrs. Ridky was acting as agent for her husband so far as his interests were involved. She was intrusted with the entire management of the negotiations and purchase. It was distinctly understood between them that the transfer by the grantor of the property purchased was to be for the benefit of both. It was therefore her duty to have the conveyance made to both or if to herself alone for any reason, then to have a trust in his favor distinctly declared in the conveyance. Under suggested facts somewhat analogous it was said by Justice Cooley in Fisher v. Fobes (1871), 22 Mich 454: “ ‘[I]f he (the agent) failed to have (the) conveyance made in proper form for the protection of complainant’s interests, he would have been chargeable with constructive fraud, and a court of equity would have given complainant the proper relief.’ “Constructive fraud is a basis for a constructive trust, raised by equity to work a just result. “ ‘All instances of constructive trust may be referred to what equity denominates “fraud,” either actual or constructive, including acts or omissions in violation of fiduciary obligations. If one party obtains the legal title of property, not only by fraud, or by violation of confidence or fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner. 1 Pomeroy, Equity Jurisprudence, § 155.’ Nester v. Gross (1896), 66 Minn 371 (69 NW 39).” We find as was found in Ridky, that defendant worked a constructive fraud upon the plaintiff by the use of their jointly accumulated funds in the purchase of the land solely in her name. See also Chlebek v. Mikrut (1953), 336 Mich 414, 420, 421. Therefore, we affirm the trial coui’t’s order of reformation. Affirmed. Costs to plaintiff.	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Per Curiam. On the evening of May 28, 1967, a man, later identified as defendant Floyd Waskowski, was seen trying to pry open a door of a restaurant in Redford Township with a crowbar. Startled by the presence of certain witnesses, the man quickly drove off in an automobile that was soon traced to the defendant. Several hours later, the police found the defendant at his home and arrested him. Asked whether he had any objection to a search of the house and his automobile, the defendant said, “no, I don’t have anything to hide,” and handed the automobile keys to one of the arresting officers. A search of the automobile produced a crowbar. Before trial, the defendant moved to suppress the crowbar, contending that it had been seized illegally, and filed an affidavit wherein he admitted having expressed consent to the search but asserted that he did so only out of fear that if he refused, he “would get in trouble not only with these policemen but with the probation office.” The motion was denied, and the defendant was convicted, June 17, 1968, of attempting to break and enter. The dispositive question on appeal is whether the defendant should be deemed to have consented to the search of his automobile. We conclude that he should. The law applicable to a claim of a consensual search upon arrest is stated in People v. Kaigler (1962), 368 Mich 281, 294: “It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony and there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, freely and intelligently given. Karwicki v. United States, (CCA 4) 55 F2d 225; Kovach v. United States, (CCA 6) 53 F2d 639. The burden for the prosecution is particularly heavy where the individual is under arrest. Judd v. United States, 89 App DC 64 (190 F2d 649); Amos v. United States, 255 US 313 (41 S Ct 266; 65 L Ed 654).” (Emphasis eliminated.) In the instant case, an arresting officer testified, and the defendant admitted, that consent to the search was unequivocally expressed. At the same time, nothing in the record or defendant’s affidavit suggests that the atmosphere surrounding the arrest was any more coercive than that surrounding any arrest made at an early hour in a suspect’s house. Thus, unless we are to hold that a consensual search simply cannot be made at an early hour, the only reason for saying consent was not given lies in the defendant’s alleged fear of trouble were he to refuse the officers permission to search. However, this fear, standing alone, cannot be regarded as rendering the search invalid, at least when, as here, it goes unmanifested and the arresting officers are not put on notice that the consent is not freely and voluntarily expressed. Under Kaigler, the arresting officers were entitled to rely on the defendant’s unequivocal expression of consent. Having relied on it, they cannot now be faulted for not securing a warrant. Defendant’s motion was properly denied. Affirmed. MOLA § 750.92 (Stat Ann 1962 Rev § 28.287). MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305).	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Per Curiam. Defendant McArthur Warren was convicted by the trial court, after waiving his right to jury trial, of larceny from a person. MCLA § 750.357 (Stat Ann 1954 Rev § 28.589). Defendant brings this appeal as of right. At trial the details of defendant’s juvenile record were admitted into evidence over defendant’s objection for the purpose of impeaching defendant’s credibility. It is defendant’s position on appeal that admission of his juvenile record constituted reversible error. We agree. The statute governing the instant case is MCLA § 712A.23 (Stat Ann 1962 Rev § 27.3178 [598.23]), which provides: “A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper , evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter.” The purpose behind the statute was set out in People v. Smallwood (1943), 306 Mich 49. There the Court stated at 53: “There is no question but that this salutary statute is for the purpose of protecting a child when it becomes a ward of the State. Its aim is ‘to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.’ State v. Guerrero, 58 Ariz 421 (120 P2d 798). It prohibits the use of juvenile court proceedings or evidence obtained therein against a child in any other court to discredit him as one possessing a criminal history. Malone v. State, 130 Ohio St. 443 (200 NE 473).” Defendant also attacks the sufficiency of the evidence and testimony which indicated that he made no statement after he was advised of his constitutional rights by the police. An examination of the record reveals that evidence was introduced which if believed by the trier of fact, was sufficient to sustain the conviction of the defendant beyond a reasonable doubt. As to the testimony that defendant made no statement, no objection was raised below, thereby waiving the issue for appeal. Reversed and remanded for new trial.	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y. J. Brennan, J. This is an appeal by Michigan Consolidated Gas Company and Whirlpool Corporation, defendants and third-party plaintiffs, from an order of the Wayne county circuit court dismissing their third-party complaints against The Williamson Company. One of the principal issues presented by this appeal — whether impleader under GCR 1963, 204, is of right or merely within the discretion of the trial court where a claim of contribution against an alleged joint tortfeasor is involved— has been made dispositive by the Supreme Court’s recent decision in Moyses v. Spartan Asphalt Paving Company (1970), 383 Mich 314. Impleader of an alleged joint tortfeasor under a claim of contribution is not of right, but within the sound discretion of the trial court. Since it is, and since the trial court in the instant case has not been shown to have abused its discretion, we affirm the order dismissing the third-party complaints. Plaintiffs John and Marion Doall filed their complaint in this yet untried cause on October 28, 1963, alleging that a gas refrigerator manufactured by Whirlpool Corporation and sold to them by Michigan Consolidated Gas Company in August, 1960, emitted certain chemicals and gases which, after traveling through the house heating and air-conditioning system, permeated Marion Doall’s skin and hair and formed a brown sticky substance on their furnishings, thereby causing $100,000 in damages to person and property. In May, 1967, after the answers, amendments to answers, replies and various interrogatories had been filed, defendants were granted leave under GCR 1963, 204.1, to file third-party complaints against The Williamson Company, the manufacturer and installer of the heating and air-conditioning system. Each defendant alleges, in part, in its complaint that should it be held liable to the plaintiffs, it is entitled to recovery against The Williamson Company for con tribution. Served with summons and complaint, The Williamson Company moved both for summary judgment (on the ground defendants failed to state a claim upon which relief can be granted) and for accelerated judgment (on the ground that the running of the statute of limitations on any claim plaintiffs might have against it bars a claim by the defendants for contribution). In ruling on these motions, the court reconsidered its grant of leave, concluded that leave had been improvidently granted, and dismissed the third-party complaints. Delay and complication were assigned as the reason for the dismissal. Trial of what the court characterized as an already “ancient” case would be further delayed by additional discovery and pretrial conferences, along with the third-party defendant’s filing of responsive pleadings and a pretrial statement. Moreover, a case already complicated by multiple claims, multiple parties, and a difficult question of causation might well be put beyond the jury’s comprehension with the addition of another party and its theories, claims and evidence. Delay and complication are recognized bases for the discretionary denial of impleader, whether the impleader be on a theory of contribution, indemnity or otherwise: “Impleader is by motion ex parte before service of the answer, or by motion with notice to plaintiff after the service of an answer. The granting of the motion rests within the sound discretion of the court, and there is no absolute right to join a third- party defendant. Generally courts will be liberal in allowing the joinder of third-party defendants, but it should be avoided where there might be prejudice to either party because of the complexity of the case. It should be remembered, however, that if there is objection on this basis, the court can always order separate trials of separate issues under GCR 1963, 505.2. “Joiner [61 Negligence Law Section Bulletin 8, 12] says: “In acting upon a motion made under the rule the judge will weigh the advantages of having the third party in the case against the following: “1. The probability of delay, United States v. Jollimore (1949), 2 FRD 148. “2. Complications of the trial, McPherrin v. Hartford Ins. Co. (1940), 1 FRD 88. “3. The timeliness of the motion, Casey v. Calmar Steamship Corporation (D Del, 1956), 138 Fed Supp 751. “4. The similarity of evidence, Jones v. Waterman SS. Corp. (CA 3, 1946), 155 F2d 992. “5. The possibility of prejudice to the plaintiff, FDIC v. The National Surety Corp. (1950), 13 FRD 201; Casey v. Calmar Steamship Corporation, supra. “6. Possibility of prejudice to third-party defendant, American Fidelity and Casualty Company v. Greyhound Corporation (CA 5, 1956), 232 F2d 89.” 1 Gilmore, Michigan Civil Procedure, Before Trial, pp 332, 333 (quoted with approval in Moyses, supra, and in the concurring opinion of Justice Black in Husted v. Consumers Power Company [1965], 376 Mich 41, 63). The court acted within its discretion by dismissing the third-party complaints. The order is affirmed. All concurred. Defendants’ argument that impleader is of right is based on the pre-Moyses belief that unless impleader of a joint tortfeasor unnamed by the plaintiff in the primary action were allowed, the substantive right of contribution would be lost for all time. Honigman and Hawkins describe the problem in the following terms: “It must be noted that under the contribution statute, RJA § 2925, a right of contribution among joint tortfeasors exists only (1) if tliere has been a joint judgment (that is, as a result of their having been sued jointly by the plaintiff), or (2) if they are summoned in as third-party defendants pursuant to court rule. If a tortfeasor sued separately is not allowed to implead alleged joint tortfeasors for contribution, any right of contribution will be lost. Thus, as to contribution, it is not always true, that the defendant may await the outcome of the main trial and then sue the third party upon the right thus allegedly accruing. Id. at p 378. The defendant, on timely motion, should be allowed to implead the third-party defendant, in order to preserve his right to contribution under the statute. If such joinder threatens to delay or complicate the main action unduly, the remedy is simply to order a separate trial for the third-party claim. Subrule 204.1(4). The court may direct a final judgment on the primary claim alone, in accordance with the provisions of subrule 518.2. Ibid.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1969 Supp, p 82. See also Practice Commentary § 600.2925, 33 MCLA p 780. Under Moyses, defendants may enforce any right to contribution they might have against The Williamson Company by bringing an equitable action after judgment. The running of the statute on the primary plaintiff’s claim against a nonparty tortfeasor does not bar a party tortfeasor’s claim for contribution. Duncan v. Beres (1968), 15 Mich App 318, 332, and cases cited therein. But see Morgan v. McDermott (1969), 382 Mich 333, where a 60-day notice requirement was a prerequisite to governmental liability.	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McGregor, J. This case must be decided on the facts. The law is clear. Does the trial court’s sua sponte discharge of a duly impaneled and sworn jury, on the third day of a murder trial of this defendant and others, preclude a second trial for the same offense under the constitutional provision prohibiting a person from being placed in jeopardy twice for the same offense, unless such action was with the consent or acquiescence of the defendant? See People v. Anglin (1967), 6 Mich App 666. The pertinent but sometimes confusing facts are that, at approximately seven o’clock on the evening of December 22, 1966, this defendant, together with Harold Johnson and George Grimmett, bent upon robbery, entered the retail market of Shaker Aubrey, announced a holdup, and thereafter shot and killed him. The defendants were arrested and arraigned upon an arrest warrant which charged that they “feloniously, wilfully and of their malice aforethought did kill and murder one Shaker Aubrey, * * * contrary to the form of the statute, etc.” At the conclusion of the preliminary examination proofs, on January 6, 1967, the magistrate bound the three defendants over for trial on the first-degree murder charge. Thereafter, the defendants were arraigned upon the information which charged them with first-degree murder, in language identical to that contained in the arrest warrant. A jury trial commenced on January 22, 1968, before the Honorable George W. Crockett, Jr., of the Recorder’s Court of the City of Detroit. In his opening statement to the jury, the prosecutor stated: “It is the position of the people that this crime was premeditated in accordance with a preconceived plan. That it was executed in the course of a robbery which had been agreed upon between the three defendants * # * we intend to prove to you these facts beyond a reasonable doubt.” On the third day of the trial, the attorney for defendant Grimmett informed the court that his client desired to enter a plea of guilty of the offense of murder in the second degree, and it was contended by Grimmett’s attorney that the language of the offense as then charged in the information was that of second-degree murder only. Following legal argument between Judge Crockett and some of counsel, the trial judge agreed with defendant Grimmett’s attorney’s contention and ruled that the information merely charged second-degree murder. The court informed the trial prosecutor that he would permit an amendment to the information to provide for premeditation. Defendant Grimmett’s attorney maintained that the amendment would charge a more serious offense; in this he was joined by the attorney appearing on behalf of defendant Johnson, and both objected to the amendment. Counsel for this defendant remained silent and did not assent to the discharge of the jury. The trial judge, sua sponte, discharged the jury from further consideration of the case, following the granting of the prosecutor’s motion to amend the information. On January 14, 1968, the three defendants were arraigned on an amended first-degree murder information and a new trial date was set. The denial of the defense motion to dismiss because of the former jeopardy of this defendant gives rise to this appeal. The people in their brief have a pertinent paragraph : “The cases of the People v. Gologonoff (1967), 6 Mich App 332 (leave to appeal denied by the Supreme Court October 12,1967, 379 Mich 783), and the People v. Dupuis (1963), 371 Mich 395, as construed by the court * * * had much to do in persuading the court to conclude that the information in the case being tried did not charge the offense of first-degree murder. The court was of the opinion that the language framing the charge did not contain or allege premeditation. The court appeared to be uncertain as to whether or not he could charge the jury on first-degree murder as the information was then worded. He asked the prosecutor: “ ‘The Court: Do you think that under this indictment I can charge this jury on first-degree murder ? “‘Mr. Weiswasser: Yes, your Honor. Especially if we amend the information and I can’t see any reason why not.’ ” In Gologonoff, supra, the question was whether the jury verdict “guilty in manner and form as the people have in their information in this cause charged” convicted the defendant of first-degree murder and complied with the statute, CL 1948, §750.318 (Stat Ann 1954 Rev § 28.550), requiring the jury to ascertain in their verdict whether it he murder of the first or second degree. Our Court held that for such a general verdict to comply with the statute and to convict the defendant of first-degree murder, the information would have to contain the word “premeditation.” This Court did not hold that the information in Gologonoff, supra, was defective, nor that such information would not have sustained a verdict of first-degree murder, provided the jury in their verdict so determined. Gologonoff had nothing to do with the sufficiency of the information but dealt solely with the lack of specificity in the jury verdict. The trial court’s reliance on Gologonoff was totally misplaced. The court’s statement that the defendants might have been misled by the information into believing that the prosecution only intended to ask for conviction of a charge of second-degree murder is not borne out, as the only statute cited in the information and the warrant is that of first-degree murder. Furthermore, the propriety of the trial court’s requiring or allowing the people to amend an alleged murder charge from second-degree to first-degree murder is highly questionable. See People v. Gibbons (1932), 260 Mich 96, 99, where the court held: “While the statute, being part of code of criminal procedure of 1927, was adopted to eliminate some of the technicalities which have surrounded the practice of criminal law, it does not permit the amendment of an information after trial has been begun so as to charge the accused with a different crime, punishable with a more severe penalty.” (Emphasis added.) The information charged that the defendants “* * * feloniously, wilfully and of their malice aforethought, did kill and murder one Shaker Aubrey contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.” This is the language on which this defendant was hound over for trial on a first-degree murder charge. An information need not specify the degree of murder charged; it is sufficient if it charges that the defendant did murder the deceased. Sneed v. People (1878), 38 Mich 248, 251, 252; People v. Page (1917), 198 Mich 524, 535, 536; CL 1948, § 767.71 (Stat Ann 1954 Rev § 28.1011). The information is not defective: the trial court erred in so concluding. An information is to apprise the defendant of the charges against him; an information which fulfills such requirement is a good and proper information. People v. Kearns (1965), 2 Mich App 60; People v. Calvin (1886), 60 Mich 113. Defendant was bound over on a charge of first-degree murder and it is clear that defendant himself was aware of that charge. We are also confronted with the issue of whether this defendant consented or acquiesced in the dismissal of the jury. The transcript shows that defendant Grrimmett’s counsel made the original motion to allow his client to plead guilty of second-degree murder. Defendant Johnson’s attorney is on record as agreeing with some points. At no point does the record show that counsel for this defendant said anything, either in agreement or dissent. Silence cannot operate against a defendant: “In Allen v. State (1906), 52 Fla 1 (41 So 593), we held that the silence of the defendant on trial for a crime or Ms failure to object or protest against an illegal discharge of the jury before verdict does not constitute a consent to such discharge. Such conduct by the accused is not a waiver of the constitutional inhibition against a subsequent trial for the same offense after the improper discharge of the jury. See also, State, ex rel. Dato, v. Himes (1938), 134 Fla 675 (184 So 244); State, ex rel. Alcala, v. Grayson (1945), 156 Fla 435 (23 So 2d 484).” State v. Grayson (Fla, 1956), 90 So 2d 710 (63 ALR2d 777). The prosecution contends that Grimmett’s counsel led the trial judge to believe that all the defendants were of the opinion that the jury should be discharged, giving the defendants an opportunity to meet the amended information at another trial. The following remarks of Grimmett’s counsel are important, including other excerpts of this involved action: “Mr. Sherman (Sidney Sherman, appointed counsel for defendant George Grimmett): In the first place, if the Court please, it is the contention of the defendant, the various defendants, that the right to be informed of the charge and that the charge against them is a valid one. * # # “I am not arguing the constitutionality of the Michigan statutes. I call your attention to this. But, your Honor, as to whether or not they have a right to amend'— “The Court (Interposing): You can argue the constitutionality of the Michigan statute. I think the Michigan statute is safe from constitutional defect by the requirement— “Mr. Sherman (Interposing): Yes, that’s right, your Honor. “The Court (Continuing): — that I discharge the jury and give you an opportunity to meet the amendment to the indictment and have another trial. “Mr. Sherman: That’s right. “Mr. Weiswasser (Assistant Prosecuting Attorney) : Or to proceed with the trial. “Mr. Sherman: May I say one word? “The Court: You can’t proceed with the trial. “Mr. Sherman: You have taken innumerable pleas to lesser offenses where a count is added on the in formation. What is the first thing that is asked of the defendant? Won waive the previous proceedings, the right to an examination, the right to arraignment on a new — on an information charging this added count?’ So- that they cannot amend it. They are amending it as to substance. I agree with your Honor that the Michigan statutes — where we raise the question and they want to amend to substance, we have got to ha(v)e a new jury.” (Emphasis added.) The trial judge apparently believed that the defendants were moving for a termination of the trial proceedings: “The Court: Right, under the appropriate charge. But when the information is set forth as this one is, I am limited to the charge that I can give the jury, based on this information. “Mr. Weiswasser: And we submit— “The Court (Interposing): The information does not charge premeditation and therefore it is not first-degree murder in Michigan. “I grant the defense motion. “If you want to amend I will give you leave to amend. “Mr. Weiswasser: We ask for leave to amend. “The Court: In that case we will have to call the jury back and discharge the jury and refer it to the assignment clerk to set another date.” Following the granting of the defense motion to discharge the jury, the court permitted the prosecutor to move that the information be amended. The record shows that some of the counsel may have been confused as to exactly what motions were presented to the court for consideration. Defense counsel for defendant Johnson addressed the court: “Mr. Hubbell (Stewart Hubbell, appointed counsel for defendant Harold Johnson): Your Honor, as I understand it, the new information will he filed and they will be arraigned again, is that right ? “Mr. Weiswasser: There would have to he an arraignment on the new information. “Mr. Sherman: What I — my motion would he an objection to the amendment of the information to charge murder in the first degree. “Mr. Uubbell: May I join in that? “The Court: That motion is overruled. “I am ruling that the information— “Mr. Sherman (Interposing): No, no. “The Court: I am ruling that the information is defective insofar as it says the charge is murder in the first degree. It does charge murder in the second degree. “People have requested leave to amend to charge murder in the first degree. I am granting that motion to amend. “Under the law I am required under those circumstances to give you an opportunity to meet the new charge. “Whether, or not that necessitates a new examination — I am inclined to think it does. The matter would have to be remanded for a new examination, and it is so ordered. “Mr. Sherman: Thank you. “Mr. Hubbell: Thank you. “This is to all three defendants ? “The Court: This is as to all three defendants. Bring in the jury.” Prom these exchanges, coupled with the lack of any objections to the decisions of the court, the prosecution contends that it is permissible to infer that this defendant acquiesced in the rulings of the court. The only motion presented by any of the defendants was the original motion to allow defendant Grimmett to plead guilty to a charge of second-degree murder. When the court granted the motion, it was obviously not the original guilty plea motion. The only logical interpretation is that the trial court thought it was granting a motion to dismiss the jury. This motion or idea was originated by the trial court, although Grimmett’s attorney apparently agreed. The trial court stated that his rulings applied to all three defendants. “After a jury has been impaneled and sworn, any discharge thereof without sufficient cause operates as an acquittal, in that it effectually bars another trial for the same offense. But to have this operation and effect such discharge must have been made without the consent, express or implied, of the respondent: Joy v. State (1860), 14 Ind 139; Stewart v. State (1864) 15 Ohio St 155; State v. Garvey (1875), 42 Conn 232; Spencer v. State (1854), 15 Ga 562; Rex v. Stokes (1833), 6 Car & P 151; State v. M’Kee (1830), 1 Bailey 651; Commonwealth v. Sholes (1866), 13 Allen 554, 1 Bish Crim Law, § 998, and cases cited in notes 4 and 5, and note 1 p. 600.” People v. Gardner (1886), 62 Mich 307, 311. A consent to the discharge of the jury by this defendant Brown in the instant case can, at best, only be implied. A strong presumption is raised against a waiver of fundamental rights by an accused. A waiver involves intentional relinquishment or abandonment of a known right or privilege. In this case, an implication of waiver of such a right is impossible to justify. While the trial arguments are confusing, to say that silence on the part of this defendant waived his right not to be twice placed in jeopardy would deny him a fundamental right. This determination does not necessarily apply to the other defendants. Double jeopardy is prohibited by the fifth amendment to the United States Constitution, and by Art I, § 15 of the Michigan Constitution of 1963. Jeop ardy is defined in Recorder’s Court Presiding Judge v. Third Judicial Circuit Judge (1954), 340 Mich 193, 201: “In People v. Powers (1935), 272 Mich 303, 307, this Court recognized the general rule that one accused of violating the law is in jeopardy when placed on trial, on such charge, in a court of competent jurisdiction. Among other decisions of this Court involving a claim of double jeopardy are: Preston v. People (1881), 45 Mich 486; People v. Kuhn (1891), 67 Mich 463; People v. Townsend (1921), 214 Mich 267 (16 ALR 902).” From the facts, we find that the attempt to try this defendant on another murder charge puts him in double jeopardy. This defendant’s motion to dismiss should have been granted. Dismissed. All Concurred. CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548).	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Per Curiam. Defendant and his brother, Chester Compton, were jointly tried and convicted by a jury of breaking and entering a gun shop with intent to commit larceny. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). The breaking and entering occurred around 1 a.m., March 4, 1968. Both Comptons were arrested at the scene, Chester inside the gun shop, Kearney outside in a parked automobile. At trial, the manager of the shop testified that the Comptons, together with two other men, were in the shop two days before the breaking and entering. One of the arresting officers testified that after arriving at the scene and while patrolling the alley behind the shop, he discovered a Cadillac automobile with out-county plates parked nearby. He approached the Cadillac and found defendant lying down on the front seat. After ordering defendant out and placing him under arrest, he found a wallet inside the automobile containing the identification of Chester Compton, who had already been arrested. On appeal, defendant alleges error in the trial court’s denial of his motion for a directed verdict of not guilty. Defendant contends that the testimony offered at trial was insufficient to show that defendant aided and abetted or in any way participated in the crime charged in the information. The question presented by a motion for directed verdict of not guilty is whether there is evidence from which the jury can reasonably infer all the elements of the crime charged. People v. Qualls (1968), 9 Mich App 689; 2 Gillespie, Michigan Criminal Law and Procedure, § 632, p 817. From the evidence adduced at trial, the motion for directed verdict was properly denied. Defendant contends that the trial court erred by permitting the jury to suspend its deliberations over the long Memorial Day weekend. At the time of the adjournment on Wednesday, May 29, 1968, the jury was undecided as to one of the Comptons. Since he was arrested outside the shop, defendant surmises that it must have been him and then alleges, without proving, that the holiday dulled the memory of the individual jurors. We will not consider this assignment as the record shows that defendant expressly waived any objection to the adjournment. Additionally, defendant contends that the trial court erred in its rulings on the admissibility of certain statements made by defendant to various police officers. The statements were all in the nature of self-serving hearsay statements. For that reason, one of the statements was properly excluded. People v. Davis (1922), 217 Mich 661; People v. Giovannangeli (1925), 231 Mich 474. The first of the other two statements was volunteered by a police witness during cross-examination by defendant. It was not objected to nor did defendant move to have it stricken. Later, another statement was admitted as inconsistent with the volunteered statement. If there was any error in their admission into evidence, clearly it was not reversible error. Finally, defendant alleges reversible error in that the prosecutor, in his closing argument to the jury, commented on the accused’s failure to testify. The record reveals that it was defendant, not the people, who first alluded to a failure to testify. The court, conscious of the potential error, was quick to interpose with proper instructions. No adverse inference was drawn and defendant was in no way prejudiced. Affirmed.	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J. H. Gillis, P. J, Defendant was convicted by a jury of the first-degree murders of Carl and Gertrude Middledorf. MCLA § 750.316 (Stat Ann 1954 Bev § 28.548). He appeals as of right, alleging an illegal search and seizure and trial error. On the afternoon of February 4, 1967, Detective Robert Shelby of the Saginaw police department was told by an informer that Ronald Johnson and William Eddington had been involved in the SaginaAV murders of Dr. Archer Olaytor and his Avife on February 2, 1967. Detective Shelby Avas also informed that the íavo men were responsible for an armed robbery Avhich had occurred at 916 Norman Street, Saginaw, on January 25, 1967. This information Avas based on statements made to the informer by Johnson. A victim of the Norman Street robbery had previously identified Johnson from a mug "shot as one of the íavo men Avho had robbed her. On February 5, 1967, Detective Sholbv Avas called to 1409 Cherry Street to investigate the killings of Mr. and Mrs. Middledorf. Shelby noticed that a windoAv in the back door of the Middledorf house had been broken, presumably by the killer in gaining entry to the house. While in the house, Sergeant Christensen of the crime laboratory shoAved Shelby a distinctive heel print found near the bathtub A\There Mrs. Middledorf’s body Avas discovered. The print had been dusted Avith fingerprint powder to make it inore readily visible. A second print Avas found on a piece of glass that had been broken from the AvindoAv of the back door. The print Avas distinctive because it Avas smaller than a print made from a regular man’s shoe and had íavo or three, ridges that stood out on the impression. After examining the print, Detective Slielby concluded that the print was made by “Stetson” shoes. He testified at the hearing on defendant’s motion to suppress: “A. The print was a — I would say a print might have come from a Stetson shoe. Now, the print was smaller than a regular man’s shoe and probably approach the size of a woman’s Cuban heel shoe, but they were cross characteristics of a man’s shoe, the crossings, also striations. “Q. And the print itself? “A. Yes, sir. “Q. Have you ever owned any Stetson shoes? “A. Yes. “Q. What kind of shoes does Stetson usually make ? “A. Well, the heel is relatively smaller than the regular men’s wear. It is more of a Cuban type heel. I guess you could — well, the appearance of the print looks like it could have been a beatle type boot. “Q. What? “A. A beatle type boot. “Q. What do you mean by Cuban type heel? “A. I refer to a Cuban type heel as a heel little higher than the regular heel of the shoes men wear, the sole of the shoe. I mean it would be tapered.” None of the shoes examined in the Middledorf house matched Shelby’s description. After leaving the Middledorf residence, Detective Shelby gathered a number of photographs and proceeded to 916 Norman Street to interview Jack Prince, a second victim of the robbery. Prince identified William Eddington as one of the participants. At this juncture of his investigation, Shelby believed that there was a connection between the. robbery and the Clavtor and Middledorf murders. The robbery victims and the decedents were all elderly people; the weapon used in the robbei-y and the Claytor murders was a small caliber firearm; Bonald Johnson possessed a small caliber pistol which at one time had been owned by the informer; “Billy” (Eddington) had this gun when the informer sought to procure it for the police. Eddington was also known to have broken into certain homes by way of the back door as was done in each of the murders; furthermore, the victims of both the Clay-tor and Middledorf homicides had been bound with material found at the scene. Accordingly, Shelby immediately suspected that Eddington had been involved in the Middledorf murders. Shelby then phoned the prosecutor and asked him to procure an arrest warrant against Eddington on a charge of robbery. At a subsequent meeting Shelby and the prosecutor discussed whether it was the appropriate time to pick up both Johnson and Eddington on charges of murder. It was decided that Shelby would arrest Eddington for robbery only. On the evening of February 5, 1967, just before midnight, Detective Shelby, accompanied by several police officers, drove to Eddington’s residence at 1417 Farwell. Neither Detective Shelby nor the police officers possessed a warrant for Eddington’s arrest. Upon arrival Shelby observed a car, which he knew to be Eddington’s, parked near the Farwell address. As he approached Eddington’s apartment, Shelby observed foot and heel prints in freshly fallen snow leading to the apartment. On close examination, Shelby noticed that these prints were similar to those which he had seen at the Middledorf residence. No such prints were observed leading away from Eddington’s apartment door. Detective Shelby testified that, at this moment, he was convinced that Eddington had committed the .Middledorf murders. Shelby then approached the apartment door and heard the rustle of more than one person in the apartment. “At least I seem — it appeared to me that there was more than one person in the house, the apartment.” A knock on the door produced no immediate response. A female voice then asked who was there. Shelby identified himself and asked if “Billy” was home. He was told that Eddington had left the apartment that evening at 10 p.m. Detective Shelby and the officers turned to leave in order to discuss whether to stake out the house, break the door, or to procure an arrest warrant. As the officers were leaving, the female inside Eddington’s apartment said, “Mr. Shelby, is that you?” Detective Shelby again identified himself. Thereafter, a female came to the door, identified by Shelby as Johnetta Hawkins, Eddington’s girlfriend, whom Shelby had known for some time. Miss Hawkins repeated that Eddington was gone; however, Detective Shelby — not totally relying on the representation that Eddington was absent — asked if he could look around. Miss Hawkins opened the door and told Shelby to go right ahead. Detective Shelby then drew his gun and entered the apartment. Detective Shelby described his subsequent conduct as follows: “Q. After you said you wanted to look and see for yourself what did you do? “A. I went — first I turned to the left. I went to the living room on into the bedroom, looked under the bed, as I was going through the closet there is a connecting closet between the bedroom and smaller bedroom I would call it or utility room. I noticed a pair of black shoes setting there. I was looking-in the closet to see if Eddington could have hidden in there. “Q. Was he in there? “A. No, sir. I picked the shoes up, examined them, saw that they were the heel was similar to the one I had seen outside, and the heel was the char acteristic of the one as the Middledorf one in the bathroom where Mrs. Middledorf was found. I also saw fine particles which I thought could have been glass in them. I set the shoes down, come on back through the small bedroom into the kitchen and told Lieutenant Killingsworth he is not here, let’s go.” The officers then left the apartment to discuss what should be done. A police car was called to the scene to wait in the vicinity until the prosecutor could procure orders for warrants. Detective Shelby appeared before a magistrate and obtained a warrant for Eddington’s arrest and a search warrant for the shoes observed in Eddington’s apartment. The officers returned to the apartment and found Miss Hawkins had left and had padlocked the door. They obtained entry by forcing the door and took possession of the shoes. Eddington was arrested on February 8th and charged with the murders of Carl and Gertrude Middledorf. Before trial, defense counsel filed a timely motion to suppress people’s exhibit 2, the pair of shoes taken from Eddington’s apartment. This motion was denied following an evidentiary hearing. At trial, the people introduced into evidence both the shoes and pictures of heel prints and impressions made from the shoes by the state police. This evidence, together with testimony that similar prints were found at the scene of the crime, tended to show that defendant was the perpetrator of the alleged murders. I Defendant first contends that the admission of people’s exhibit 2 as evidence against him was constitutional error. He alleges that Detective Shelby’s examination of the shoes at the time of Shelby’s original entry into defendant’s apartment consti tuted an illegal search in violation of his rights under the Fourth Amendment, as applied to the States through the Fourteenth Amendment, of the United States Constitution. See Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684; 6 L Ed 2d 1081; 84 ALR2d 933). At the outset, we note that consideration of defendant’s constitutional claim is not obviated by the fact that Detective Shelby obtained a warrant to search for defendant’s shoes after having discovered them in defendant’s apartment. If, as defendant contends, Detective Shelby’s action in lifting the shoes and examining their heels constituted an illegal search, the subsequent seizure of the shoes pursuant to a warrant would, on this record, be the “fruit of the poisonous tree,” thus subject to the exclusionary rule. See Silverthorne Lumber Company, Inc. v. United States (1920), 251 US 385 (40 S Ct 182; 64 L Ed 319); Wong Sun v. United States (1963), 371 US 471 (83 S Ct 407; 9 L Ed 2d 441). For it clearly appears from the record that the subsequent ivarrant was issued based on knowledge obtained as a result of Shelby’s examination of the shoes. And, assuming the illegality of that examination, evidence obtained by use of the tainted warrant must be excluded at trial. Mapp v. Ohio, supra; People v. Alverson (1924), 226 Mich 342. To hold otherivise would permit the police to ignore completely the constitutional requirement of a search warrant. It Avould allow them to engage in unlawful searches at will, being assured that if they discovered incriminating evidence, they could thereafter cure their illegal actions by securing a search warrant. Such is not our conception of the Fourth Amendment. We therefore confine our consideration of defendant’s constitutional claim to Detective Shel by’s original entry into defendant’s apartment and his examination of defendant’s shoes. In denying defendant’s motion to suppress, the trial court found that Detective Shelby had probable cause to arrest defendant for armed robbery prior to going to defendant’s apartment. The court also found that, upon arrival at the apartment and after observing the prints embedded in the snow, Shelby likewise had probable cause to arrest defendant Eddington for the Middledorf murders. These findings are not contested by defendant on appeal. The trial court then reasoned: “Arrests without a warrant are valid if based on ‘probable cause’ or ‘reasonable grounds.’ Under the circumstances, both at common law and by statute, the officers were entitled to enter the apartment to make a lawful arrest of defendant Eddington.” (Emphasis supplied.) Defendant’s threshold argument is that, notwithstanding the fact that Shelby possessed “reasonable cause to believe that a felony [had] been committed and reasonable cause to believe that [Eddington had] committed it,” see MCLA § 764.15(d) [Stat Ann 1954 Rev § 28.874(d)], the entry into defendant’s apartment without an arrest warrant was unreasonable and unlawful because the entering officers had no justifiable excuse for their failure to obtain a warrant. A similar contention was presented to this Court in People v. Herrera (1969), 19 Mich App 216, and we rejected it saying: “Upon consideration of US Const, Am 4, and Const 1963, art 1, § 11, we find no valid basis for the adoption of defendant’s cited standard for reasonableness regarding searches as the standard to be applicable to arrests.” 19 Mich App at 223. The Court noted that numerous courts hold that an arrest without a warrant is not unlawful even though the police have adequate opportunity to obtain an arrest warrant prior to the arrest. Nor are we of the opinion that defendant’s absence in fact from the apartment affected the lawfulness of Detective Shelby’s entry. Upon approaching the apartment, Shelby heard what appeared to be the rustle of more than one individual inside the apartment. He had previously seen defendant’s ear parked outside the apartment. These circumstances led him to believe that Eddington was at home. That belief was on this record a reasonable one, and, although Detective Shelby was informed that defendant was not at home, he was not required to rely on Miss Hawkins’ representation. Accord, People v. Sprovieri (1968), 95 Ill App 2d 10 (238 NE2d 115), affirmed (1969), 43 Ill 2d 219 (252 NE2d 531). Having probable cause to arrest defendant and having a reasonable belief that defendant was at home, we conclude that Shelby was entitled to enter the apartment and was lawfully on the premises. Accord, People v. Barbee (1966), 35 Ill 2d 407 (220 NE2d 401); State v. Howard (1968), 274 NC 186 (162 SE2d 495); People v. Sprovieri, supra. Defendant next suggests that, assuming arguendo that the officers had a right to enter the apartment to search for defendant, they did not have the authority to search for evidentiary items. Detective Shelby’s conduct is characterized as a “search incident to an attempted arrest,” which, defendant argues, has been universally rejected by the courts. Two authorities are cited and said to undermine the lawfulness of Detective Shelby’s conduct. They are Mosco v. United States (CA 9, 1962), 301 F2d 180, and Stoner v. California (1964), 376 US 483 (84 S Ct 889; 11 L Ed 2d 856). Both decisions are distin guishable, however, from the facts of the instant case. In Mosco v. United States, supra, officers entered an apartment with the intent, supported by probable cause, to arrest the defendant. The issue presented was stated by the court at 186: “Discovering appellant’s absence, was the [warrantless] search of the apartment and the seizure of the material evidence proper?” (Emphasis supplied.) Likewise in Stoner, officers proceeded to search an apartment after they found defendant was not present. Here, however, Detective Shelby first observed the shoes in the course of a lawful search for defendant Eddington, reasonably believed by Shelby to be hiding in the apartment. Unlike the situation in the cases cited by defendant, the search for the suspect here had not ended. We need not consider, therefore, the validity of a search for evidentiary items following recognition by the police of a suspect’s absence from the premises. In Harris v. United States (1968), 390 US 234, 236 (88 S Ct 992, 993; 19 L Ed 2d 1067, 1069), the United States Supreme Court noted that: “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” This is the so-called “plain view doctrine,” which has been repeatedly applied by Michigan Courts. See People v. Orlando (1943), 305 Mich 686; People v. Kuntze (1963), 371 Mich 419; People v. Tetts (1967), 6 Mich App 254; People v. McDonald (1968), 13 Mich App 226; People v. Tisi (1969), 16 Mich App 316. The trial court, in ruling that defendant’s shoes were admissible as evidence, relied on the doctrine here, considering it applicable to the facts presented. Defendant contends, however, that Harris has no application, since all Detective Slielby conlcl see at first glance was a pair of black shoes. Defendant asserts in his brief, “To see what he wanted to see, it was necessary for Shelby to pick up the shoes, turn them over, and carefully examine the heels.” Contrary to defendant’s assertion, the facts presented at the evidentiary hearing support the conclusion that, immediately upon seeing the shoes, Detective Shelby recognized them as those worn at the scene of the crime. From his examination of the print at the Middledorf residence, Shelby knew that the shoes of the killer were “Stetson” shoes — a peculiarly shaped shoe. He had seen similar prints leading to defendant’s apartment upon his arrival; no such prints were observed exiting the apartment —a situation warranting the conclusion that such shoes were inside the apartment. Under the circumstances, it is unlikely that it was necessary for Detective Shelby to pick up the shoes and examine the heels in order to see what he wanted to see. Nevertheless we decline to rest on this ground. We think it necessary to consider on the merits defendant’s contention that Detective Shelby’s actions in picking up the shoes, turning them over, and examining them constituted a search in violation of the Fourth Amendment. We reach this question because Detective Shelby was never asked by the prosecution at the evidentiary hearing whether he recognized at first glance the shoes as those worn at the scene of the crime. The testimony is at best ambiguous. We therefore decline to apply the plain view doctrine here since the people have failed to meet their burden of proof. See People v. Mason (1970), 22 Mich App 595; cf. State v. Kananen (1965), 97 Ariz 233 (399 P2d 426). The people contend, “surely lifting the shoes up Avas not a ‘search.’ ” We agree. In United States v. Catanzaro (SD NY, 1968), 282 F Supp 68, a postal inspector while lawfully in defendant’s apartment noticed a Springfield rifle on a wall rack, and recalled from his investigation of defendant’s alleged fraudulent use of credit cards the repair of such a rifle under a credit card. He examined the rifle more carefully and observed that the serial number on the rifle matched that of the one repaired through the use of the credit card. The rifle was seized as evidence. A motion to suppress the rifle was filed. It was urged that the inspector’s action in closely examining the rifle constituted an unlawful search. Judge Weinfeld denied the motion to suppress, saying at 69, 70: “The inspector and his companions were lawfully present in defendant’s apartment * * * . Discovery of the rifle required no search * >X: # . The inspector was not precluded from observing what was clearly and plainly there to be seen. Having seen the rifle, the inspector properly scrutinized it more carefully, thereby confirming his suspicions that it was part of the fruit of the alleged crime. That he was required to examine it more closely to identify the serial number did not transform a mere observation into an unconstitutional search. * * mere observation [does not] constitute a “search.” If an officer sees the fruits of crime — or what he has good reason to believe to be the fruits of crime— lying freely exposed on a suspect’s property, he is not required to look the other way, or disregard the evidence his senses bring him.’ ” (Emphasis supplied.) AYe apply similar analysis here. Having seen the pair of shoes during his lawful search for defendant and having good reason to believe that such shoes would, upon examination, prove to be those worn at the murder scene, we conclude that Detective Shelby properly scrutinized the shoes more care fully. That Shelby was required to lift the shoes and examine the heels in order to identify them as evidence of crime did not transform his observations into an unconstitutional search. A “search” in the constitutional sense implies a “prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way” Weltz v. State (Alaska, 1967) 431 P2d 502, 505. Such a definition recognizes the gist of the protection afforded by the Fourth Amendment — -protection of the individual from unreasonable invasion of privacy. “We have recently held that ‘the Fourth Amendment protects people, not places,’ Katz v. United States (1967), 389 US 347, 351 (88 S Ct 507; 19 L Ed 2d 576, 582), and wherever an individual may harbor a reasonable ‘expectation of privacy,’ id. at 361 (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion” Terry v. Ohio (1968), 392 US 1, 9 (88 S Ct 1868, 1873; 20 L Ed 2d 889, 899). (Emphasis supplied. ) See also, People v. McDonald, supra, at 235. And, in determining the parameters of personal privacy protected by the Fourth Amendment, not only place, but the type of information seized and, consequently, the means of intrusion, must be considered as relevant factors. See note, “From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection,” 43 NYUL Rev 968, 986 (1968). Application of these principles here leads us to our view that Detective Shelby’s action in lifting defendant’s shoes and examining their heels did not constitute a search in the constitutional sense. We find no “prying into hidden places for that which is concealed.” The shoes had not been hidden; nor were they intentionally put out of the way. Under the circumstances, it does not appear that defendant exhibited a subjective expectation of privacy as to his shoes. Cf. People v. Bradley (1969), 1 Cal 3d 80 (81 Cal Rpt 457, 459, 460 P2d 129, 131). Moreover, any such expectation would have been unreasonable. Our values are not adjusted to view the heels of shoes as within the province of intimate personal control. Finally, it seems to us that the same result should be reached even on the hypothesis that a search was involved. The basic question to be answered is whether or not Shelby’s lifting the shoes and examining their heels was unreasonable under all the circumstances. “Where a warrant has not been obtained, the validity of the search depends on the law’s appraisal of the reasonableness of the search, only unreasonable warrantless searches and seizures being barred.” People v. McDonald, supra, at 232. And see People v. Gonzales (1959), 356 Mich 247, 253; People v. Zeigler (1960), 358 Mich 355, 375; People v. Herrera, supra. On this record we hold Shelby’s conduct to be reasonable in constitutional terms. As previously indicated, Detective Shelby was lawfully in defendant’s apartment. He reasonably believed defendant to be hiding in the apartment and had every right, supported by probable cause, to search for the suspected killer. Shelby’s discovery of the shoes was not the result of a general search for evidence. Rather, the pair of shoes was seen during the course of the search for Kddington. In our view, Shelby’s subsequent actions in lifting the shoes and examining their heels involved no more than “legitimate and restrained investigative con duct undertaken on the basis of ample factual justification.” Terry v. Ohio, supra, at 13. Cf. People v. Herrera, supra; People v. Trudeau (No. 6785, released to the parties February 26, 1970). Finally, we reiterate the absence of any invasion of defendant’s privacy. In summary, we conclude that the trial court correctly denied defendant’s motion to suppress people’s exhibit 2. The shoes were properly admitted into evidence. In light of our conclusion, we need not consider whether Miss Hawkins’ action in admitting the police into the apartment constituted a waiver of defendant’s constitutional claim. II At trial, again over defendant’s objection, the people introduced into evidence five colored photographs of the corpses of Carl and Gertrude Middledorf. The pictures detail the condition of the victims’ bodies as the police found them. On appeal, defendant contends that admission of the photographs was reversible error. It is argued that the photographs could shed no light upon any material point in issue. See People v. Becker (1942), 300 Mich 562, 565. Furthermore, defendant contends that the gruesome nature of the photographs could only prejudice and inflame the jury, and that any probative value of the photographs was clearly outweighed by their prejudicial effect. See People v. Turner (1969), 17 Mich App 123. We hold that the photographs were admissible. The scenes depicted were helpful in throwing light on a material issue — namely, the malice with which the crimes were committed. The people had charged • that defendant feloniously, wilfully, and with malice aforethought did kill and murder Carl and Gertrude Middledorf. The photographs, detailing the nature and extent of the wounds inflicted, were admissible for purposes of clarifying and illustrating testimony relating to the victims’ appearance and condition, and particularly for purposes of substantiating the people’s theory concerning the atrociousness of the crimes, or the malice with which they were committed. See Annotation, 73 ALR2d 769, 831. Cf. People v. Bergin (1969), 16 Mich App 443. People v. Turner, supra, upon which defendant relies, is distinguishable from the present case. The photographs there involved depicted “the corpse as it is left, not by its assailant, but by the probing instruments and procedures of the medical examiner.” 17 Mich App at 132. Moreover, “photographs taken during an autopsy however, must be subjected to more careful scrutiny.” Id. In the present case, the gruesome nature of the photographs is not the product of an intervening medical examiner. The photographs depict the bodies of the victims as left at the scene by the assailant. The question of the admissibility of photographs objected to as prejudicial and inflammatory is within the discretion of the trial judge. People v. Brannon (1968), 14 Mich App 690; People v. Bergin, supra; People v. Turner, supra. Finding no clear abuse of this discretion under the facts and circumstances of this case, we conclude that the photographs in question were properly admitted. Ill At trial, defendant testified in his own behalf and denied killing the Middledorfs. His defense was alibi. It was defendant’s testimony that on the evening of February 3, 1967, the date of the alleged homicides, he was present in his apartment with Johnetta Hawkins. Thus the ultimate question of guilt turned largely upon the jury’s view of defend ant’s credibility. An allegedly improper effort by the people to impeach defendant’s credibility constitutes defendant’s third assignment of error. At the time of trial, defendant had several charges pending against him, including charges that he had murdered Dr. Archer Claytor and his wife. Before calling defendant to testify in his own defense, Eddington’s counsel sought a ruling from the trial court as to whether it would permit the people to use the pending murder charges on cross-examination for impeachment purposes. Defense counsel took the position that any reference by the people to the murder charges would, under the circumstances, be so highly prejudicial as to far outweigh any probative relevance of the pending charges to the issue of credibility. After hearing argument, the trial court decided that it would allow cross-examination with respect to the pending murder charges. The prosecutor was advised by the court, however, that he was to proceed at his own risk, since the court itself considered the prosecutor to be on tenuous grounds in pursuing such cross-examination. Thereafter, defendant took the stand and he was asked on direct examination whether any charges were pending against him. Defendant responded in the affirmative: “Well, I have four or five charges pending.” On cross-examination, the following testimony was elicited by the prosecution: “Q. Now, Mr. Brisbois [defense counsel] asked you if you were — if there were any charges pending against you at the present time and you answered yes. “A. Yes. “Q. And it is a fact that you are also charged in a double murder other than the one that we have at the present time ?” Defense counsel immediately objected. The trial court, apparently relying on its earlier ruling, overruled the objection and permitted the prosecutor to repeat the question. “Q. In fact, you do have two other double murders other than the case at bar pending against you in the circuit court; is that correct ? “A. I am charged with another one, yes.” The people attempt to sustain the foregoing cross-examination by referring to People v. Hoffman (1965), 1 Mich App 557. In Hoffman, it was held that questions about pending charges could be asked, but only in the discretion of the trial judge. Here the trial judge left the decision concerning use of the pending charges to the prosecutor. As a result, it cannot be said that the ruling of the trial court constituted an exercise of discretion. Under these circumstances, reliance by the people on Hoffman is misplaced. Since the prosecutor was warned that he was to proceed at his own risk in using the pending murder charges for impeachment purposes, we conclude that what was said by this Court in People v. Brocato (1969), 17 Mich App 277, applies here and necessitates reversal. We noted at 302, 303: “Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion.” (Citation and footnotes omitted.) In terms of the probable impact upon the minds of the jury, the danger here of prejudicial effect was manifest and overwhelming. Evidence that defendant had also been charged Avith a second double mur der could only suggest to the jury that defendant’s career included repeated assaults upon human life. We share the trial court’s vígav that the prosecutor Avas on tenuous grounds in employing the pending murder charges for impeachment purposes. Defendant Avas entitled to have his guilt or innocence of the Middledorf homicides determined on the specific offenses charged. He Avas not required to risk the possibility of conviction for a series of unproven prior acts Avhich collectively suggested that his career had been reprehensible. Nor are Ave persuaded that since defense counsel questioned Eddington concerning the pending charges on direct examination, defendant is in no position to complain. Defense counsel’s questions hardly extended as far as the prosecutor’s cross-examination. The questions posed merely concerned the number of pending charges, not their nature. In an area involving factors so highly prejudicial— here the nature of the charges — a slight opening of the door by the defense should not permit the prosecution to SAving it totally ajar. See United States v. Beno (CA 2, 1963), 324 F2d 582, 588. Moreover, defense counsel only brought out the pending charges knoAving full Avell that the people Avould be permitted to question defendant concerning the murder charges on cross-examination. This maneuver does not, hoAvever, open the door to the prejudicial cross-examination that took place. Cf. People v. Hines (1967), 87 Ill App 2d 283 (232 NE2d 111). We hold that admission of the pending murder charges for impeachment purposes Avas error. Furthermore, Ave are satisfied that the improper admission of such evidence resulted in a miscarriage of justice. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096). The question of Eddington’s credibility Avas critical, and, on this record, Ave decline to char acterize the improper impeachment of defendant’s credibility as harmless error. This is especially true here, since defendant was subsequently acquitted of the charges of murdering the Claytors. Other questions raised by defendant need not be considered, as they are likely upon retrial to emerge in a greatly altered context of evidence. Defendant’s conviction is reversed and the case is remanded for new trial. All concurred.	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Fitzgerald, J. Joseph Barbara, Jr., the defendant in the instant case, was charged with the extortion of Mrs. Peter (Delores) Lazaros contrary to CL 1948, § 750.213 (Stat Ann 1962 Rev § 28.410). Defendant stood mute to the charge and a plea of not guilty was entered on his behalf. Following several adjournments, the trial commenced on August 1, 1969. Objection was raised by the defense to holding the trial at that time since the complaining witness was pregnant. The matter was submitted to a jury on August 12, 1969, which found the defendant guilty of the crime with which he was charged. On September 19, 1969, defendant was sentenced to serve 7 to 20 years in prison. During the course of the trial, Mrs. Lazaros testified that Joseph Barbara, Jr., came to her home while her husband was in prison and, through the use of threats upon the lives of members of her family, was successful in efforts to rape and extort money from her. It was alleged that defendant informed Mrs. Lazaros that if she did not cooperate, he would have her husband killed in prison. Complainant charged that similar threats were made on her son’s life. The complainant feared for her husband’s life and informed no one of these events until some six months later when her husband returned from prison. A complaint was then filed with the State Police which resulted in defendant’s arrest. Testimony was also elicited from Nicholas Lazaros, father of Peter Lazaros, to the effect that defendant had come to the Lazaros home while his son and daughter-in-law were at the police station. Threats were made and defendant pushed the elder Lazaros to the ground. Evidence was also introduced that Barbara had agreed to help Peter Lazaros on his appeal from a previous criminal conviction and that Lazaros was angry because things had not gone as well as anticipated. Following the prosecution’s rebuttal, the name of Tischia Lazaros, mother of Peter Lazaros, was re-indorsed upon the information. Her name was originally on the information, but it was removed during trial. She corroborated the testimony previously given by her husband, Nicholas Lazaros. Several issues are raised on this appeal; the first concerns the question of whether the continuous injection by witnesses Peter and Delores Lazaros of extraneous matters in the presence of the jury deprived defendant of his right to a fair trial by an impartial jury. The allegedly prejudicial matters concern references made which imply that defendant and his attorneys were connected with the “Mafia”, thus inferring a guilt by association. Defendant argues that in light of the remarks made, the judge’s instructions to the jury, striking all references to the above subject, were not sufficient because of the inflammatory nature of these utterances. The people argue that defendant’s attorneys deliberately phrased questions which were calculated to bring out references to the “Mafia”, thus inviting error for purposes of having a mistrial declared. In People v. Wolke (1968), 10 Mich App 583, this Court addressed itself to questionable evidence injected into a trial. The Court discussed the question of when objectionable evidence will be held to so prejudice a jury that a new trial must be granted. In analyzing the applicable authorities, it was found that two standards exist; namely, that once a prejudicial remark is made, the “ink spot” may not be blotted from the minds of a jury by express instructions. On the other hand, recognition was also given to a line of cases which presumed that a jury considers only the testimony permitted by a court to stand. This Court held that the choice of which standard to apply ultimately rests upon the degree of prejudice generated by the objectionable evidence. Only if the testimony is inherently prejudicial or inflammatory will there be an “ink spot” on the minds of the jurors which cannot be erased. In the case at bar, we are dealing with unresponsive, irrelevant, and spontaneous answers volunteered by two witnesses. In 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 600, p 778, it is stated: “Error cannot be predicated upon the fact that a witness gives an improper or irrelevant answer where the question was a proper one and neither the court nor counsel was at fault. Improper testimony offered by a witness and promptly struck out by the court on objection is not reversible error. * * * A witness cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the judge; and if what he says or does improperly is likely to do much mischief, it is presumed that the judge will apply the proper corrective measures in his instructions if requested to do so.” A review of the problem with which we are faced leads to the inescapable conclusion that if error could be easily predicated on the improper utterances of a witness, it would be most difficult ever to conduct a proper trial. People v. Droste (1910), 160 Mich 66. Unresponsive answers, irrelevant in nature alone, are not sufficient to cause reversible error. The instructions to disregard the utterances made were quite sufficient to instruct the jury on those matters not properly before them and cured the possibility of prejudice to defendant. The next question discussed concerns an alleged error in permitting the prosecution to call Mrs. Tischia Lazaros in rebuttal to help prove its case in chief. Defendant asserts that such a last minute action, after the defense had rested its case in rebuttal, unfairly prejudiced defendant’s rights. The people argue that the question of reopening the proofs is solely within the court’s discretion and, further, that the testimony only related to matters which they had previously introduced. In support of this assignment of error, defendant relies on our previous decision in People v. Sacharczyk (1969), 16 Mich App 710. However, the facts are readily distinguished from those in the case at bar. In Sacharczyk,, it was held that the allowance of rebuttal evidence was improper because the witness there introduced had never been indorsed on the information, no explanation of failure to indorse was given, and the testimony itself was improper as it tended to prove surrounding circumstances of the crime. A review of the record discloses that Tischia Lazaros had been indorsed on the information and the testimony elicited was rebuttal of defendant’s earlier testimony. Furthermore, the rule in Michigan places the question of whether to allow rebuttal evidence within the discretionary powers of the trial judge, and this will not be disturbed unless clearly abused. People v. Chimovitz (1927), 237 Mich 247; People v. Delano (1947), 318 Mich 557. The testimony in question does not add anything new, but merely corroborates the earlier testimony of Nicholas Lazaros. The record also evidences the fact that the trial judge instructed members of the jury not to give undue weight to Mrs. Tischia Lazaros’ testimony due to her position in the list of witnesses. Explanation was also given as to why the particular witness had not testified earlier and assurances were made by the prosecution that the situation had been corrected. In People v. Leonard E. Smith (1968), 15 Mich App 173, this Court, citing People v. Cox (1888), 70 Mich 247, ruled on the reception of rebuttal evidence which should have been brought out on direct examination. It was held therein that the reception of testimony on rebuttal which should have been offered on direct examination is within the discretion of the trial court, unless such discretion is clearly abused. It was further held that where the testimony in question merely expands or supports previously admitted testimony, it is not prejudicial. Hence, we find the decision of the trial court in admitting the woman’s testimony to be reasonable and, for the reasons delineated above, reversible error was not committed in the particular instance. The next issue to he considered is whether the trial court erred in not admitting the testimony of two witnesses to contradict the testimony of Peter and Delores Lazaros. Defendant argues that one of these witnesses would have testified to the effect that Mrs. Lazaros had stated that her husband had threatened to kill her and this would have been demonstrative of the fact that she was testifying out of fear of her husband. Defendant further argues that the testimony of the other witness would have lent support to his theory that Lazaros was attempting to snare defendant in a network of lies. The people rely on the trial court’s reasoning that the testimony of the two witnesses only attempts to impeach on a collateral matter and does not show any scheme or design or bias by the prosecution’s witnesses in testifying as they did. It is evident that the trial court was correct in its ruling since defendant has not substantiated his argument that the testimony of these witnesses would show the interest or bias of the complaining witness and her husband, and it appears merely to be an attempt at impeachment on a collateral matter. The reasons why Peter Lazaros might falsely testify about defendant were before the court as a result of other testimony and, in addition, the fact that Mrs. Lazaros had started divorce proceedings against her husband was brought before the jury on cross-examination. The trial court has wide discretion in this area as exemplified by People v. MacCullough (1937), 281 Mich 15, where the Court stated: “The discretion of the trial court upon the subject of cross-examination on collateral matters is not subject to review unless it is shown to have been grossly and oppressively abused. So far as the cross-examination of a witness relates either to facts at issue or relevant facts, it is a matter of right; but when its object is credibility of a witness, its method and duration are subject to the discretion of the trial judge and unless abused, its exercise is not the subject of review.” Therefore, this Court finds that the answer of a witness on cross-examination as to a merely collateral matter becomes binding upon the cross-examiner and may not be contradicted through introduction of further testimony of other witnesses regarding these collateral matters. Last, defendant asserts that it was unduly prejudicial to his cause not to postpone the trial until the complainant had given birth to her child. He contends that having to cross-examine an obviously pregnant woman before the jury created sympathy among the jurors and denied him a fair trial. We cannot accept defendant’s argument, for the law in Michigan is quite clear that a continuance is a matter of discretion with the trial court. The court had good reason for denying the continuance in that considerable delay had already surrounded the proceedings and some of the prosecution’s witnesses wanted to leave the country. In People v. O’Leary (1967), 6 Mich App 115, this Court was faced with a similar situation where the complaining witness in an involuntary manslaughter case was pregnant and a continuance was denied by the trial court. This Court affirmed the decision, stating that such matters were discretionary and no abuse existed. In the instant case, we cannot find that the lower court abused its discretion in denying the continuance. In each of the issues raised on this appeal, it seems eminently clear that the trial court’s rulings were fair and based upon established law. The lower court must be upheld since, in light of CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096), it does not “affirmatively appear” that there has been a “miscarriage of justice”. Affirmed. All concurred.	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Per Curiam: On September 11, 1968, defendant Baymond Spencer plead guilty to assault with intent to rob and steal being armed. Before accepting the plea, the trial court thoroughly questioned the defendant and his appointed counsel. The counsel stated, inter alia, the following: “I have also advised Mr. Spencer that the charge of assault with intent to rob while being armed also carries a maximum penalty of life, but also, there is the possibility of probation, wherein robbery armed there is no probation. I have explained the difference to him and explained the elements of each and we have discussed the facts of the case very, very thoroughly and at length, we went over the examination at length together, and I have discussed the matter with the prosecutor and with the detective in charge and after having discussed this matter, your Honor, Mr. Spencer advises me that he wishes to withdraw his plea of not guilty heretofore entered to the charge of robbery armed and enter a plea of gniilty to the charge of assault with intent to rob while being armed.” In addition, defendant recited his version of the crime: “Well, your Honor, on the 7th day of February, I was hanging around, out of the restaurant with a friend of mine and while we were hanging around, I, I consumed some barbiturates, I consumed some barbiturates on the 7th of February and a friend and I had, with me, he [sic] and him were talking and we were talking about getting some money, so, we went outside and we saw this cab come by, we got in the cab and told the cab driver to go around Hollywood and the Expressway and at that time, we got there, I asked the — I pulled a gun and told the man to give me his money.” After some, additional questioning of the defendant, the trial court accepted the guilty plea. On October 9, 1968, at the sentencing hearing, defendant’s counsel stated, apparently in mitigation of the sentence, that “defendant has admitted he was under the influence of narcotics and that he had not engaged in this type of activity before.” Defendant was sentenced to 10 to 15 years in prison. Defendant’s argument, raised in a motion for new trial and on appeal, is that the guilty plea must be vacated because his earlier testimony indicated that his condition at the time of the crime precluded formation of the requisite specific intent. While a showing of sufficient alcoholic or narcotic intoxication could negative a finding of specific intent to commit a crime, we find no such showing here. Defendant was represented by counsel at all stages of the proceedings below. However, defendant did not raise the issue of narcotic intoxication as a defense until motion for new trial. Examining the record we find no indication of the amount or type of barbiturates consumed, and no showing was attempted at a hearing on the motion. The mere mention by tbe defendant, that he took some unstated amount of barbiturates shortly before commission of a crime is not sufficient basis for setting aside the plea of guilty where the record reveals that defendant claims no impairment as a result of taking' same. We find no miscarriage of justice in the instant case. People v. Dunn (1968), 380 Mich 693. Affirmed. MCLA § 700.89 (Stat Ann 1962 Rev § 28.284). See People v. Guillett (1955), 342 Mich 1; People v. Kelley, (1970), 21 Mich App 612.	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Per Curiam. Defendant Charlie Akers pled guilty and was convicted of assault with intent to rape contrary to MCLA § 750.85 (Stat Ann 1962 Rev § 28.280). On appeal, he contends that the trial court did not sufficiently inquire into the nature of the defendant’s plea of guilty to warrant the acceptance of the plea and that said plea was not freely and voluntarily made. The appellee has filed a motion to affirm pursuant to GCR 1963, 817.5(3). A review of the plea and sentencing transcript reveals that the defendant’s contentions are without merit. It is manifest that the requirements of GCR 1963, 785.3(2) and MOLA § 768.35 (Stat Ann 1954 Rev § 28.1058) were satisfied. Defendant has not shown that there was a miscarriage of justice with respect to the acceptance of a guilty plea. People v. Winegar (1968), 380 Mich 719. The questions presented here on appeal are unsubstantial and require no argument or formal submission. The motion to affirm the defendant’s conviction is granted.	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Saad, J. i NATURE OF THE CASE May a plaintiff who voluntarily signs a broad, unambiguous release before participating in a personal contact sporting event (in which she is injured) avoid the release by claiming that she did not have time to read it or did not understand what she read? We hold that she may not and therefore affirm the trial court’s grants of summary disposition to defendants. n FACTS On March 4, 1994, plaintiff and her husband and several friends went to defendant Woodbridge Tavern. That night, defendant Miller Brewing Company (Miller) was sponsoring a “sumo wrestling event” in which the participants were required to wear large “balloon-type” suits and “jockey” helmets, before bouncing against each other in a “circle-type” ring. Plaintiff decided that the wrestling “looked like fun” and she signed up to participate. Plaintiff asked no questions about the nature of the wrestling, the equipment, or the risks involved in wrestling. When plaintiffs name was called, she was asked to, and did sign, the following release: Lite Beer Sumo Wrestling Waiver Form Release, Assumption of Risk & Indemnification Agreement Sumo Wrestling Event Date: 3/4/1994 In consideration of my participation in the above-entitled event, and with the understanding that my participation in sumo wrestling is only on the condition that I enter into this agreement for myself, my heirs and assigns, I hereby assume the inherent and extraordinary risks involved in sumo wrestling, in the use of sumo wrestling suits, and any risks inherent in any other activities connected with this event in which I may voluntarily participate. I expressly assume the risk of and accept full responsibility for any and all injuries (including death) and accidents which may occur as a result of my participation in this event and release from liability Miller Brewing Company, Entertainment & Leisure U.S.A., Inc. and Eastown Distributors, Co. and each of their officers, directors, agents, representatives and employees. I hereby waive any claim I may hereafter have as a result of any and all injury to my person or property as a result of my participation in the sumo wrestling event, my use of a sumo wrestling suit, and in any other activities connected with this event in which I may voluntarily participate. I hereby agree to indemnify all of the above-named persons and Miller Brewing Company, for any and all claims, including attorney’s fees and costs, which may be brought against any of them by anyone claiming to have been injured as a result of any injury to me or my property which may occur as a result of the sumo wrestling event. I also agree that this release and all its particulars includes Woodbridge Tavern, Inc. I understand that sumo wrestling is a physical sport and that physical injury may result. I certify that I have read and fully understand this release. I am of lawful age and legally competent to make this agreement. Dated: 3/4/94 Signature: /s/ Address: Witness: Plaintiff (and her husband) then donned the “sumo suits” and helmets and entered the ring. The object of the match was for one of the wrestlers to knock the other down. The ring was similar to a child’s inflatable pool with a lip or ridge around the outer edge. Plaintiff stayed to the outside of the ring to avoid being knocked down, but after wrestling for eight to ten minutes, plaintiff caught her foot on “something” as she backed up. The bulk of the wrestling suit prevented her from catching her footing, and plaintiff fell, damaging her left knee. The circuit court granted summary disposition to defendants pursuant to MCR 2.116(C)(7) and (C)(10) with regard to plaintiff’s personal injuiy claim. in ANALYSIS Plaintiff first asserts that she did not fairly and knowingly sign the release because she was not given time to read it before entering the ring. We disagree. The record makes clear that plaintiff’s failure to read the release was caused by her own haste to get in the ring and avoid losing her turn to wrestle, not by defendants’ attempts to mislead or defraud her. See Dombrowski v Omer, 199 Mich App 705, 709-710; 502 NW2d 707 (1993). Plaintiff also argues that she did not fairly and knowingly sign the release because she did not understand that the release blocked claims against defendants’ negligence in maintaining the equipment used in the wrestling matches. Again, we disagree. The release language is not misleading or ambiguous. The language whereby the participant agreed to assume “any risks inherent in any other activities connected with this event in which I may voluntarily participate” and to take responsibility for “any and all injuries (including death) and accidents which may occur as a result of my participation in this event ...” clearly expressed defendants’ intention to disclaim liability for all negligence, including their own. See Skotak v Vic Tawny Int'l, Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994) (“there is no broader classification than the word ‘all.’ In its ordinary and natural meaning, the word ‘all’ leaves no room for exceptions”); Dombrowski, supra at 711-712. This is not a case where defendants invalidated their release by fraud or misrepresentation. Id. at 710-711. Next, plaintiff argues that her injury was outside the scope of the release, because it was not caused by contact with another wrestler but by tripping on a ridge in the wrestling mat. We disagree. We have already observed that the release was broad enough to allow defendants to disclaim liability for all negligence. Skotak, supra at 619. Nor does the case cited by plaintiff, Mott v Fraser Investment Group, unpublished opinion per curiam of the Court of Appeals, issued August 25, 1995 (Docket No. 157857), persuade us to construe the release more narrowly. The language of the release in Mott limited the risks accepted by the releasor to those incurred during “participation or observation of the sport,” which excluded injuries caused by defective premises. The release at issue here, which covered “any risks inherent in any other activities connected with this event in which I may voluntarily participate,” did not exclude injuries caused by defective equipment. In any event, Mott is an unpublished opinion that has no binding precedential effect on our decision. MCR 7.215(C)(1). We hold that the release plaintiff signed was broad enough to bar her claim. Finally, plaintiff contends that the trial court prematurely granted defendants’ motions for summary disposition because at the time the motions were granted, thirty days remained in the discovery period, and plaintiff awaited answers to several discovery requests. We disagree. Plaintiff offered no evidence that the discovery sought could have established that a dispute did indeed exist. See Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994). Plaintiff did not show that acquiring information about the specifications, manufacture, and repair of the wrestling mat and suit used on the night she sustained her injury would further her claims that she signed an invalid release and that her injury was outside the scope of the release. We thus hold that summary disposition was appropriately granted. See Vargo v Sauer, 215 Mich App 389, 401; 547 NW2d 40 (1996). Affirmed. Gage, J., concurred in the result only.	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Cavanagh, J. The prosecutor appeals by leave granted the probate court order finding that the prosecutor did not have standing to file a child neglect petition under the Juvenile Code as a petitioner. We reverse. On February 8, 1996, Allegan County Assistant Prosecutor Michael Buck filed a petition with the probate court alleging that minors Kyle and Rachel Jagers were suffering from various acts of abuse and neglect by their parents, respondents Janice Jagers and Orrin Wells. The petition, filed pursuant to MCR 5.961, was in the name of the People of Michigan. The prosecutor requested that the probate court accept jurisdiction over the minor children, place the children in licensed foster care or with a suitable relative, allow Janice Jagers to have supervised visitation, and order a physical examination of the children. At a hearing on May 15, 1996, the attorney for respondent Jagers argued that the prosecutor had no proper role in the proceedings, because he was not representing the Family Independence Agency (FIA). The fia was also a party in this case but had expressly announced that it intended to retain other counsel. The probate court, relying on In re Hill, 206 Mich App 689; 522 NW2d 914 (1994), agreed that the prosecutor did not have standing to appear in this case independent of any representation of the fia. The probate court further stated that it did not believe “that a petitioner can be a prosecutor because they [sic] are not verifying the information.” The order incorporating this ruling was entered on May 28, 1996. On June 17, 1996, the probate court certified the question whether a prosecutor has standing to file a child neglect petition on behalf of the People of Michigan, and the prosecutor sought leave to appeal pursuant to MCR 5.993. On October 1, 1996, this Court granted the prosecutor’s application for leave to appeal. MCL 712A.11(2); MSA 27.3178(598.11)(2) provides: Beginning June 1, 1988 and except as provided in subsection (3), if a person gives information to the juvenile division of the probate court that a child is within section 2(a)(2) to (6), (b), (c) or (d) of this chapter, a preliminary inquiry may be made to determine whether the interests of the public or of the child require that further action be taken. If it appears that formal jurisdiction should be acquired, the court shall authorize a petition to be filed. [Emphasis added.] Statutory interpretation is a question of law subject to review de novo on appeal. The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. Nat'l Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 545-546; 563 NW2d 65 (1997). The Juvenile Code should be liberally construed in order to provide each child coming within the juvenile division’s jurisdiction with such care, guidance, and control as will be conducive to the child’s welfare and the best interest of the state. MCL 712A.1; MSA 27.3178(598.1); People v Dunbar, 423 Mich 380, 386; 377 NW2d 262 (1985). We conclude that the probate court erred in finding that the prosecutor did not have standing to appear in this case independent of any representation of the fia. Under the plain language of MCL 712A.11;. MSA 27.3178(598.11), a petition may be filed by “a person” requesting the court to take action on behalf of a child because of parental abuse or neglect. A prosecutor or an assistant prosecutor assuredly qualifies as “a person.” Moreover, the Supreme Court has stated: The purpose and focus of a neglect or abuse proceeding in the juvenile division of the probate court is the protection of children. To this end, proceedings may be initiated by anyone who has information that a child is in need of the court’s protection. [People v Gates, 434 Mich 146, 161- 162; 452 NW2d 627 (1990), cert den sub nom Gates v Michigan, 497 US 1004 (1990) (emphasis added).] The probate court relied on Hill, supra. However, our review of Hill does not lead us to a different result. In Hill, the issue was whether the prosecutor had independent standing to proceed in child protective proceedings when the Department of Social Services (dss) (now known as the fia) requested and obtained representation from the office of the Attorney General. This Court stated: We find the prosecutor, under certain circumstances, has standing to petition the probate court for the termination of a parent’s parental rights and to appear at all child protective proceedings regardless of the Department of Social Services’ position and representation by the Attorney General’s office. Nonetheless, for the reasons set forth below, we find no error in the circuit court’s affirmance of the probate court’s ruling that the prosecutor had no standing with regard to the instant matters, in part'because the prosecutor did not properly petition the court for termination. [Hill, supra at 691 (emphasis added).] In Hill, unlike in the present case, the prosecutor did not file the original petition in the probate court. Moreover, the prosecutor was not acting on behalf of the DSS. Nevertheless, the prosecutor attempted to amend and supplement the original termination petition, which had been filed by the dss. The Hill Court merely held that one party cannot amend or supplement another party’s petition. See id. at 692. The probate court relied on a statement in Hill that there are only three ways that a prosecutor can obtain standing in a child protective proceeding. See id. at 691. The statutes cited in Hill are those that specifically refer to prosecutorial involvement in a child protective proceeding. MCL 712A.17(4); MSA 27.3178(598.17)(4) and MCR 5.914(A) require the prosecutor to appear at any child protective proceeding when requested by the court. MCL 712A.17(5); MSA 27.3178(598.17)(5) requires the prosecutor to serve as a legal consultant to the dss/fia at all stages of a child protective proceeding when requested to do so by the agency or its agent. MCL 712A.19b(l); MSA 27.3178(598.19b)(1) and MCR 5.974(A)(2) permit the prosecutor and certain other enumerated parties to file original, amended, and supplemental petitions for termination of parental rights after a child has remained in foster care or the custody of a guardian for a specified period. However, there is no authority for the finding that the prosecutor may perform only those duties specifically assigned to him in the statutes and court rules. The powers and duties of the prosecuting attorney are provided by law. See Const 1963, art 7, § 4. Pursuant to MCL 49.153; MSA 5.751, a prosecuting attorney shall appear for the state or county and prosecute or defend in all the courts of the county all prosecutions, suits, applications, and motions, whether civil or criminal, in which the state or county may be a party or is interested. However, the prosecutor’s powers and duties include not only those expressly set forth in the statute, but also such additional functions as may be necessarily implied from those specifically mentioned. Bloss v Williams, 15 Mich App 228, 233; 166 NW2d 520 (1968). We further conclude that the probate court erred in determining that the prosecutor could not verify the petition. MCL 712A.11(4); MSA 27.3178(598.11)(4) requires only that the petition “be verified and may be upon information and belief.” MCR 2.114(B)(2) provides: If a document is required or permitted to be verified, it may be verified by (a) oath or affirmation of the party or of someone having knowledge of the facts stated; or (b) except as to an affidavit, including the following signed and dated declaration: “I declare that the statements above are true to the best of my information, knowledge, and belief.” In the present case, the prosecutor declared that the statements in the petition were true to the best of his knowledge, information, and belief. Thus, the prosecutor fulfilled the statutory requirement that the petition be verified. If the prosecutor cannot support the allegations in the petition with evidence sufficient for the court to assume formal jurisdiction, the court will not authorize the petition to be filed. See MCL 712A.11(2); MSA 27.1378(598.11)(2). Moreover, we believe that public policy favors allowing prosecutors to act independently of the fia. As the probate court noted at the hearing below, the prosecutor and the FLA do not always agree on how a particular case should be handled. When, as in the instant case, the prosecutor believes that a petition should be filed and the fia, for whatever reason, is not persuaded, the prosecutor should not be precluded from taking any action. The state, and every county within it, has an interest in protecting children from abuse and neglect. See MCL 49.153; MSA 5.751. Reversed. No taxable costs pursuant to MCR 7.219, a question of public policy being involved. The father of Kyle Jagers is actually Patrick Jagers. Patrick Jagers is not a party to this appeal. This statute was amended by 1996 PA 409, § 1. The amendment becomes effective on January 1, 1998.	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Per Curiam. This case involves a dispute regarding whether plaintiff, as defendant Marcell Racine’s homeowner’s insurer, must provide coverage for the accidental death of defendants’ three-year-old son. We affirm the trial court’s order granting summary disposition in favor of defendants. Defendants Marcell and Jeri Racine, husband and wife, were divorced in February 1994. At that time, legal custody of defendants’ son, Vance, was awarded to defendants jointly, with physical custody granted to Jeri Racine. Separate households were established, with Marcell Racine enjoying visitation with Vance at least every other weekend and, on a more or less regular basis, one weeknight a week for a total of eight to ten days a month. There was evidence that Marcell Racine maintained a separate bedroom for Vance, where some clothes and toys were kept, and toiletries were available. Shortly before the accident underlying this action, Marcell Racine moved to a new home, where a bedroom was available for his son although it had not yet been furnished. Vance also had clothes and toiletries available, along with toys, at his father’s new home. Marcell Racine was mowing his lawn using a riding mower; Vance was riding with him. The mower tipped, a fire broke out, and Vance was killed. Jeri Racine, as personal representative of Vance’s estate, brought suit against Marcell Racine for negligence. Marcell Racine asked his homeowner’s insurer, plaintiff Vanguard Insurance Company, to undertake a defense and to indemnify him for any liability. Vanguard filed this declaratory action, contending that under certain terms of the insurance policy, it had no duty either to defend or indemnify Marcell Racine for such liability. Defendants brought a motion for summary disposition, which the trial court granted, concluding that the policy provides coverage. The dispute regarding the policy primarily concerns the definition of “insured”: “Insured” means you and residents of your household who are: (a) your relatives; or (b) other persons under the age of 21 in the care of any person named above. The liability coverage provisions of the policy do not apply to bodily injury sustained by any “insured.” Coverage for medical payments is similarly excluded for bodily injury to any person “regularly residing” at the insured location. There are a number of Michigan precedents addressing similar insurance policy language. E.g., Williams v State Farm Mutual Automobile Ins Co, 202 Mich App 491; 509 NW2d 821 (1993); Dobson v Maki, 184 Mich App 244; 457 NW2d 132 (1990); Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675; 333 NW2d 322 (1983). However, all these precedents concern situations in which, if the person in question was held to be a “resident” of the household of the insured, or “domiciled” there, insurance coverage was afforded. Here, the opposite result obtains; if decedent was a resident of his father’s household, there is no coverage. We find these decisions inapposite, considering the general rule that, unless the language of an insurance policy unambiguously so requires, a policy should not be construed to defeat coverage. Shumake v Travelers Ins Co, 147 Mich App 600, 608; 383 NW2d 259 (1985). Previous holdings regarding the “resident” question are not helpful, because in each case the Court properly strove to find that the individual in question was a resident and thus eligible for insurance benefits. There are general rules applicable to the interpretation of insurance policies that do provide guidance for this case. An insurance policy is a contract, and the court must determine what the parties agreed to in the policy in order to determine if a policy covers a particular accident. Fire Ins Exchange v Diehl, 450 Mich 678, 683; 545 NW2d 602 (1996). Where policy language is clear, courts are bound by the specific language set forth in the policy. Heniser v Frankenmuth Mutual Ins Co, 449 Mich 155, 160; 534 NW2d 502 (1995). We must interpret the terms of the policy in accordance with their commonly used meaning if the terms are not defined in the policy or the meaning of the terms are not obvious from the policy language. Arco Industries Corp v American Motorists Ins Co, 448 Mich 395, 404; 531 NW2d 168 (1995). The fact that the term in controversy is not defined in the policy does not alone establish that an ambiguity exists. Trierweiler v Frankenmuth Mutual Ins Co, 216 Mich App 653, 657; 550 NW2d 577 (1996). A provision is considered ambiguous when its words can reasonably be understood in different ways. Engle v Zurich-American Ins Group, 216 Mich App 482, 487; 549 NW2d 589 (1996). Whether the terms of an insurance policy are ambiguous is a question for the court. Jones v Farm Bureau Mutual Ins Co, 172 Mich App 24, 27; 431 NW2d 242 (1988). Any ambiguity in an insurance policy is construed against the insurer and in favor of coverage. Heniser, supra. Applying these principles, we conclude that the policy in this case presents an ambiguous use of the terms “residents” and “regularly resides” under the facts of this case. See Montgomery v Hawkeye Security Ins Co, 52 Mich App 457; 217 NW2d 449 (1974). The policy does not define these terms, and they are susceptible to two different meanings. They could be interpreted as being synonymous with the term “domicile” or primary residence. See Workman v DAIIE, 404 Mich 477, 495; 274 NW2d 373 (1979) (usually, the terms “residence” and “domicile” are legally synonymous). A party generally has only one legal residence or domicile. In this case, the one domicile would be defendant Jeri Racine’s home, which was where Vance spent the majority of his time and where Jeri Racine had physical custody of Vance under the divorce judgment. Conversely, it is possible to interpret the policy in the manner that plaintiff contends is correct. Vance was physically present at his father’s home on the day of the accident, and Vance intended to stay the weekend. Moreover, Vance intended to establish his own room in the new house in the near future. Vance also had his own room in his father’s previous home. It is possible to interpret the term “residents” to include relatives who periodically stay in a home indefinitely, but maintain a legal domicile at some other location during the same period. Because the policy terms are susceptible to two different meanings under the facts of this case, they must be construed against plaintiff as the drafter of the insurance contract and in favor of coverage for defendants. Summary disposition was properly granted to defendants. Accord Nat'l Automobile & Casualty Ins Co v Underwood, 9 Cal App 4th 31; 11 Cal Rptr 2d 316 (1992). We affirm.	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White, P.J. Plaintiff appeals as of right the dismissal of his claim against defendant for maintenance and cure. We affirm in part, reverse in part, and remand. On November 4, 1986, plaintiff was injured while employed as a crewman aboard the vessel M/V Henry Ford II, owned and operated by defendant. On January 20, 1987, plaintiff filed suit in federal district court, alleging negligence under the Jones Act, 46 USC 688, and unseaworthiness under general admiralty and maritime law, as well as a claim for maintenance and cure. The case was mediated, and both parties accepted the $500,000 evaluation. On April 25, 1988, judgment was entered accordingly, awarding plaintiff $500,000 nunc pro tunc to March 1, 1988. On April 21, 1988, plaintiff sent defendant a letter stating: Insofar as Judgment is Nunc Pro Tunc to March 1, 1988, maintenance is owing therefrom. Please bring this up to date. Apparently, there was no further correspondence. On June 17, 1991, plaintiff filed another claim for maintenance and cure in the Wayne Circuit Court. Defendant’s answer pleaded numerous affirmative defenses, among them that plaintiff’s claim was barred by the statute of limitations, by laches, by collateral estoppel and res judicata, and by the rule against double recovery. Defendant requested that the claim be dismissed. In response, plaintiff argued that his claim was not barred by the three-year statute of limitations set forth in 46 USC 763a because the claim sounds in contract, rather than tort, and, therefore, the six-year state statute of limitations for contract claims, MCL 600.5807; MSA 27A.5807, is applicable. Regarding laches, plaintiff argued that maintenance and cure is an ongoing obligation, and that failure to pay it gives rise to a right of action not only for the benefits, but also for any aggravation of the original condition caused by the failure to pay. Plaintiff also argued that the defenses of collateral estoppel, res judicata, and double recovery do not apply because the obligation to furnish maintenance and cure continues after a judgment, and can give rise to serial suits for benefits as they come due; the earlier judgment of $500,000 applied only to maintenance and cure due on March 1, 1988, and the instant claim is for maintenance and cure after that time and for aggravation resulting from defendant’s failure to pay. At the hearing on defendant’s motion, the circuit court granted summary disposition, stating only, "If there was ever a frivolous case filed, that has to be it.” Plaintiff now appeals, arguing that while the circuit court did not specify the grounds on which it granted defendant’s motion, none of the grounds argued before the court was a proper basis for dismissal. I We first address the statute of limitations issue. As he did below, plaintiff argues that Michigan’s six-year statute of limitations for contract claims, MCL 600.5807; MSA 27A.5807, applies rather than the three-year limitation set forth in 46 USC 763a for maritime torts. Plaintiff relies on Reed v American Steamship Co, 682 F Supp 333 (ED Mich, 1988) for support, citing it as binding precedent. In Reed, the federal district court addressed a claim for unearned wages as "part of a broader claim for maintenance and cure.” Id. at 336. It concluded that suits for maintenance and cure were not affected by 46 USC 763a, but, rather, were subject to the doctrine of laches. The court based its conclusion on its review of the statute’s legislative history, on the persuasive reasoning of a leading treatise on admiralty law, and on the essential nature of claims for maintenance and cure, which it described as "mutable,” having characteristics of both contract and tort claims. Id. at 336-338. Observing that maintenance and cure claims, particularly those for unearned wages, are "clearly distinct” from claims for damages for personal injury or death in that they arise from a contractual employment relationship, the court concluded that the analogous state statute of limitations for contracts should be looked to in determining the applicable period for laches. Id. at 338. The court also pointed out that a claim for failure to furnish cure would, by contrast, be a personal injury claim subject to § 763a. Id. The court relied on the following passage from the treatise: Maintenance and cure suits are not affected by the Uniform Statute of Limitations for Maritime Torts. Maintenance and cure is contractual in nature and a continuing obligation. However, the failure to furnish cure is a personal injury which gives rise to a tort remedy and therefore is subject to the three year limitation period. The doctrine of laches applies in maintenance and cure suits. Generally, a state statute of limitations applicable to a similar injury on land may by analogy furnish a suitable yardstick to determine what constitutes laches. [Norris, The Law of Seamen, § 26:43 (1985).] In Oliver v Nat'l Gypsum Co, 187 Mich App 610; 468 NW2d 312 (1991), a case involving a wrongful death claim, this Court took an approach very similar to, and informed by, the decision in Reed. As did the Reed court, this Court held that the doctrine of laches is to be used to judge the timeliness of a claim for maintenance and cure. Oliver, supra at 615. However, while recognizing that such a claim is contractual in nature, arising out of the employment relationship, id. at 615, this Court also stated: Still, because the occasion to assert a claim for maintenance and cure is a personal injury, and the claim is usually appended to Jones Act and unseaworthiness claims, it is appropriate to use the three-year limitation period of § 763a as a standard to evaluate a laches defense. [Id. at 616.] The Court of Appeals for the Sixth Circuit has not addressed the issue. It is Oliver rather than Reed that serves as binding precedent. See Ogle- tree v Local 79, SEIU AFL-CIO, 141 Mich App 738, 750; 368 NW2d 882 (1985). I conclude, therefore, that plaintiffs argument for a six-year limitation period based on MCL 600.5807; MSA 27A.5807 must fail. The timeliness of plaintiffs action is to be judged under the doctrine of laches, using the three-year limitation period as a yardstick. Under this standard, I conclude that the trial court did not err in dismissing plaintiffs claim for maintenance and cure arising from the original accident. Defendant asserted that plaintiff took no action and made no claim for maintenance or cure at any time between April 1988, when the letter was sent and the federal court judgment was entered, and June 1991, when the instant complaint was filed. Plaintiff did not deny this or otherwise assert that he had good reason for the delay in filing this action. This does not, however, address plaintiffs argument, supported by case law, that maintenance and cure is an ongoing obligation, and that failure to pay it gives rise to a right of action not only for the benefits, but also for any aggravation of the original condition arising from the failure to pay, as an additional cause of action, giving plaintiff a viable claim for aggravation occurring during the three years before the filing of the suit. The circuit court did not acknowledge or address this issue. We reverse the court’s grant of summary disposition with respect to this claim and remand for further proceedings. In order to recover for aggravation, plaintiff must establish that he was entitled to additional maintenance and cure during this time, that defendant failed to pay it, and that plaintiff’s condition was aggravated as a result of the failure to pay. II Because plaintiff’s claim for aggravation due to a failure to provide continuing maintenance and cure is dependent on a showing that maintenance and cure was owing during the relevant period, we must address defendant’s assertion that any right to continued maintenance and cure after the entry of judgment in the federal court case is barred by res judicata, collateral estoppel, or the rule against double recovery. Maintenance and cure is designed to provide a seaman with food and lodging (maintenance) and medical costs (cure) when the seaman becomes sick or injured in the ship’s service. Vaughan v Atkinson, 369 US 527, 531; 82 S Ct 997; 8 L Ed 2d 88 (1962). Recovery is not based on fault, is analogous to worker’s compensation, and takes the form of a per diem living allowance and payment of medical costs. Oliver, supra at 613, quoting Szopko v Kinsman Marine Transit Co, 426 Mich 653, 657-658; 397 NW2d 171 (1986). Maintenance and cure is not intended to confer lifetime benefits. Farrell v United States, 336 US 511, 515; 69 S Ct 707; 93 L Ed 850 (1949). However, it covers not only the period during which the seaman is incapacitated from doing the seaman’s work, but continues until the seaman reaches maximum medical recovery. Vaughan, supra. Maximum medical recovery means "until the sick or injured person has been cured, or incapacity has been declared of a permanent character.” Farrell, supra at 517. Because payments for maintenance and cure are intentionally limited to the time needed for recovery, Farrell, supra, lump sums in anticipation of a continuing need or for an indefinite period are inappropriate, although an award may include payment for future maintenance and cure of a particular kind and for a particular, ascertainable period. Calmar S S Corp v Taylor, 303 US 525, 530-532; 58 S Ct 651; 82 L Ed 993 (1938); Farrell, supra at 519; Gypsum Carrier, Inc v Handelsman, 307 F2d 525, 532 (CA 9, 1962); Pelotto v L & N Towing Co, 604 F2d 396 (CA 5, 1979). Thus, at the time of trial, a seaman’s recovery for maintenance and cure is limited to the maintenance and cure thus far accrued, but a court, in its discretion, may add limited amounts for immediate future costs. Calmar S S Corp, supra. Nonetheless, the duty to provide maintenance and cure as needed to the point of maximum recovery is a continuing one. Loverich v Warner, 118 F2d 690, 693 (CA 3, 1941); Farrell, supra; Pelotto, supra at 400-402. For this reason, the doctrines of res judicata and collateral estoppel do not bar serial suits to collect maintenance and cure, and subsequent claims are appropriate where the criteria for collecting such benefits are met. Pelotto, supra at 398, 401-402. However, to establish a right to additional payments in a subsequent suit, a plaintiff must show that maximum cure has not been attained and justify his costs. Id. at 402-404. Additionally, it is recognized that damages awarded under the Jones Act may include the same elements as those covered by maintenance and cure, although comparative negligence is not a defense to a claim for maintenance and cure. Gypsum Carrier, supra at 532-533. Applying these principles, we turn to the question whether plaintiff’s claim is barred by collateral estoppel, res judicata, or the rule against double recovery. The trial court did not specifically address this issue, and the record is otherwise insufficient to support dismissal on this basis. We therefore remand for further consideration of plaintiff’s arguments in light of this opinion. We note that an evidentiary hearing may be necessary, during which the court may inquire into the extent to which a permanent injury was established in the prior case, as distinguished from a condition for which maximum cure has not yet been attained, and the extent to which the prior award included damages that are the substantial equivalent of maintenance and cure. If the trial court concludes on remand that a condition of maximum cure was established in the prior case, through deposition testimony, medical records, and so on, then the present suit is barred because of an inability to show an entitlement to maintenance and cure during the period in issue. If maximum cure had not been attained at that time, then, unless it is shown that the earlier award included amounts that are the substantial equivalent of future maintenance and cure, the aggravation claim is not barred on res judicata, collateral estoppel, or double recovery grounds. See Pelotto, supra at 404. Lastly, we observe that the second and third points raised in Judge Kelly’s opinion were not argued by defendant. Defendant does not assert that plaintiff was obliged to proceed in federal court. And, it is clear from the record that plaintiff opposed the motions for summary disposition and that the notation "approved as to form and substance” was in error. Defendant has not argued that the notation constitutes a waiver precluding review of the merits. Affirmed in part, reversed in part, and re manded for proceedings consistent with this opinion. We do not retain jurisdiction. Norris, The Law of Seamen (1985), see text, infra. Only two federal circuit courts have addressed whether § 763a applies to claims for maintenance and cure. In Cooper v Diamond M Co, 799 F2d 176 (CA 5, 1986), the Fifth Circuit Court of Appeals reversed the district court’s ruling that the plaintiffs claim for maintenance and cure was barred by laches. Computing the claim’s accrual from the time of the plaintiffs incapacitation from her injury rather than from the time of the injury itself, the Court of Appeals stated, "Cooper was well within the three year statute of limitation embodied in § 763a.” Id. at 179. This holding has been variously understood as explicitly applying § 763a to claims for maintenance and cure, see Chacon-Gordon v M/V Eugenol ”C”, 1987 AMC 1886, 1887 (SD Fla, 1987), and not actually deciding the issue because the question of inexcusable delay, raised by a defense of laches, was not before it. Reed, supra at 337; also Prude v Western Seafood Co, 769 SW2d 663, 665 (Tex App, 1989). But see Armstrong v Trico Marine, Inc, 923 F2d 55, 58 (CA 5, 1991) (suits under general maritime law must be filed within three years from the date the cause of action accrues, citing § 763a). In McKinney v Waterman Steamship Corp, 925 F2d 1 (CA 1, 1991), the First Circuit Court of Appeals affirmed the district court’s decision in 739 F Supp 678 (D Mass, 1990), that the maintenance and cure claim in issue was subject to a three-year limitation. However, whereas the district court had looked to § 763a as its guide, the Court of Appeals’ reasoning, similar to that in Reed, was that the analogous state statute of limitations for contract actions to recover for personal injuries was also three years. The court stated: [W]e need not decide whether the district court properly selected the section 763a three-year limitations period as the relevant benchmark. [925 F2d 3.] In applying the doctrine of laches, we must look to the April 1988 date rather than the date of injury because plaintiff made a timely claim concerning the period from the injury to the settlement of the federal court case. It has long been recognized that serial claims are appropriate. The question is whether this subsequent claim is timely, and common sense dictates that the timeliness be judged with respect to the date of settlement of the prior claim, not the date of the original injury. Relying on Pelotto v L & N Towing Co, 604 F2d 396, 401 (CA 5, 1979), and Cooper v Diamond M Co, supra, Judge Caprathe would hold that a suit for maintenance and cure can be maintained for benefits during the three years before the filing of the suit, regardless of when the underlying injury or disability occurred, on the basis that "maintenance and cure is a cause of action that is of a continuous nature, and, thus, the plaintiff can initiate a maintenance and cure claim for benefits in a series of lawsuits until the plaintiff is cured or until he is deemed permanently disabled.” Post at 163. Presumably this would apply even to suits brought ten or fifteen years after an injury, notwithstanding that no prior claim had ever been brought, as long as maximum cure has not been reached and plaintiff only seeks recovery for the three years before the filing of the suit. However, Pelotto addressed a seaman’s right to bring serial suits for maintenance and cure after settling a prior suit. The question was whether the subsequent suit was barred by res judicata, not by the statute of limitations or laches. Cooper did involve a statute of limitations issue. The court held that because the plaintiff’s claim accrued in 1983, when she became "incapacitated to do a seaman’s work,” citing Vaughan v Atkinson, 369 US 527, 531; 82 S Ct 997; 8 L Ed 2d 88 (1962), and not when she slipped and fell in 1979, and the complaint was filed within three years of the 1983 date, the claim was not barred. The court did not address the question whether, if the claim had accrued in 1979, the plaintiff could maintain an action for benefits for the three years preceding the filing of the suit. Cooper and other cases addressing the statute of limitations issue, e.g., McKinney v Waterman Steamship Corp, supra, impliedly hold that a plaintiff cannot maintain an action for maintenance and cure benefits that became due during the three years preceding a suit commenced more than three years after the disability occurred; if a plaintiff could maintain such a suit, the date of accrual would be unimportant. In other words, the Cooper court could have simply held that because the plaintiff sought maintenance and cure beginning in 1983 and brought her suit in 1984, no limitations issue was presented. None of the statute of limitations cases that hold that a claim for maintenance and cure is barred go on to remand for consideration of benefits that became due during the three years before the filing of the suit. Vaughan v Atkinson, supra; Cortes v Baltimore Insularline, 287 US 367; 53 S Ct 173; 77 L Ed 368 (1932). Quoting 54 Stat 1693, art 1, ¶ 1.	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Neff, J. Defendant pleaded guilty of operating a motor vehicle while having an unlawful blood alcohol level (ubal), third offense, MCL 257.625(6) (d); MSA 9.2325(6)(d), and driving with a suspended license, MCL 257.904; MSA 9.2604, under the condition that he be allowed to bring the present appeal concerning the validity of his Breathalyzer test. Defendant appeals as of right and we vacate defendant’s ubal conviction only. Defendant correctly states the law in Michigan regarding the procedures for administering Breathalyzer tests. The purpose of the administrative rules with respect to administering Breathalyzer tests is to ensure the accuracy of those tests. People v Tipolt, 198 Mich App 44, 46; 497 NW2d 198 (1993). Failure to meet the foundational requirements will preclude the use of the test results. Id. When the rules regarding Breathalyzer tests have not been complied with, the accuracy of those tests is considered sufficiently questionable so as to preclude the test results from being admitted into evidence. Id. The mere fact that this evidence is precluded, however, does not require the dismissal of defendant’s case. People v Willis, 180 Mich App 31, 37-38; 446 NW2d 562 (1989). Unless the ordinance under which defendant is charged requires defendant’s blood alcohol content to be established, the prosecution against defendant may continue without the Breathalyzer evidence. Id. at 38. The administrative rule in question in this case requires that the defendant be observed by the operator for fifteen minutes before the Breathalyzer test is administered, in order to prevent the defendant from smoking, regurgitating, or placing anything in the defendant’s mouth, except for the mouthpiece used in the test. 1992 AACS, R 325.2655(1)(e). Defendant was videotaped for approximately thirty-five minutes before the test was administered. We have reviewed the videotape, and find that the operator of the test arrived at the police station where defendant was being held no more than eight minutes before the test was administered. The videotape also demonstrates that the operator did not continuously observe defendant for those eight minutes. Further, although the video camera was aimed at defendant’s location for the thirty-five minutes before the test, the view of defendant was often briefly obstructed as people moved across the room and in front of the video camera. Additionally, at 3:35 a.m., approximately five minutes before the first test, the view of defendant was obstructed for approximately three to five seconds when an officer stood at a desk next to defendant. We are unable to determine what defendant was doing during that time period. Further, throughout the thirty-five minutes before the test was administered, defendant’s hand was either on his face, or in or on his mouth. Although it appears that defendant put his fingers in his mouth, it is impossible to tell from the videotape whether defendant placed something else in his mouth at these times. As a result of the questions arising from a review of the videotape, we conclude that the administrative rule in question was not complied with, and that defendant’s ubal conviction must be vacated. Defendant’s ubal conviction is vacated and this case is remanded to the circuit court for further proceedings. We do not retain jurisdiction. MacKenzie, P.J., concurred.	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MacKenzie, P.J. Plaintiff, who was temporarily laid off by and then terminated from employment with defendant, brought this suit alleging that her discharge was in violation of the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. She appeals as of right from the circuit court’s grant of summary disposition for defendant pursuant to MCR 2.116(0(10). We affirm. Plaintiff has rheumatoid arthritis that resulted in her having had several surgeries and having taken medical leaves. Her theory was that defendant fired her to avoid additional insurance and medical costs. Defendant responded that plaintiff was laid off and then terminated because of a cutback in its labor force. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). In order to establish a prima facie case of handicap discrimination, a plaintiff must establish: (1) the plaintiff is "handicapped” as defined in the act; (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job; (3) the plaintiff has been discriminated against in one of the ways set forth in § 202 of the hcra, MCL 37.1202; MSA 3.550(202). Doman v Grosse Pointe Farms, 170 Mich App 536, 541; 428 NW2d 708 (1988). In this case, the relevant section is § 202(1)(b), which prohibits the discharge of an employee because of a handicap. Once a plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to show legitimate, nondiscriminatory reasons for its action. Crittenden v Chrysler Corp, 178 Mich App 324, 331; 443 NW2d 412 (1989). If the employer rebuts the plaintiffs prima facie case, the burden shifts back to the plaintiff, who then has to show that the employer’s reasons constituted a pretext for discrimination. Id. See also Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982); McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). In this case, plaintiff alleged that she was handicapped because of her rheumatoid arthritis and surgical joint replacements, that her handicap was unrelated to her ability to perform her job duties, and that she was discharged because defendant knew she would need further surgeries. The trial court assumed, for purposes of the motion for summary disposition under MCR 2.116(0(10), that these allegations were sufficient for plaintiff to meet her burden of establishing a prima facie case of handicap discrimination. The burden of going forward then shifted to defendant to show legitimate, nondiscriminatory reasons for plaintiffs layoff and subsequent termination. Clark, supra at 826. Defendant rebutted plaintiffs allegations by statistical evidence that it had reduced its workforce from 2,000 employees in 1978 to 750 at the time of the motion for summary disposition. Between 1981 and 1991, the year in which plaintiff was terminated, factory clerk positions (plaintiffs job) were reduced from sixteen to three. The affidavit of defendant’s director of human resources further stated that plaintiffs position was one of those consolidated or absorbed by other positions because of computerization and technological changes and that plaintiff was not qualified for any positions for which defendant had openings. This evidence was sufficient to meet defendant’s burden of producing evidence that a valid purpose existed regarding why plaintiff was terminated. The burden then shifted back to plaintiff to show that defendant’s business reasons for her termination were merely a pretext. Plaintiff’s allegations that because the company knew she may have required additional surgeries in the future and more time off for medical leave were insufficient to rebut the evidence presented by defendant. Both plaintiff’s immediate supervisor and the director of human resources stated that neither plaintiff’s medical condition nor her insurance costs played a part in the decision to terminate her. We agree with the trial court’s ultimate decision that plaintiff failed to present material facts indicating that the business reasons offered by defendant for her termination were merely a pretext. Additionally, we agree with the trial court that summary disposition was appropriate regarding plaintiff’s other allegations of discrimination pertaining to her position and other openings within the company. Because mere speculation and inferences will not sustain an argument of intentional discrimination, Clark, supra at 826, plaintiff has not presented any material issue of fact to show that the business reasons proffered by defendant were merely a pretext. After our de novo review of the issues raised by plaintiff on appeal, we find summary disposition was properly granted. Wieringa v Blue Care Network, 207 Mich App 143, 145; 523 NW2d 872 (1994). Affirmed. J. W. Fitzgerald, J., concurred.	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Per Curiam. This is plaintiffs second appeal in this case. In the prior appeal, this Court affirmed a final order of summary disposition based on the statute of limitations. Avery v Demetropoulos, unpublished opinion per curiam of the Court of Appeals, decided July 29, 1992 (Docket No. 129680). After the appeal, the trial court awarded costs and attorney fees of $5,588.04 to defendant because plaintiff filed a frivolous claim within the meaning of MCL 600.2591(3); MSA 27A.2591(3). Plaintiff appeals as of right from that decision. We affirm. Preliminarily, we reject defendant’s argument that this appeal should be dismissed. MCR 7.212(A)(4) and (I). We note that we could simply strike plaintiff’s brief for failure to comply with MCR 7.212(C), especially the failure to include a statement of questions involved. MCR 7.212(C)(4). However, in the interests of judicial economy we have reviewed the matter, limiting our review to the specific questions gleaned from or presented by plaintiff’s arguments. The trial court had jurisdiction to consider defendant’s motion for taxation of costs and attorney fees after the prior appeal was decided by this Court. Cf. Wilson v General Motors Corp, 183 Mich App 21, 41; 454 NW2d 405 (1990); Vallance v Brewbaker, 161 Mich App 642, 648; 411 NW2d 808 (1987). That this Court’s prior opinion was silent regarding the question of remand did not deprive the trial court of jurisdiction to consider defendant’s motion. Next, MCR 2.504(B)(3) does not require that a trial court address the issue of costs in a final order disposing of the claims in a case. The purpose of MCR 2.504(B)(3) is to classify those dismissals entered by a court that are silent regarding their effect. See 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.504, Authors’ Comment, p 59. This rule has been used to bar lawsuits involving the same matters and parties as those in prior lawsuits under principles of res judicata. Makowski v Towles, 195 Mich App 106; 489 NW2d 133 (1992). However, the court rule is not intended to dispose of the issue of costs related to a claim. The flaw in plaintiff’s argument is his failure to recognize that there can be more than one final judgment or order in an action. An order to allow attorney fees after entry of an order disposing of the meritorious question is one of the specific circumstances where separate final orders are recognized. Gherardini v Ford Motor Co, 394 Mich 430; 231 NW2d 643 (1975). Viewed in this context, MCR 2.504(B)(3) did not require that the trial court decide in the order of summary disposition whether costs should be awarded. Further, plaintiffs reliance on MCR 2.625(F) to support his claim that defendant waived the issue of costs is misplaced. Because the issue of costs was decided under MCL 600.2591; MSA 27A.2591 and required a judicial determination, MCR 2.625(F) did not apply. The appropriate standard to apply to the statute is whether the motion for costs was filed within a reasonable time after the prevailing party was determined. See Giannetti Bros Construction Co, Inc v Pontiac, 152 Mich App 648; 394 NW2d 59 (1986) (discussing a similar issue with regard to mediation costs). Plaintiff has not shown any procedural defects that precluded the trial court from granting defendant’s motion for taxation of costs and attorney fees. Finally, the trial court did not clearly err in finding that plaintiff’s claim was frivolous within the meaning of MCL 600.2591(3); MSA 27A.259K3). DeWald v. Isola, 180 Mich App 129; 446 NW2d 620 (1989). See also Louya v William Beaumont Hosp, 190 Mich App 151; 475 NW2d 434 (1991). Affirmed.	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Per Curiam. Plaintiff, Auto-Owners Insurance Company, appeals as of right from an order by Genesee Circuit Judge Valdemar L. Washington denying its motion for summary disposition and declaring that defendant Clyde E. Anderson was entitled to coverage by plaintiff for liability arising out of the claims of estates of defendants John M. Johnson and Bruno B. Valdez. We reverse. Plaintiff claims that the trial court erred in determining that it could not rescind and declare void ab initio a no-fault automobile insurance policy that was purchased by defendant Anderson. We agree. In January 1991, defendant Anderson received a letter from his no-fault insurer, Aetna Casualty & Surety Company, informing him that Aetna would no longer be writing policies through Diversified Insurance Services, which was his insurance agency. Anderson was advised to contact another Aetna representative or to obtain insurance through another company before his policy expired at midnight on February 28, 1991. Anderson, however, failed to obtain another insurance policy, and the Aetna policy lapsed. On March 1, 1991, at approximately 2:30 a.m., Anderson was involved in an automobile accident in which his vehicle struck another vehicle, killing John Johnson and Bruno Valdez, who were occupants of the second vehicle. Later that day, Anderson went to Diversified and applied for insurance coverage. As part of his signed application, Anderson indicated that he had not been involved in any accident or been convicted or paid a fine for any moving violation in the last three years. Anderson’s application was accepted by plaintiff, and a policy was issued stating that coverage was effective as of 12:01 a.m. on March 1, 1991. Subsequently, Janet Johnson, as the personal representative of the estate of John Johnson, and Sue Quintanilla, as the personal representative of the estate of Bruno Valdez, commenced wrongful death actions against Anderson. On June 5, 1991, plaintiff brought this declaratory judgment action, seeking a declaration that it was entitled to rescind and declare void ab initio the insurance policy issued to Anderson in light of his material misrepresentation that he had not been involved in an automobile accident within the last three years. Plaintiff moved for summary disposition under MCR 2.116(0(10). This motion was denied by an order entered on February 25, 1992. A motion for summary disposition pursuant to MCR 2.116(0(10) tests the factual basis underlying a claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). In ruling with regard to such a motion, the trial court must consider not only the pleadings, but also any affidavits, depositions, admissions, or other documentary evidence submitted by the parties. Id.; McClusky v Womack, 188 Mich App 465, 469; 470 NW2d 443 (1991). The court must give the benefit of any reasonable doubt to the opposing party and may grant the motion only if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Radtke, supra. Michigan courts routinely have held that an automobile insurer may rescind an automobile insurance policy and declare the policy void ab initio where it was procured through the insured’s intentional material misrepresentation. Farmers Ins Exchange v Anderson, 206 Mich App 214, 218; 520 NW2d 686 (1994); Katinsky v Auto Club Ins Ass'n, 201 Mich App 167, 170; 505 NW2d 895 (1993); Auto-Owners Ins Co v Comm’r of Ins, 141 Mich App 776, 779-780; 369 NW2d 896 (1985). However, this Court also has held that rescission is not available where innocent third parties are involved. Katinsky, supra; Ohio Farmers Ins Co v Michigan Mutual Ins Co, 179 Mich App 355, 364-365; 445 NW2d 228 (1989); Darnell v Auto-Owners Ins Co, 142 Mich App 1, 9; 369 NW2d 243 (1985). We have stated clearly that basic public policy considerations require that, once an innocent third party is injured in an accident in which coverage is in effect with respect to the automobile, an insurer will be estopped from asserting rescission. Ohio Farmers, supra at 364-365. In the instant case, however, coverage was not in effect with respect to defendant’s automobile at the time the innocent third parties were injured. We believe that a distinction exists between a material misrepresentation by an insured regarding a loss that already has occurred in order to purchase insurance coverage for that loss, and a material misrepresentation regarding some other fact that might have led the insurer not to issue a policy if it had been known. We fail to see any reason in law or policy for plaintiff to be the source of recovery in this case where its policy came into effect after the accident already had occurred. Unlike previous cases before this Court in which the automobile insurance policy existed at the actual time of the loss, the loss in this case occurred before the time the insurance policy came into effect with respect to the automobile. We conclude that the trial court erred in denying plaintiff’s motion for summary disposition. In light of this result, this Court will not address plaintiff’s other claim on appeal. Reversed.	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Per Curiam. Respondent appeals by leave granted the order of the trial court that modified a “no contact” provision of a personal protection order (ppo) and allowed respondent parenting time with his minor children. Respondent also appeals as of right the order of the trial court that found respondent in criminal contempt for violating the ppo. Respondent was sentenced to thirty days’ jail time. The appeals were consolidated. We affirm. Respondent argues that the trial court erred in entering a ppo prohibiting respondent from contacting his children. Respondent also argues that the trial court had no statutory authority to modify the PPO to include parenting time. Essentially, respondent argues that these custody and parenting time determinations can be made only in a child custody proceeding. In an effort to support his argument, respondent cites the Child Custody Act, MCL 722.21 et seq. Respondent argues that this act shows the Legislature’s intent to have courts examine the best interests of the child factors before making any decision regarding custody or parenting time. Respondent argues that, in this case, the trial court circumvented this requirement by deciding the issue in the ppo proceeding. Respondent is correct that MCL 722.23 enumerates several factors for a court to use to determine the best interests of the children involved in a custody dispute. Nonetheless, we do not believe that these factors were required to be applied in the instant case. The trial court was not making a custody determination. Instead, the trial court was simply issuing an emergency order, which was essentially an award of temporary custody of the children to petitioner, while granting respondent parenting time until the divorce proceeding was initiated so that the children might be protected from physical violence or emotional violence or both inflicted on them by respondent. Moreover, the trial court had statutory authority to restrict respondent’s contact with his children. MCL 600.2950, the statute pertaining to personal protection orders, allows a court to restrain an individual from doing various acts. MCL 600.2950(1)0) is directly applicable to the instant case and provided the trial court with authority to issue the ppo prohibiting respondent’s contact with the children. This “catchall” provision clearly provides the trial court with authority to restrain respondent from any other action that “interferes with personal liberty” or might cause “a reasonable apprehension of violence.” Id. This statutory provision allows the trial court to restrain respondent from “[a]ny other specific act or conduct. . . that causes a reasonable apprehension of violence.” Id. There is no question that it would be reasonable for petitioner to fear that respondent might become violent with petitioner if she were forced to permit respondent to visit the children or exchange the children for parenting time. Additionally, this interpretation is entirely consistent with the remainder of the statute, which makes it clear that the Legislature recognized that access to the children may need to be restrained to protect the safety of a parent. See MCL 600.2950(l)(d), (f), and (h). Respondent argues that this cannot provide an adequate statutory basis for the trial court to restrain his contact with his children because petitioner did not allege that respondent was violent toward the children. We disagree. First, while it is true that petitioner did not allege that respondent was physically violent toward his children, petitioner did set forth in detail that on several occasions respondent was physically violent toward petitioner in front of the children. Second, it is clear from petitioner’s statement that respondent was becoming increasingly more violent. Therefore, it is entirely possible that respondent’s behavior might have eventually escalated and involved the children. This is particularly true where, as here, petitioner sought the PPO to protect her children so that she could leave respondent and file for divorce. Indeed, a ppo is issued on an emergency basis and when the trial court has only limited information. Thus, we agree with the trial court’s approach of erring on the side of caution when serious allegations of abuse have been made. Respondent also argues that allowing a trial court to issue orders regarding custody and parenting time in a ppo proceeding causes an “administrative nightmare.” We disagree. First, the ppo proceeding and the subsequent divorce proceeding were both assigned to the same judge. The “one family, one judge” approach allows the judge to be intimately familiar with all the proceedings involving the parties. See MCR 3.703(D)(1). Second, the trial court can take precautionary measures to prevent any potential confusion by issuing duplicate orders. In other words, all orders entered in the PPO proceeding can be placed in the file for the divorce proceeding. This same process can be repeated for orders entered in the divorce proceeding. This further eliminates the possibility of confusion. Respondent also argues that allowing the entry of custody and parenting time orders in a PPO proceeding subjects respondent to serious sanctions for violation of a PPO if he should commit any “minor infractions” of a parenting time order. Again, we disagree with respondent’s argument. The trial court in this case was mindful of this fact and specifically stated that it would not subject respondent to sanctions for violation of a PPO where respondent simply committed a “minor infraction” of a parenting time order. Next, respondent argues that his conviction of criminal contempt must be reversed because he was denied the right to a jury trial. We review constitutional questions de novo. People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999). Here, respondent’s argument fails. Contempt proceedings are governed by MCR 3.708. Further, MCR 3.708(H)(1) specifically explains that a respondent in a contempt proceeding is not entitled to a jury trial. Respondent also argues that the trial court failed to make the appropriate factual findings. We review the trial court’s factual findings for clear error. Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 98; 535 NW2d 529 (1995). Respondent is correct that the trial court is required to make factual findings. MCR 3.708(H)(4) provides: “At the conclusion of the hearing, the court must find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment. The court must state its findings and conclusions on the record or in a written opinion made a part of the record.” In this case, the trial court issued an opinion and order finding respondent in contempt of court. However, the trial court did not state its findings of fact. Instead, the trial court simply adopted the proposed findings of fact that had been submitted by petitioner. Nevertheless, we find that the trial court complied with the court rule. See Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165; 530 NW2d 772 (1995). Next, respondent argues that there was insufficient evidence to support his conviction of criminal contempt. We disagree. A trial court’s findings in a contempt proceeding must be affirmed on appeal if there is competent evidence to support them. Cross Co v UAW Local No 155, 377 Mich 202, 218; 139 NW2d 694 (1966); Pontiac v Grimaldi, 153 Mich App 212, 215; 395 NW2d 47 (1986). However, the issuance of an order of contempt rests in the sound discretion of the trial court and is reviewed only for an abuse of discretion. Mason v Siegel, 301 Mich 482, 484; 3 NW2d 851 (1942); People v Ahumada, 222 Mich App 612, 617; 564 NW2d 188 (1997). In this case, the ppo ordered respondent to refrain from taking several specifically enumerated actions, including “sending mail/other communications to the petitioner.” We agree with the trial court’s conclusion that respondent violated the ppo by disregarding this prohibition. Respondent, after he became aware that petitioner was having an affair, traveled to New York to confront the paramour. Respondent wrote the words “bitch,” “cunt, and whore” on a $1 and gave it to the paramour. Respondent denied that he told the paramour to give the $1 bill to petitioner. The paramour testified that respondent told him, “The next time you talk to Lisa, tell her I said this.” He told petitioner about the incident. We find that respondent’s actions violated the prohibition against sending communications to petitioner. We acknowledge that the testimony on this point was contradictory. However, an appellate court may not weigh the evidence or the credibility of witnesses. See Cross Co, supra, 217. Thus, respondent violated the ppo by sending communications to petitioner through her paramour . Next, respondent argues that the stalking statute, MCL 750.41lh, is unconstitutional. Essentially, respondent argues that the statute is unconstitutional because it does not provide an individual with notice of what conduct is prohibited. Respondent also argues that the statute provides the factfinder with too much discretion to determine whether a crime has been committed. We review the constitutionality of a statute de novo. In re Gosnell, 234 Mich App 326, 333; 594 NW2d 90 (1999). However, we reject respondent’s arguments because we addressed and rejected these precise arguments and found the statute constitutional in People v White, 212 Mich App 298; 536 NW2d 876 (1995). See also Staley v Jones, 239 F3d 769 (CA 6, 2001); People v Coones, 216 Mich App 721; 550 NW2d 600 (1996); People v Ballantyne, 212 Mich App 628; 538 NW2d 106 (1995). Next, respondent argues that he was denied the right of allocution before he was sentenced for the contempt offense. We review the sentencing transcript de novo to determine if respondent was denied his right of allocution. See, generally, People v Lowe, 172 Mich App 347, 349-351; 431 NW2d 257 (1988). In support of his argument, respondent cites MCR 6.425(D)(2)(c), which requires the trial court to give a defendant an opportunity to speak before the defendant is sentenced. However, respondent fails to recognize that he was not a defendant in a criminal trial. Instead, respondent was accused of violating a PPO and was a participant in a contempt proceeding. MCR 3.708 specifically governs the procedures to be followed in a contempt proceeding and provides in part: (a) If the respondent pleads or is found guilty of criminal contempt, the court shall impose a sentence of incarceration for no more than 93 days and may impose a fine of not more than $500.00. (b) If the respondent pleads or is found guilty of civil contempt, the court shall impose a fine or imprisonment as specified in MCL 600.1715 and 600.1721. [MCR 3.708(H)(5).] In other words, the applicable court rule makes no mention of affording a respondent in a contempt proceeding the right of allocution. We find this noteworthy given the fact that the court rule goes to great lengths to specify that a respondent in a contempt proceeding is not entitled to a jury trial, has the right to be present at the hearing, has the right to cross-examine witnesses, and has the right to present evidence, and that the rales of evidence are applicable and there must be proof beyond a reasonable doubt to find the respondent guilty. MCR 3.708(H). Thus, we reject respondent’s argument. Finally, respondent argues that the trial court sentenced respondent on the basis of a sentencing policy and deprived respondent of an individualized sentence. We disagree. At sentencing, the trial court stated: “All right. Let me tell you what I’m going to do. In these cases, the Court has a policy of a 30-day jail time whenever you violate a personal protection order. And I’m not going to change it for this case. I’m going to apply it.” Respondent relies solely on the trial court’s statement to urge that he is entitled to resentencing. We disagree with respondent. In accordance with MCR 3.708(H)(5)(a), respondent could receive a maximum sentence of ninety-three days’ jail time and a fine of not more than $500. Here, respondent received thirty days’ jail time. Respondent makes no argument that his sentence was not appropriate. Moreover, we disagree with respondent that the trial court’s statement is evidence that respondent received the sentence of thirty days’ jail time because the trial court sentenced every respondent to that amount of jail time, regardless of the respondent’s history or the cir cumstances surrounding the contempt finding. The trial court was simply explaining that, in a typical contempt of court case, it believed that a thirty-day sentence was appropriate. Therefore, the logical inference is that the trial court believed this was the typical case. Indeed, there was no evidence that the violations of the PPO were particularly violent, which would warrant a jail sentence more in line with the maximum possible sentence. Furthermore, as petitioner points out, the trial court made every effort to be accommodating to respondent. Specifically, the trial court agreed to allow respondent to serve his sentence in fifteen-day increments. Thus, respondent is not entitled to resentencing. Affirmed. We note that the trial court found that respondent violated the ppo in several other respects. However, because we have found that respondent violated the ppo by using the paramour to send a communication to petitioner, there was competent evidence to find respondent in contempt of court. Therefore, it is unnecessary to discuss those additional reasons for finding respondent in contempt of court.	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Smolensk, J. Petitioner appeals by delayed leave granted from the circuit court order denying its motion in limine. We reverse and remand for further proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND Petitioner charged respondent with second-degree criminal sexual conduct (esc n), MCL 750.520c(l)(a), alleging that respondent had engaged in sexual contact with a person less than thirteen years of age. The incident that formed the basis of this charge occurred when respondent was a minor. Therefore, petitioner brought the instant charge in the family division of the circuit court, as part of a juvenile proceeding. Before trial, petitioner filed a motion in limine requesting that the trial court bar respondent from questioning the jury during voir dire about the Sex Offenders Registration Act, MCL 28.721 et seq. Petitioner conceded that registration under the act is not considered a penalty, such as a traditional sentence of incarceration. However, petitioner argued that registration was a consequence of an offender’s conviction, and that the consequences of an offender’s conviction are generally not revealed to a jury. Petitioner also argued that discussion of the act would cause unfair prejudice because it would likely influence the jury to decide the case on the basis of sympathy for the young respondent, rather than deciding the case on the basis of the facts tending to prove respondent’s guilt or innocence. Respondent did not argue that registration under the act was relevant to his guilt or innocence. Rather, respondent argued that members of the jury pool might have strongly held opinions regarding the statutory requirement that sex offenders register with the state, and that questioning during voir dire was necessary to determine possible bias. The circuit court denied petitioner’s motion to exclude discussion of the act, ruling that registration was not considered a punishment and was not part of its disposition or sentence. Instead, the circuit court reasoned that the Sex Offenders Registration Act merely imposed requirements that the court was constrained to follow. Therefore, the court concluded that respondent was entitled to question the jury regarding its opinions on the subject of mandatory registration for sex offenders. We granted petitioner’s delayed application for leave to appeal from the circuit court’s decision. In addition, we granted petitioner’s motion for a stay pending the conclusion of this appeal. “The scope of voir dire examination of prospective jurors is within the discretion of the trial court and will not be dis turbed on appeal absent an abuse of discretion.” People v Bailey, 169 Mich App 492, 500; 426 NW2d 755 (1988). We conclude that the circuit court abused its discretion in ruling that respondent could inform potential jurors regarding the Sex Offenders Registration Act. Therefore, we reverse and remand for trial. n. INFORMING JURIES ABOUT THE CONSEQUENCES OF A CONVICTION In People v Goad, 421 Mich 20, 25-26; 364 NW2d 584 (1984), citing People v Szczytko, 390 Mich 278, 285; 212 NW2d 211 (1973), our Supreme Court explained the general rule that the consequences of a conviction may not be discussed in the jury’s presence: The rule in Michigan has always been that neither the court nor counsel should address themselves to the question of the disposition of a defendant after the verdict. Indeed, it is proper for the court to instruct the jury that they are not to speculate upon such matters, and that they are to confine their deliberations to the issue of guilt or innocence. Under this general rule, references to the disposition of the accused after the verdict are proscribed throughout the entire trial process, including voir dire, arguments of counsel, and jury instructions. Bailey, supra at 500-501. It is clear that this rule is intended to prevent a jury from deciding a case on the basis of facts unrelated to the defendant’s guilt or innocence. In Goad, supra at 27, this Court quoted the following passage from People v Warner, 289 Mich 516; 286 NW 811 (1939), as an illustration of this principle: “The jurors should not have concerned themselves with the punishment, and ought to have been plainly told that they ought not to take that into consideration. Their function ended in deducing the truth from the evidence adduced and expressing it in their verdict. Anything said by the court calculated to draw their attention from the performance thereof, and to induce them to rest their conclusion upon ulterior considerations necessarily was misleading and prejudicial.” State v Kernan, 154 Iowa 672, 677; 135 NW 362; 40 LRA(NS) 239 (1912). Respondent does not quarrel with this general rule. Instead, respondent argues that the rule should not apply in the present case because registration under MCL 28.721 et seq. is not considered a penalty or punishment, and is not part of the trial court’s disposition. We agree that registration does not constitute a penalty, such as a sentence of incarceration. Nevertheless, the same policy considerations that weigh against informing a jury of a possible disposition or sentence weigh equally against informing the jury of the requirement that a convicted sex offender register with the state. m. SEX OFFENDERS REGISTRATION ACT The Sex Offenders Registration Act requires the registration of individuals convicted of certain listed offenses, including CSC II. MCL 28.723(l)(a), 28.722(d)(ix). An individual convicted of a listed offense after October 1, 1995, must register before sentencing, entry of the order of disposition, or assignment to youthful trainee status. MCL 28.724(5). Such an individual must provide notice to law enforcement if he changes residence, domicile, or place of work or education. MCL 28.725(l)(a). For an individual convicted of esc II, these requirements apply for life. MCL 28.725(7)(b). The Department of State Police maintains a computerized database of registrations that is available to local law enforcement and the public, including access through the Internet. MCL 28.728. The public database excludes individuals who were tried as juveniles. MCL 28.728(2). However, that exclusion does not apply to dispositions of first-degree and second-degree criminal sexual conduct, once the registered individual turns eighteen years old. MCL 28.728(2). This Court has previously held that the requirements of the Sex Offenders Registration Act do not constitute punishment. In re Ayres, 239 Mich App 8, 14-21; 608 NW2d 132 (1999) (act does not violate constitutional prohibition against cruel and unusual punishment); People v Pennington, 240 Mich App 188, 197; 610 NW2d 608 (2000) (act does not violate constitutional prohibition against ex post facto laws). Nevertheless, the rationale for precluding discussion of a verdict’s consequences applies with equal force to discussion of the statutory requirement that sex offenders register with the state. A jury is barred from considering punishment because the information may distract the jurors from deducing the truth from the evidence and may cause them to base their verdict on ulterior considerations. Goad, supra at 27. Regardless of whether the requirements of the Sex Offenders Registration Act are deemed punitive, regis tration is a consequence of a guilty verdict that is not material to determining guilt or innocence. In the present case, respondent’s counsel wishes to inform the potential jurors that, if found guilty, respondent would be required to register as a sex offender for the rest of his life and would be listed on a computer database accessible to the public, after he reaches age eighteen. Providing this information may well cause the jurors to sympathize with the young respondent and to base their verdict on “ulterior considerations” such as sympathy, rather than on the evidence. Respondent argued below, and the circuit court agreed, that inquiry about the potential jurors’ knowledge of the Sex Offenders Registration Act was appropriate to determine whether any of the potential jurors was prejudiced by the existence of the act or had a bias toward conviction or acquittal, based on knowledge of the act. We conclude that respondent should not be allowed to discuss the act under the guise of trying to uncover bias during jury selection. The general rule proscribing reference to the consequences of a verdict applies to voir dire. Bailey, supra at 500-501. If we allowed attorneys to inquire about potential jurors’ views concerning the consequences of a guilty verdict in order to uncover bias, that exception would swallow the general rule, and parties could avoid the general prohibition in every jury trial. The wide discretion afforded a trial court with respect to voir dire should not include allowing the parties to disclose information concerning the consequences of a guilty verdict. Reversed and remanded for trial. We lift the stay of proceedings previously granted by this Court. We do not retain jurisdiction. People v Spears, unpublished order of the Court of Appeals, entered April 3, 2001 (Docket No. 232922). People v Spears, unpublished order of the Court of Appeals, entered May 18, 2001 (Docket No. 232922). For the purposes of the act, an order of disposition entered in a juvenile proceeding counts as a conviction. MCL 28.722(a)(iii). Therefore, the Sex Offenders Registration Act applies in the present case, despite respondent’s status as a juvenile. 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Murphy, J. Defendant appeals by leave granted his misdemeanor conviction, following a district court jury trial, of using indecent and vulgar language. MCL 750.337. The district court imposed a sentence of four days’ community service, plus fines and costs of $75 or three days in jail. Defendant’s conviction was affirmed on appeal to the circuit court. Defendant argues, as he did below, that MCL 750.337 is unconstitutional. We reverse defendant’s conviction because MCL 750.337 is unconstitutionally vague. I. BASIC FACTS AND PROCEDURAL HISTORY Defendant’s conviction arose out of events that occurred on the Rifle River in Arenac County on August 15, 1998. Witness Michael Smith was canoeing down the Rifle River with his wife and two children approximately forty yards behind defendant’s party, which consisted of five canoes. Smith testified that he saw defendant fall out of his canoe and into the river, at which point defendant loudly uttered a stream of profanities, while slapping the water and throwing his hands in the air. Kenneth Socia, a road patrol deputy for the Arenac County Sheriff’s Department who was on duty at the Rifle River that day, testified that he heard a “loud commotion” and “vulgar language” coming from approximately one-quarter mile up the river. Socia looked up and saw defendant chasing a group of canoes, splashing water at them with his paddle, and repeatedly swearing at them. Socia and Smith both testified that the river was crowded with families and children, and that defendant would have been able to see Smith’s two children, who were under five years old. Socia issued defendant a citation for violating MCL 750.337. MCL 750.337 provides: Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor. Before trial in the district court, defendant moved to dismiss the charge on the grounds that the statute was unconstitutionally vague and overbroad, and was also unconstitutional as applied to this case. The district court denied the motion, and the case went to the jury. Defendant was convicted, and he appealed to the circuit court, alleging the same constitutional infirmities in the statute. Without addressing the over-breadth challenge, the circuit court issued an oral opinion from the bench holding that the statute was neither unconstitutionally vague nor unconstitutional as applied to defendant. We granted defendant’s application for leave to appeal. n. DEFENDANT’S ARGUMENTS ON APPEAL Defendant argues that his conviction must be reversed because MCL 750.337 is facially unconstitutional on both overbreadth and vagueness grounds. Defendant further argues that his conviction must be reversed because MCL 750.337 is unconstitutional as applied to the circumstances of this case. Finally, defendant argues that his conviction must be reversed because the district court severed the portion of MCL 750.337 concerning “the presence or hearing of any woman,” thereby violating the Legislature’s intent in enacting the statute. m. ANALYSIS We find it unnecessary to address defendant’s over-breadth arguments, or to undertake an extensive First Amendment analysis, because we hold that MCL 750.337 is unconstitutionally vague. MCL 750.337 was enacted, in its present form, in 1931, with its legislative origins dating back to an earlier version enacted in 1897. See historical notes to MCL 750.337. The earlier version of the statute contained the same language as the present version, except that it provided that it applied to language used within the limits of any township, village, or city in the state of Michigan. 1897 PA 219. Throughout the one hundred plus years of its existence, there have been no published Michigan cases addressing the statute. Whether a statute is constitutional is a question of law that this Court reviews de novo. People v Beam, 244 Mich App 103, 105; 624 NW2d 764 (2000). This includes constitutional challenges based on vagueness. Id. In considering defendant’s challenge to the constitutionality of MCL 750.337, this Court adheres to the well-established rule that a statute is presumed to be constitutional and is so construed unless its unconstitutionality is clearly apparent. People v Noble, 238 Mich App 647, 651; 608 NW2d 123 (1999). The fact that a statute may appear undesirable, unfair, unjust, or inhumane does not of itself render a statute unconstitutional and empower a court to override the Legislature. Doe v Dep’t of Social Services, 439 Mich 650, 681; 487 NW2d 166 (1992). The Legislature, not the courts, should address arguments that a statute is unwise or results in bad policy. People v Kirby, 440 Mich 485, 493-494; 487 NW2d 404 (1992). The party challenging the constitutionality of a statute bears the burden of proving its invalidity. People v Gregg, 206 Mich App 208, 210; 520 NW2d 690 (1994). We will keep these general principles in mind in analyzing the issue presented and in reaching our conclusion. In People v Lino, 447 Mich 567, 575, n 2; 527 NW2d 434 (1994), our Supreme Court noted that a constitutional challenge based on vagueness “is brought under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.” The Lino Court, explaining the vagueness doctrine, stated that “[i]n order to pass constitutional muster, a penal statute must define the criminal offense ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” Id. at 575, quoting Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983). When making a vagueness determination, a court must also take into consideration any judicial constructions of the statute. Lino, supra at 575. As noted above, we are unaware of any published Michigan opinions construing MCL 750.337. “[T]here are at least three ways a penal statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms.” Lino, supra at 575-576, citing People v Howell, 396 Mich 16, 20-21, n 4; 238 NW2d 148 (1976). The void-for-vagueness doctrine does not necessarily implicate the First Amendment of the United States Constitution. See Lino, supra at 575. The explanation of the void-for-vagueness doctrine enunciated by the United States Supreme Court in Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972), clearly points out the reasons for the doctrine: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” [Alterations and omission in original.] Here, it would be difficult to conceive of a statute that would be more vague than MCL 750.337. There is no restrictive language whatsoever contained in the statute that would limit or guide a prosecution for indecent, immoral, obscene, vulgar, or insulting language. Allowing a prosecution where one utters “insulting” language could possibly subject a vast percentage of the populace to a misdemeanor conviction. MCL 750.337 fails to provide fair notice of what conduct is prohibited, and it encourages arbitrary and discriminatory enforcement. In Plymouth Charter Twp v Hancock, 236 Mich App 197, 201-202; 600 NW2d 380 (1999), relied on by the prosecution, this Court held that the township board’s inclusion of the word “unreasonably” gave fair notice of prohibited conduct by providing a “reasonable person” standard and also served to prevent abuse of enforcement discretion. MCL 750.337 contains no similar legislative guidance. Even if the statute were judicially construed to apply only to speech that a reasonable person should know is indecent, immoral, or vulgar when used in the presence of a child, as the prosecutor urges, in our opinion, it would remain vague. This construction would require every person who speaks audibly where children are present to guess what a law enforcement officer might consider too indecent, immoral, or vulgar for a child’s ears. Children aside, it is far from obvious what the reasonable adult considers to be indecent, immoral, vulgar, or insulting. As a result, a judicially imposed “reasonable person” limitation would not, in our opinion, cure the vagueness of the statute. Finally, we would observe that the First Amendment does not protect obscene speech, Sable Communications of California, Inc v FCC, 492 US 115, 124; 109 S Ct 2829; 106 L Ed 2d 93 (1989), and the Legislature, if so inclined, could enact a properly drawn statute to protect minors from such exposure. However, MCL 750.337, as currently drafted, impinges on First Amendment freedoms. In Reno v American Civil Liberties Union, 521 US 844, 874; 117 S Ct 2329; 138 L Ed 2d 874 (1997), the United States Supreme Court, addressing undefined statutory provisions prohibiting patently offensive and indecent Internet transmissions to those under eighteen years, stated that “[g]iven the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection.” Here, we find it unquestionable that MCL 750.337, as drafted, reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights. IV. CONCLUSION MCL 750.337 is an unconstitutional enactment in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution because the statute is facially vague. Therefore, because defendant’s conviction was based on the unconstitutional statute, we reverse the conviction. Reversed. The circuit court stated that it was addressing the “vagueness or over-breadth question,” but the analysis that followed addressed only the vagueness claim. In Plymouth Charter Twp, supra at 198, a constitutional challenge was made to a township ordinance that provided as follows: It shall be unlawful for a person to disturb the public peace and quiet by shouting, whistling, loud, boisterous, or vulgar conduct, the playing of musical instruments, phonographs, radios, televisions, tapeplayers or any other means of amplification at any time or place so as to unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity. The district court in this case made a specific finding that the language used by defendant did not constitute obscenity as defined in Miller v California, 413 US 15, 24; 93 S Ct 2607; 37 L Ed 2d 419 (1973). Therefore, the jury was not instructed to decide whether defendant’s words constituted “obscene” speech. The prosecutor does not challenge that ruling.	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Per Curiam. The prosecutor appeals by leave granted from an order granting defendant’s request for an instruction that required the prosecution to prove, beyond a reasonable doubt, the defendant’s knowledge of the quantity of the controlled substance she was charged with possessing with intent to deliver. We reverse. Defendant was charged with various drug-and firearm-related offenses. Following the completion of proofs and closing arguments, defendant requested an instruction with respect to the charge of possession with intent to deliver 50 grams or more, but less than 225 grams, of a mixture containing cocaine. MCL 333.7401(2)(a)(iii). Specifically, defendant argued that the prosecutor had to prove defendant’s knowledge of the amount of the mixture as an element of the offense pursuant to People v Mass, 464 Mich 615; 628 NW2d 540 (2001), and the instructions to the jury should reflect this requirement. In response, the prosecutor argued that the Mass Court held that the knowledge of amount requirement applied only to conspiracy charges. The trial court granted defendant’s request for the instruction regarding knowledge of quantity on the basis of its interpretation of Mass. We granted the prosecutor’s application for leave to appeal and stayed the trial pending resolution of this appeal. The prosecutor alleges that the trial court erred in granting defendant’s instruction request. We agree. The court must instruct the jury to allow the jury to correctly and intelligently decide the case. People v Crawford, 232 Mich App 608, 619; 591 NW2d 669 (1998). The instructions must include all the elements of the charged offense and must not exclude material issues, defenses, and theories that are supported by the evidence. Id. We review claims of instructional error and questions of statutory interpretation de novo. People v Bartlett, 231 Mich App 139, 143; 585 NW2d 341 (1998). Defendant’s argument was raised as early as 1984 and rejected by this Court. In People v Cortez, 131 Mich App 316, 321-322; 346 NW2d 540 (1984), the three defendants, tried in two separate trials, were convicted of possession with intent to deliver 650 or more grams of a mixture containing cocaine. On appeal, the defendants alleged that there was insufficient evidence to support the convictions because evidence of knowledge of the weight of the mixture had not been presented. This Court rejected that argument and held that there was no authority to indicate that knowledge of the weight of the . mixture was an essential element of the offense. Id. at 331. Furthermore, in People v Hamp, 170 Mich App 24, 34; 428 NW2d 16 (1988), vacated in part on other grounds 437 Mich 865 (1990), the defendant argued that knowledge of the quantity of the controlled substance possessed was an element of the crime of possession with intent to deliver. This Court rejected the defendant’s challenge: Defendant was convicted of possession of cocaine with intent to deliver 225 grains or more but less than 650 grams. The crime of possession of cocaine with intent to deliver in any mixture of 225 grams or more but less than 650 grams requires the showing of four elements: (1) the substance was cocaine; (2) the drug was in a mixture which weighed more than 225 grams but less than 650 grams; (3) defendant was not authorized by law to possess the substance; and (4) defendant knowingly possessed the cocaine with the intent to deliver. People v Acosta, 153 Mich App 504, 511-512; 396 NW2d 463 (1986), lv den 428 Mich 965 (1987); CJI 12:2:00. Contrary to defendant’s assertion, knowledge of the quantity of the controlled substance is not an essential element of this offense. At this time, this Court refuses to require that that element be shown. [170 Mich App 34-35.] Lastly, in People v Northrop, 213 Mich App 494, 495; 541 NW2d 275 (1995), the defendant was convicted of possession of 50 to 225 grams of cocaine, MCL 333.7403(2)(a)(iii). The defendant acknowledged that the prosecution was not required to prove knowledge by the defendant of the quantity of the drag involved, but challenged the constitutionality of the drag statutes when penalties were imposed on the basis of quantity. Northrop, supra at 498. This Court rejected the constitutional challenge and adhered to the principle that knowledge was not an essential element for purposes of delivery, possession with intent to deliver, or possession of a controlled substance. Id. This Court noted that the harsh mandatory minimum sentences were designed to remove drag dealers from society for long and definite periods. Id. In Mass, supra, the defendant was convicted, as an aider and abettor, of delivery of 225 grams or more, but less than 650 grams, of a mixture containing cocaine, MCL 333.7401(2)(a)(ii), and conspiracy to commit that offense, MCL 750.157a. The defendant challenged his delivery conviction by alleging that knowledge of the amount of a controlled substance was an element of the delivery charge. The Supreme Court rejected the defendant’s challenge, stating: Having determined that quantity is an element of the delivery offense, we turn to the question whether knowledge of the amount is an element of a delivery offense. The Court of Appeals held that knowledge of the amount of cocaine involved is not an element of a charge of delivery of cocaine, citing People v Cortez, 131 Mich App 316, 331; 346 NW2d 540 (1984), and People v Northrop, 213 Mich App 494, 498; 541 NW2d 275 (1995). It is also the case that this Court stated as follows in People v Quinn, 440 Mich 178, 189; 487 NW2d 194 (1992): “[A] defendant need not know the quantity of narcotics to be found guilty of possession of a controlled substance under MCL 333.7401; MSA 14.15(7401).” We hold, consistent with the text of the statute, the Court of Appeals holdings, and our prior statement in Quinn, that knowledge of the amount of a controlled substance is not an element of a delivery charge. This holding is, of course, consistent with the fact that delivery of a controlled substance is a general intent crime. People v Maleski, 220 Mich App 518, 522; 560 NW2d 71 (1996). [Mass, supra at 626-627.] While the Mass Court addressed the charge of delivery of a controlled substance, it cited with approval the Cortez decision that expressly held that knowledge of quantity was not an element of possession with intent to deliver. Accordingly, this Court’s hold ings that knowledge of quantity is not an element of possession with intent to deliver remain good law. Accordingly, the trial court erred in granting defendant’s request for a knowledge of quantity instruction. Reversed. Although we note that because the charge in Northrop was merely possession, it could be argued that the statement regarding possession with intent to deliver is dicta. proof of agreement requirement and avoids a challenge to the unanimity of a jury verdict. Defendant alleges that knowledge of quantity is required because of the distinction between specific and general intent crimes. However, the statement and citation of Maleski, supra, is dicta. We note that the Mass Court held that knowledge of quantity was an element for purposes of the conspiracy statute. However, the conspiracy statute requires proof of an agreement and there are four separate delivery offenses, contingent upon the amount of contraband involved. Mass, supra at 629-634. 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Ryan, J. The broad issue in this case is whether the Wayne County Concealed Weapon Licensing Board is an "agency” within the meaning of the Michigan Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., so that the board is required to comply with the provisions of the act. Resolution of this broad issue requires the Court to decide two specific questions. First, does the Michigan Administrative Procedures Act apply only to "state * * * board[s]”, or does it apply additionally to non-state boards which are created by statute. Second, if the Michigan Administrative Procedures Act applies only to "state * * * boards”, is the Wayne County Concealed Weapon Licensing Board a "state * * * board” within the meaning of the act. We hold that the Michigan Administrative Procedures Act applies only to an "agency” and that the statutory definition of "agency” requires that the "department, bureau, division, section, board, commission, trustee, authority or officer” be a "state” unit or position. Additionally, we hold that the Wayne County Concealed Weapon Licensing Board is not a "state * * * board” within the meaning of the Michigan Administrative Procedures Act and consequently is not an "agency” subject to the provisions of the act. Therefore, we reverse the decision of the Court of Appeals and remand to that Court for consideration of questions left unanswered by their opinion. Hanselman v Killeen, 112 Mich App 275; 316 NW2d 237 (1982). I The plaintiff, John Hanselman, applied for a concealed weapon license from the Wayne County Concealed Weapon Licensing Board in 1973. The plaintiff requested the license because his work for a talent agency required him to make nightly collections of cash and checks from various bars and then to hold the cash and checks until the next regular business day when he deposited the collections with his employer. The board issued a concealed weapon license to the plaintiff, but restricted it to use in the plaintiff’s business or to use in travel to and from his home and bank. On Monday, May 28, 1979, Memorial Day, the plaintiff was driving with his wife near Lapeer, Michigan, when he was stopped by state trooper Mark Calcatera. Officer Calcatera, who earlier had been flagged down by a motorist who reported that the plaintiff’s car was weaving and running off the road, asked to see the plaintiff’s driver’s license. When the plaintiff produced his driver’s license, he also produced his concealed weapon license which was attached to the driver’s license. In response to Officer Calcatera’s questions, the plaintiff indicated that he was carrying the weapon. After removing a gun from the plaintiff’s boot and questioning him further, Officer Calcatera took the plaintiff to the police station where he "interviewed” the plaintiff and made a report. The plaintiff was released following this brief detention. The Lapeer County prosecutor elected not to charge the plaintiff with a concealed weapon license violation. Instead, he instructed the state police to forward a copy of Officer Calcatera’s report to the Wayne County prosecutor, a member of the board. Officer Calcatera’s report stated that the plaintiff was advised of his Miranda rights and that, after waiving his Miranda rights, the plaintiff indicated that "he knew he was in violation of his permit, however, [he] didn’t feel anything would happen to him, due to the fact that he had the permit and has carried the gun for a long time”. Additionally, the Lapeer County prosecutor wrote to the Wayne County prosecutor indicating that, while he would not pursue a criminal proceeding against the plaintiff, "[p]erhaps the board should review Mr. Hanselman’s suitability for a concealed weapon permit, in view of his apparent disregard for the limitations in his permit”. Based solely upon Officer Calcatera’s report and the La-peer County prosecutor’s letter, the board revoked the plaintiff’s concealed weapon license at their July 10, 1979 meeting. The plaintiff, who had been present at the July 10 meeting of the board and had sought to present his side of the Memorial Day incident, appealed the board’s decision to the Wayne Circuit Court seeking an order to show cause why a preliminary injunction should not enter requiring the board to issue a concealed weapon license to the plaintiff. The plaintiff based this request upon a claim that the hearing provided by the board violated the APA, MCL 24.201 et seq.; MSA 3.560(101) et seq. Specifically, he requested a "hearing which complies with minimum due process standards, to wit: "i. The opportunity to defend by confronting and cross-examining adverse witnesses; "ii. The opportunity for plaintiff to present his own arguments and evidence orally; "iii. A written record of the proceedings; "iv. A written decision based solely upon the legal rules and evidence adduced at the hearing, stating the reasons for this decision, and indicating the evidence relied upon; "v. That plaintiff receive timely and adequate notice of said hearing; and "vi. That plaintiff have the right to appear with counsel.” The circuit court entered a temporary injunction which required the board to issue a concealed weapon license and enjoined the board from revoking the plaintiffs concealed weapon license until it had given the plaintiff a "full hearing”. The board conducted hearings on September 21, 1979 and October 9, 1979. The plaintiff was given adequate and timely notice of both hearings. He was allowed to present evidence, to cross-examine adverse witness, and to be represented by counsel. A written transcript of the proceedings was made. On the first day of the hearing, the plaintiff and his employer testified. The plaintiff testified that he had made collections in the amount of $7,000 over the Memorial Day weekend, that he was required to keep the money on his person, that he had gone to Lapeer County to see a horse show but was still carrying the money in connection with his job, and that he never told Officer Calcatera that he was not in the course of his business or that he knew that he was acting in violation of his concealed weapon license. The plaintiffs employer testified that, in fact, the plaintiff was required to keep the collected money on his person until he delivered it to him on the next regular business day, that the office was closed from Friday night until Tuesday morning due to the Memorial Day holiday, and that the plaintiff deposited about $6,500 on the Tuesday after Memorial Day. On the second day of the hearing, Officer Calcatera and the plaintiffs wife testified. Officer Calcatera indi cated that he stopped the plaintiff because a citizen reported his erratic driving, that the plaintiff admitted that he was in violation of his concealed weapon permit, that the plaintiff never mentioned anything about carrying money in connection with his job, that the officer did not observe the plaintiff to be carrying any large amount of money when he patted him down, and that he had discussed the earlier day’s testimony with the board prior to his testimony. The plaintiff’s wife stated that her husband was carrying a large sum of money at the time that Officer Calcatera stopped him, that he never stated that he knew that he was in violation of his concealed weapon permit while she was present, that she heard him say that he was carrying a large sum of money, and that Officer Calcatera was wrong in stating anything to the contrary. Following the September 21 and October 9 hearings, the board again revoked the plaintiff’s concealed weapon license. On October 18, 1979, the board notified the plaintiff of its decision to again revoke his concealed weapon license. There is no written explanation of the board’s decision in the record. However, it appears that the board relied upon MCL 28.426(5); MSA 28.93(5), which requires a concealed weapon licensing board to revoke a license when the gun is "carried contrary to the authorization”. The plaintiff again appealed the board’s decision to the Wayne Circuit Court. There, the plaintiff made three claims. First, he asserted that the board had failed or refused to comply with the temporary injunction order to provide a full, fair, and impartial hearing. Second, he claimed that the board violated the APA, the Due Process Clause of the United States Constitution, and the Due Process Clause of the Michigan Constitution. Finally, the plaintiff claimed that the board committed a substantial and material error of law in finding that the plaintiff was not "at work” on Memorial Day. The circuit court again issued a show-cause order. However, on November 16, 1979, the circuit court denied the plaintiff’s requested relief. First, it found that the board was not subject to the APA. Additionally, even if the board was subject to the APA, a "rule of fairness” would require that the plaintiff demonstrate some harm resulting from the board’s violation of the APA provisions. The record, according to the circuit court, did not demonstrate that the plaintiff suffered any harm from the alleged violations. Second, the circuit court held that the board had acted within the scope of its authority. Third, the circuit court held that the record substantiated the board’s finding that the plaintiff was not "at work” or in the course of his business on Memorial Day when he was stopped. The circuit court did not specifically discuss the plaintiff’s objection that the board violated the temporary restraining order or that the hearing violated the Due Process Clauses of the federal and state constitutions. However, in denying the plaintiff’s request, it presumably found them unsupported by the record. The plaintiff then appealed to the Court of Appeals, stating the same three questions: first, the plaintiff claimed that the circuit court had erred in finding that the board was not an "agency” subject to the provisions of the APA; second, the plaintiff claimed that the hearing provided by the board violated the APA and the Due Process Clauses of the federal and state constitutions; and, third, he claimed that the board had committed a substantial and material error of law in finding that the plaintiff was not "at work” or in the course of his employment on Memorial Day when he was stopped. The Court of Appeals focused on the plaintiff’s first claim and found that the board was indeed an "agency” subject to the provisions of the APA since it was a "state * * * board”. Additionally, the Court of Appeals found that the board had not complied with two provisions of the APA. Therefore, the Court of Appeals reversed the decision of the circuit court and remanded the case to the Wayne Circuit Court (excluding the original circuit judge) for appointment of a temporary concealed weapon license board to hear the plaintiff’s case and determine, in accordance with the APA, whether the plaintiff violated the restrictions on his concealed weapon license. While the Court of Appeals did not find it necessary to discuss whether the hearing violated the due process requirements of the state or federal constitution, it did note that, absent a showing of prejudice, Officer Calcatera’s testimony should not be permanently disqualified because of his contact with the board. Additionally, while the Court of Appeals did not find that the board erred in finding that the plaintiff was not "at work” or in the course of his employment on Memorial Day when he was stopped, it did state that "business” is a broad term and "an employee carrying a weapon to protect cash to be delivered to his employer is surely on 'business’ ” unless the license makes clear that such conduct is prohibited. The board applied to this Court, and we granted leave to appeal. 417 Mich 1039 (1983). II The general issue in this case is whether the board is an "agency” within the meaning of the APA and therefore required to comply with the procedural requirements of the APA. Resolution of this issue requires that we decide two specific points argued by the parties. First, does the statutory definition of "agency” apply only to a state "board * * * created by * * * statute” or does it apply to any "board * * * created by * * * statute?” Second, if the "agency” definition requires that the board be a "state * * * board”, does the board meet that requirement? The issues shall be addressed separately. A The parties agree that the APA provisions apply only to an "agency”. They also agree that the APA defines an "agency” in MCL 24.203(2); MSA 3.560(103X2): "(2) 'Agency’ means a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action. It does not include an agency in the legislative or judicial branches of state government, the governor, an agency having direct governing control over an institution of higher education, or the state civil service commission.” However, the parties do not agree on whether a "board * * * created by * * * statute” must be a "state * * * board” to be an "agency” within the meaning of the APA. The plaintiff claims that the statutory definition encompasses the board since it is a "board * * * created by * * * statute”. According to the plaintiff’s understanding, the word "state” modifies only the word "department” and does not modify all the units and positions which follow. Therefore, an. "agency” is a "state department” or a "bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action”. The defendant disagrees with this interpretation and asserts that the word "state” modifies all the subsequent units or positions. Therefore, as applied to the board, it must be both "created by * * * statute” and a "state * * * board” in order to be an "agency” subject to the provisions of the APA. The Court of Appeals agreed with the board that an "agency” under the APA must be a "state” unit or position "created by the constitution, statute, or agency action”. Therefore, as applied to this case, the Court of Appeals held that the board was an "agency” only to the extent that it was a "state * * * board” and "created by * * * statute”. We agree with the Court of Appeals and the board that the plaintiffs interpretation of MCL 24.203(2); MSA 3.560(103)(2) is untenable. Properly interpreted, the statutory definition of an "agency” has two components. The first component of an "agency” is that it is a "state department, bureau, division, section, board, commission, trustee, authority or officer”. Contrary to the plaintiffs assertion, the word "state” modifies each and every one of the subsequent units or persons and does not merely modify the word "department”. This interpretation is supported by three facts. First, the title of the APA states that it is "[a]n act to provide for the effect, processing, promulgation, publication, and inspection of state agency rules, determinations and other matters; * * * to provide for state agency administrative procedures and contested cases and appeals from contested cases * * ; to provide for declaratory judgments as to rules; and .to repeal certain acts and parts of acts.” (Emphasis added.) Second, the APA’s predecessor act was interpreted by the Court of Appeals in Detroit v General Foods Corp, 39 Mich App 180, 186; 197 NW2d 315 (1972), and in Righter v Adrian Civil Service Comm, 1 Mich App 468, 473; 136 NW2d 718 (1965), lv den 377 Mich 696 (1966). Like the present statute, the predecessor statute used the word "state” followed by a sequential list of units or persons: " 'Agency’ means any state board, commission, de partment, bureau or officer, authorized by law to make rules or to adjudicate contested cases, except the workmen’s compensation commission, the employment security commission, the department of revenue, the public service commission and those in the legislative and judicial branches.” MCL 24.101(1); MSA 3.560(21.1)(1). Repealed and replaced by 1969 PA 306, MCL 24.203; MSA 3.560(103) and MCL 24.207; MSA 3.560(107), effective July 1, 1970. In both cases, the Court of Appeals found that "agency” meant a "state agency”, i.e., a "state board”, "state commission”, "state department”, "state bureau”, or "state officer”. Therefore, since the Legislature is presumed to legislate in conformity with prior judicial decisions, the Legislature’s adoption of the same agency definition structure is presumed to be with knowledge that it had been held to apply only to "state” agencies in Righter, supra. Jeruzal v Wayne County Drain Comm’r, 350 Mich 527; 87 NW2d 122 (1957). Moreover, in the decade since the General Foods Corp decision, the Legislature has not changed the structure of the "agency” definition or in any way indicated its disapproval of the judicial interpretation. Therefore, the Legislature’s adoption of the same structure for the 1969 Act as was used in the earlier act and the Legislature’s inactivity since that time indicate that, absent contrary indications, the Legislature is satisfied with the judicial interpretation. Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513; 158 NW2d 473 (1968). Finally, simple logic indicates that there would be no reason for the Legislature to make "state departments” subject to the provisions of the APA without any other condition while it made "state divisions”, "state sections”, "state boards”, "state commissions”, etc., subject to the APA provisions only if they met other conditions. Therefore, the first aspect of an "agency” is that it is a "state” unit or person. In addition to this "state” component, MCL 24.203(2); MSA 3.560(103)(2) states a second component of the "agency” definition. That is, an "agency” must be "created by the constitution, statute, or agency action”. This component is self-explanatory. If the two components stated above are met, the entity is an "agency”. However, not all agencies are required to comply with the mandates of the APA. The final sentence of MCL 24.203(2); MSA 3.560(103)(2) exempts certain agencies from the provisions of the APA: "It does not include an agency in the legislative or judicial branches of state government, the governor, an agency having direct governing control over an institution of higher education, or the state civil service commission.” Therefore, the proper interpretation of MCL 24.203(2); MSA 3.560(103)(2), requires the presence of two characteristics for an "agency”, i.e., it must be a "state” unit or position and it must be "created by the constitution, statute, or agency action”. If these two requirements are met and it is not specifically exempted by the final sentence of MCL 24.203(2); MSA 3.560(103)(2), an "agency” is subject to the provisions of the APA. B Stating the elements of the statutory definition of an "agency” does not end our inquiry or decide this case. We must now apply that definition to determine whether the board is an "agency” within the meaning of the APA. In applying the "agency” definition to the board, there is no dispute that the board is "created by * * statute” and that it is not specifically exempted from the APA. MCL 28.426(1); MSA 28.93(1) authorizes concealed weapon licensing boards such as the defendant: "The prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute boards exclusively authorized to issue a license to an applicant residing within their respective counties, to carry a pistol concealed on the person and to carry a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the applicant.” Moreover, the board is not an "agency of the legislative or judicial branches of state government, the governor, an agency having direct control over an institution of higher education, or the state civil service commission”. However, the parties vigorously debate whether the board is a "state * * * board” or a non-state board. If the board is a "state * * * board”, it is an "agency” within the meaning of the APA. However, if it is not a "state * * * board”, it is not an "agency” subject to the provisions of the APA. 1 The APA provides no explicit guidance concerning whether the board is a "state * * * board”. It makes no statements on the scope of the phrase "state * * * board” and it does not define the word "state”. Therefore, we must assume that the word "state”, as used in the APA, has its general, commonly understood meaning. In determining whether the board is a "state * * * board” within the commonly understood meaning of the word, we are not without guidance. In Advisory Opinion re Constitutionality of PA 1966, No 346, 380 Mich 554, 571; 158 NW2d 416 (1968), this Court was required to determine whether the "state” housing development authority was an instrumentality of state government. To do so, the Court outlined three inquiries relevant to determining "state” status: "We must * * * look behind the name to the thing named. We must examine its character, its relations, and its functions to determine, indeed, whether it is an agency or instrumentality of State government.” While that opinion is not "on point” with this one, we believe that the analysis presented there to determine "state” status is appropriate in this case for determining whether the board is a "state * * * board”. Therefore, we shall separately discuss the "characteristics]” of the board, the "relations[hip]” between the board and the state, and the "functions” performed by the board. Such analysis will provide a broad-based composite picture of the board, thereby enabling this Court to determine whether it is a "state * * * board” or a non-state board. a The first portion of the analysis requires consideration of the characteristics with which the Legis lature endowed the board through the concealed weapon licensing statute. In his argument, the plaintiff highlighted several characteristics possessed by the board which he believed indicated that the board was a "state * * * board”. First, the plaintiff noted that the board is created by state statute pursuant to the Legislature’s exercise of its police powers and that the board garners none of its authority from local statutes or ordinances. Indeed, the Legislature made the concealed weapon licensing board the exclusive dispenser of concealed weapon licenses, thereby prohibiting a local statute or ordinance creating or authorizing local concealed weapon licensing boards. See MCL 28.426; MSA 28.93. Second, by law, one member of every concealed weapon licensing board is the director of the Department of State Police or his deputy. As such, a state official participates in every action of a concealed weapon licensing board. See MCL 28.426; MSA 28.93. Third, the board may grant concealed weapon licenses only to applicants possessing certain mandatory attributes. For example, the concealed weapon licensing board may not grant a license unless the applicant is at least 18 years of age, is a citizen of the United States, has been a resident of the State of Michigan for at least six months, has not been convicted of or confined for a felony in the preceding eight years, and has not been adjudged insane (unless subsequently adjudged to have recovered his sanity). Finally, the state police are responsible for providing forms upon which the fingerprints are recorded and for checking the fingerprints of all applicants for concealed weapon licenses. The Court of Appeals adopted the plaintiff’s argument that the board possessed these state-like characteristics and held that the board was a "state * * * board”. In explaining its holding, the Court of Appeals restated the plaintiffs assertions: "County licensing boards are not created under county governmental authority and are not subject to county control. The statute creating the licensing boards indicates substantial state involvement: (1) Each board must adhere to a comprehensive scheme of state-imposed rules; (2) a representative of the director of the Department of State Police is a member of each board; and (3) the state police check the fingerprints of applicants and provide license forms. Hanselman, supra, p 280. The board asserts that the Court of Appeals misconceived the character of the board by focusing only upon selected state-like characteristics and not considering those characteristics in the light of their counterpart local, non-state-like characteristics. Specifically, the board claims that the Court of Appeals erred in finding no local control and in finding "substantial state involvement” because of the state-imposed rules and the role of the state police in the workings of the concealed weapon licensing boards. We agree. In evaluating the characteristics of the board to determine whether it is a "state * * * board” or a non-state board, it is essential to avoid selective consideration of the board’s characteristics. While the plaintiff and the Court of Appeals are clearly correct in saying that the board possesses the characteristics enumerated in the Court’s holding, they are in error in not weighing the importance of these characteristics. Stated differently, "state” status in this case is not dependent upon the presence of a particular characteristic or a select group of characteristics. Rather, "state” status is determined by a review of all relevant characteris tics which, when considered together, indicate the overall character of the board. As will be demonstrated, the board possesses many non-state-like characteristics in addition to the state-like characteristics identified by the plaintiff and the Court of Appeals. When considered together, the board possesses considerably more non-state-like characteristics than state-like characteristics and its composite character is not that of a "state * * * board”. The first characteristic identified by the plaintiff and the Court of Appeals is that the board was created by a state statute. Initially, one is hesitant to consider this a "characteristic” of the board. However, even if it is a characteristic, it is not one which is indicative of "state” status. To so hold would be to confer on all governmental action, local and state, "state” status. For, as this Court has repeatedly stated, local governments have no inherent powers and possess only those limited powers which are expressly conferred upon them by the state constitution or state statutes or which are necessarily implied therefrom. Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972); Mason County Civic Research Council v Mason County, 343 Mich 313; 72 NW2d 292 (1955). Therefore, all action authorizing any board ultimately garners its justification from an exercise of state power. Consequently, the fact that the board was authorized by a statute does not constitute a characteristic determinative of whether the board is a "state * * * board”. The second characteristic noted by the plaintiff and the Court of Appeals is that the director of the Department of State Police, or his deputy, is a member of every concealed weapon licensing board. Since the director is an official of a state department, the plaintiff and the Court of Appeals concluded that such a characteristic demonstrates that the board is a "state * * * board”. However, such an interpretation ignores the character of the other members of every concealed weapon licensing board. Just as every concealed weapon licensing board by law has one state official, every concealed weapon licensing board by law has two local officials. As the statute requires, the county sheriff (or his deputy) and the county prosecutor (or his deputy) are members of the board along with the director of the Department of State Police. The county prosecutor and the sheriff are clearly local officials elected locally and paid by the local government. Therefore, the fact that a single state official is a member of the board is not controlling in determining the status of the board as a "state * * * board”. Indeed, the fact that a majority of the members of the board indicates that it is not a "state * * * board”. This understanding is further bolstered by the fact that the board acts only by a vote of the majority. Therefore, the state official cannot control the board, but the local officials can, by voting together or not voting with the state official, control the actions of the board. The third characteristic presented by the plaintiff and the Court of Appeals is that the statute authorizing concealed weapon licensing boards mandates that certain attributes must be possessed by all successful applicants for a concealed weapon license. From this fact, the plaintiff claimed, and the Court of Appeals found, "substantial state involvement”. However, a closer review of the state-imposed requirements indicates that they are all very general in nature. For example, a successful applicant must be 18 years of age or older, a United States citizen, a resident of Michi gan for at least six months, and not a recent felon or insane. These very general requirements do not provide any substantial guidance to a concealed weapon board attempting to ascertain whether, as MCL 28.426(1); MSA 28.93(1) requires, "the applicant has good reason to fear injury to his or her person or property, or has other proper reasons, and is á suitable person to be licensed” since not everyone who is 18 years or older, a citizen of the United States, a resident of Michigan for at least 6 months, and not a recent felon or insane is entitled to a concealed weapon license. Each concealed weapon licensing board must determine "proper reason” and "suitability” based upon consideration of local needs and an exercise of its discretion. As the Court of Appeals recognized in Bay County Concealed Weapons Licensing Board v Gasta, 96 Mich App 784, 789-791; 293 NW2d 707 (1980), the Legislature intends the concealed weapon licensing boards to apply local and discretionary standards in deciding whether to grant an applicant a concealed weapon license: "The licensing board is comprised of one representative each from the County Prosecutor’s Office, the State Police, and the County Sheriffs Department. By creating a board composed of law enforcement officials and giving it the exclusive authority to issue, deny and revoke permits for concealed weapons, the Legislature has insured that an individual’s perceived need to carry a concealed weapon will be evaluated in light of the experience and knowledge of community needs possessed by these local officials. The potential danger which a concealed weapon poses to the unsuspecting public justifies that licensing procedures be entrusted to a board comprised of law enforcement officials. "In view of the inherent potential danger which accompanies the issuance of a permit to carry a con cealed weapon, the licensing board as composed reflects the Legislature’s intent that power to issue and revoke such [concealed weapon] licenses is properly placed with those professionals most able to assess community needs and problems in this area.” Therefore, rather than creating a "comprehensive scheme of state-imposed rules” as asserted by the plaintiff and the Court of Appeals, the conditions stated in the statute do no more than indicate the minimal qualifications which a person must possess to receive a concealed weapon license and which a local concealed weapon licensing board would probably require even absent an explicit statement in the concealed weapon licensing statute. They do not assist the concealed weapon licensing boards in determining who among those possessing the minimal qualifications stated in the state statute should receive a concealed weapon license due to necessity and suitability. That decision is left in the hands of the concealed weapon licensing board to be resolved according to its discretion. Therefore, the articulation in the statute of a few general minimal attributes to be possessed by all applicants does not constitute a "comprehensive scheme of state-imposed rules” requiring a finding that the board is a "state * * * board”. Rather, the absence of more specific guidance than "proper reasons” and "suitable person” indicates that the board is not a "state * * * board”. The final characteristic raised by the plaintiff and the Court of Appeals is that the fingerprints of each applicant are taken on forms provided by the state police and are checked by the state police. From this characteristic, the plaintiff and the Court of Appeals found "substantial state involvement”. However, rather than indicating that the board possesses “state” status, the statutory provision that the state police check the fingerprints of each applicant manifests nothing more than the common sense of the Legislature since the state police are the central repository for fingerprint information collected throughout the state. Therefore, it is logical that they should be consulted to determine whether the applicant has a criminal record. This interpretation, that state police review of all applicants’ fingerprints as a commonsense provision and not as an indication of the "state” status of the concealed weapon licensing boards, is further bolstered by the other “fingerprint provisions” of the concealed weapon licensing statute. For example, local law enforcement officials take the fingerprints in duplicate. One set is forwarded to the state police and the other is forwarded to the Federal Bureau of Investigation for comparison with fingerprints in the national repository of fingerprint records. Consequently, the point is to assure that an applicant is not able to obtain a concealed weapon license following criminal activity merely by moving across a county or a state line, rather than to indicate “state” status of the concealed weapon licensing boards through "substantial state involvement”. Therefore, the fact that the state police check each applicant’s fingerprints and provide the forms upon which the fingerprints are placed indicates nothing more than a rational system to assure a thorough review against state and national fingerprint records. It does not indicate that the board is a "state * * * board”. In addition to rejecting the plaintiffs asserted state-like characteristics, we note that the board also possesses several characteristics indicating that it is not a “state * * * board”. For example, the concealed weapon licensing boards have only limited local jurisdiction and can only grant a license to a person living within their jurisdiction. Therefore, while the concealed weapon license is honored throughout the state, the concealed weapon licensing boards’ licensing authority is limited to a local jurisdiction. Obviously, this is not a characteristic indicative of a "state. * * * board”. Additionally, the 83 concealed weapon licensing boards are entirely independent of one another. As such, they are not delineated subunits in a state system divided locally for administrative convenience. Again, such complete independence from one’s peer concealed weapon licensing boards is not a characteristic indicative of a "state * * * board”. Finally, the fee paid by the concealed weapon license applicant is paid to the local county clerk, a local elected official. Thereafter, 80% of the fee is retained by the local unit of government and only 20% is forwarded to the state. As with the other characteristics described above, this is not indicative of a "state * * * board”. Therefore, the characteristics of the board, when considered in their totality, are not those of a "state * * * board”. Rather than being indicative of a "state * * * board”, the characteristics of the board provide strong evidence that the board is not a "state * * * board”. Therefore, the first section of the analysis for determining whether the board is a "state * * * board” demonstrates that the board possesses many more non-state-like characteristics than it possesses state-like characteristics. b The second portion of the "state” status analysis requires the Court to consider the relationship between the board and the state. Obviously, we also consider the relationship between the board and the local units of government as the other side of this inquiry. As with the characteristics of the board, the plaintiff identifies several points of interaction between the board and the state from which the Court of Appeals found "substantial state involvement”. As with the plaintiffs presentation of state-like characteristics, the Court of Appeals adopted the plaintiffs argument that there was a significant relationship between the board and the state. The plaintiff first noted that the board is created by statute as indicative of a relationship between the board and the state. However, as demonstrated above in the characteristics analysis, the source of the authorization does not manifest any relationship between the state and the board since all boards ultimately are authorized through a grant of "state” power. The plaintiffs second asserted indication of a relationship between the board and the state is the board’s utilization of the state police to provide fingerprint forms and to check applicants’ fingerprints. Again, as indicated above in the characteristics analysis, we believe that this arrangement manifests only a common-sense approach to fingerprint checks. As such, it does not indicate a meaningful relationship between the board and the state. A third relationship identified by the plaintiff is the fact that the director of the Department of State Police sits as a member , of the concealed weapon licensing boards. Unlike the first two claims, the presence of a state official on the board does indicate a relationship between the board and an agency of state government. However, the relationship is not as significant as claimed by the plaintiff since the director of the Department of State Police does not sit solely as a representative of the state. Rather, as noted by the Court of Appeals in Gasta, supra, p 791, he is a member of the board because he is a law enforcement professional "able to assess community needs and problems in this area”. Therefore, the presence of a state police official is not indicative of a meaningful relationship between the board and the state. Rather, it is indicative of the Legislature’s intent to place concealed weapon licensing decisions in the hands of law enforcement professionals from both state and local government who would consider local factors. The plaintiff’s final point allegedly demonstrating that there is a relationship between the board and the state is that the board is one of 83 concealed weapon licensing boards throughout the state. While this fact may be indicative of the "state” function served by the board, see below, it is not relevant to the relationship between the board and the state. Nothing in the fact that concealed weapon licensing boards are systematically established throughout the state shows any present relationship between the board and the state. Consequently, we do not find that the points made by the plaintiff show a material relationship between the board and the state. Additionally, as in the relationship analysis, there are several relevant facts demonstrating the absence of a meaningful relationship between the board and the state. For example, there is no state agency or statewide authority responsible for monitoring the 83 concealed weapon licensing boards and no state agency or authority through which appeals must be taken, as with other state boards. Second, with the exception of the licensing of gas-ejecting devices, there is no official mechanism promulgating rules binding upon all concealed weapon licensing boards. See MCL 28.426a; MSA 28.94. Third, two of the three concealed weapon licensing board members are not subject to control or appointment by the state. The county prosecutor and the county sheriff are locally elected officials performing constitutionally designated tasks. As such, they are not subject to direct control or replacement by the state. Fourth, the "clerk” of the concealed weapon licensing boards is the county clerk, another locally elected official. Finally, each member of the concealed weapon licensing boards is free to appoint a deputy to sit on the concealed weapon licensing board in his stead without clearing that decision with any state agency or authority. This is clearly consistent with local autonomy rather than a meaningful relationship with the state. Therefore, the factors asserted by the plaintiff and the Court of Appeals to support their conclusion that there is a meaningful relationship between the board and the state is not supported by the facts they note. Moreover, several factors, not noted by either the plaintiff or the Court of Appeals, demonstrate the absence of a meaningful relationship between the board and the state, and indicate instead the presence of an overwhelming relationship between the board and local government. Therefore, the second portion of the analysis demonstrates that there is no meaningful relationship between the board and the state. c The final portion of the "state” status analysis requires that we consider the "function” of the board to determine whether it functions as a "state * * * board”. The plaintiff asserts that the board functions as a cog in a comprehensive statewide system to regulate the licensing of concealed weapons. In support of these assertions, the plaintiff notes that the purpose section of the concealed weapon licensing statute states that it is "to regulate and license the selling, purchasing, possessing, and carrying of certain firearms and gas ejecting devices” throughout the state. While an individual concealed weapon licensing board may have only limited local jurisdiction, the concealed weapon licensing boards work together as a comprehensive network for the purpose of statewide control of concealed weapons. There is no denying the fact that the concealed weapon licensing boards exist in every county in the state or that they exist to regulate concealed weapon licensing throughout the state. However, that does not amount to a "state” function. Rather, it is apparent that the Legislature has chosen to provide a uniform local mechanism for accomplishing its purpose. As the Court of Appeals noted in Gasta, supra, the concealed weapon licensing boards do not "function” as state boards. Rather, they "function” locally, with a majority of the concealed weapon licensing board members being local officials who exercise their discretion according to local considerations. Such are obviously not manifestations of a "state function”. Therefore, this analysis does not demonstrate that the concealed weapon licensing boards perform a state "function”. d Therefore, we conclude that the board is not a "state * * * board” subject to the provisions of the APA. Its characteristics, its relationship to the state, and its function all indicate that it is not a "state * * * board”. It is not, therefore, an "agency” subject to the provisions of the APA and cannot have violated the provisions of the APA. The Court of Appeals was in error in reversing the circuit court decision on those grounds. 2 Our conclusion that the board is not a "state * * * board”, upon the basis of its characteristics, its relationship to the state, and its function, is supported by the legislative history of the concealed weapon licensing statute. That legislative history indicates that the Legislature did not intend the board to be subject to the requirements of the APA. If the Legislature did not intend the board to be subject to the provisions of the APA, it certainly did not intend to create an entity meeting the "agency” definition of the APA. The Legislature’s intent is demonstrated by the following facts. First, the concealed weapon licensing statute contains its own procedural requirements by which the concealed weapon licensing boards are to revoke a concealed weapon license. These procedures are clearly stated in MCL 28.428; MSA 28.96: "The licensing board * * * may revoke any license issued by it upon receiving a certificate of any magistrate showing that such licensee has been convicted of violating any of the provisions of this act, or has been convicted of a felony. Such license may also be revoked whenever in the judgment of said board the reason for granting such license shall have ceased to exist, or whenever said board shall for any reasonable cause determine said licensee to be an unfit person to carry a pistol concealed upon his person. No such license shall be revoked except upon written complaint and then only after a hearing by said board, of which at least 7 days’ notice shall be given to the licensee either by personal service or by registered mail to his last known address. The clerk of said licensing board is hereby authorized to administer an oath to any person testifying before such board at any such hearing.” In stating the procedural requirements applicable to a concealed weapon licensing board’s revocation of a concealed weapon license, the Legislature chose language and requirements which do not parallel the language and requirements of the APA. In part, this is due to the fact that the language of MCL 28.428; MSA 28.96 predates the APA. However, the concealed weapon licensing statute, which was enacted in 1927 (1927 PA 372), has not been amended regarding the procedure for revoking concealed weapon licenses during the past 57 years. It has remained unaltered despite the passage of two administrative procedures acts applicable to state agencies in 1952 and 1969 which contained different procedural requirements, despite substantial amendment of other sections of the concealed weapon licensing statute in 1929 and continuing as recently as 1982, and despite the increasingly broad scope of administrative procedural requirements. Therefore, it must be assumed that the Legislature’s retention of explicit revocation procedures for concealed weapon licensing boards indicates that it does not consider the board to be subject to the provisions of the APA. If it is not subject to those provisions, it can only be because it is not a "state * * * board” within the meaning of the APA. Second, after the passage of the concealed weapon licensing statute with its own internal procedural requirements, the Legislature passed the APA in 1969. 1969 PA 306. The APA was made applicable to "state * * * boards”, but the Legislature made no reference to the concealed weapon licensing boards, which were subject to a different set of procedural requirements under MCL 28.428; MSA 28.96. This is consistent and logical if the Legislature did not perceive any conflict between the APA and the concealed weapon licensing statute because the concealed weapon licensing boards were not seen as "state * * * boards” subject to the provisions of the APA. Any other interpretation would necessarily be based upon an assumption that the Legislature knowingly created an implicit conflict or that it was unaware of the concealed weapon licensing statute’s revocation procedures. We see no reason to engage in such assumptions since the legislative action is adequately explained if the Legislature did not believe that the concealed weápon licensing boards were "state * * * boardfs]” subject to the provisions of the APA. Third, the Legislature twice amended the concealed weapon licensing statute in 1980. In the first amendment, 1980 PA 339, the Legislature required that the supervisor, commissioner, chief of police, or marshal approve each applicant. If such approval was not given, the supervisor, commissioner, chief of police, or marshal was required to give written notice to the applicant, and the concealed weapon licensing board was required to provide a hearing to review the refusal to approve the applicant. In requiring a hearing before the concealed weapon licensing board, the Legislature did not mention the APA or any of its provisions. However, in the second amendment, 1980 PA 345, the Legislature provided that the concealed weapon licensing boards were to issue licenses for gas-ejecting devices according to rules promulgated by the director of the Department of State Police pursuant to the APA. Both amendments were passed on the same day and yet only one mentions the APA. The logical inference to be drawn from these two amendments is that the APA is not generally applicable to the concealed weapon licensing boards. As above, if the APA is not applicable to the concealed weapon licensing boards, it is because the Legislature does not consider them "state * * * boards”. Finally, it is noteworthy that the 83 concealed weapon licensing boards have been required to comply with the provisions of MCL 28.428; MSA 28.96 for the past half-century but have not been previously required to comply with the provisions of the APA. Yet, the Legislature has seen no need to correct the perception that the concealed weapon licensing boards were not subject to the provisions of the APA passed in 1952 or 1969. At a minimum, the Legislature appears to have acquiesced in this interpretation which holds the concealed weapon licensing boards are not state agencies. Therefore, the legislative history of the concealed weapon licensing statute indicates that the Legislature does not intend that the concealed weapon licensing boards be subject to the provisions of the APA. This legislative history is consistent with the Court’s conclusions that the board is not a "state * * * board” subject to the provisions of the APA. Ill The judgment of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for consideration of the plaintiffs remaining due process claims. We do not retain jurisdiction. Williams, C.J., and Kavanagh, Levin, Brick-ley, Cavanagh, and Boyle, JJ., concurred with Ryan, J. MCL 28.426(1); MSA 28.93(1) provides that the "prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute boards exclusively authorized to issue a license to an applicant residing within their respective counties, to carry a pistol concealed on the person”. MCL 28.426(5); MSA 28.93(5) provides: "The application for a license shall state the reason or reasons for the necessity or desirability of carrying a pistol concealed on the person or a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the person applying for the license, and the license if issued, shall be restricted to the reason or reasons satisfactory to the board, which restriction or restrictions shall appear on the face of the license in a conspicuous place. The license shall be an authorization to carry a pistol in compliance with this section only to the extent contained in the face of the license and the license shall be revoked by the board if the pistol is carried contrary to the authorization.” (Emphasis added.) The plaintiff raised two specific objections based upon the requirements of the APA. First, the plaintiff asserted that the board’s final decision was deficient because it did not include findings of fact or a statement of underlying facts as required by MCL 24.285; MSA 3.560(185). Second, the plaintiff asserted that the board’s hearing was tainted because the board members had discussed the case with Officer Calcatera before he gave his testimony. The plaintiff claimed this to be in violation of MCL 24.282; MSA 3.560(182) which states: "Unless required for disposition of an ex parte matter authorized by law, a member or employee of an agency assigned to make a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except on notice and opportunity for all parties to participate”. In partial dissent, Judge F. X. O’Brien "would simply reverse the circuit court and reinstate plaintiffs license for the balance of its term”. Hanselman, supra, p 285. The plaintiff has not participated in this case in this Court. Therefore, we have relied upon his Court of Appeals pleading in ascertaining his argument and position. MCL 24.101(1); MSA 3.560(21.1X1), repealed and replaced by 1969 PA 306, MCL 24.203; MSA 3.560(103) and MCL 24.207; MSA 3.560(107), effective July 1,1970. A similar approach has been adopted by other courts. See, e.g., Green v Cowlitz County Civil Service Comm, 19 Wash App 210; 577 P2d 141 (1978), Westchester County v Rent Guidelines Bd, 71 AD2d 655; 419 NYS2d 6 (1979), and Riggins v Housing Authority, 87 Wash 2d 97; 549 P2d 480 (1976). See, e.g., Workers’ Compensation Appeal Board, MCL 418.251 et seq.; MSA 17.237(251) et seq.; State Tenure Commission, MCL 38.121; MSA 15.2021, MCL 38.131; MSA 15.2031; Liquor Control Commission, MCL 436.20; MSA 18.991.	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Markey, J. Defendant Scott Rutledge appeals by leave granted the circuit court’s order affirming the district court’s denial of defendant’s motion to dismiss charges of illegally possessing and consuming alcohol against nineteen-year-old defendant who after drinking alcohol legally in Canada returned to Michigan as a passenger in a vehicle and was charged with consuming and possessing alcohol in violation of MCL 436.1703(1). We reverse. On July 30, 2000, defendant was arrested as a minor illegally possessing and consuming alcohol in violation of MCL 436.1703(1). Defendant was a passenger in a vehicle that was stopped for speeding. After the driver of the vehicle was given a Breathalyzer test that indicated the driver had consumed alcohol, the police officers tested defendant, who also tested positive for alcohol consumption. In the district court, defendant moved to dismiss the charges, arguing that MCL 436.1703(1) was unconstitutionally vague and overbroad. For proposes of the motion, the court found that defendant drank legally in Canada, but determined that defendant violated the statute because he possessed alcohol in Michigan by having it in his body. After the motion to dismiss was denied, defendant conditionally pleaded guilty, subject to this appeal. On appeal to the circuit court, the court affirmed the district court, finding that defendant violated the statute because he “consumed alcoholic liquor in his body.” The circuit court also “suppose[d]” that defendant possessed alcohol by having it in his body in Michigan. Thereafter, this Court granted leave to appeal. In this case, we are asked to decide whether MCL 436.1703(1), the “minor in possession” statute, makes it a crime for a minor to have alcohol in his body when the alcohol was legally obtained and ingested in another jurisdiction. We conclude that it does not. MCL 436.1703(1) provides in relevant part: “A minor shall not purchase or attempt to purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, or possess or attempt to possess alcoholic liquor, except as provided in this section.” Generally, a state has jurisdiction only over offenses committed within the state’s physical borders. People v Blume, 443 Mich 476, 480; 505 NW2d 843 (1993), quoting People v Devine, 185 Mich 50, 52-53; 151 NW 646 (1915). It is a well-established rule that a sovereign state can exercise jurisdiction to punish a criminal offense only when the offense is committed in whole or in part in that sovereign state. No matter how closely an act is connected with the state, if all the criminal elements are done entirely outside a state’s boundaries, it cannot be punished by that state. [People v Kirby, 42 Mich App 97, 99; 201 NW2d 355 (1972) (citations omitted).] The exception to this general rule is “ ‘limited to those acts that are intended to have, and that actually do have, a detrimental effect within the state.’ ” Blume, supra at 480, quoting Strassheim v Daily, 221 US 280, 285; 31 S Ct 558; 55 L Ed 735 (1911). This Court need not determine whether the exception applies in this matter because the prosecutor asserts that defendant violated the statute not by possessing and ingesting alcohol in Canada, but by possessing and consuming the alcohol within his body after returning to Michigan. Defendant, on the other hand, urges this Court to construe the terms “consume” and “possess” as used in MCL 436.1703(1) to mean actual ingestion and possession of undigested alcoholic liquor. A statute is presumed to be constitutional and is so construed unless its unconstitutionality is readily apparent. People v Noble, 238 Mich App 647, 651; 608 NW2d 123 (1999). Before addressing the constitutionality of the statute, this Court “must examine alternative, nonconstitutional grounds that might obviate the necessity of deciding the constitutional questions.” VandenBerg v VandenBerg, 231 Mich App 497, 499; 586 NW2d 570 (1998). Although the constitutional issue is the only issue raised on appeal, this case can be decided solely on the basis of statutory construction. Whether conduct falls within the statutory scope of a criminal statute is a question of law that is reviewed de novo on appeal. Noble, supra at 658. This Court has discretion to grant different or further relief as the case requires. MCR 7.216(7). “Criminal statutes must be strictly construed, with each word interpreted according to its ordinary usage and common meaning.” Noble, supra at 659. Here, there is no allegation that defendant purchased alcoholic liquor in Michigan. Therefore, the case turns on the meaning of the terms “consume” and “possess.” Statutory construction begins by examining the plain language of the statute to discern and give effect to the Legislature’s intent. People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999). If the language is unambiguous, no further construction is required or permitted, and the statute must be enforced as written. Id. at 330. This Court may look outside the statute to ascertain the Legislature’s intent only where the language is ambiguous. Id. We conclude that the terms “consume” and “possess” are ambiguous as used in the “minor in possession” statute because they can be interpreted in more than one manner. Specifically, they can be construed narrowly to mean only physical control and ingestion, as defendant urges, or very broadly to mean metabolism and containment in the body, as proposed by the prosecutor. A provision is considered ambiguous when it is susceptible to more than one reasonable interpretation. Frame v Nehls, 452 Mich 171, 176; 550 NW2d 739 (1996). To determine the meaning of the terms, this Court should look to “[t]he fair and natural import of the terms employed, in view of the subject matter of the law . . . .” Morey, supra at 330. Neither “possess” nor “consume” is defined by the Michigan Liquor Control Code. We are unable to find any statutory definition of either term or any judicial definition of the term “consume.” The term “possession,” although not “possess,” has been judicially defined as encompassing both actual and constructive possession. People v Hill, 433 Mich 464, 470; 446 NW2d 140 (1989). A “person has constructive possession if there is proximity to the article together with indicia of control.” Id. The Hill case did not define actual possession. This Court may also examine dictionaiy definitions if the statute does not expressly define its terms. People v Gregg, 206 Mich App 208, 211-212; 520 NW2d 690 (1994). Black’s Law Dictionary (6th ed), p 1162, defines “possess” as: “[t]o occupy in person; to have in one’s actual and physical control; to have the exclusive detention and control of; to have and hold as property; to have a just right to; to be master of; to own or be entitled to.” Black’s Law Dictionary does not define “consume.” Random House Webster’s College Dictionary (1997), p 1017, defines “possess,” in part, as: “to have as belonging to one; have as property; own; ... to occupy or control . . . .” Random House defines “consume” as: “to destroy or expend by use; use up[;] ... to eat or drink up; devour.” Id. at 84. Moreover, to determine the meaning of the terms, this Court may look to the commonly accepted meaning of the words. Morey, supra at 330. “ ‘[T]he meaning of statutory language, plain or not, depends on context.’ ” People v Vasquez, 465 Mich 83, 89; 631 NW2d 711 (2001), quoting King v St Vincent’s Hosp, 502 US 215, 221; 112 S Ct 570; 116 L Ed 2d 578 (1991). Consistent with the dictionary definitions listed above, the commonly accepted meaning of “consume” as it relates to a beverage means to drink or physically ingest the beverage. For example, a per son would not say that he is still consuming milk an hour after having it at breakfast because the milk is still digesting in his body. Similarly, a person does not “possess” a beverage once it has been ingested and is digesting. One no longer has control over the beverage as it is digesting. Our conclusion is supported by applicable, albeit nonprecedential, case law from another jurisdiction. In State v Hornaday, 105 Wash 2d 120, 125-129; 713 P2d 71 (1986), the Washington court examined the meaning of the terms “consume” and “possession” in a minor in possession statute. The court determined that “possession” implied control over the substance and that once alcohol was within a person’s body, the person lost the power to control the alcohol. Id. at 125-126. The court also determined that “consume” is a present-tense term meaning to drink liquor. Consequently, it was improper to interpret “consume” as an ongoing process. Id. at 127-129. As further support for its conclusion, the court pointed to situations like the case at bar—a minor journeys to another jurisdiction where he can drink alcoholic beverages legally, yet upon return face prosecution simply for having the alcohol in his blood. Id. at 129. The court concluded that the “Legislature could not have intended such a result in those instances.” Id. 250 Mich App 1 Opinion of the Court [Feb The definition of “alcoholic liquor,” a defined term in the Michigan Liquor Control Code, also supports our conclusion. “Alcoholic liquor” means: [A]ny spirituous, vinous, malt, or fermented liquor, liquids and compounds, whether or not medicated, proprietary, patented, and by whatever name called, containing V2 of 1% or more of alcohol by volume which are fit for use for beverage purposes as defined and classified by the commission according to alcoholic content as belonging to 1 of the varieties defined in this chapter. [MCL 436.1105(2) (emphasis added).] In order for defendant’s conduct to violate the minor in possession statute, he had to consume or possess alcoholic liquor. MCL 436.1703(1). Defendant argues, and we agree, that once a person has ingested liquor, it is no longer “fit for use for beverage purposes” in accordance with MCL 436.1105(2). Therefore, as defendant sat as a passenger in the vehicle in Michigan, he did not consume or possess “alcoholic liquor.” We find further support for our determination from the language of the statute prohibiting persons from operating vehicles while under the influence of intoxicating liquor or controlled substances. MCL 257.625. The subsection of that statute pertaining to minors prohibits persons under the age of twenty-one from operating a vehicle if that person has any bodily alcohol content. MCL 257.625(6). “Any bodily alcohol content” is defined, in part, as: “Any presence of alcohol within a person’s body resulting from the consumption of intoxicating liquor, other than consumption of intoxicating liquor as part of a generally recognized religious service or ceremony.” MCL 257.625(6)(b). This statute demonstrates that the Legislature, when it wanted to do so, criminalized the mere presence of alcohol in a minor’s body as a result of the consumption of alcohol. This statute does not criminalize the consumption itself. In addition, the Legislature created an exception to the crime when the presence of alcohol in a minor’s body resulted from consumption of alcohol for religious ceremonies. “[W]hen this Court construes two statutes that arguably relate to the same subject or share a common purpose, the statutes are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates.” People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). In support of her very broad interpretation of the statute, the prosecutor argues that “consumption” goes beyond the single act of putting a substance in one’s mouth. The prosecutor asserts that the term “consumption” is defined by other courts as “the using up of everything.” The prosecutor cites Moore v Pleasant Hasler Constr Co, 50 Ariz 317, 329; 72 P2d 573 (1937), and Revzan v Nudelman, 370 Ill 180, 184; 18 NE2d 219 (1938). Both cases were tax cases that concerned who should pay the taxes on retail goods. Moore, supra at 319; Revzan, supra at 181-183. Although the prosecutor cites an apt definition of consumption in the context of a tax case, the cited definition of “consumption” does not comport with how the term is usually and reasonably used when referring to beverages. See Vasquez, supra at 89. We also note that the term “consumption” is not used in MCL 436.1703. The prosecutor also argues that the ultimate state of possession is to have the alcohol beverage within the body, and a properly administered Breathalyzer test indicates whether alcohol is present within a person’s body. As support for this argument, the prosecutor cites MCL 436.1703(5), which states in part: “The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor.” The prosecutor argues that this language indicates that the Legislature did not intend to limit the definition of possession to the mere act of physically holding or having within one’s control a container of alcohol. The prosecutor argues that if that were the intent, the results of a breath test would be completely irrelevant with respect to possession, and the Legislature would have limited the breath test results for use as evidence of consumption only. We disagree with this assertion; however, we do not dispute that a Breathalyzer test is admissible evidence regarding whether a minor defendant committed the crime of “minor in possession.” In most cases, in order to have alcohol in his body, a minor illegally purchased, possessed, or consumed alcohol within Michigan. Therefore, use of the breath test as evidence to determine whether the statute was violated is both appropriate and permitted by statute. MCL 436.1703(5). The distinction this Court is making is that a positive Breathalyzer test for alcohol is not a violation per se of the minor in possession statute, though it is for the statute prohibiting a minor from driving under the influence of alcohol. MCL 257.625(6). In this case, and in cases like this one, the crucial distinction is that the alcohol was legally purchased, possessed, and consumed in Canada. Therefore, the statute was not violated. We acknowledge that this interpretation may somewhat hinder police officers, particularly in areas of Michigan near Canadian borders, attempting to enforce the “minor in possession” statute. Because, however, the statute makes specific conduct criminal, it must be strictly construed. Noble, supra at 659. We conclude that minors who legally ingest alcohol in a jurisdiction outside Michigan and then return to Michigan (e.g., as passengers in a vehicle) with the alcohol in their bodies have not violated the minor in possession statute. If the Legislature intended to criminalize this conduct, it could easily have done so or can amend the statute to include it. People v Babcock, 244 Mich App 64, 78; 624 NW2d 479 (2000). In light of our disposition above, we need not reach defendant’s constitutional claim that the statute is vague and overbroad. We reverse. Griffin, P.J., concurred. It appears that the prosecutor does not dispute that defendant purchased and drank the alcohol in Canada. In her appellate brief, the prosecutor states that she “concurs with the basic information set forth in the Appellant’s Statement of Facts.” According to defendant-appellant’s statement of facts, which has been adopted by the prosecutor, it is unequivocally stated that “[ajppellant did not consume alcoholic beverages in the State of Michigan.” Because the prosecutor has not raised an issue of fact and has not requested a remand, we conclude that a remand is unnecessary. MCL 436.1101 et seq. It appears that Homaday was superseded by statute as stated in State v Preston, 66 Wash App 494, 497-498; 832 P2d 513 (1992), aff'd 22 Wash 2d 553; 859 P2d 1220 (1993). 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Gage, P.J. This case joins the legion of published opinions that interpret Michigan’s no-fault act because it involves yet another novel factual wrinkle to which neither this Court nor the Michigan Supreme Court previously has applied the law. This Court granted defendant’s delayed application for leave to appeal to resolve the primary question in whom should rest legal title to modified living quarters that defendant intends to prepare to accommodate plaintiff’s medical condition. Defendant challenges the trial court’s partial summary disposition order that awarded plaintiff title to the specialized accommodations and the court’s award of no-fault penalty interest to plaintiff. Plaintiff cross appeals the trial court’s determination of the amount of uncoordinated personal protection insurance (pip) benefits owed by the defendant. We affirm. i Plaintiff is a retired employee of the United States Post Office. In June 1996, plaintiff was involved in a motor vehicle accident that caused him very serious injuries, including quadriplegia. At the time of the accident, defendant was plaintiff’s insurer under the no-fault act, MCL 500.3101 et seq. On June 9, 1997, plaintiff filed the instant suit, alleging that defendant unreasonably refused to pay plaintiff all pip benefits that it owed him. At the time of his accident, plaintiff owned a split-level house near Greenville, Michigan. Plaintiff, however, did not return to his house after the accident, because of his restriction to a wheelchair and limited ability to control his upper extremities. Plaintiff spent months recovering in hospitals in Grand Rapids after the accident, then entered a long-term care program in which he spent approximately one year. At the time of trial, he resided in a Grand Rapids area apartment. Plaintiff expressed to defendant his desire to return to his house. On June 1, 1998, the parties stipulated that defendant would evaluate plaintiff’s housing needs and “submit a proposal to the Plaintiff for his review and approval providing for either the modification of his existing residence in Greenville, Michigan, or the purchase or construction or [sic] an appropriate . . . residence in Greenville area.” A home remodeling company estimated that to renovate plaintiff’s house to accommodate his medical conditions would cost approximately $178,000. In light of this estimate, defendant declined to renovate plaintiff’s house, instead suggesting that it would rather purchase and renovate a ranch-style house. On January 7, 1999, plaintiff filed a motion for partial summary disposition pursuant to MCR 2.116(C)(9) (no valid defense) and (10) (no issue of material fact), seeking resolution of a dispute regarding whether plaintiff or defendant should retain title of whatever house defendant prepared for plaintiff’s use. Plaintiff also sought summary disposition with respect to defendant’s reimbursement of certain of plaintiff’s medical expenses that Blue Cross & Blue Shield of Michigan (bcbsm), plaintiff’s health insurer, partially had paid. Regarding the house, plaintiff claimed that the no-fault act obligated defendant to provide him reasonable accommodation for his medical conditions and that to permit defendant to retain title to a house that defendant purchased and renovated would constitute a windfall for defendant because defendant eventually could sell the house, thus profiting from plaintiff’s catastrophic injury. Concerning medical expenses, specifically those plaintiff incurred between July 1996 and early 1997 at Mary Free Bed Hospital (mfbh), plaintiff argued that his policy with defendant required that defendant pay him uncoordinated medical benefits, specifically the full amounts charged for services by mfbh, $163,266.28, not the lesser amounts that bcbsm negotiated as payments in full, $ 84,099.89. Defendant responded by filing its own motion for summary disposition pursuant to MCR 2.116(C)(10). Regarding housing, defendant contended that as a matter of law, pursuant to MCL 500.3107 and the public policy underlying the no-fault act to minimize expenses, plaintiff was entitled to only a life estate interest in any house that defendant purchased and renovated to accommodate his medical needs. With respect to medical expenses, defendant acknowledged plaintiff’s entitlement to its payment of uncoordinated medical expenses, but asserted that its payment obligation was limited to the amounts that BCBSM had paid in satisfaction of plaintiff’s health providers’ charges. At the conclusion of the January 14, 1999, hearing regarding the motions, the trial court explained as follows its view regarding the property ownership issue: As far as the life estate is concerned, I can see a lot of practical problems which would make in this case, having a life estate an unreasonable situation for [plaintiff] to deal with. The maintenance problems, the question of whether it’s a question of maintenance, improvement, or repair, it’s going to be there for every thing. He has a house there. It benefits the people for having a claim of ownership so I think he’s entitled to have a residence that is modified to fit his circumstances in which he has the ownership because he currently has an ownership in a residence. I don’t think he’s entitled to have two residences so if there’s a new house purchased or another house built, he should have the fee title in that but he will give up his title in his existing home for it. I think his circumstances are distinguishable from the Kitchen [v State Farm Ins Co, 202 Mich App 55; 507 NW2d 781 (1993)] case, partly from his age, partly from the fact that no other family members are living there. In fact, he currently owns a house and knows the benefits of ownership and I can see somebody who has had that, would not want to lose that right. In addition, I think it would be unreasonable to deal with all the repairs, improvements, and maintenance problems that could occur after this is resolved [if defendant maintained title to the property]. The court also concluded that defendant should pay plaintiff uncoordinated benefits limited to the reasonable amounts that bcbsm paid plaintiff’s health care providers and that defendant should pay some amount of statutory and penalty interest on these amounts. On May 24, 1999, plaintiff moved for a determination regarding the amounts of interest that defendant owed. Defendant had paid plaintiff uncoordinated benefits amounting to $84,099.89 on January 28, 1999, but had not yet made any payments of interest. On June 3, 1999, the trial court ordered that pursuant to MCL 600.6013(5) defendant owed plaintiff $17,462.18 in prejudgment interest and that pursuant to MCL 500.3142(3) defendant had to pay plaintiff $14,801.57 in penalty interest accruing from August 17, 1997. n Defendant contends that to best serve the no-fault act goals of providing plaintiff’s necessary accommodations and containing no-fault insurance costs, the trial court’s grant of summary disposition should have ordered that plaintiff possess only a life estate in any house that defendant purchases and remodels. According to defendant, “payment for the purchase or construction of a home for the benefit of the insured in which legal title to the home is held by the insured is not payment of any ‘expense’ ” under MCL 500.3107, but the creation of an asset for the insured. This Court reviews de novo a trial court’s grant of summary disposition. Old Kent Bank v Sobczak, 243 Mich App 57, 61; 620 NW2d 663 (2000). Plaintiff requested summary disposition pursuant to MCR 2.116(C)(9) and (10), but the trial court did not express under what subrule it deemed summary disposition appropriate. Because the material facts in this case are undisputed, and because the trial court’s order granting partial summary disposition interpreted as a matter of law whether MCL 500.3107(1)(a) permitted plaintiff to obtain title to the house defendant intends to refurbish for him, the trial court apparently granted summary disposition pursuant to MCR 2.116(C)(10). Bingham Twp v RLTD R Co, 463 Mich 634, 641; 624 NW2d 725 (2001). A The no-fault act governs the relationship between the parties. The overall goal of the no-fault insurance system is to provide accident victims with assured, adequate, and prompt reparations at the lowest cost to both the individuals and the no-fault system. Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996). The provision of the no-fault act at issue, MCL 500.3107(1), states in relevant part as follows: [PJersonal protection insurance benefits are payable for the following: (a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation. To be reimbursed for an “allowable expense” under MCL 500.3107(l)(a), a plaintiff bears the burden of proving that (1) the charge for the service was reasonable, (2) the expense was reasonably necessary and (3) the expense was incurred. Spect Imaging, Inc v Allstate Ins Co, 246 Mich App 568, 574; 633 NW2d 461 (2001). The no-fault act does not address with specificity to what extent an insurer must supply an insured accommodations in the form of housing. The language of the act focuses on reasonableness, requiring that the insurer pay for “all reasonable charges incurred for reasonably necessary . . . accommodations.” MCL 500.3107(l)(a) (emphasis added). Neither party disputes that the cost involved in defendant’s purchase and renovation of a house to suit plaintiff’s postaccident needs constitutes a reasonable charge for accommodations reasonably necessary to provide for plaintiff’s care and recovery. Accordingly, MCL 500.3107(l)(a) plainly requires that defendant shoulder the involved expenses pursuant to its contract with plaintiff. See Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499, 510-512; 370 NW2d 619 (1985), in which this Court noted, in a case involving the no-fault insured’s apartment rental expenses, that “[a]s long as housing larger and better equipped is required for the injured person than would be allowed if he were not injured, the full cost is an ‘allowable expense’ ” under MCL 500.3107(1)(a). The limited question in this case concerns whether defendant’s provision of title in plaintiff’s name likewise qualifies as a reasonable charge reasonably necessary for plaintiff’s care. We find that in this case, for several reasons, having title of the furnished house be in plaintiff’s name constitutes a reasonable charge reasonably necessary for plaintiff’s care. We first note defendant’s refusal to consider plaintiff’s strong and expressed desire to remain in and maintain ownership of the house that he currently owns, as he did before his accident. Had defendant entertained plaintiff’s wish that it remodel the house that he currently owns, plaintiff clearly would have retained title to his remodeled home. We further observe that to remain the owner of whatever altered accommodations defendant provides, plaintiff has averred his willingness to give up ownership in his current split-level house and contribute the amount of his equity toward defendant’s presumably less costly alternative suggestion to purchase and renovate an existing ranch house. Plaintiff’s agreement to defendant’s alternative proposal and to contribute his existing equity of approximately $20,000 assists defendant in achieving the objectives of the no-fault act, to provide required benefits at the lowest cost to the system. Celina Mut, swpra at 89. Under these circumstances, were defendant likewise permitted to retain legal title to the renovated ranch house while granting plaintiff only a life estate interest, we could characterize the outcome of this case only as manifestly unreasonable. Defendant’s possession of legal title to the renovated house would entitle it to sell the property when plaintiff died, likely enabling defendant at least to recoup its investment in the house or earn a profit. Thus, if defendant retained ownership of and sold the property, defendant would receive a windfall by being reimbursed for, and effectively avoiding, its statutory and contractual obligation to compensate plaintiff for his reasonably necessary reasonable medical expenses. We reiterate that we find unreasonable under MCL 500.3107(l)(a) defendant’s refusal to renovate plaintiff’s existing house and its refusal at the same time to deny plaintiff an ownership interest in the cheaper-to-renovate ranch house, at least in this case in which plaintiff remains willing to contribute to defendant the equity existing in his current house. Under the undisputed and unique circumstances of this case, we conclude that defendant’s conveyance of title to the renovated ranch house to plaintiff, in exchange for plaintiff’s contribution of his existing equity in his house to defendant, as a matter of law qualifies as a “reasonable charge[] incurred for reasonably necessary . . . accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(l)(a). See also Nasser v Auto Club Ins Ass’n, 435 Mich 33, 55; 457 NW2d 637 (1990) (noting that while the question whether expenses are reasonable and reasonably nec essary is generally one of fact for the jury, if it could be said with certainty that an expense was both reasonable and necessary, the court could make this decision as a matter of law). B Both before the trial court and on appeal, the parties have disputed the significance of this Court’s opinion in Kitchen, supra, with respect to this case, which matter we now briefly address. In Kitchen, a motor vehicle accident rendered the plaintiffs’ six-year-old child, Elisha, a quadriplegic. In light of a doctor’s determination that Elisha required special long-term housing accommodations, her parents and the defendant, their no-fault insurer, stipulated that the defendant would pay $17,332 toward purchasing four lots to be used as the site of a suitable new house and $239,782.41 toward the construction of the house, while the parents would contribute $68,561.41 for the construction of the new house. The trial court subsequently determined that legal title to the new house would be held by an independent neutral corporate trustee that would hold the property in trust for Elisha during her lifetime. Id. at 57. The trial court further ordered that (1) despite their intention to reside in the new house with Elisha, the parents did not have to contribute the existing equity in their present house toward the purchase of the new house, (2) the parents and the defendant would pay insurance and property taxes on the new house pro rata according to the proportions of their contributions toward the purchase of the house, (3) the parents would pay for all utilities and maintenance charges while they resided in the new house, after which such costs would become the defendant’s obligation, and (4) in the event that Elisha ever failed to reside in the new house for 180 consecutive days, the house could be sold and the net proceeds of the sale divided between the parents and the defendant proportionate to their respective contributions toward the purchase of the house. Id. at 57-58. The parents on appeal argued that Elisha should possess title to the new house because the house constituted a reasonable accommodation under MCL 500.3107(l)(a) for which the defendant was responsible. Kitchen, supra at 58. This Court disagreed, explaining as follows: It is undisputed that the new house will provide reasonable and proper accommodations to Elisha, as required by MCL 500.3107(l)(a) . . . , and in addition will house the Kitchen family. As defendant notes, however, no one has ever suggested that it is necessary for Elisha’s care that she hold legal title to the home in which she lives. We agree with defendant that as long as it satisfies its statutory obligation to pay for all reasonable charges incurred for those products, services, and accommodations reasonably necessary to meet Elisha’s needs, defendant should be allowed to choose the least expensive adequate means of providing those items. This is completely consistent with the goal of the no-fault insurance system, xohich is to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses at the lowest cost to both the individual and the no-fault insurance system.... Ordering that Elisha have a life estate in a home that provides her with the necessary accommodations to meet her reasonable needs satisfies the requirements of MCL 500.3107(l)(a) .... Declining to award Elisha unencumbered legal title to a home in which defendant has a quarter-million-dollar investment simultaneously operates as a cost-containment measure that benefits the no-fault insurance system. Because both Elisha’s needs and the goals of the no-fault act are met by holding the property in trust for Elisha during her lifetime, we find no error in the trial court’s order. [Id. at 58-59 (emphasis added).] Defendant suggests that by analogy, plaintiff should only receive a life estate interest in whatever house it renovates for him. We observe, however, that this Court in Kitchen did not proclaim that in every case in which an insurer builds or renovates a house for an injured insured the insured is entitled to only a life estate while the insurer retains legal title to the property. Significant differences exist between Kitchen and the instant case. Unlike this case, in Kitchen the injured insured party was a minor child and the minor’s parents did not give up their equity in their existing house. Id. at 57. Furthermore, it appears that the trial court in Kitchen ordered that an independent corporate trustee hold legal title to the newly constructed house because of the minor’s age and because the minor’s parents and the insurer disputed the extent of their respective ownership interests in the property. Moreover, in regard to defendant’s contention that pursuant to Kitchen it is entitled to choose the least expensive adequate means of providing plaintiff suitable housing, we emphasize that defendant already has been afforded this option—defendant declined to renovate plaintiff’s existing house in favor of the more cost-effective renovation of a ranch house. Accordingly, we conclude that the trial court properly resolved the house ownership issue. m Defendant next argues that the trial court incorrectly awarded plaintiff penalty interest pursuant to MCL 500.3142(2), which provides in relevant part as follows: Personal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Any part of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. [Emphasis added.] Penalty interest must be assessed against a no-fault insurer if the insurer refused to pay benefits and is later determined to be liable, irrespective of the insurer’s good faith in not promptly paying the benefits. Davis v Citizens Ins Co of America, 195 Mich App 323, 328; 489 NW2d 214 (1992). No-fault penalty interest is intended to penalize an insurer that is dilatory in paying a claim. Attard v Citizens Ins Co of America, 237 Mich App 311, 319; 602 NW2d 633 (1999). This Court reviews for clear error a trial court’s finding whether a communication qualifies as reasonable proof of the fact or amount of a claim. Sharp, supra at 516-517. The pip benefits that formed the basis of the trial court’s award of penalty interest stemmed from medical services that plaintiff received while at mfbh. The billing documents within the record indicate that plaintiff received services at mfbh from July 1996 through late November 1996. The trial court determined that interest under MCL 500.3142(2) began to accrue on August 17, 1997. On July 17, 1997, plaintiff mailed defendant a letter and a statement he had received from mfbh. Although the lower court record does not contain a copy of the statement, defense counsel acknowledged at the June 3, 1999, hearing concerning the interest issue that the mfbh statement accompanying plaintiff’s July 17, 1997, letter reflected that bcbsm had paid approximately $117,000 charged by mfbh, leaving an outstanding balance of $6,736.25. At the interest hearing, plaintiff’s counsel explained that his July 17 letter requested that defendant pay only $6,736.25 because plaintiff then did not know that defendant’s policy with plaintiff provided for uncoordinated benefits. Defendant asserts that it had no obligation to pay for any medical services charged by mfbh until plaintiff provided defendant specific proof of the exact and correct amounts that defendant was obligated to pay. Defendant suggests that no such specific proof arrived until plaintiff mailed it a November 2, 1998, letter and over twenty pages of BCBSM explanation of benefits forms, indicating that bcbsm had paid mfbh approximately sixty percent of $147,000. Defendant does not dispute its awareness of the fact of plaintiff’s loss, specifically that from July through November 1996 plaintiff incurred various medical expenses at mfbh. Furthermore, it appears undisputed that plaintiff’s July 17, 1997, letter reflected that the mfbh bill for the services it provided totaled approximately $124,000, roughly $117,000 paid by bcbsm and $6,736.25 to be paid by defendant. Defendant, the author of its policy with plaintiff, presumably was aware at the time it received plaintiff’s July 17 letter that it had to pay plaintiff uncoordinated benefits, duplicating those paid by BCBSM, and has not challenged during this litigation its obligation to pay uncoordinated benefits. Under these circumstances, we cannot conclude that the trial court clearly erred in finding that plaintiff’s July 17, 1997, letter and the accompanying statement from mfbh constituted “reasonable proof of the fact and of the amount of loss sustained” as contemplated by MCL 500.3142(2). See Sharp, supra at 516-517. We reject defendant’s suggestion that it need not have paid plaintiff any benefits until plaintiff requested the exact amount of money that defendant owed. The statute requires only reasonable proof of the amount of loss, not exact proof. MCL 500.3142(2). Once plaintiff armed defendant with the information from mfbh containing a total amount billed and an amount paid by BCBSM, defendant, if it had desired to challenge or investigate the amount purportedly paid by bcbsm, could have and should have conducted some investigation of its own during the thirty-day legislative grace period to establish a lesser amount of uncoordinated benefits owed. Our adoption of defendant’s proposed interpretation of MCL 500.3142(2) would contravene the purpose of the no-fault act to provide accident victims with assured, adequate, and prompt reparations by permitting an insurer to ignore definite but inexact claims. See Celina Mut Ins, supra at 89. Accordingly, we affirm the trial court’s imposition of no-fault penalty interest. IV We lastly address plaintiff’s argument on cross appeal that the trial court incorrectly calculated the amount of uncoordinated medical benefits that defendant had to pay by ignoring the full amounts mfbh charged for plaintiffs medical services and instead limiting defendant’s liability to the lesser amounts that mfbh accepted as payment in full for these services from BCBSM. In Bombalski v Auto Club Ins Ass’n, 247 Mich App 536; 637 NW2d 251 (2001), this Court recently decided the exact issue that plaintiff raises. As in this case, the plaintiff in Bombalski was eligible to receive uncoordinated payments of his medical benefits by his no-fault insurer. The defendant no-fault insurer acknowledged the plaintiff’s entitlement to uncoordinated pip benefits for his medical expenses in addition to the medical care coverage he had received from BCBSM, his health insurer, but suggested that the amount that plaintiff could receive in uncoordinated benefits was limited to the amounts that his health care providers had accepted from bcbsm as payment in full for the health care services they provided. Id. at 539. This Court held that under MCL 500.3107(l)(a) the plaintiff could recover no-fault benefits only to the extent that he had incurred charges for reasonably necessary services: This Court in Shanafelt [v Allstate Ins Co, 217 Mich App 625, 636-638; 552 NW2d 671 (1996)], addressed the defendant’s arguments that certain medical expenses were never incurred as contemplated by subsection 3107(l)(a). The Court noted that Random House Webster’s College Dictionary (1995) defined “incur” as “ ‘to become liable for.’ ” Shanafelt, supra at 638. See also Black’s Law Dictionary (7th ed), p 771, which similarly defines “incur” as “[t]o suffer or bring on oneself (a liability or expense).” The Court rejected the defendant’s suggestion that the plaintiff never incurred medical expenses because the plaintiff’s health insurer directly paid her medical bills. Shanafelt, supra at 636-637. After quoting the dictionary definition of incur . . . the Court reasoned that “[ojbviously, plaintiff became liable for her medical expenses when she accepted medical treatment.” Id. at 638. Plaintiff submits that he likewise became liable for the amounts charged by his health care providers when he accepted their services and that consequently he incurred the full amounts charged. Plaintiff’s claim does not persuade us, however, because plaintiff overlooks the significance of “liable,” which means “[Responsible or answerable in law; legally obligated.” Black’s Law Dictionary, supra at 927. The satisfaction of plaintiff’s medical bills by bcbsm through payment of less than the amounts charged by the providers relieved plaintiff of any responsibility or legal obligation to pay the providers further amounts exceeding those proffered by bcbsm and accepted by plaintiff’s health care providers. Because plaintiff bears no liability for the full medical service amounts initially charged by his health care providers, he has not incurred these full charges. [Bombalski, supra at 542-543 (emphasis in original).] In this case, plaintiff seems to acknowledge that he owes no outstanding amounts to mfbh for the services it provided and that, pursuant to its contractual agreement with bcbsm, mfbh accepted the reimbursement amounts that bcbsm offered as payment in full for the services that mfbh provided. Consequently, plaintiff did not incur the full amounts billed by mfbh and is not entitled to a further recovery from defendant of the difference between the full amounts that mfbh billed for its services and the lesser amounts that mfbh accepted from BCBSM as payment in full. Bombalski, supra at 543. We conclude that the trial court properly calculated the amount of uncoordinated no-fault benefits to which plaintiff was entitled. Affirmed. Bcbsm apparently paid many of plaintiffs medical bills despite that its policy with plaintiff provided that his no-fault carrier had primary responsibility for automobile-related injuries. We note that the record contains no indication whatsoever exactly how much money defendant might save by pursuing its proposed course of action. At the time of the oral arguments in this case, defendant apparently had not yet purchased or begun altering an appropriate house. We do not disagree with the trial court’s suggestion that were plaintiff unwilling to sell his current house and contribute his equity toward the purchase and renovation of a ranch house, it might be unreasonable to demand that defendant provide plaintiff legal title to the alternate living space. We note briefly our rejection of defendant’s further characterizations of the trial court’s ruling as unfair. Defendant views as unfair the fact that the “trial court’s ruling ... will result in all manner of anomalous and arbitrary results all based on the fortuity of the amount of equity that a given insured would have in his or her home.” We fail to comprehend, however, what arbitrary results defendant imagines. An insurer’s payment of different amounts in each case for an insured’s reasonably necessary alternate accommodations according to the amount of the insured’s existing equity does not appear arbitrary but measured by a specific, easily ascertainable amount, namely, the insured’s existing equity. To the extent that defendant suggests that adhering to the trial court’s logic will require insurers “to purchase or construct a home for the benefit of” “those insureds who do not own homes at the time of their motor vehicle accidents,” we find it plain that our affirmance of the trial court’s decision would not necessarily signify that under MCL 500.3107(l)(a) an insurer would be required to build or purchase and renovate a house and give title to the insured whenever any insured required special long-term accommodations because of a motor vehicle accident. In different cases involving insureds who had not owned a house before the accident or who did own a house before the accident but did not wish to give up ownership of their existing house, different results plainly would obtain according to what constituted reasonable charges in those cases. We repeat that in this case the parties do not dispute that defendant’s preparation of a house to accommodate plaintiff’s postaccident medical conditions constitutes an appropriate, reasonably necessary expense under MCL 500.3107(lXa), and defendant does not appear to challenge the reasonableness of plaintiff’s desire to retain ownership of a house. In light of our conclusion, we need not address plaintiff’s argument on cross appeal that “[i]n the event that this Court should overturn the Trial Court’s decision with regard to legal title of a new home, it is essential that Plaintiff’s right to a reasonably necessary renovation at his original home ... be determined as an allowable expense under the No-Fault Act.” Plaintiffs November 2 letter stated that “even though Mary Free Bed may show that Blue Cross/Blue Shield paid $147,000, in actuality they only paid about 60% of that.” Plaintiff sent two other letters mentioning the mfbh charges. On October 22, 1997, plaintiff mailed defendant a letter expressing his understanding that his policy with defendant entitled him to receive uncoordinated no-fault benefits. Plaintiff indicated that he would “begin conducting an audit of all medical expenses incurred . . . since [the] accident,” which he believed that defendant likewise would accomplish, but that his “limited records show that Blue Cross paid at least $117,000 to Mary Free Bed (see attached statement) and I suspect that Blue Cross has probably paid in total twice that amount.” On May 7, 1998, plaintiff mailed defendant another letter reiterating his understanding that defendant would pay him uncoordinated medical benefits. This letter stated that according to mfbh billing records, bcbsm had paid $144,994.61 ($27,508.34 for services plaintiff received from July 5 through July 24, 1996, and $117,486.27 for services plaintiff received from July 26 through November 6, 1996).	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Per Curiam. In this action based on a grievance filed protesting defendants’ termination of plaintiff Gordon Best’s employment, plaintiffs appeal as of right from an order of the circuit court vacating the arbitrator’s award reinstating Best. We reverse and remand. The underlying facts are not in dispute. Best was employed by the Manistee County Sheriff as a corrections officer and was assigned to work at the Manistee County Jail. Defendant Edward A. Haik, the Manistee County Sheriff, fired Best on June 4, 1998, for three alleged violations of department rules and regulations. The terms and conditions of Best’s employment were governed by a collective bargaining agreement (hereinafter the agreement) between defendants and plaintiff Police Officers Association of Michigan (poam), of which Best is a member. On Best’s behalf, poam sought reinstatement of Best through the three-step grievance procedure set forth in the agreement. Not satisfied with the outcomes of the first two steps, on April 8, 1999, poam submitted the matter to arbitration, which is the third and final step of the grievance procedure. The arbitrator concluded that Best had violated department rules and regulations in the ways alleged. However, while concluding that Best’s conduct “constituted just cause for severe disciplinary action,” the arbitrator concluded that “persuasive mitigating factors” warranted a reduction in the penalty from termination to a long-term suspension. The arbitrator ordered that Best be reinstated without back pay or benefits and with his seniority intact. Best was not reinstated, and on January 3, 2000, plaintiffs filed their complaint to enforce the arbitration award. Defendants filed a countercomplaint, seeking to vacate the arbitration award, followed by a motion for summary disposition. The court rejected plaintiffs’ action and reversed the arbitrator’s award, reasoning as follows: This Court is of the opinion that the arbitrator in this case clearly exceeded his authority and supplied his own brand of “industrial justice” in the arbitration award below. The arbitrator found that grievant Best had violated the policy provisions alleged by the sheriff to the extent that the security of the jail was jeopardized, including the safety of inmates and sheriffs employees as well as the public. Further, the arbitrator found that such violations constituted “just cause” for severe disciplinary actions. Consequently, the sheriff had “just cause” to discharge grievant Best. By reducing the disciplinary action, the arbitrator exceeded his authority in contravention of section 5.4(B) of the collective bargaining agreement and substituted his own view for the discretion reserved to the sheriff under section 9.1(G) of the collective bargaining agreement. “[W]hen considering the enforcement of an arbitration award, [this Court’s] review is narrowly circumscribed.” Lenawee Co Sheriff v Police Officers Labor Council, 239 Mich App 111, 117; 607 NW2d 742 (1999). The necessary inquiry for this Court’s determination is whether the award was beyond the contractual authority of the arbitrator. Labor arbitration is a product of contract and an arbitrator’s authority to resolve a dispute arising out of the appropriate interpretation of a collective bargaining agreement is derived exclusively from the contractual agreement of the parties. It is well settled that judicial review of an arbitrator’s decision is limited. A court may not review an arbitrator’s factual findings or decision on the merits. Rather, a court may only decide whether the arbitrator’s award “draws its essence” from the contract. If the arbitrator in granting the award did not disregard the terms of his employment and the scope of his authority as expressly circumscribed in the contract, judicial review effectively ceases. [Lincoln Park v Lincoln Park Police Officers Ass’n, 176 Mich App 1, 4; 438 NW2d 875 (1989) (citation omitted).] “[W]hile the powers of an arbitrator are not unlimited, his awards should be upheld so long as he does not disregard or modify plain and unambiguous provisions of a collective bargaining agreement.” General Telephone Co of Ohio v Communications Workers of America, AFL-CIO, 648 F2d 452, 457 (CA 6, 1981). In Monroe Co Sheriff v Fraternal Order of Police, Lodge 113, 136 Mich App 709, 718-719; 357 NW2d 744 (1984), this Court stated: Federal courts have taken the view that an arbitrator to whom a claim of discharge without just cause is submitted may, in the absence of language in the collective-bargaining agreement clearly and unambiguously to the contrary, determine that, while the employee is guilty of some infraction, the infraction did not amount to just cause for discharge and impose some less severe penalty. An arbitrator’s imposition of a less severe penalty is without authority and contrary to the terms of the collective-bargaining agreement where the agreement clearly reserves to the employer, without being subject to review by an arbitrator, the power to discharge for the infraction found by the arbitrator to have been committed. We adopt this approach as our own. [Citations omitted.] There is no language in the agreement at hand that “clearly and unambiguously” states that the arbitrator cannot determine that while Best was guilty of some infractions, the infractions did not constitute just cause for discharge. Accordingly, defendants’ reliance on Lenawee is misplaced. In Lenawee, the Court’s conclusion that the arbitrator in that case had acted beyond his granted authority was based in part on “an express provision of the collecting bargaining agreement that mandates discharge” under the circumstances of that case. Lenawee, supra at 120. In the case at hand, there is no specific provision in the agreement mandating that an employee be discharged if the arbitrator finds that the employee committed the alleged violations of the agreement. Further, while § 9.1(F) of the agreement reserves to the sheriff “the right to make reasonable rules and regulations,” there is nothing in the language of the rules cited by the arbitrator as having been violated that mandates discharge under these circumstances. Section 9.1(G) of the agreement reads in pertinent part: [Poam] recognizes the Employer as the proper party to perform the usual and historical functions of management and that it must have the maximum freedom to manage consistent with the terms and provisions of this Agreement and . . . that some of these usual and historical functions are: * * * G. To direct generally the work of the employees, subject to the terms and conditions of this Agreement, including the right to hire, to discharge, to demote, to suspend or otherwise discipline employees for just cause .... This language acknowledges that discipline can take many forms, including discharge, demotion, and suspension. In context, the just cause requirement set forth relates to all the potential forms of discipline. Thus, there is not just one “just cause” analysis that the arbitrator is empowered to make. Rather, an arbitrator is given the authority to determine if the violations amount to “just cause for discharge,” or “just cause for demotion,” or “just cause for suspension,” or “just cause for any other form of discipline.” In other words, the agreement gives the arbitrator the authority to determine if there exists a “just cause for discipline” and, if so, the level of discipline appropriate. Further, because “just cause for discipline” is not defined, the arbitrator is not bound to consider only the violations themselves. See Bloomington v Local 2828 of the American Federation of State, Co & Municipal Employees, 290 NW2d 598, 602 (Minn, 1980) (“By failing to specifically define what acts constitute just cause for discharge, . . . the parties left the decision to the arbitrator.”). Logically flowing from the authority to give meaning to the phrase “just cause for discipline” is the authority to consider, when fashioning a remedy, all circumstances that may be probative of a party’s intent and the likelihood that the wrongful behavior would be repeated. We hold this includes the ability to consider any mitigating factors. Thus, the arbitrator was free under the agreement to conclude that while Best’s misconduct served as just cause for discipline, it did not amount to just cause for discharge. The arbitrator was also empowered to fashion an appropriate level of discipline for the violations found. Id. at 603 (observing that “the power to fashion a remedy is a necessary part of the arbitrator’s jurisdiction unless withdrawn from him by specific contractual language between the parties or by a written submission of issues which precludes the fashioning of a remedy”). The trial court equated a finding of “just cause for discipline” with a finding of “just cause for discharge.” The interpretation of the agreement was not within the proper scope of the court’s review. See United Steel Workers of America v Enterprise Wheel & Car Corp, 363 US 593, 599; 80 S Ct 1358; 4 L Ed 2d 1424 (1960) (observing that “[i]t is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his”). We also reject defendants’ public policy argument. Michigan has recognized a limited public policy exception to the general rule of judicial deference to arbitrator’s awards. Gogebic Medical Care Facility v AFSCME Local 992, AFL-CIO, 209 Mich App 693, 697; 531 NW2d 728 (1995). This exception “is limited to situations where the contract as inteipreted would violate ‘some explicit public policy’ that is ‘well defined and dominant, and is to be ascertained “by reference to the laws and legal precedent and not from general considerations of supposed public interest.” ’ ” United Paperworkers Int’l Union, AFL-CIO v Misco, Inc, 484 US 29, 43; 108 S Ct 364; 98 L Ed 2d 286 (1987), quoting WR Grace & Co v Rubber Workers, 461 US 757, 766; 103 S Ct 2177; 76 L Ed 2d 298 (1983), quoting Muschany v United States, 324 US 49, 66; 65 S Ct 442; 89 L Ed 744 (1945). We conclude that the arbitrator’s decision in the case before us does not violate an explicit public policy. Defendants could have reserved the sheriff’s statutory authority under MCL 51.70, but they did not clearly do so in the agreement. Monroe, supra at 718. Further, while maintaining safety at a county jail is clearly an important public policy, we conclude that Best’s behavior was not so egregious that reinstatement to his job would undermine this public policy. See Lincoln Park, supra at 7-8. Reversed and remanded for entry of an order enforcing the arbitrator’s award. We do not retain jurisdiction. Poam is a labor union organized under the provisions of the public employees relations act, MCL 423.201 et seq. 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Fitzgerald, J. Plaintiffs, Patricia E. Boyle and Pat Boyle Chevrolet, Inc., appeal as of right a circuit court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7). We reverse and remand. Plaintiff Patricia Boyle applied to buy an existing Chevrolet dealership. Defendants required that she have sufficient operating capital to fund the dealership and set the capitalization figure at $350,000. Plaintiffs raised the money and took over an existing dealership in September 1988. In 1991, plaintiffs experienced financial difficulties and agreed to sell the dealership to Frank Lopez. A proposed agreement was submitted to defendants for their approval. Defendants represented to plaintiffs that “the rent factor in the agreement with Lopez was not in accordance with its accepted rent factor formula.” In reliance on defendants’ representation, plaintiffs did not complete the transaction with Lopez. Plaintiffs’ dealership went out of business in September 1992 “in the wake of financial problems.” In September 1993, plaintiffs learned that defendants had told the former owner of the dealership that “it was easier for General Motors to let Pat Boyle buy a dealership and watch her fail than it would have been to prevent her from buying a dealership.” In September 1995, plaintiffs learned that the dealership was woefully undercapitalized and doomed to fail. Sometime later that year, plaintiffs also learned from a General Motors employee that the rent factor in the proposed sales agreement with Lopez was within the company’s formula. Plaintiffs filed this action in August 1999 asserting two counts of fraud. First, that by setting the capitalization requirement at $350,000, defendants were representing that $350,000 was sufficient to “properly start and effectively operate” the dealership, that the representation was false at the time it was made, arid that plaintiffs relied on the misrepresentation. Plaintiffs assert that this misrepresentation was discovered in 1995. Second, that defendants falsely represented that the rent factor in the proposed agreement with Lopez “did not conform with the acceptable formula for rent factors.” Plaintiffs assert that this misrepresentation was also discovered in 1995. Defendants filed a motion for summaiy disposition, asserting that plaintiffs’ claims were barred by the statute of limitations. Relying on Thatcher v Detroit Trust Co, 288 Mich 410; 285 NW 2 (1939), defendants argued that the discovery rule does not apply to a fraud action unless the defendant conceals the cause of action. Plaintiffs, citing Fagerberg v LeBlanc, 164 Mich App 349; 416 NW2d 438 (1987), responded that the discovery rale applies to a fraud action and that Thatcher was no longer good law. The trial court found that it was bound by the Thatcher decision under the rule of stare decisis and granted defendants’ motion for summary disposition. The pivotal issue presented is whether the limitation period for plaintiffs’ fraud action began running when the alleged fraud occurred or, under the common-law discovery rule, when plaintiffs discovered it. Questions regarding statutes of limitation are reviewed de novo. Ins Comm’r v Aageson Thibo Agency, 226 Mich App 336, 340-341; 573 NW2d 637 (1997). A fraud claim must be brought within six years from the time the claim accrues. MCL 600.5813; Kwasny v Driessen, 42 Mich App 442, 445-446; 202 NW2d 443 (1972). A claim accrues when the “wrong” is done, MCL 600.5827, which has been interpreted to mean the time when the plaintiff was harmed rather than the time when the defendant acted. Stephens v Dixon, 449 Mich 531, 534-535; 536 NW2d 755 (1995). The alleged wrongs in this case occurred in 1988 and 1991. Plaintiffs assert that the misrepresentations were discovered in 1995 when one of defendants’ employees “made revealing statements.” It is undisputed that plaintiffs did not file this action until 1999, more than two years after plaintiffs discovered the misrepresentations and more than six years after the alleged wrongs. However, the common-law discoveiy rule provides that, in certain circumstances, the limitation period does not begin to run until the plaintiff discovers, or should have “by the exercise of reasonable care” discovered, the cause of action. Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963). “Under limited circumstances, this Court has determined that the discovery rule governs the date certain claims accrue, despite identical statutory language.” Chase v Sabin, 445 Mich 190, 195; 516 NW2d 60 (1994). The discovery rule, apparently adopted in Michigan in 1963, Johnson, supra at 379, has been applied by our Supreme Court to a variety of actions, including medical malpractice, products liability, and negligent misrepresentation. Stephens, supra at 537; Chase, supra at 196-197. The purpose of the statute of limitations is to provide a plaintiff “a reasonable opportunity to commence suit” and the discovery rule serves to avoid extinguishing the claim “before the plaintiff is aware of the possible cause of action . . . Id. at 195-196. The discoveiy rule is not available to claims of “ordinary negligence.” Stephens, supra at 537. The discovery rule is applied in “appropriate instances” and only where there is objective and verifiable evidence so that there is “some indicia of assurance of rehable fact finding.” Lemmerman v Fealk, 449 Mich 56, 66, 74; 534 NW2d 695 (1995). Defendants argue that our Supreme Court has rejected application of the discovery rule to fraud cases. In both Thatcher, supra, and Ramsey v Child, Hulswit & Co, 198 Mich 658, 667; 165 NW 936 (1917), the Court concluded that the statute of limitations did not begin to run when the plaintiff discovered his claim. This statute applies both at law and in equity. It will be observed that the legislature did not see fit to adopt the equitable rule to the full extent of allowing the six-year limitation period to be considered as beginning at the date of discovery of the cause of action, but chose rather to allow a period of two years from [the] date of such discovery within which to bring suit, as a special right, when by the strict terms of the general rule the action would be barred before the expiration of such two-year period. Under the two sections above quoted, a plaintiff now has, in any case, the full period of six years from the date of the fraudulent act, or other act creating his cause of action, within which to institute suit, and moreover, where the defendant has fraudulently concealed from him his cause of action, he has, under any circumstances, not less than the full period of two years from [the] date of discovery in which to bring his action. [Ramsey, supra at 667.] Since that time, it does not appear that our Supreme Court has applied the discovery rule to a fraud action. However, a panel of this Court in Fager berg, supra at 353-354, concluded that the discovery rule applies in actions for fraud or misrepresentation. In actions for fraud or misrepresentation the applicable limitation period is six years. MCL 600.5813; MSA 27A.5813; Kwasny v Driessen, 42 Mich App 442, 445-446; 202 NW2d 443 (1972). In a tort action, the period of limitations “runs from the date the tort was committed, not the date the actor put his or her force wrongfully into motion.” Williams v Polgar, 391 Mich 6, 23; 215 NW2d 149 (1974). The period of limitations does not begin running until the date when plaintiff knew or should have known of the misrepresentation. Unfortunately, the Fagerberg panel did not discuss the apparent conflict between its application of the discovery doctrine and the previous Supreme Court decisions in Thatcher and Ramsey. While it is true that our Supreme Court declined to apply the discovery rule in Thatcher and Ramsey, it is also true that Thatcher predated the adoption of the discovery rule in Michigan. See Johnson, supra at 378-379. Moreover, in a case involving negligent misrepresentation by an abstract company, our Supreme Court in Williams v Polgar, 391 Mich 6, 25, n 18; 215 NW2d 149 (1974), quoted with approval a case involving fraud, Hillock v Idaho Title & Trust Co, 22 Idaho 440, 449; 126 P 612 (1912), that had been quoted with approval in the Court of Appeals opinion in Williams, 43 Mich App 95, 98; 204 NW2d 57 (1972): “ ‘ “If the statute runs in favor of the abstractor from the delivery of the abstract, the company would be released long before the falsity of the abstract could reasonably be discovered by the purchaser. This would not be justice, and ought not to be the law.” ’ ” The Supreme Court’s approval of Hillock supports the argument that there is no bar to the use of the discov ery rule in fraud actions. Further, the Fagerberg panel was aware of and quoted the Supreme Court’s decision in Williams in concluding that the discovery rule applies. Thus, we conclude that Fagerberg is good law and, therefore, we reverse the decision of the trial court. Reversed and remanded. Jurisdiction is not retained. Whether plaintiffs’ claims are actually timely under the discovery rule is an issue not raised by the parties and not decided by the trial court, so it need not be resolved here. Lowman v Karp, 190 Mich App 448, 454; 476 NW2d 428 (1991) (this Court’s review is limited to issues actually decided by the trial court).	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Per Curiam. The issue before us today is whether, in an action in a circuit court seeking damages for personal injury, the circuit court has jurisdiction to decide whether the defendant is the plaintiff’s employer and thus able to invoke the exclusive remedy provision of the Worker’s Dis ability Compensation Act. MCL 418.131; MSA 17.237(131). We hold that the circuit court has jurisdiction to make this determination. I On May 10, 1976, while an employee of Bathey Manufacturing Company, the plaintiff was seriously injured in an industrial accident. In 1978, he filed a complaint in the Wayne Circuit Court, alleging that the accident had occurred as a result of the wrongful conduct of two defendants whose relationship to this case we need not consider here. An amended complaint added Armco Steel Corporation as a defendant. The plaintiff alleged that Armco had "assumed control of the safety program and other operations” at Bathey, and that Armco "operated some functions [of Bathey] and its manufacturing plant for profit at the direction and control of agents and employees of Armco”. Armco responded with a motion for accelerated judgment in which it stated that it was the plaintiff’s employer and that the plaintiff’s exclusive remedy against it was to seek workers’ disability compensation benefits. MCL 418.131; MSA 17.237(131). Armco later filed an amended motion for accelerated judgment in which it stated that Bathey was its wholly owned subsidiary. In the amended motion, Armco recited that the plaintiff thought Bathey to be the employer while Armco thought itself to be the employer. Asserting that there was therefore an issue of fact concerning the identity of the plaintiff’s employer, Armco stated that the Bureau of Workers’ Disability Compensation had exclusive jurisdiction to decide the ques tion. Armco relied on MCL 418.841; MSA 17.237(841), which reads: "Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau. The director shall be deemed to be an interested party in all workmen’s compensation cases in questions of law.” The Wayne Circuit Court denied the motion for accelerated judgment, as well as a motion for rehearing. Armco then applied to the Court of Appeals, seeking leave to appeal. In lieu of granting leave to appeal, the Court of Appeals issued a peremptory order that had the effect of granting the relief sought by Armco: "In this cause an application for leave to appeal is filed by defendant-appellant Armco, Inc., and an answer in opposition thereto having been filed, and due consideration thereof having been had by the Court, "It is ordered that plaintiff shall, within 20 days from the certification of this order, file with the Workmen’s Compensation Bureau an application for a hearing on the question in controversy. If such application is timely filed, the circuit court shall hold the instant action in abeyance pending the decision of the bureau. If the bureau determines the issue of Armco, Inc.’s, liability adversely to the plaintiff, or if plaintiff fails to apply for a bureau determination within 20 days, the circuit court shall grant accelerated judgment for defendant Armco. If the bureau finds for the plaintiff on the issue raised, this action may proceed. We retain no jurisdiction.” The plaintiff now asks this Court to grant leave to appeal the order of the Court of Appeals. In lieu of granting leave to appeal, we today reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings. II The Court of Appeals has ordered the plaintiff to file in the Bureau of Workers’ Disability Compensation an application for hearing on the issue of who is his employer. The Court of Appeals directed that if this application is timely filed the circuit court shall hold the plaintiff’s civil suit in abeyance pending the bureau’s decision. This is a procedure that the Court of Appeals has ordered in a number of other cases, each time relying on this Court’s opinion in Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976), or the Court of Appeals opinion in this plaintiff’s suit against Bathey, Sewell v Bathey Mfg Co, 103 Mich App 732; 303 NW2d 876 (1981). In Szydlowski, supra, pp 357-358, this Court agreed with the trial court that the bureau should decide a claim that GM had breached a statutory duty to provide medical services:_ "Plaintiff filed a wrongful death action in circuit court on February 4, 1972. She claimed that her husband was a GM employee and had received certain injuries during the course of his employment. GM treated the injuries and the death was attributed to the improper administration of medicine and drugs 'by non-physician personnel of General Motors Corporation’. This was said to violate General Motors’ statutorily imposed warranty that employees 'would receive "reasonable medical, surgical and hospital services” ’. "The circuit court granted a motion for summary judgment saying that 'Plaintiff’s exclusive right is the Workmen’s Compensation Act’. In reversing, the Court of Appeals held " 'that the circuit court does have subject matter jurisdiction, concurrent with the workmen’s compensation bureau, to determine whether the exclusive remedy provision, MCL 418.131; MSA 17.237(131), forces Szydlowski to return to that forum to seek relief. We hold further that Szydlowski’s complaint has stated a cause of action sufficient to avoid summary judgment under GCR 1963, 117.2(1).’ 59 Mich App 180, 186; 229 NW2d 365 (1975). "This is a clearly erroneous conclusion. In Solakis v Roberts, 395 Mich 13, 20; 233 NW2d 1 (1975), we said that when 'an employee’s injury is within the scope of the act, workmen’s compensation benefits are the exclusive remedy against the employer. MCL 418.131; MSA 17.237(131).’ MCL 418.841; MSA 17.237(841) provides that 'all questions arising under this act shall be determined by the bureau’. "The circuit court complaint said plaintiff’s husband was a GM employee who received injuries in the course of his employment. Defendant was said to have a statutory duty to provide medical service. This claim is based upon a section of the compensation act. MCL 418.315; MSA 17.237(315). The complaint concerned matters for the Workmen’s Compensation Bureau, not for the circuit court.” In discussing the present plaintiffs suit against Bathey, the Court of Appeals cited Szydlowski in its discussion of this general principle: "It is also beyond peradventure that the question whether the act applies to a particular injury, i.e., whether an injury arose out of and in the course of a worker’s employment (and thus is compensable under the act), is a question to be resolved in the first instance exclusively by the Bureau of Workmen’s Compensation. Szydlowski v General Motors Corp, 397 Mich 356, 358-359; 245 NW2d 26 (1976), St Paul Fire & Marine Ins Co v Littky, 60 Mich App 375, 377-378; 230 NW2d 440 (1975), MCL 418.841; MSA 17.237(841).” Sewell, supra, p 737. Taken alone, those general statements suggest that the bureau’s jurisdiction takes precedence over that of the circuit court whenever there is an issue concerning the applicability of the Worker’s Disability Compensation Act. The rule is not so broad, however. Properly stated, the Szydlowski principle is that the bureau has exclusive jurisdiction to decide whether injuries suffered by an employee were in the course of employment. The courts, however, retain the power to decide the more fundamental issue whether the plaintiff is an employee (or fellow employee) of the defendant. This distinction was noted in Northern v Fedrigo, 115 Mich App 239, 241; 320 NW2d 230 (1982), and is clearly illustrated by Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979), in which this Court discussed at some length how the court (judge and jury) is to go about determining whether a plaintiff is a fellow employee of the defendant. When Ni-chol was in the Court of Appeals, Judge Brennan, dissenting, explained this principle. Nichol v Bil- lot, 80 Mich App 263, 272, fn 1; 263 NW2d 345 (1977): "The circuit court can decide whether its jurisdiction extends to this case. To do so, the court must determine whether defendant was plaintiffs co-employee under the WDCA. I would distinguish one recent decision of the Michigan Supreme Court. Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976). In Szydlowski, where plaintiff filed a claim for workmen’s compensation with the bureau which was dismissed twice for no progress and then filed a wrongful death action in circuit court trying to recover compensation under a mandatory statutory medical service provision of the WDCA, the Court denied the circuit court the jurisdiction to hear the case. "I would distinguish that case as dealing with a claim involving the grant of workmen’s compensation benefits under circumstances which would have completely usurped the primary function of the Workmen’s Compensation Bureau had the Court allowed the circuit court concurrent jurisdiction. Plaintiff based her entire suit on the mandatory WDCA warranty insuring 'reasonable medical, surgical and hospital services’. Given the way she framed her action, the trial court could not have given judgment without directly passing upon a recovery provision of the act. Certainly, such action would serve to replace the exclusive function the act reserved to the Workmen’s Compensation Bureau. "In the case before us now, plaintiff does not seek to substitute the trial court for the bureau. The action alone seeks determination of the trial court’s rightful jurisdiction — that is, whether plaintiffs action violates the statutory jurisdiction of the WDCA. This question the court must answer. The court must have jurisdiction to decide the matter of its own jurisdiction. Its resolution of jurisdictional facts is appropriate to the singular purpose of resolving the jurisdictional problem. "Further, Szydlowski involved the question whether injuries arose out of and during the course of employment and whether those injuries were compensable under a provision of the act. No determination of employee or employer status and its implications arose for the court to consider there. "In short, we find the particular question addressed by the trial court properly raised and resolved there. The court must and the act intends to allow circuit court determination of legal questions involving legitimate matters of jurisdiction touching its own court. If the suit conflicts with the ability of the Workmen’s Compensation Bureau to award compensation, then the circuit court must deny the parties’ attempt to litigate there. However, the circumstances presented by this case and others involving statutory defenses under the act must be resolved by the trial court as to the jurisdictional implications under the act.” Yet another illustration of the court’s obligation to decide whether a plaintiff is an employee of a defendant is Farrell v Dearborn Mfg Co, 416 Mich 267; 330 NW2d 397 (1982). The circuit court properly denied Armco’s motion for accelerated judgment; it must decide in this case whether plaintiff was an employee of Armco. In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings. Williams, C.J., and Kavanagh, Ryan, Brick-ley, Cavanagh, and Boyle, JJ., concurred. The plaintiff also sued Bathey. See Sewell v Bathey Mfg Co, 103 Mich App 732; 303 NW2d 876 (1981), lv den 417 Mich 1044 (1983). We have been holding this case in abeyance pending our decision in Farrell v Dearborn Mfg Co, 416 Mich 267; 330 NW2d 397 (1982). Sewell v Clearing Machine Corp, 409 Mich 947 (1980). Houghtaling v Chapman, 119 Mich App 828; 327 NW2d 375 (1982) (whether injuries suffered after being given marijuana-laced brownies by a fellow employee were suffered in the course of employment); Johnson v Arby’s, Inc, 116 Mich App 425; 323 NW2d 427 (1982) (whether injuries suffered when assaulted by a fellow employee at company picnic were suffered in the course of employment); Buschbacher v Great Lakes Steel Corp, 114 Mich App 833; 319 NW2d 691 (1982) (whether a failure to inform the plaintiff of the results of a preemployment chest x-ray was an injury suffered in the course of employment); Dixon v Sype, 92 Mich App 144; 284 NW2d 514 (1979) (whether injuries suffered by a school bus attendant who was injured while riding a school bus that had finished transporting children and was returning to a parking ramp were suffered in the course of employment); Bednarski v General Motors Corp, 88 Mich App 482; 276 NW2d 624 (1979) (whether the failure by company doctors to detect lung cancer during physical and x-ray examinations was an injury suffered in the course of employment). MCL 418.101 et seq.; MSA 17.237(101) et seq. Several of the opinions cited in footnote 3 contain a statement that the bureau’s exclusive jurisdiction is inapplicable "where it is obvious that the cause of action is not based on the employer-employee relationship”. See, e.g., Houghtaling, supra, p 831. We are not disapproving that rule. Accelerated judgment was properly granted in plaintiffs companion case against Bathey. The plaintiff did not dispute that Bathey employed him; instead he argued that the nature of Bathey’s allegedly wrongful behavior rendered inapplicable the exclusive remedy provision of the Worker’s Disability Compensation Act. Sewell, supra.	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Hooker, J. Sophia Draggo made a lease of a parcel ■of land (25 acres) to one Sovereign, for one year, agreeing to plow, harrow, pulverize, float, and roll, and drill beet seed in. She was to be paid therefor the sum of $8 per acre, one-half of said sum on or before November 20th, and the other half on or before December 20th, of the same year. Previous to the making of the lease, Sovereign had negotiated with the defendant regarding a contract for raising beets, and was promised such a contract by defendant, provided-he should obtain 100 acres of land upon which to raise them. Later, he and the defendant made such a contract, which was "in writing. It reserved the title to the beets in the defendant, until reimbursed for seed and advances, and reserved to itself the right to enter, cultivate, and harvest the crop in case Sovereign should fail to properly cultivate and harvest it. The plaintiff did not perform her contract with Sovereign as to the work to be done by her, and by arrangement it was done by Sovereign, upon an agreement that he should be allowed to deduct its cost from the first payment of rent. This work amounted to $105. Sovereign had some 60 acres of beets, all told, upon which the defendants had, by or about July 4th, advanced him between $1,300 and $1,400, and declined to advance more money. Thereupon he notified the plaintiff that he was going to quit, and that she must look to the defendant for her rent. Between three to five acres of this land was not sown to beets. Sovereign, or plaintiff’s husband, or possibly both, informed the defendant that Sovereign had concluded to give up the crop, and plaintiff’s husband gave testimony tending to show that the plaintiff stated to the defendant that she would proceed to enforce her claim, if defendant did not adjust the matter, and that, after two interviews, it was agreed that she should not sue to obtain possession of the land, and that defendant would pay the rent agreed to be paid by Sovereign. This was an oral arrangement, if it was made. The defendant’s version of the matter is that its manager .sent men to care for the crop, under its contract with Sovereign; that in its conversation with plaintiff and her husband, who were concerned about the collection of the rent, it said no more than that it would carry out its contract with Sovereign, and would pay the rent from the proceeds of the crop, if enough were left after reimbursing the defendant for its advances. The court refused a request to direct a verdict for the defendant, and the plaintiff recovered a verdict and judgment. Error has been brought by defendant. Counsel for the defendant say that the court should have directed a verdict for the defendant on the ground that, if the promise was made as alleged, it was a promise to pay the debt of another, and void because not in writing, and furthermore that it was without consideration. Counsel for the plaintiff claim: (1) That there was a new and original promise based upon a forbearance to sue; (2) that the proof shows a novation. The claim that there was a novation is set at rest by the following testimony of the plaintiff herself: “ Q. You never had any settlement with Mr. Sovereign ? “A. No. “ Q. You testified in justice’s court that you never had liad a settlement and you had not released Mr. Sovereign under the lease that he made with you ? ‘ ‘ A. No, sir; he wasn’t released only for that piece of potatoes. “ Q. Only for the piece of potatoes ?” Her husband also testified: “ Q. You never released Sovereign from his lease, have -you ? “A. Yes, Mr. Sovereign told me he had thrown it up, and he told me to go 'to Mr. Bialy. “ Q. You say Sovereign told you he had thrown it up ? “ A. Yes, sir. A “ Q. Didn’t you testify in justice’s court that you never had released Sovereign ? “A. I never released him. ‘ ‘ Q. Did you never release him ? “ A. I never understood it that way. “ Q. That you never had any settlement with him ? ‘ ‘A. I never had any settlement with him myself, certainly; but he told meto go to the West Bay City Sugar Company, and they would take the beets off my hands for the rent of my land. “ Q. Didn’t you testify in justice’s court that Sovereign told you that the sugar company would not advance him any more money, and that the sugar company was going to take charge of the beets, and that you would have to look to them for your pay ? “A. Yes, sir. “ Q. That is what Sovereign told you when he gave up the land as you say, or abandoned it ? “A. Yes, sir. “ Q. So that you knew at that time, before you saw Bialy at all, that they were going to take charge of the beets ? “A. No, sir; I couldn’t say as I knew it. Mr. Sovereign told me to go to the West Bay’ City Sugar Company. “ Q. Sovereign told you that they were going to take charge of the beets ? ‘ ‘A. He told me to go there, that they would take charge of the beets. “ Q. Didn’t Sovereign tell you that they would not advance him any more money, that they were going to take charge of the beets, and that you would have to look to them for your money ? “A.. Something in that way; yes, sir. “ Q. That was before you saw Bialy at all ? “A. Yes, that was the last conversation I had regarding the land with Mr. Sovereign.” The only other testimony which appears to have any significance upon this subject is that of Sovereign, who was called by defendant. He testified: “ Q. Did you tell Mr. Draggo that you were going to throw up this contract ? “A. I told him that the company would advance me no more money, that they were going to send a man up there to take charge, that I was going to quit, and he must look to them for his money. He said he would. He said he would hold his beets until he got it.” This is not inconsistent with the testimony of plaintiff and her husband that it was not their intention to. release him, though they would try to get the rent from the defendant, and to that end would hold the beets. In the other quóstion there was a disputed question of fact, viz., whether defendant promised to pay the rent due from Sovereign, and for which it was not liable up to that time. This was a question for the jury, whose finding would necessarily be conclusive. This was, however, if made, a promise to pay the debt of another, and void un der the statute of frauds, unless the circumstances show that it was a valid, new, and original promise. The cases of Waldo v. Simonson, 18 Mich. 345, and Stewart v. Jerome, 71 Mich. 201, cited in the brief of defendant’s counsel, seem to settle the rule as contended for- by them, being substantially like this case. See, also, Wierman v. Sugar Co., 142 Mich. 422. A verdict should have deen directed for the defendant. The judgment is reversed, and a new trial ordered. McAlvay, Grant, Blair, and Moore; JJ., concurred.	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Blair, J. The sole question presented for our consideration upon this writ is whether or not mandamus proceedings are “civil actions,” within the meaning of Act No. 309, Pub. Acts 1905, providing for changes of venue. In 19 Am. & Eng. Enc. Law (2d Ed.), at pages 719, 720, the rule is stated in the text as follows: “The cases are very numerous wherein it is said that mandamus is an action at law, or a civil action under the code. But there are cases which deny that it is either ap action at law, or a civil action under the code, and hold that mandamus is a special proceeding. Originally the proceeding was not in the nature of a civil suit between par ties to. settle private rights. But since the statute of Anne authorizing pleadings and proceedings by mandamus, and wherever a similar statute is in force, mandamus is regarded as in the nature of an action.” To the same effect see 1 Cyc. p. 733. In Kentucky v. Dennison, 34 How. (U. S.) 66, Chief Justice Taney, delivering the opinion of the court, says: e ‘ It is equally well settled that a mandamus in modern ■practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English crown, and was subject to regulations and rules which have long since been disused. But the right to the writ and the power to issue it has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.” To the same effect, see Brown v. Crego, 29 Iowa, 321; State, ex rel. Green Bay, etc., R. Co. v. Jennings, 56 Wis. 113; Seymour Water Co. v. City of Seymour, 163 Ind. 120, 130; Hartman v. Greenhow, 102 U. S. 672; Crissey v. Morrill, 125 Fed. 878. McBride v. Common Council of Grand Rapids, 32 Mich. 364, upon which respondents strongly rely, is cited in note 2 on page 720, 19 Am. & Eng. Enc. Law, to the effect that mandamus was not a suit originally at common law. In that case, the question was whether the Constitution allowed mandamus to be used by the circuit courts generally or in all cases to which it was applicable, and it was held that it did not, and in the course of the majority opinion the writ was treated as a prerogative writ. After that decision, the Constitution was so amended as to confer authority upon the Supreme Court to prescribe by rule the general jurisdiction of the circuit courts over the writ. Pursuant to the amendment referred to, a rule was adopted which now stands as Circuit Court Rule 46 (134 Mich, xxxii). Supreme Court Bule 13 provides for a review of the proceedings in the Supreme Court by writ of certiorari. Under these rules and the statutes relating to mandamus proceedings, the practice has grown up which is stated by Mr. Justice Carpenter in Lewis v. Detroit Board of Education, 139 Mich. 306. That practice is widely variant from the original common-law theory of a prerogative writ, and is in harmony with the practice prevailing in the majority of the States in providing for an orderly trial of issues upon pleadings. While there are cases supporting the contention of appellants, we think the great weight of authority is to the contrary, and we therefore hold that mandamus proceedings are civil actions, within the meaning of Act No. 309 of the Public Acts of 1905. •This determination also disposes of the case of Frank T. Woodworth, relator, v. Maltby Cedar Company et al., respondents. The orders of the circuit judge are affirmed in both cases. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.	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Ostrander, J. The bill in this case was filed to set aside a foreclosure sale, and the sheriff’s deed given pur-: suant thereto, of certain mortgaged premises. The answer of defendant sets out certain facts which it is claimed entitle him to affirmative relief. Defendant and Samuel O. Rundle, who was husband of complainant, made, September 13, 1898, an agreement, in writing, to the effect: “ That the said party of the first part agrees to sell to said second party at his place.of business, number 985 Fourth avenue, coal and wood in an amount not to exceed the sum of one thousand ($1,000) dollars. Said purchases herein provided for are to be made from time to time as said second party may require, but at no time shall the amount of said purchases exceed the sum of one thousand ($1000.00) dollars. “Said second party hereby agrees to pay to said first party for all coal and wood purchased by said, second party, under the terms of this agreement, on or before the 1st day of June, 1899. “ It is further understood and agreed, by and between the parties hereto, that the payment of all purchases of coal and wood herein provided for shall be secured by a mortgage bearing even date herewith, executed by Nancy E. Bundle to Walter J. Scully, and to be due and payable on Juñe 1, 1899.” On the same day complainant executed and delivered to defendant a mortgage, containing the condition: “To secure the repayment of the sum of one thousand dollars ($1,000.00), with interest at the rate of 7 per cent, per annum, payable after the maturity of the debt secured by this mortgage according to the conditions of a certain agreement in writing, bearing even date herewith, executed by Samuel O. Bundle to said party of the second part, to which these presents are collateral,” etc. The principal contention arises upon the claim of defendant that the mortgage, read in connection ..with the agreement, was a continuing security and evidenced a continuing suretyship for $1,000. Counsel for both parties present arguments upon the theory that the agreement is ambiguous, and counsel for defendant rely especially upon what is claimed to be the practical construction adopted by 'the parties. It appears that Mrs. Bundle kept the books for her husband until November of the same year, and was at all times acquainted with the condition of his business. She knew the application which defendant was making of moneys paid to him. On October 30, 1899, ■she took a bill of sale of all her husband’s stock in trade and thereafter continued the business. She testified that this came about because her husband was refused credit for a car load of coal by defendant, who said to her that, df she would take over and operate the business, he would extend credit to her. Thereafter all purchases, of coal were made in her name and upon her account, and, agreeably with defendant’s suggestion, she kept her books to show in a separate account the purchases made by herself. From September 13, 1898, to October 25, 1898, defendant sold Bundle coal to the amount of $1,057.39, and the last coal sold him was April 29, 1899. Sales to March 1, 1899, amounted to more than $6,000 and payments to more than $4,000, andón June 1, 1899, there was due on account, including certain six cars of coal, $1,898.06, and excluding six cars, $1,363.58. After June 1, 1899, and to October 23, 1899, there was paid on this $514.40; this, according to books kept by complainant, or by a clerk whose work she had opportunity to and did inspect. Gard v. Stevens, 12 Mich. 292, and Fogel v. Blitz, 128 Mich. 503, are not decisive, in complainant’s favor, of the question here. A contract must be so construed as to give effect to the intention of the parties, which must be ascertained from the language of the instrument and the facts and circumstances attending its execution. Mathews v. Phelps, 61 Mich. 327; Switzer v. Manufacturing Co., 59 Mich. 488. We think it clear that the undertaking of complainant was not, as she claims, that she should become surety for the first $1,000 sold her husband (and should be given credit for the first moneys paid to defendant by her husband, on account), but was an undertaking to secure $1,000 of credit to be extended from the date of the agreement to June 1, 1899. If, upon the face of the papers, the real undertaking is at all doubtful, the situation and conduct of the business, the thing sought to be accomplished, and the conduct of complainant, supply whatever is necessary to support such a conclusion. • As to the six cars of coal about which some question is made, the evidence sustains the finding that they were sold, regularly, to Mr. Bundle. The decree is affirmed, with costs. Grant, Blair, Montgomery, and Hooker, JJ., concurred.	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Hooker, J. Complainant’s husband, Joseph F. Dumas, and his brother Frank, purchased under contract, on June 16, 1902, a house and lot in Cadillac, for $800, one-half being paid down. Joseph F. contributed $350 and Frank $50 of this amount. They all resided in the house until November, 1902, when complainant and her husband separated, at which time Joseph assigned his interest to the complainant, who continued, to live in the house. On October 12, 1904, the defendant levied an attachment against Frank Dumas upon his interest in the premises, and in November, 1904, this bill was filed by the complainant to remove the cloud of such levy upon the title, claiming that she was the owner of the interests of both brothers at the time of the levy; The cause was heard, proof being taken in open court, and the court rendered a decree that — ■ “ It satisfactorily appears * * * that the material facts charged in the bill * * * are true, and that the said complainant is entitled to the relief prayed for as follows: That upon June 16, 1902, Joseph and Frank Dumas purchased the premises upon an executory contract, and that Joseph transferred his interest in the property to the complainant on November 29, 1902, and that the said Frank Dumas sold and transferred his interest in said contract to said Lottie Dumas on July 6, 1904; that therefore said Lottie Dumas is now the sole owner of' said executory contract, and is therefore entitled to a deed thereto upon the completion (i. e., performance) of its terms; that the attachment levy which was made October 15, 1904, * * * constitutes a cloud upon the complainant’s title; and that said levy be and the same hereby is canceled and removed, upon condition, however, that said complainant pay to said defendant, or deposit with the register in chancery for the use and benefit of the defendant, the sum of $95.65, being the amount of certain claims held by said defendant, the goods which were purchased by Frank J. Dumas prior to July 6„ 1904.” The complainant has appealed. The evidence shows that the contract for the premises was made as alleged, and signed by all of the parties, and recorded, that complainant has lived upon the premises since, and that Frank boarded with her upon the premises after her husband left until September, 1904. Assignments of both of the brothers’ interests in writing were introduced, Frank’s bearing date July 6, 1904. She paid $115 for the same in money, and turned a claim of' $35 against him upon it, if the testimony of Frank Dumas and herself and her father is to be believed. No testimony is offered on the part of the defense. The attachment was levied, while complainant was in the exclusive possession, Frank having left town some months before. Counsel for defendant urges in the brief, that all of the parties held out to the world, that Frank held his interest; in the property, at the time the levy was made, and that the’ learned circuit judge was satisfied that complainant had not purchased in good faith. We do not see how the circuit judge reached the result shown by his decree, except upon the theory that the defendant’s levy was made valid by his ignorance of the assignment. He expressly found that the interest of Frank was purchased and transferred on. July 6th, and does not indicate in the finding that it was fraudulent. It must follow that Frank had no interest subject to levy. It is our understanding that defendant’s ignorance of the transfer to the complainant of Frank’s interest would not make the levy valid, and we find nothing in the record which will support the proviso or condition imposed by the decree. The decree must be modified, and a decree entered here in favor of the complainant as prayed, with costs of both courts. Grant, Blair, Montgomery, and Ostrander, JJ., concurred.	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McAlvay, J. The county of Montmorency brought suit in assumpsit against Edward J. Putnam as principal, and the other defendants as sureties, on a county treasurer’s bond, to recover a balance not accounted for by Putnam as county treasurer. This case has been before this court and passed upon three times. 122 Mich. 581, 127 Mich. 36, 135 Mich. 111. A reference to these cases will disclose the controversy between these parties, and any further statement of facts at this time is unnecessary. The last trial had in the court below resulted in a verdict and judgment in favor of plaintiff for the sum of $1,236. Plaintiff moved the court to set aside the verdict, and to enter the judgment for $5,195.34, the full amount claimed, or to grant a new trial, for the reason that the verdict was contrary to the undisputed evidence in the case, and also for the reason that a verdict should have been instructed for plaintiff for the full amount claimed, as requested. This motion was denied. Errors are assigned upon the refusal to grant this motion and to give the requests referred to, and also upon the admission of certain testimony introduced by defendants upon the trial. The law governing the case has been settled by the former decisions above quoted. The principal questions now raised in the case are whether the court, notwithstanding the verdict, should have set it aside, and entered a judgment for the full amount claimed; in other words, ■should have instructed such a verdict for plaintiff, or should have set aside the verdict rendered, as against the evidence, and granted a new trial. From the record we are entitled to say that the total amount charged against defendant county treasurer, $68,991.33, was not disputed. Plaintiff admitted that the defendant was entitled to credit for the sum of $63,795.99. The difference between these charges of debit and credit, $5,195.34, with interest, is the amount plaintiff claims it should have recovered, from the undisputed evidence in the case. An examination of the record before us does not disclose any material difference, as far as the evidence is concerned, from the record before the court at the last time. 135 Mich. 111. In the decision of the case at that time Justice Carpenter, speaking for the court, said: “ The first trial resulted in a judgment for plaintiff for over $4,000. This judgment was reversed because defendants’ counsel was not permitted to argue to the jury that the settlements hereafter referred to between the parties to this suit afforded prima facie evidence of the true condition of the account. The second trial resulted in a verdict in favor of the plaintiff for $1,044. Plaintiff sued out a writ of error, and this court reversed the judg ment on the ground that, according to the weight of the testimony, plaintiff was entitled to a larger verdict. The case has been tried the third time, and resulted in a verdict for defendants of no cause of action. Plaintiff asks a reversal of that judgment on the ground that, under the undisputed testimony, it was entitled to a verdict, and, if not, that the verdict should be set aside as against the weight of the evidence.” The opinion then discusses the testimony at length and determines that the undisputed evidence in the case proves that defendant should be charged with receipts amounting to $68,991.33. Defendant Putnam’s testimony is also referred to more at length than in the former opinion, and it is stated: “ It appears from the uncontradicted testimony that defendant Putnam is justly chargeable with an item of $824 for the sale of lands at a private sale to one E. O. Avery, and that this money never came into his hands. He is responsible for this amount, because he sold these lands to Avery on credit, and Avery never paid for them. {It was this amount, with interest, which constituted the $1,044 for which the treasurer was held liable on the last trial. See 127 Mich. 36).” The court held that, under the undisputed testimony in the case, plaintiff was entitled to a verdict for this amount with interest. Following this decision, the case was sent back for a new trial, and, notwithstanding the charge of the court properly given under this decision, another jury rendered a verdict of no cause of action. This was promptly set aside on motion of plaintiff and a new trial granted. The result of that trial is now before us for consideration. The verdict was for the amount of the Avery purchase, and interest. As already stated, the evidence is the same as in the record last before the court. The situation is identical with that presented when this case was here the second time. 127 Mich. 36. The judgment set aside in that case was the amount of the sale to Avery, with interest. The question before the court was “whether the verdict was so clearly against the weight of the testimony as to call for a vacation of the verdict and the granting of a new trial.” Montgomery, C. J., speaking for this court, said: “ It also appears, practically beyond dispute, that certain funds coming into the hands of the treasurer from the auditor general were not charged upon the county clerk’s books to the treasurer. Now, as against these statements is the general denial of defendant Putnam that he has appropriated any moneys belonging to the county; his claim being that he kept the funds separate from his own, and that he has not appropriated any money. While we by no means hold that this testimony is not admissible for what it is worth, yet, in weighing the question as a question of fact, we are constrained to say that, to our minds, this testimony is in no way convincing.” The judgment was set aside as against the weight of evidence, and a new trial ordered. The difference between the amounts referred to by the learned Chief Justice, including other amounts equally undisputed, and the amounts credited to the treasurer in his settlements with the supervisors, from the record before us, is $6,875.89. It also appears that he had not credited himself -with $1,582.32, auditor general receipts credited in settlement. These items are taken from the records of the State and county offices. The testimony of defendant is the same as on the former trials'. After a careful examination of this testimony we repeat the statement of a former decision, already quoted: “ In weighing the question as a question of fact, we are constrained to say that, to our minds, this testimony is in no way convincing.” It appearing to us that this verdict was against the weight of evidence, the judgment based upon it must be set aside. The court was not in error in refusing to enter a judgment for the plaintiff for the full amount claimed non obstante veredicto, nor can this court do so for obvious reasons pointed out by Justice Carpenter when the case was last before us. We find no errors in the charge of the court, or in rulings upon the admission of testimony. The motion for a new trial should have been granted, for the reason above stated. The judgment is reversed, and a new trial ordered. Montgomery, Ostrander, Hooker, and Moore, JJ.y concurred.	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Carpenter, C. J. -Plaintiff brought this suit to obtain damages for seduction. She secured a verdict and judgment in the lower court. Defendant seeks a reversal of that judgment upon several grounds. 1. He contends that the court erred in denying his motion, made at the conclusion of - plaintiff’s case, to strike out all the testimony upon the ground that the declaration did not aver the plaintiff’s chastity. The declaration did aver that defendant seduced the plaintiff. This, as will hereafter appear in this opinion, 'was an averment that she was thereby drawn from the path of virtue. The declaration then- did in effect aver chastity and sufficiently averred it. The trial court did not therefore err in overruling this motion. 2. Defendant contends that the trial court erred in overruling his motion to strike out plaintiff’s testimony on the ground that she failed to show such “ promises, deceits, artifices, or influence that would overcome the scruples of a chaste woman.” Plaintiff, who was a girl only 17 years of age, testified: “ He told me * * * he liked me the best of any girl he ever knew. He told me he was worth between $20,000 and $30,000. He did not say it right out — say that he would marry me, or anything like that. He always. said I never would be sorry, and would never regret it, and he said I always could live with him and be happy. That is the way he worded it.” This testimony was sufficient to warrant the jury in deciding that defendant made such promises, deceits, arti fices, or influence as would overcome the scruples of a chaste woman. See Hallook v. Kinney, 91 Mich. 57. 3. The trial court prevented defendant from proving by the cross-examination of plaintiff, and by the introduction of other testimony, that plaintiff lacked chastity at the time of the alleged seduction, upon the ground that with his plea he had given no notice of his intention to offer such testimony. This testimony was admissible under the plea of the general issue, unless made inadmissible thereunder by subdivision b of Circuit Court Rule 7. That subdivision reads: “An affirmative defense, such as payment, release, satisfaction, discharge, license, fraud or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration, must be plainly set forth in a notice added to the defendant’s plea.” Plaintiff’s lack of chastity is not an affirmative defense, tinder the foregoing rule, unless it was “affirmative matter [which] seeks to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration. ” It is contended by plaintiff that testimony tending to prove plaintiff’s lack of chastity was “affirmative matter,” under the language above quoted, because the presumption of chastity made it the duty of defendant to introduce such testimony. It is true there is a presumption of plaintiff’s chastity. People v. Brewer, 27 Mich. 134. This presumption transferred from plaintiff to defendant the duty of first introducing testimony touching the issue of chastity, but it by no means follows that in introducing that testimony the latter was making an affirmative defense, within the meaning of Circuit Court Rule 7. If it is true that plaintiff’s declaration avers by implication that she was chaste at the time of the alleged seduction, and that she cannot recover if she was not — and I shall hereafter endeavor to prove that this is true — her suit necessarily puts her chastity in issue. The presumption of chastity "under consideration merely takes the place of evidence of chastity. It does not remove the issue of chastity from the case. Defendant, when offering testimony to disprove chastity, is merely denying an essential fact asserted "by plaintiff, and is not making an affirmative defense. Though the presumption of chastity compels the defendant, instead of the plaintiff, to first introduce testimony on the issue of chastity, the latter, when introducing it, is not bringing into the case “affirmative matter to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration,” within the meaning of Circuit Court Rule 7. He is merely offering testimony which tends to prove that plaintiff did not have, and never had, “ the cause of action set forth in her declaration.” The foregoing contention that, in introducing testimony tending to prove that plaintiff lacked chastity at the time of the alleged seduction, defendant is not making an affirmative defense, rests upon the assumption that plaintiff had no cause of action, unless she was chaste at the time of the alleged seduction. It is therefore essential that I prove that this assumption is well founded. At common law the seduction of a female gave her no right of action. Her right of action is statutory. It is given in this State by section 10418, 3 Comp. Laws, which reads: “ It shall not be necessary in any action on the case for •seduction hereafter to be brought, to allege in the declaration, or to prove on the trial, any loss of service in consequence of such seduction; but if the female seduced be a minor at the time of the seduction, the action may be brought by her father, mother, or guardian; and if such female be of full age, the action may be brought by her father, or any other relative who shall be authorized by her to bring the same.” . . We have held that this statute gives to the woman seduced a right of action which she may enforce in her own name. Watson v. Watson, 49 Mich. 540; Ryan v. Fralick, 50 Mich. 483. This right of action is described in the statute asan “action on the case for seduction.” The question arises What is meant by seduction for which the female has a right of action ? This court has been called upon several times to define seduction in enforcing section 11694, 3 Comp. Laws, which makes it a crime “to seduce and debauch any unmarried woman,” and we have uniformly held that the offense was not committed unless the woman seduced was chaste at the time of her seduction (see People v. Clark, 33 Mich. 116; People v. De Fore, 64 Mich. 699; People v. Gibbs, 70 Mich. 430; People v. Smith, 132 Mich. 58), saying at the same time that, “although the female may have previously left the path of virtue, * * * yet, if she has repented of that act and reformed, she may again be seduced.” People v. Clark, supra. On the other hand, in a suit brought by a parent for the seduction of his child, this court said, that the child’s lack of chasity ‘ ‘ would have weight in mitigation of damages, but would not be a complete answer to the action.” Stoudt v. Shepherd, 73 Mich. 589. It should be borne in mind, however, that in this latter case we were not called upon to define seduction. When a parent brings suit to recover compensation from one who has debauched his child, proof of seduction is not essential to the right of recovery. In those cases the plaintiff is entitled to recover if the illicit intercourse has resulted in legal injury. See Akerley v. Haines, 2 Caines (N. Y.), 292; McAulay v. Birkhead, 35 N. C. 28; Bigelow on Torts (4th Ed.), p. 167. Can we say that the word “seduction” has two distinct legal definitions in this State ? Can we say it has one meaning when a woman brings suit for damages under the statute last above quoted, and another and different meaning when her seducer is prosecuted under the criminal statute ? To answer this question in the affirmative would, in my judgment, be illogical and productive of unnecessary confusion. Seduction as a statutory cause of action is to be defined precisely as it has been defined in construing the criminal statute. Plaintiff was not seduced. therefore, if she was not chaste — remembering (see People v. Clark, supra) that her chastity; though once lost, may be regained by repentance and reformation — at the time of her seduction. The trial court, as will hereafter appear, defined seduction in accordance with these views, but he erred in excluding the testimony under consideration which tended to prove that plaintiff was not chaste at the time of her seduction. 4. Plaintiff testified that she had been told by third persons that defendant stated in his store “that I was a mother. He said that he could prove that he was not the cause though.” This testimony was admitted against the objection of defendant that the same was incompetent, irrelevant, and immaterial and hearsay. It was clearly hearsay, and should not have been admitted. 5. The trial court defined seduction to be: “The act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles, which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused. ” Defendant complains of this definition. It was correct. See People v. Gibbs, 70 Mich. 425; People v. Smith, 132 Mich. 58. Other complaints are made in defendant’s brief. Some of these complaints are answered by elementary principles of law, and they need no discussion. Some of these complaints relate to discretionary rulings of the trial judge, and there was no abuse of that discretion. Some of these complaints are based upon no exception, and they relate to rulings which we cannot review without exceptions. In support of other complaints the brief contains no argument. We illustrate these last complaints by quoting from defendant’s brief: ■ . ■ “Exceptions 52 to 61, inclusive, relate to the refusal of the court to give defendant’s request to charge, and we call the court’s attention to such requests. Record, pp.. 108-112. Exception 63 relates to such portions of the court’s charge as are found in defendant’s bill of exceptions. Record, pp. 138, 139.” We assume that it was not expected that we should consider such complaints. For the errors pointed out, the judgment is reversed, and a new trial granted. McAlvay, Grant, Blair, and Moore, JJ., concurred.	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Montgomery, J. This is a bill filed for specific performance. Saron Beardslee was in his lifetime the owner of a farm in Oakland county, through which ran a highway known as the Old Territorial Road. The complainant’s predecessor, the Detroit, Rochester, Romeo & Lake Orion Railway, contemplated the construction of an electric railway following the line of the highway, but, desiring to build on private right of way, sought a right of way from occupants extending three rods westerly from the center line of said highway. On the 13th of August, 1899, Saron Beardslee conveyed to complainant’s predecessor such a right of way across his farm. Later it was thought desirable to locate the track on the easterly side of the highway as it passed through Beardslee’s farm, and also to have a right of way four rods in width from the center of the highway. Negotiations were opened which culminated, on October 24, 1899, in an agreement signed by Mr. Beardslee, by which he agreed to the change in location, and agreed to convey the four-rod strip in consideration of a payment of $35 per acre for the additional rod, and subject to the same conditions as to crossings, fencing, etc., as were embodied in the deed of August 13th. It was provided that the deed was to be given when the company had laid its tracks. Authority was given to the company to proceed to build its road. Saron Beardslee died November 9, 1899. The railway having been completed, and complainant, having succeeded to the rights of the Detroit, Rochester, Romeo & Lake Orion Railway, files this bill against the legatees under his will and those claiming under them, to specifically perform the contract of October 24th. The court below granted complainant relief but on condition that certain grades and crossings be perfected, and gave no costs to either party. The defendants Dennis and Alice Smith and Elizabeth Axford appeal. The claims of appellants are best' stated in the language of the brief: It is the claim of the defendants that the complainant has no right to the relief prayed in its bill of complaint for the following reasons: First. That at the time of the alleged execution of the contract in question by Saron Beardslee, he, Saron Beards-lee, was not in a condition mentally to understand and comprehend the nature of the contract. Second. That John Winter and Oliver H. Lau fraudulently took advantage of the mental condition of Saron Beardslee at the time the contract is alleged to have been made, and fraudulently put or caused to have placed his name to the contract. Third. That there was laches on the part of the complainant in attempting to have this alleged contract enforced and in bringing this action. • Fourth. That the complainant never made any demand on the defendants for a deed, and never made any tender of the purchase price before this action was commenced; and never returned or offered to return the deed of August 13th, but retained possession of it, and still retains possession of it. .Fifth. That, if the contract is found to be a valid and binding contract in consequence of its execution by Saron Beardslee, there has been no such compliance with the terms thereof on the part of the complainant as to entitle it to a decree of specific performance. Sixth. That the contract is not mutual in its operations as between the parties to it, and specific performance cannot be enforced in favor of the complainant. There has been no such laches as to bar the complainant’s remedy. During all the time since the construction of the track soon after the contract was made complainant and its predecessor have been in,the actual occupancy of the strip to the knowledge of all parties concerned. The demand for a deed would evidently have been with out avail as the appellants have seen fit instead of disclaiming or demurring specially to contest complainant’s right to a deed and to follow the contest through two courts. The court below found a substantial compliance except in some minor details, and imposed such equitable conditions as compensated for any dereliction of complainant in that regard. The contention that there was no mutuality is answered by Welch v. Whelpley, 62 Mich. 15. See, also, Bigler v. Baker, 40 Neb. 325 (24 L. R. A. 255). The first two questions above stated are all which remain to be considered. The circuit judge, on defendants’ motion, impaneled a jury, which found that Saron Beards-lee was mentally competent when the contract was made. The circuit judge also reached the same conclusion,and also negatived in his finding the contention of defendants as to fraud. The defendants contend that the circuit judge, permitted the jury to consider testimony which was incompetent under section 10212 of the Compiled Laws, as amended by Act No. 30 of the Public Acts of 1903. The testimony referred to was that of the agents of the contracting company who negotiated with Beardslee for the contract. We think their testimony was incompetent under the statute cited. The verdict of the jury was, however, at most, only advisory. The circuit judge was not bound to order a jury in the first instance, nor to accept its finding when made. Maier v. Wayne Circuit Judge, 112 Mich. 491; Detroit National Bank v. Blodgett, 115 Mich. 172. The circuit judge having determined the case on its facts, and an appeal having been made from his decision, it is open to this court to decide the question of fact. We are satisfied that the circuit judge reached the correct conclusion. We reach this decision although the witnesses who express an opinion as to the mental competency of Beardslee testify that they do not believe that he was competent on the 24th of October.' We base our conclusion on the facts and circumstances surrounding the transaction and on the subsequent conduct of the interested parties. Saron Beardslee’s two sons-in-law were present on the day the negotiations were had, and assisted in staking out the proposed right of way strip. It would appear from their testimony that the chief controversy arose over a difference of $15 per acre between the asked and the offered price of the strip. Afterwards Saron Beardslee proceeded to his house, and a meeting was had with the agents of the company, the contract was signed in the presence of Saron Beardslee’s son, John Beardslee, who signed the contract as a witness. The company then went on, graded the road, and laid its track at an expense of nearly $14,000, with no protest or claim other than .that made by some of the defendants that the road was not being built according to the contract. No one asserted that there was no contract because Saron Beardslee was incompetent. The case in this feature closely resembles Burt v. Mason, 97 Mich. 127. As was said of similar conduct in that case, “ These acts are the most persuasive evidence of his competency.” The decree is affirmed, with costs. Grant, Ostrander, and Hooker, JJ., concurred.	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Marston, J. Error is so-clearly apparent in that portion of tbe charge of the court relating to the rights of the ■defendant Hotchkiss under the Toll mortgage that a new trial must be ordered. It was conceded that the mortgage to Toll was in his hands valid, and that his rights thereunder would have been fully protected. That being so his assignee was equally entitled to protection to that extent, and this for the reasons net forth in Kost v. Bender 25 Mich. 516. The other questions we do not consider it necessary to discuss. The judgment must be reversed with costs and a new trial ordered. G-raves, C. J. and Cooley, J. concurred. Campbell, J". did not sit in this case. Court. “Iam asked to charge you ‘that Mrs. Hotchkiss is entitled to all the rights of Alexander Toll, and plaintiffs cannot recover as to the goods covered by the chattel mortgage.’ By that, I suppose, you mean the Toll chattel mortgage?” Defendants Counsel. “Yes, your honor.” Court. “I will so instruct you, with this modification: If, at the time they were acquiring this right from Toll, they knew or had notice that those goods really belonged to the plaintiffs in this case, and knew it at the time, of course they acquired that right at tlieir risk, and they must abide by that. But if they acquired it without any such notice, then, of course, gentlemen of the jury, they would be relegated to all the rights of Toll. But this transaction being all one thing, it is for you to consider whether they could have acquired the Toll mortgage without notice. In other words, it is all one transaction, and you may determine, if you do determine as a matter of fact, as to whether they could have acquired the Toll mortgage without notice and yet have gone through the rest of the transaction with notice. It seems to me rather difficult. If you find they acquired the Toll mortgage without inquiring, without anything to put them upon inquiry, it seems to me you would find great difficulty in holding them liable at all. So that I simply instruct you that they would have all the rights under the Toll mortgage unless they had notice and knew at the time they acquired it, the true state of things, or had reason to know the true state of things between King & Co. and the plaintiffs in this case.”	[ 27, 19, -10, 23, -31, -18, -5, -6, -1, 43, 68, 21, 16, 6, -57, -4, -7, -20, 1, 32, 2, -50, -33, 10, -13, -20, 34, -2, 25, 50, 45, 24, 1, 44, -61, 11, 22, 4, 20, -21, 17, 7, 16, -2, -15, 19, 6, -29, 29, -29, 39, -8, -1, -2, 7, 24, -53, 14, -5, -15, 10, -42, -3, 11, -25, -16, 11, -40, 10, -41, -26, -1, 28, -22, 13, -13, -35, 0, -24, -38, 21, -58, 54, -55, 4, 10, 26, 0, -41, 28, 5, -1, 11, -36, 6, 25, 49, -7, -21, 18, -9, -30, -6, 33, 14, 23, -38, -44, -12, 49, -19, 47, 8, -41, -59, -7, -28, 15, 4, -8, 6, -12, 14, 15, 17, -2, -46, -31, -19, 18, -20, -15, -50, 53, -20, -39, -28, -29, -18, -14, 7, -34, 4, -61, 9, -6, 56, -22, -15, -18, -15, 30, -11, 30, 2, -24, -13, -33, 31, -60, 71, 2, 0, 31, 9, 41, -26, -13, 11, 2, 40, 2, -34, -1, 13, 28, 7, -43, 11, -61, 7, 60, 23, -7, 31, -14, -9, 7, 25, -8, 1, -36, -6, 25, -13, 31, -20, 7, 31, -2, 30, -12, -3, 27, 48, -1, 29, -93, -20, 13, -23, 13, -43, -69, -60, 19, -60, -40, -30, -28, 32, 22, -19, -38, -63, -40, -10, 12, 19, -19, -45, -1, 2, 52, -23, -3, 28, 2, 4, -18, 16, -21, -20, -46, -17, 47, 5, 14, -13, -11, -25, -7, 16, 8, 8, -30, 22, -10, -32, -25, 9, 70, -72, -15, 21, 10, 29, -2, -6, 4, -3, -3, 13, 90, -48, -29, -37, 19, -41, 32, 48, 17, -11, 78, -8, 12, 19, 30, 3, -17, 31, -21, -5, 19, 13, 31, -12, -33, -15, 18, 14, -12, 13, 40, 12, -9, 4, 46, -27, 12, 11, -25, 0, 2, 13, 37, -38, 23, 48, -28, -3, 27, 25, -28, 50, -18, 36, -84, -22, 28, -34, -27, 6, 22, 22, -24, 49, -33, -21, 20, -51, -7, -11, -29, 23, -18, -5, -19, -60, 32, -46, 54, 2, 34, 37, 47, 25, 5, -11, -17, 68, -18, -9, 17, -7, 34, 2, -34, 33, 43, 24, -11, -28, -36, -32, 38, -31, 6, -5, 54, 8, -6, 19, 24, 1, 53, -44, 6, -12, -13, -44, -15, 7, 44, -61, -57, -34, 10, -40, -39, 7, 15, -7, -26, -30, 11, -2, -14, 0, 5, -30, 26, 1, 9, -42, -12, 23, -19, 15, -30, 0, -6, 17, -21, -6, -22, 30, 33, -17, 22, -22, -15, -11, -63, 5, 12, -9, -24, 34, 26, -24, -12, 0, 17, 7, -7, -21, 7, 54, -14, -10, 18, 48, 4, 2, -19, 24, -8, -29, -25, 39, -45, -19, -31, 14, -35, -3, -17, -14, -24, -8, 14, 43, 16, -24, 26, 8, 29, -15, -2, -10, 42, -6, 33, -57, 1, -19, -73, 10, 32, 21, 20, 12, -4, -22, -34, -36, -12, -23, 16, 9, -23, 24, 12, 18, 21, 8, -76, 13, 23, 6, -11, 19, 18, -34, 22, 32, 2, 59, 23, 45, -38, -34, 7, -15, 19, 19, -8, 35, -44, 62, 44, -2, -11, -21, -4, 0, -38, 1, -33, -57, 39, 27, -3, -16, 7, 31, -38, -15, 19, -71, -25, 35, 26, 17, 1, 31, 24, 0, -11, -8, 29, 30, 13, 38, -33, -16, -48, -15, -28, -8, -12, -25, 3, -59, -22, 12, -26, -18, -16, -58, 5, 17, -88, -67, 29, -16, 38, 8, -26, -46, 3, 19, -14, -54, -7, 11, -12, 27, 55, -39, 2, -26, -35, 1, 0, 18, 13, -6, 26, 25, 4, 39, -7, -15, -17, 12, -15, 36, 7, 23, 46, 0, 13, 8, 13, -17, 27, 5, -12, 5, -12, 13, -5, -23, 18, 2, -2, -26, 13, 21, 4, 10, -27, 7, 16, -45, 35, -1, -38, -46, 48, 4, 17, 27, 6, -9, 1, 10, -55, 26, -38, 28, 80, -12, 10, -5, -13, 39, -14, 5, -25, 60, 37, 30, -12, -1, 15, -24, -13, -49, -25, 28, -14, -46, -19, -31, -19, 37, 0, 0, -38, -3, -22, -25, -22, 41, 50, 13, 12, 23, -16, 5, 39, -8, 27, -25, 35, 0, 16, 2, 83, 16, -35, 4, 16, 0, 0, -21, -32, 9, -40, 37, -69, 46, -20, 3, -12, -24, 41, 4, -41, 2, 22, -76, 14, -22, -23, 51, -15, -12, 49, 25, -19, 6, 3, 4, -10, 51, -6, 15, -17, 23, -55, -38, -14, 3, 0, -17, -8, -1, 31, 2, -29, 8, -28, 0, -57, -14, -44, 0, -31, -13, 0, -13, 59, 44, -11, 41, -36, -14, -16, -15, 16, 29, -17, 14, 11, -1, 56, 79, 33, 13, 19, -34, 26, 22, 4, 16, 5, -3, 43, 16, 12, 15, 24, 22, 11, 23, -25, -10, -56, 28, 26, 27, -10, 11, 35, -20, 17, -36, 32, -2, -37, -8, 18, -38, 13, 5, 15, 1, -52, -43, 38, -16, -16, -9, 37, -7, -8, -21, 2, -18, 38, 38, 23, 7, -2, -5, -12, -38, -29, -9, -12, -18, 16, -33, -24, 29, 30, 16, -5, -29, -9, 52, -36, -26, 30, -4, 11, -6, 39, -22, 8, -52, 16, -20, -14, 9, 26, -3, 32, -24, 75, -16, 3, 13, -36, 4, 0, 0, 5, -12, 18, 15, 38, 12, -3, 61, 1, -23, 20, -10, 8, -4, 37, 4, 14, -19, -11, 6, 3, 1, -31, -16, 32, -22, -46, 2, 5, -29, 0, -43, -8, -9, -51, 10, -29, -11, 30, 2, 39, -42, 44, 38, -55, 4, -19, -52, 14, -10, -34, 17, 17, -21, 0, 25, -14, 20, 20, 3, -9, 0, 28, -24, 21, -32, -46, -37, 2, -36, 4, 20, -64, 30, -27, -6, -13, -10, -24, 4, 8, 27, -22, -13, -18, 33, 23, -36, -43, 2, 31, -36, 52, -17, 9, -4, -22, -6, -30, 27, 35, -22, 21, -6, -3, -5, 56, 27, 19, -28, -16, 32, -5, 30, -6, 11, 55, 2, -72, -11, 1, 28, 29, -5, -4, -9, 14, 27, 19, 22, 30, -1, 47 ]
Cooley, JV The plaintiff in error was sued by the administrators of Louisa Hasseneyer to recover damages for the negligence of its agents and servants whereby her death was caused. The case comes up on alleged errors in the admission and rejection of evidence, and in instructions given or refused. The decedent was killed at the crossing of the railroad with Burdick street, one of the principal streets- in the village of Kalamazoo, on the 20th day of December, 1878. She was a girl 13 years of age, and was proceeding along the street with a small pail of milk in her hands. The morning was somewhat cold and stormy. As she approached the railroad track a train was passing in one direction, and its bell was being rung. From the other direction an engine was backing up several cars, and its bell was also being rung. It was by this train that the girl was struck and killed. There was a flagman at the crossing, and no negligence .seems attributable to him. The brakeman on the backing train was upon the ground, walking along by its side to guard against accidents, but did not notice the girl until she had been thrown to the ground and killed. No one saw the girl when she was struck, and the place where she was lying when first seen was outside the limits of the street. It was contended for the defence that there was no evidence of negligence on the part of the railroad agents and servants, and therefore nothing to go to the jury. It was also insisted that a clear case of negligence on the part of the decedent appeared, and that upon this ground, if not upon the other, the court should have instructed the jury to return a verdict for the defendant. We do not agree that the case was so plain on either ground as to justify the court in taking it from the jury. It may be that if we were at liberty to pass upon the facts we should reach the conclusion which the defence insist upon as the only conclusion that is admissible; but we cannot say that the case is too plain upon the facts for fair minds to differ upon, and following our former decisions we agree with the trial court that the facts were properly left to the jury. Detroit etc. R. R. Co. v. Van Steinburg 17 Mich. 99; Lake Shore etc. R. R. Co. v. Miller 25 Mich. 274, 295; Le Baron v. Joslin 41 Mich. 313. Upon a supposition that the jury might find that the decedent at the time she was struck and killed was outside the limits of the highway and upon lands belonging to the railroad company, the defence requested rulings in effect that if such was the fact the decedant was in law chargeable with negligence. We do not agree that this was necessarily the dase. The fact might have an important bearing, or it might not; depending on how far she was outside the street lines, and why she was there, and whether she was aware of the fact. As the street was without fences1 or cattle-guards at this point, it would be unreasonable to hold that at her peril she must keep herself strictly within 'its lines, and if no intent to leave the highway was apparent, and she was not further outside that one might inadvertently go in passing along the street and looking both ways for coming and passing trains, the fact should neither absolve the employes - of the railroad company from the observation of care to prevent injury, nor charge her with fault if otherwise sufficiently vigilant. Counsel for the plaintiff in error has been industrious im the discovery of faults in the rulings of the circuit judge, but for the most part his criticisms are too particular and' technical to be accepted, or to require discussion at our hands. With a single exception we think no error was committed to the prejudice of the party now complaining. The exception is found in the instructions to the jury respecting the degree of care required of the decedent to avoid the-danger to which she fell a victim. It was contended for the; plaintiff below that the law did not require the same degree • of care of a child as of an adult person, and the court so ■ instructed the jury, j This was unquestionably correct. Railway Co. v. Bohn 27 Mich. 503. But it was also insisted that the law did not expect or require the same degree of care and prudence in a woman as in a man; and the court gave tliisinstruction also. It is presumable, therefore, that the jury in considering whether the decedent was chargeable with contributory negligence, made not only all proper allowances ■ on account of her immature years, but further allowance also on account of sex. No doubt the difference in sex has much to do with the application of legal principles in many cases. Police regulations with the utmost propriety sometimes make distinctions between men and women, in the conduct required of them under the same circumstances, and the unwritten law is in some particulars more indulgent to the one sex than the other. Words and conduct which in the presence of " men might be condemned for bad taste only, in the presence-of women may be punishable as criminal indecency, and a crime of violence committed upon the one would be condemned less severely by public opinion and punished less severely by the law than the same crime committed upon the other. And no doubt also the law ought, under-all circumstances where they become important, to make- allowances for any differences existing by nature between men and women, and also for any that grow out of their different occupations, modes of life, education and experience. A woman, for example, driving a horse on a highway may be presumed somewhat wanting in the “ amount of knowledge, skill, dexterity, steadiness of nerve or coolness of judgment — in short, the same degree of competency ” which we may presume in a man; and the person meeting, .her under circumstances threatening collision should govern his own conduct -with some regal’d to her probable deficiencies. Daniels v. Clegg 28 Mich. 33, 42. In Snow v. Provincetown 120 Mass. 580, a question of contributory negligence was made against a young woman who, in attempting to pass a cart in a public way, which had commenced bacldng towards her, accidentally fell over an embankment and was injured. The following instruction by the trial judge to indicate the degree of care required of the plaintiff, was held unexceptionable: “ Care implies attention and caution, and ordinary care is such a degree of attention and caution as a person of ordinary prudence of the plaintiff’s sex and age would commonly and might reasonably be expected to exercise under like circumstances.” This no doubt is true. .But while the authorities permit all the circumstances to be taken into the account, age and sex among the rest, in determining the degree, of care to be reasonably required' or looked for, no case, so far as we know, has ever laid it down as a rule of law that less care is required of a woman than of a man. - Sex is certainly no excuse for negligence; Fox v. Glastenbury 29 Conn. 204: and if we judge of ordinary care-by the standard of what is commonly looked for and .expected, we should probably agree that a woman would be likely to be more prudent, careful and particular in many positions and in the performance of many duties than a man would. She would, for example, be, more vigilant and indefatigable in her care of a helpless child; she would be more cautious to avoid unknown dangers; she would be more particular to keep within the limits of absolute safety when the dangers which threatened were such as only great strength and courage could venture to encounter. Of a given number of persons traveling by cars, several men will expose themselves to danger by jumping from the cars when they are in motion, or by standing upon the platform, where one woman would do the same; and a man driving a team would be more likely to cross in front of an advancing train than a woman would. In many such cases a woman’s natural timidity and inexperience with dangers inclines her to be more cautious; and if we naturally and reasonably look for greater caution in the woman than in the man, any rule.of law that demands less must be unphilosophical and unreasonable. Suppose, for instance, that a man and woman standing-together upon the platform'of a moving car are accidentally thrown off and injured, could any rule of jaw be justified which would permit a jury to award damages to her but not to him, upon the ground that the law expected and required of him the higher degree of care? Or may the woman venture upon an unsafe bridge from which the man recoils, under the protection of such a discrimination? Or trust herself to a fractious horse expecting, if she shall chance to be injured, the tenderness of the law will excuse her with a verdict of such care as was reasonably to be expected, when it would pronounce a man foolhardy? ¥e think not. No person of any age or sex is chargeable with legal fault who, when placed in a position of peril, does the best that can be done under the circumstances. Voak v. Northern Central Ry. Co. 75 N. Y. 320. Even this statement indicates a more rigid rule than the law will justify, for the legal requirement is only the observance of ordinary care; .and while in laying down rules that are of general ajoplica•.tion, it is no doubt better to employ general terms, lest they .be supposed applicable to particular classes only; (Tucker v. Henniker 41 N. H. 317) yet when the actor is a woman, .an instruction that she is bound to observe the conduct of a woman of common and ordinary prudence, cannot be held legally erroneous because of being thus special. Bloomington v. Perdue 99 Ill. 329. "Women may enter upon and follow any of the occupations of life; they may be surgeons if they will, but they cannot as such claim any privilege of exemption from the care and caution required of men. A woman may be engineer of a locomotive if she can obtain the employment, but the law will expect and require of her the same diligence to .avoid mischief to others which men must observe. The rule of prudent regard for the rights of others knows nothing of sex. Neither can sex excuse any one for the want of ordinary care when exposing one’s self to known and obvious perils. If it was apparent that the error of the judge did not mislead in this ease, we might affirm the judgment. But that fact is not apparent. No one witnessed this accident; the question of due care is involved in doubts, and the erroneous ruling may have been controlling. It follows that there must be a new trial. The other ¿Tustiees concurred.	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Cooley, J. This case was once before in this court, and the decision upon it is reported in 41 Mich. 482. On a second trial defendant recovered judgment and the plaintiff brings the case here by writ of error. The exceptions are numerous, but in the main they come to this: that the judge, in the manner in which he submitted the case to the jury and in liis comments on the evidence, gave undue promrnence to'whatever would tell in favor of the defendant, and thereby unfairly prejudiced the plaintiff’s case. In respect to this complaint it is to be said that it is one very frequently-made by the defeated party in jury trials, and often without any good reason except such as may arise from personal interest, and the anxiety for success. To permit it to have any weight with others the bias of the judge ought to be-manifest in his charge, so that there shall be reason to-believe the jury were improperly influenced. We discover nothing of the sort in this case. The charge was evidently meant to be impartial and just, and we think was so. In so-far, therefore, as the exceptions assail the charge as a whole, we find no support for them in the record, and criticisms-upon detached sentences or passages require no comment. It is urged, however, that the judge, in presenting to the-jury the facts on which the plaintiff relied as meeting and' overcoming the defence, required of the plaintiff a quantumoí evidence which he was not justified by the law in demanding. The action was upon a draft of which defendant was drawer. On its face appeared an alteration of the time of payment from April to May, and the case turned upon the question whether this alteration was made before defendant signed it. Commenting upon this the judge said to the-jury, “Unless there is a clear preponderance of proof oil' the part of plaintiff that the word May as now in the draft was there -when Ortmann signed it, the verdict must be for the defendant. This results from the fact that the burden of proof upon this issue is upon the plaintiff, and he must sustain that burden by showing you by a preponderance of evidence that the word May was there at the time it was-signed.” This it is said was too strong; a “ clear preponderance of proof” would, in the minds of the jury, be-the equivalent of the absence of reasonable doubt. It would no doubt have been better if the judge had omitted the adjective which ho adopted from one of the requests of counsel; but an examination of the whole-charge makes it plain that the jux-y were not misled. The- judge returns to the subject at the conclusion, and is at great pains to state with accuracy the true rule: “ If you •.are satisfied from all the testimony that the word £ May ’ appeared in that draft at the time it was signed by Ortmann .as it now does, then finding the other facts that I have .•spoken of, the protest and the notice, the plaintiff will be •entitled to your verdict for the amount of the draft and the Interest at seven per cent, as stated. If you find there is a»ot a preponderance of evidence in favor of this conclusion, taking all the evidence together, then the defendant is ¡entitled to your verdict. If you find that the defendant did not undertake and promise in manner and form as charged In the declaration, or if you do not see 'any preponderance •of evidence either way, then the plaintiff cannot recover. If the evidence is just as strong in favor of the assumption •that £May’ was put into the draft after it was signed by •Ortmann as that it was there when he signed it, then the plaintiff cannot recover. But if you shall find, drawing such inferences from the statements of the witnesses as in your judgment they warrant, that there is a preponderance of evidence in favor of the plaintiff — in favor of the facts .assumed^by the plaintiff and upon which he seeks to recover —then your verdict will be for the plaintiff, otherwise for the defendant.” This surely is not open to just criticism. The judgment must be affirmed with costs. Campbell and Marston, JJ. concurred.	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Marston, J. The plaintiff below, McKinnon, commenced an action of assumpsit, declaring upon the common counts. The defendant pleaded the general issue and gave notice of recoupment. The plaintiff’s claim was for a balance due under a written contract to furnish the materials and make for defendant two boilers, have the same “ completed and all connected in the mill of the said first party on or before the fifteenth day of March, 1880.” The'defendant, in his notice of recoupment, set forth that the boilers were to be used in his steam-mill and salt block for the purpose of running and operating the samethat these were the only boilers he would have to furnish steam; that the capacity of his salt block was two hundred barrels per day; that without the boilers he could not manufacture any salt, all of which facts were known to the plaintiff; that the boilers were not made and connected until the 28th day of April, and that in consequence of the breach by plaintiff the use and profits of his salt block were wholly lost, and the profits he would have made from the fifteenth of March to the twenty-eighth of April he claimed the right to recoup. This claim was not allowed in the court below, and this raises the principal question in the case, viz., the proper measure of damages. The position taken by counsel for plaintiff in error as set forth in their brief is, that the defendant below could under the facts recover the value of the use of the machinery which lay idle in consequence of the delay, and that beyond this “what, he might have made from the use of the machinery, etc., — the profits which he would have realized from the business carried on with it.” There are undoubtedly many cases where upon the breach of a contract the injured party is entitled to recover as damages the profits he would have made had the contract not been broken. Where a party is to perform labor from which a profit would arise as the direct result of the work done at the contract price, such profits may be recovered. Burrell v. New York etc. Salt Co. 14 Mich. 39. Or where a party is to furnish and deliver material under a contract and is prevented, as in Masterton v. Mayor of Brooklyn 7 Hill 62. The principles recognized in this class of cases are well established and have been applied in a great variety of cases. So in cases of tort the loss of profits may be allowed. Allison v. Chandler 11 Mich. 558; White v. Moseley 8 Pick. 356. There is, however, another class of cases, within which this comes, where the authorities differ as to the right of the injured party to recover such profits as are claimed in this case. Perhaps the case most relied on, and upon which the others allowing such a recovery mainly rest, is Hadley v. Baxendale 9 Exch. 341. In that case the court held the loss of profits while the mill was kept idle could not be recovered, because it did not appear the carrier knew that the want of the shaft was the only thing which was keeping the mill idle. The court also intimated that a different rule might have prevailed had the facts been fully known to the carrier. Of course no snch question was before the court in that case, and intimations'given upon facts that may perhaps appear in some future case are not usually relied upon. No effort will be made in this opinion to classify or reconcile the cases bearing upon and discussing this question. The profits to be recovered must not be conjectural or speculative in their nature, or dependent upon the chances •of business or other contingencies, and must have some reference to the nature of the contract and breach complained of. In the present case the contract is silent as to the particular business which was to be carried on in the use of these boilers. That, it is said, was well known to both the contracting parties. But admitting all this, would not the profits to be made in the manufacture of salt be dependent upon many other things besides the performance of this contract, — a necessary supply of fuel, which the defendant claims to have had, of brine, of machinery for pumping the same, of proper vats, grainers, pipes and other things necessary to carry on successfully and profitably the manufacture of that commodity, the certainty or probability even, even if all these things did exist and were in proper order, of their remaining in like condition ? But supposing the party had completed the boilers and put them in place, but had failed to make all the necessary connections; — no use could be made of the boilers in such a condition; would the damages be the same ? In other words, “ where the chattel was itself only part of something else, which was rendered useless for want of it, should the profit of the entire chattel be recovered ? If a vessel were delayed in port for want of a bowsprit, should a loss of freight, to the amount perhaps of thousands of pounds, be obtained in damages ? ” Very many questions similar to this might be put, and if the rule contended for by plaintiff in error were to prevail, in many cases the breach of a very simple contract, or failure in some part, might bring ruin upon the parties failing, where no such loss was contemplated. .The adoption of such a rule would be extremely dangerous. If such consequences are to follow, it is much better that the parties, when contracting, expressly provide for such enlarged responsibility. This they may do, and the damages-then may fairly and safely be said to have been contemplated by them at the time of entering into the agreement. Where the damages claimed, as in this case, largely exceed the contract price of the materials and- labor to be furnished and performed by the party in default, we may well question the justice of such a conclusion in the absence of a clear showing that such a result was anticipated by the parties. It was also claimed that in the absence of anything to the contrary, the value of the use of defendant’s salt block would be the net profits to be made from operating it, and this should be taken and allowed as damages. It does not follow that the fair rental value of premises can be ascertained by showing the profits. How the profits were arrived at in this case does not appear. If no account was taken of the money invested, the profits would be apparently much greater, and would be an unsafe criterion to fix rental values by. We need not however spend much time upon this question in view of the way it comes up. As no error is discovered the judgment will be affirmed with costs. The other Justices concurred.	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Campbell, J. The bill in this case was filed by a daughter of David Babcock, deceased, to set aside certain conveyances of land made by her father shortly before his death, and certain transfers of personal assets made at or about the same time, whereby all of his estate was transferred to his two sons George W. Babcock and Warren Babcock, and to their children. Most of the land went to the sons for life, with remainder to the children. Some was disposed of immediately. These dealings are attacked on the grounds of mental incompetency, and of fraud and undue influence. If there was no fraud or undue pressure, we do not think the ground of incompetency made out. The testimony shows a very peculiar character, with striking faults and some weaknesses, but we do not think Mr. Babcock is shown to have been incompetent at any time to deal with his property, and there are no witnesses familiar with him who give us reason to doubt his capacity, if let alone, to dispose of his property by will or otherwise. The question of undue influence is more serious, and the court below held the transfers of personalty, but not those of realty, void on this account. We do not see any reason for this discrimination, and are of opinion that they were essentially parts of one transaction which must stand or fall ogether. We do not think it necessary to refer to facts except far enough to explain our conclusions. Mr. Babcock died in December, 1878, at the house of his son Warren, in Kent county, being about 80 years old. lie had been taken out there from Ypsilanti during the summer or early fall. The reason for having him removed was his evidently failing strength, and the difficulty of getting him properly looked after in Ypsilanti. It appears very clearly that this removal was not the result of any family scheme, but suggested by outside neighbors who took an interest in having him attended to. For several months previous to this removal he had lived in a somewhat miserly and irregular way, having rooms at different places and sometimes preparing a part of his food himself. He had quarrelled alternately at different periods with all of his children, and had in like manner become reconciled perfectly or imperfectly with them. His son George lived in another State and had not been in Michigan for some time. His son Warren lived in Lowell, Kent county. His daughter, Mrs. Twist, lived in Washtenaw, and he had once lived with her, but he had recently quarrelled with her and her husband on account of her obtaining the property of her bachelor brother that he appears to have expected himself and claimed as his own. All of these children had children of their own, grown or growing up to maturity. He does not appear to have li^d anything which could properly be called affection for any of his descendants, although he appears to have felt more of it towards his grandchildren than his children. He was a man of fair intelligence, and a good deal of business capacity, but very obstinate and intolerant of opposition. He showed signs of folly and eccentricity in some of his conduct, but it is the opinion of nearly all the more intelligent witnesses that while he was always unpleasant and hard-headed, he never lost his sanity. It is made clear by the proofs that during the year 1878, and probably before, he had expressed the intention of providing chiefly for his grandchildren, not having apparently much confidence in the prudence of their parents. lie had’ felt very bitterly towards his son-in-law, Mr. Twist, and while there is some conflict concerning his intentions towards his daughter and her children, we think the testimony predominates against his having overcome his harsh views. During this year it is plain that he was seriously considering the disposal of his estate, and he made or attempted several different wills. In the fall of 1877, before the quarrel, he dictated a will of personalty in which all the Michigan grandchildren were to participate, as well as Georger Babcock. This will was not completed because he was-unable to determine what disposition to make of a portion of his lands. In June, 187S, he executed a will disposing' of all his property, and expressly disinheriting Mrs. Twist, while providing for all of the other families. This was-done before he went to Lowell, and was, so far as we can judge, his own uninfluenced act. The subsequent"dispositions differed in some respects as to shares and interests, but' followed the same general purpose. Ilis disposition was such as would render him quite liable-to influence if cunningly exerted, and there is a good deal of' testimony which would indicate that Warren Babcock had' no personal affection for his father, and had selfish inclinations and a desire to profit by the circumstances. Ilis letters show this scheming disposition, and the testimony indicates that he did more or less to keep alive the old-man’s jealousy of the Twists. But it also indicates that lie never obtained any considerable influence over his father, and was obliged to get his brother George to suggest a transaction which nevertheless, while two of his children wore benefited by it, was of no special advantage to himself, as finally consummated. The final arrangements were made when the deceased had the aid of competent counsel, and all the testimony indicates-that there was no interference with him. It also shows that-he knew then and subsequently what he was -doing, and ajiproved it. ' If the family of his daughter, Mrs. Twist, had been pro vided for like tlie rest, there is nothing in these transactions which wóuld be open to criticism as unwise or singular. There is no reason to suppose, if he changed his will of June, 187S, he would have changed it in her favor. While his feelings were to any ordinary mind unnatural and despicable, they were not disturbed by insanity, and his acts -cannot be held void merely because they were wrong in •morals. We are compelled somewhat unwillingly to uphold them as legally valid. The result must be the modification of the decree and its reversal so far as it avoided the transfers of personalty. Upon the question of costs we have a discretion which wo feel bound to exercise. We think Mrs. Twist was perfectly justified in bringing this suit. The deeds involved in this litigation were not recorded until after the original bill was filed in this causé, and they were'intentionally kept from the inspection of Mrs. Twist. She had a right as heir At law to know what disposition had been made of the estate, and such concealment fully justified her in supposing it was meant to carry out a fraud. There was also great cruelty, to use no stronger term, in the concealment of her father’s sickness and death and the heartless manner of providing for his burial. While there is sometimes difficulty in giving costs to a defeated party, we think under such circumstances no costs should be given against her and that .she- should recover costs below against Warren Babcock. The decree must be reversed and the bill dismissed, with the further order that all parties pay their own costs in thÍ3 Court, and that complainant recover her costs below from. Warren Babcock, senior. Graves, C. J. and Cooley, J. concurred.	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Cooley, J. The writ of certiora/ri issued in this case-brings up for review the proceedings had in the Recorder’s-Court of Detroit for the opening of Arch street to Grand River avenue. The proceedings were instituted under the act of 1877',. Public Acts 1877, p. 246. Four parcels of land were required for the purpose. In the first two persons had interests as joint owners of the fee, one as dowress, one as-mortgagee, and one as lessee. The damage to this was assessed at the gross sum of $550. In the second the interests were the same1 as in the first, and the damages were-assessed at $2450. The third was owned by one person exclusively, whose damages were assessed at $999. In the fourth two persons were concerned as owners of the fee and one as lessee, and the damages were assessed at one dollar. The assessment district as fixed by the common council iucluded one hundred and twelve parcels of land. Against seventy-nine of these the jury made assessments and against. the others none. The proceedings of the jury were confirmed in the Recorder’s Court June 30,1881. Affidavit for certiorari was made January 18, 1882. All the plaintiffs in error were personally served with notice as required,by the statute, but Patrick Lynch alone defended. The assessment against him is $20. The only interest Nicholson has in the proceedings is that of lessee of the fourth parcel, and entitled to share in the one dollar damages assessed in respect to it. The other-plaintiffs in error are assessed for the cost of the improvement, with a large number who do not appear to complain. The substantial errors relied upon are: That the petition by which the proceedings were initiated did not allege the particular and specific interests of the mortgagees and lessees of the parcels to be taken. That the jury by their verdict did not apportion or award to the various parties interested in the several parcels of land to be taken the damages and compensation severally. That the jury did not assess any sum whatever on many of the parcels included in the assessment district. On the other hand the city insists that the writ of certiorari should be dismissed as improvidently issued;' and an affidavit is filed showing that before the writ was sued out all the parties to whom assessments were made for land taken had been paid, and that of the assessments for the cost of the improvement considerably more than three-fourths had been collected. Ve think the motion to dismiss should be granted. The statute gives to aggrieved parties an appeal to be taken within five days; the result of which would be likely to affect all concerned equally and therefore justly. These parties have elected not to appeal, but to wait until the city and the majority of the persons taxed have made their payments respectively, and then resort to a remedy from which, if succesful, injustice and inequality must flow of necessity. They wait until the improvement is apparently secured, and then move to escape their just share of the burden. This should not be suffered unless reasons require it more imperative than appear in this record. The proceedings were undoubtedly erroneous in this case. The jury shoidd have apportioned the damages between the owners of a lot, and those having interests as mortgagees, lessees or otherwise, so that each could receive a warrant for the specific sum to which he was entitled. But the error in this particular was waived when the parties concerned accepted the sums awarded. It is presumed they agreed upon an apportionment between themselves. Parkinson, the only one who is complaining in this proceeding, was entitled to share in one dollar only, so that his grievance could not have been very serious if the others had obtained the whole of it. A party attacking an assessment for so slight a wrong may well be required to move with special alacrity. We agree with the plaintiffs in cerUorari that an assessment should have been made against each parcel of the land. The common council define the special taxing district, and compose it of the property which in their opinion will be benefited by the proposed improvement: Public Acts 1877, p. 246, § 2; and the jury “ assess and apportion the total damages and compensation to be paid for the private property so taken upon the lots and parcels and subdivisions thereof within the assessment district fixed by the common council or board of trustees, which will be benefited by the improvement, in proportion to the benefits they will severally receive.” Id. p. 249, § 14. To omit a portion of the lots from the assessment would in legal effect be to establish an assessment district different from that prescribed by the common council; and this the jury have no power to do. But if the jury believe that the benefit to some lots will, as compared with that to the others, be merely nominal, they have a right to make a merely nominal assessment; and the error which consists in failing to make a merely nominal award is not of sufficient substance to demand our intervention at this late day. See Hickey v. Baird, 9 Mich. 32. The writ will be dismissed with costs. Graves, C. J. and Campbell, <1. concurred. Afterwards, on June 27, tbe following opinion was filed; Cooley, J. When this case was decided an erroneous-statement in one of the briefs that the sums assessed to landowners and others for damages had been paid before the writ issued, was taken for true, and the judgment was-in part based upon it. An inspection of the files discloses-the fact that the payment was subsequent to the writ. The-question now arises whether the judgment should have-been the same had the fact been understood. We are of opinion that upon the merits it should. 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Wilder, P.J. Defendant appeals as of right from his bench trial conviction of possession with intent to deliver 225 to 649 grams of cocaine, MCL 333.7401(2)(a)(ii).* He was sentenced to a term of imprisonment for 240 to 360 months. We affirm. I. FACTS AND PROCEDURAL HISTORY On October 21, 1998, at some time between 11:30 and 11:45 P.M., a Chevrolet Cavalier, driven by defendant, passed Officer John Hopkins of the Baroda-Lake Township Police Department, who was patrolling eastbound traffic on I-94.* At that time, Officer Hopkins, who was parked in the median between the eastbound and westbound lanes of 1-94, noticed that defendant’s view was obstructed by objects hanging from the rearview mirror in violation of MCL 257.709(l)(c). Officer Hopkins began to follow defendant because of this violation and observed defendant’s vehicle weaving in its lane and speeding, in vio lation of MCL 257.642(l)(a) and MCL 257.628(4). Officer Hopkins executed a traffic stop, informed defendant that he was stopped because of the view obstruction, and because his vehicle was weaving and speeding, and requested defendant’s driver’s license, vehicle registration, and proof of insurance. Defendant promptly provided these items to Officer Hopkins. Defendant also informed Officer Hopkins that he had borrowed the vehicle from his mother. After learning that the vehicle was not registered to defendant, Officer Hopkins asked defendant to get out of the vehicle, which he did. Officer Hopkins then patted defendant down for weapons and asked him to sit in the back of the patrol car. While in the patrol car, Officer Hopkins ran defendant’s name through the Law Enforcement Information Network (lein). The lein check indicated that defendant had two outstanding warrants for domestic violence and unpaid child support; therefore, defendant was placed under arrest. Following defendant’s arrest, Officer Hopkins searched the vehicle and found a black leather jacket with a bulge in the sleeve. Officer Hopkins then reached into the sleeve and pulled out a newspaper flyer wrapped around a bag containing 261 grams of cocaine. Before trial, defendant moved to suppress the evidence found in the vehicle on the grounds that (1) Officer Hopkins’ stated reasons for stopping defendant were a pretext, (2) no probable cause existed to stop defendant, (3) defendant did not provide consent to search the vehicle, and (4) under the totality of the circumstances, the cocaine must be suppressed as “fruits of the poisonous tree.” Following a suppression hearing held on January 7, 1999, the trial court denied defendant’s motion to suppress. Defendant’s bench trial commenced on March 25, 1999. During trial, defendant testified that he and his codefendants, who were passengers in defendant’s vehicle at the time of the stop, had gone to Chicago to pay a parking ticket and then gotten haircuts from Kirk Hamill, a friend of defendant’s. Defendant also testified that that they arrived too late to pay the ticket, so he left $30 with Hamill and asked him to pay the ticket on defendant’s behalf. Defendant claimed that while they were at Hamill’s barbershop, Hamill used the telephone, received a telephone call shortly thereafter, and asked defendant to accompany him outside. Defendant further testified that once outside, Hamill requested defendant’s vehicle key, another vehicle arrived, defendant went back inside the barbershop, and then approximately fifteen to twenty minutes later, Hamill returned to the barbershop and informed defendant that he had put a package in defendant’s coat and that he needed it taken to a car wash in Muskegon Heights and given to a man named Kevin Washington. The trial court did not find defendant’s testimony to be believable, instead finding that defendant knew that the package contained contraband and that actual possession of the cocaine had been proved beyond a reasonable doubt. Accordingly, the trial court found defendant guilty as charged and sentenced him to twenty to thirty years’ imprisonment. n. THE STOP OF DEFENDANT A. THE INITIAL STOP OF DEFENDANT On appeal, defendant argues that the reasons given for the traffic stop were a pretext and that the trial court clearly erred in denying his motion to suppress the evidence. We disagree. This Court’s review of a lower court’s factual findings in a suppression hearing is limited to clear error, and those findings will be affirmed unless we are left with a definite and firm conviction that a mistake was made. People v Custer, 242 Mich App 59, 64; 618 NW2d 75 (2000), rev’d in part on other grounds 465 Mich 319; 630 NW2d 870 (2001). See also People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983), and People v Lombardo, 216 Mich App 500, 504; 549 NW2d 596 (1996). In addition, we review de novo the lower court’s ultimate ruling with regard to the motion to suppress. Custer, supra; People v Garvin, 235 Mich App 90, 96; 597 NW2d 194 (1999). Officer Hopkins testified during the preliminary examination, the suppression hearing, and the trial that he intended to stop defendant because defendant’s view was being obstructed by air fresheners dangling from the rearview mirror of the vehicle. He also testified that defendant’s vehicle was weaving in its lane and speeding just before being stopped. The trial court observed a videotape of defendant’s encounter with Officer Hopkins, which revealed not only the dangling ornament from the rearview mirror of the vehicle, but also showed the vehicle going in excess of forty-five miles an hour in a construction zone. In addition, both defendant and his mother testified that there was at least one air freshener hanging from the review mirror. It is clear then, that the record amply supports the conclusion that defendant may have been in violation of MCL 257.709(l)(c), and that Officer Hopkins had probable cause to believe that defendant was in violation of MCL 257.642(l)(a) and MCL 257.628(4). Because Officer Hopkins had probable cause to believe defendant was in violation of three traffic laws, the stop was permissible. People v Kazmierczak, 461 Mich 411, 421, n 8; 605 NW2d 667 (2000); People v Chambers, 195 Mich App 118, 121-122; 489 NW2d 168 (1992). See also United States v Taylor, 955 F Supp 763, 765 (ED Mich, 1997), quoting United States v Ferguson, 8 F3d 385, 391 (CA 6, 1993) (“[S]o long as the officer has probable cause to believe the traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment.”), and Whren v United States, 517 US 806, 813; 116 S Ct 1769; 135 L ED 2d 89 (1996) (expressly adopting the Ferguson test for determining the reasonableness of an automo bile stop). Consequently, on the basis of the record before us, we find that Officer Hopkins’ stop of defendant’s vehicle was legitimate. B. THE EXTENSION OF THE STOP Defendant also argues, for the first time on appeal, that because he was being stopped for a minor traffic violation and since he immediately provided Officer Hopkins with all requested documents, the stop should have only lasted as long as was necessary to write a citation. This issue was not raised below; therefore, it has not been preserved for review. People v Stanaway, 446 Mich 643, 694; 521 NW2d 557 (1994); People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989). Nonetheless, because defendant claims that this search violated his fundamental constitutional rights, People v Grant, 445 Mich 535, 547; 520 NW2d 123 (1994); People v McRunels, 237 Mich App 168, 172; 603 NW2d 95 (1999), and since the issue is a question of law and the necessary facts have been presented, we will review the issue. Grant, supra at 553; People v Lumsden, 168 Mich App 286, 292-293; 423 NW2d 645 (1988). Defendant’s basic claim is that the cocaine was seized as a result of an unlawful search because the intervening detention between the stop and the finding of outstanding warrants was not justified. Specifically, defendant argues that because he cooperated with Officer Hopkins there was no reason to place him in the police car or to investigate any further. When a defendant claims that evidence should be suppressed as a result of an unlawful seizure, the court must ask whether the evidence was gained by exploitation of the alleged illegality. People v Lambert, 174 Mich App 610, 616-617; 436 NW2d 699 (1989). Here, defendant was placed under arrest after a lein check revealed two outstanding warrants. After his arrest, the vehicle was searched. Accordingly, the vehicle was searched as a valid search incident to an arrest. People v Fernengel, 216 Mich App 420, 422-423; 549 NW2d 361 (1996), citing New York v Belton, 453 US 454, 460; 101 S Ct 2860; 69 L Ed 2d 768 (1981), and United States v Hudgins, 52 F3d 115, 119 (CA 6, 1995). See also People v Bullock, 440 Mich 15, 26; 485 NW2d 866 (1992). Because Officer Hopkins’ decision to place defendant in the patrol car in no way contributed to the finding of the cocaine, we find that suppression of the evidence was not warranted. Fernengel, supra at 423-424; Lambert, supra at 617-618. In addition, we find defendant’s reliance on People v Burrell, 417 Mich 439; 339 NW2d 403 (1983), where our Supreme Court noted that “[a] detention following a stop for ... a minor [traffic] violation would be justified only for the length of time necessary to write a citation,” id. at 453, unpersuasive. There, the Court disapproved of the officer’s continued detainment of the defendants after a lein check indicated that the driver had a valid driver’s license and that the vehicle was not stolen. Id. However, the Court expressed no opinion regarding whether an officer could run a lein check as a matter of course and, instead, seemed to suggest that a lein check was an appropriate way to ensure that a stopped driver had a valid driver’s license and was not in possession of a stolen vehicle. Id. Here, defendant stated he was driving a vehicle registered to his mother. Thus, it was appropriate for Officer Hopkins to run a lein check to verify the identity of the registered owner. Finally, we note that a review of Michigan cases demonstrates a recognition that the running of lein checks of vehicle drivers is a routine and accepted practice by the police in this state. See People v Combs, 160 Mich App 666, 668; 408 NW2d 420 (1987) (lein check conducted on driver of vehicle stopped in median of highway). See also People v Hubbard, 209 Mich App 234; 530 NW2d 130 (1995), and People v Oliver, 192 Mich App 201, 203; 481 NW2d 3 (1991) (vehicle stopped after it was discovered the license plate belonged to another vehicle); Young v Barker, 158 Mich App 709, 714; 405 NW2d 395 (1987) (lein check performed when vehicle stopped on highway and the plaintiff did not have a license); People v Bell, 74 Mich App 270, 276; 253 NW2d 726 (1977) (a LEIN check two days before justified the officer’s stop of the driver’s vehicle); People v Portman, 73 Mich App 366, 369; 251 NW2d 589 (1977) (rolling lein check performed on vehicle with outdated license plate). In addition, we note that in at least two circuits, the United States Court of Appeals has held that an officer conducting a routine traffic stop may run computer checks on the driver’s license, the vehicle registration papers, and whether the driver has any outstanding warrants or the vehicle has been reported stolen. See United States v Mendez, 118 F3d 1426, 1429 (CA 10, 1997), citing United States v Elliot, 107 F2d 810, 813 (CA 10, 1997); United States v White, 81 F3d 775, 778 (CA 8, 1996). See also Taylor, supra at 766. Once the computer check “confirms the driver has produced a valid license and proof of entitlement to operate the car, the driver must be permitted to proceed on his way, without further delay by police for additional questioning.” Mendez, supra, citing United States v Anderson, 114 F3d 1059, 1064 (CA 10, 1997). Here, the lein check indicated that defendant had two outstanding warrants. In addition, Officer Hopkins testified that the lein check took about five minutes to complete and this testimony was not contradicted by defendant; instead, defendant simply testified that Officer Hopkins told him it would take about ten to fifteen minutes to confirm the warrants after they were discovered by lein. Thus, Officer Hopkins had a valid reason to extend the stop and to continue to ask defendant questions. Mendez, supra at 1429-1430, citing Anderson, supra at 1064; Elliot, supra at 813. Further, as stated in People v Walker, 58 Mich App 519, 523-524; 228 NW2d 443 (1975), we find that [a] lein check is an unobtrusive investigative tool employed by the police to retrieve information regarding an individual’s driving record and to determine whether there are any outstanding warrants for his arrest—all matters of public record. As such, a lein check does not involve an unlawful disregard for individual liberties. Accordingly, because this amount of time is a minimal invasion in light of the substantial governmental interest in arresting citizens wanted on outstanding warrants, see State v Lopez, 873 P2d 1127, 1133 (Utah, 1994), we find Officer Hopkins’ use of the LEIN check in this case did not violate defendant’s constitutional rights. in. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant also claims that he was denied the effective assistance of counsel by his counsel’s decision not to call certain witnesses to testify on his behalf. Because defendant failed to move for a new trial or request a Ginther hearing below, our review of this issue is limited to mistakes apparent on the appellate record. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000), citing People v Marji, 180 Mich App 525, 533; 447 NW2d 835 (1989). If the record does not contain sufficient detail to support defendant’s ineffective assistance claim, then he has effectively waived the issue. Sabin, supra. Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy. People v Rockey, 237 Mich App 74, 77; 601 NW2d 887 (1999), citing People v Mitchell, 454 Mich 145, 164; 560 NW2d 600 (1997), and People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987). Further, “a defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he must show that, but for counsel’s error, the outcome of the trial would have been different.” Sabin, supra at 659, citing Stanaway, supra at 687. Here, defendant claims that his counsel was ineffective because counsel failed to call the codefendants, Hamill, or defendant’s mother as witnesses. However, the record does not suggest how any of these witnesses would have benefited defendant’s case, and defendant has not provided this Court with affidavits indicating what the proposed testimony of the codefendants or Hamill would have been. Further, with regard to the character evidence that would have been presented by defendant’s mother, counsel attempted to offer this testimony; however, the trial court correctly sustained the prosecution’s objection that it was irrelevant testimony. Therefore, defendant has failed to overcome the presumption that his counsel’s decision not to call those witnesses was sound trial strategy. Sabin, supra-, Rockey, supra. IV. SENTENCING A. PROPORTIONALITY OF SENTENCE Defendant next argues that his sentence is disproportionate. However, defendant was sentenced to the mandatory minimum sentence of 240 months, which, as a legislatively mandated sentence, is presumptively proportionate. People v Williams, 189 Mich App 400, 404; 473 NW2d 727 (1991). The factors raised by defendant in an effort to reduce the sentence—strong family background, prior work history, and no prior drug-related offenses—do not overcome this presumption of proportionality. People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994). Remorse, another factor raised by defendant, is also a factor that the Michigan Supreme Court has disapproved of as a basis for departure from the mandatory minimum sentence. People v Daniel, 462 Mich 1, 6; 609 NW2d 557 (2000). B. NEW SENTENCING GUIDELINES Defendant’s final argument is that he should have been sentenced under the new sentencing guidelines. This issue is without merit. Defendant’s sentence was based on events that occurred on October 21, 1998. This Court has clearly stated that because the legislative intent of MCL 769.34 was that the statute would only have prospective application, the new guidelines will only be applied to offenses committed on or after January 1, 1999. See People v Reynolds, 240 Mich App 250, 253-254; 611 NW2d 316 (2000). See also Administrative Order No. 1998-4, 459 Mich clxxv, and Administrative Order No. 1988-4, 430 Mich ci. V. CONCLUSION In sum, (1) the initial stop of defendant was legitimately based on probable cause that three traffic violations had been committed, (2) Officer Hopkins did not violate defendant’s constitutional rights by running a letn check of his driver’s license, which check revealed two outstanding warrants, (3) defendant has failed to persuade us that he did not receive effective assistance of counsel, (4) defendant’s sentence was proportionate, and (5) defendant was properly sentenced under the judicial sentencing guidelines of 1988. Affirmed. MCL 333.7401 provides, in part: (1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance .... (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug . . . and: (ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years. Officer Hopkins was actually employed by both the Baroda-Lake Township Police Department and the Berrien County Sheriffs Department. On the night in question he was working as an officer for the police department. MCL 257.709(l)(c) provides, in part: (1) A person shall not drive a motor vehicle with any of the following: (c) A dangling ornament or other suspended object except as authorized by law which obstructs the vision of the driver of the vehicle. MCL 257.642(l)(a) states, in part: (1) When a roadway has been divided into 2 or more clearly marked lanes for traffic the following rules in addition to all others consistent with this act shall apply: (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver first ascertained that the movement can be made with safety. MCL 257.628(4) states: A person who fails to observe an authorized speed or traffic control sign, signal, or device is responsible for a civil infraction. The codefendants were acquitted of ail charges and are not a part of this appeal. We also note that several states have adopted this approach. See State v Ybarra, 156 Ariz 275, 276; 751 P2d 591 (Ariz App, 1987); People v Rodriguez, 945 P2d 1351, 1360 (Colo, 1997); People v Eyler, 132 Ill App 3d 792, 798; 87 Ill Dec 648; 477 NE2d 774 (1985); State v DeMarco, 263 Kan 727, 729, 733; 952 P2d 1276 (1998); State v Bartholomew, 258 Neb 174, 179; 602 NW2d 510 (1999); State v Lopez, 873 P2d 1127, 1133 (Utah, 1994). People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). Defendant asserts that his mother would have testified that he was a professional singer; however, because the prosecution never asserted financial status as a motive for transporting the drugs, defendant’s profession or ability to make a living was irrelevant to this case. See MRE 401 and 402. MCL 769.34 states, in part: (1) The sentencing guidelines promulgated by order of the Michigan supreme court shall not apply to felonies enumerated in part 2 of chapter XVII committed on or after January 1, 1999. (2) Except as otherwise provided in this subsection or for a departure from the appropriate minimum sentence range provided for under subsection (3), the minimum sentence imposed by a court of this state for a felony enumerated in part 2 of chapter XVH committed on or after January 1, 1999 shall be within the appropriate sentence range under the version of those sentencing guidelines in effect on the date the crime was committed.

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Per Curiam. Petitioner appeals as of right from a Tax Tribunal order dismissing its petition challenging its property tax assessments for 1998 and 1999. The petition was dismissed for failure to file a conforming valuation disclosure. We reverse and remand. This case involves an appeal of respondent’s assessment and the taxable and state equalized values of petitioner’s property. Pursuant to a prehearing scheduling order issued by the Tax Tribunal, petitioner was required to file a valuation disclosure by a specified date. Petitioner received an extension of time to file the valuation, and then later filed a motion to withhold and place a protection order on the valuation. Attached to the motion was a document titled “Valuation Disclosure,” which appeared to be an affidavit from petitioner’s expert who concluded that the 1997 sale price of the property was the best indication of its value. The tribunal issued an order in which the referee found that petitioner’s valuation disclosure did not meet the criteria of the applicable administrative rule and ordered petitioner to file a proper disclosure within twenty-one days. The order did not state why the disclosure was deficient; it merely quoted the language of the rule. When petitioner failed to file a new disclosure, the tribunal dismissed petitioner’s appeal. Our review of a decision of the Tax Tribunal is typically limited to whether the decision was authorized by law and whether the tribunal’s findings were supported by competent, material, and substantial evidence on the whole record. Kostyu v Dep’t of Treasury, 170 Mich App 123, 131; 427 NW2d 566 (1988). Although the Tax Tribunal has the authority to dismiss a petition for failure to comply with its rules or orders, Kostyu, supra, the tribunal’s actions in that regard are reviewed for an abuse of discretion. Stevens v Bangor Twp, 150 Mich App 756, 761; 389 NW2d 176 (1986). An abuse of discretion exists where the result is so palpably and grossly violative of fact and logic that it indicates a perversity of will, a defiance of judgment, or the exercise of passion or bias. Dep’t of Transportation v Randolph, 461 Mich 757, 768; 610 NW2d 893 (2000). In this case, the tribunal concluded that the valuation disclosure did not meet the standards required by 1996 AACS, R 205.1101(l)(m), presently 1999 AC, R 205.1101(l)(m), which provides in part: “Valuation disclosure” means documentary or other tangible evidence in a property tax appeal which a party relies upon in support of the party’s contention as to the true cash value of the subject property or any portion thereof and which contains the party’s value conclusions and data, valuation methodology, analysis, or reasoning in support of the contention. The tribunal never specifically informed petitioner how its disclosure failed to comply with the rule, or what petitioner had to do to bring the disclosure into compliance. The rule defines a valuation disclosure; however, there is no requirement in the rule that the disclosure contain any particular information, and nowhere in the language of the rule does it suggest that the disclosure must meet any specific “criteria.” The ultimate issue in this case concerned the true cash value of petitioner’s property. The burden of proof was on petitioner to establish the true cash value of the property. Jones & Laughlin Steel Corp v City of Warren, 193 Mich App 348, 353; 483 NW2d 416 (1992). “True cash value is synonymous with fair market value.” Id.-, MCL 211.27. In its valuation disclosure, petitioner’s expert opined that the true cash value of the property was reflected by the purchase price for the property in 1997. Evidence of the selling price of property is relevant in determining the taxable value of property. Jones & Laughlin, supra at 353-354; Great Lakes Division of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 389-390; 576 NW2d 667 (1998). Accordingly, petitioner’s valuation disclosure identified relevant, admissible evidence in support of its position regarding the taxable value of its property. Our previous decisions imply that the Tax Tribunal should be permissive in the admission of relevant evidence of the fair market value of property subject to an appeal, even if that evidence is not determinative. See Jones & Laughlin, supra at 353-354. The tribunal’s unexplained, perfunctory rejection of the valuation disclosure in this case does not appear to comport with this permissive evidentiary standard. We believe that petitioner’s valuation disclosure satisfied the requirements of Rule 205.1101(l)(m) by setting forth the evidence it was relying on to support its position and by identifying the basis for its conclusion with regard to value, i.e., the 1997 purchase price of the property. Further, the disclosure served its purpose of putting respondent on notice of petitioner’s evidence regarding the value of the property. Accordingly, the tribunal abused its discretion in dismissing the petition for failure to file a conforming valuation disclosure. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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Per Curiam. In Docket No. 222904, plaintiff appeals by leave granted from the trial court’s order granting summaiy disposition in favor of defendant township and defendant officers. In Docket No. 223337, defendant township and defendant officers appeal by leave granted, advancing alternative theories in support of summaiy disposition. We affirm. In June 1997, plaintiff called the White Lake Township police and requested that her daughter, Katherine Kruger, be taken into custody. According to plaintiff, Katherine was intoxicated and posed a dan ger to herself and others. Katherine also had an outstanding warrant from Bloomfield Township. Katherine was arrested and transported to the White Lake Township Police Department to await transfer to Bloomfield Township. At the police station, because there was an intoxicated man already in the lone holding cell, Katherine was restrained by being handcuffed to a ballet bar in the booking room. Katherine was left alone in the room, and was eventually able to maneuver her way out of the handcuffs and escape. As she fled from the police station, she ran into traffic and was hit by an unidentified vehicle. Katherine was transported to the hospital, where she died. Plaintiff brought the instant action, alleging, inter alia, that defendant township and defendant officers were negligent. Defendants moved for summary disposition, claiming governmental immunity. Plaintiff countered defendants’ motion by arguing that defendant township was liable under the public building exception to governmental immunity, and that defendant officers were liable under the gross negligence exception to governmental immunity. The trial court granted defendants’ motion. First, plaintiff argues that summary disposition of her claim against defendant township was improper because her claim falls within the public building exception to governmental immunity. We disagree. Generally, a governmental entity is immune from tort liability for actions that accrue while it is performing a governmental function. MCL 691.1407(1). The immunity is broad, subject to a limited number of narrowly drawn exceptions. Sewell v Southfield Public Schools, 456 Mich 670, 674; 576 NW2d 153 (1998). One of these exceptions is the “public building” exception, which provides in part: Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [MCL 691.1406.] Traditionally, a five-part test has been applied to determine whether this exception applies to a particular case: A plaintiff must establish that (1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period. [Sewell, supra at 675.] “[T]he public building exception applies only where the physical condition of the building itself causes the injury . . . .” Id. “[A] building may be dangerous or defective because of improper design, faulty construction, or the absence of safety devices.” Id. “[W]hether a building is dangerous or defective must be determined in light of the uses or activities for which it is assigned.” Id. “[I]n certain circumstances, the public building exception will not apply where proper supervision would have offset any shortcomings in the configuration of the room.” Id. “[W]here the essence of a plaintiff’s claim is negligent supervision, the plaintiff cannot properly allege a building defect merely because a superior building design would have facilitated better supervision.” Id. at 676. In this case, the trial court ruled that the public building exception did not apply because a defect in the building did not cause Katherine’s injuries. In short, the trial court found the public building exception not applicable on causation grounds. On appeal, plaintiff does not address the causation issue. Because plaintiff does not present any argument or authority showing that the trial court erred in this regard, plaintiff has not established entitlement to relief. Our review of the record leads us to conclude that plaintiff’s claim does not fall within the public building exception. The booking room was not defective in light of its intended purpose, which is the temporary detention of those in custody. The handcuffs and ballet bar provide a sufficient means of temporary restraint. Therefore, the absence of an additional holding cell, additional video surveillance, or a locked door, does not amount to a defective design. Further, there is no evidence that the ballet bar and handcuffs were in fact defective. The trial court properly granted summary disposition in favor of defendant township. With regard to plaintiff’s claim against defendant officers, summary disposition was also properly granted. Assuming without deciding that defendant officers were grossly negligent, to be held liable, their gross negligence must be “the one most immediate, efficient, and direct cause of the injury or damage, i.e., the proximate cause.” See Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000); MCL 691.1407(2). It is not enough that the gross negligence be “a” proximate cause, it must be the “direct cause preceding the injury.” Robinson, supra at 462. In the instant case, there were several other more direct causes of Katherine’s injuries than defendant officers’ conduct, e.g., her escape and flight from the police station, her miming onto M-59 and into traffic, and the unidentified driver hitting plaintiff’s decedent. Any gross negligence on defendant officers’ part is too remote to be “the” proximate cause of Katherine’s injuries. As a result, the officers are immune from liability. In light of our conclusion that summary disposition was properly granted in favor of defendant township and defendant officers, we need not address the parties’ remaining allegations of error. Affirmed.

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Kavanagh, J. Defendant was charged with first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), in the fatal shooting of William Stanford. The jury returned a verdict of guilty of second-degree murder, MCL 750.317; MSA 28.549, and of felony-firearm. The Court of Appeals reversed, People v Jones, 115 Mich App 543; 321 NW2d 723 (1982), holding that the trial judge had erred in failing to instruct the jury on involuntary manslaughter and that reversal was required. We affirm. In this case, as in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), we are satisfied that the instructions did not fully and fairly present the case to the jury in an understandable manner. The prosecutor would distinguish this case from Ora Jones on the basis that the theory of the defense in that case was accident whereas here the defendant did not claim accident. It is true that in Ora Jones the defendant testified that the gun accidentally discharged when his arm was jostled, whereas the defendant in this case produced no witnesses. We do not think such fact or a fair reading of the testimony which was adduced establishes the prosecutor’s assertion that the defendant did not claim accident. Perhaps the most persuasive evidence that defendant did this shooting at all was the testimony of his girlfriend that in telling her about the shooting, "He just kept mumbling, 'It was an accident. God knows, it was an accident. It just went off ”. This evidence was offered and admitted as a party admission and is accordingly some evidence that the shooting was unintentional. In his closing argument the prosecutor observed: "In raising the whole spectrum of accident, brother counsel wants to give the police so much credit on the one hand”. Although defense counsel argued for an all-or-nothing verdict on the first-degree murder charge instead of arguing for accidental discharge of the weapon, the question of accident was properly within the jury’s contemplation. The record in this case does not contain any written requests for instructions, and the transcript does not show that any oral requests were made. The judge’s instruction sua sponte on manslaughter is inexplicable. We found no evidence in the record which would support a conclusion that the killing was done in such circumstances of passion or provocation as would support a verdict of voluntary manslaughter. We are satisfied that the Court of Appeals was correct in ordering a new trial for the reason we stated in Ora Jones, p 393: "The prosecutor claimed intentional shooting, the defendant maintained it was accidental. The jury was not obliged to accept either theory but could have concluded that the killing was the result of criminal negligence, e.g., involuntary manslaughter. Had the judge not instructed at all on manslaughter, there would be no reversible error, because no request for instruction on manslaughter was made. See People v Henry, 395 Mich 367; 236 NW2d 489 (1975). "Having undertaken to do so, however, it was reversible error to give a misleading instruction which recognized only the prosecution’s theory but not the defendant’s.” Affirmed. Williams, C.J., and Levin and Cavanagh, JJ., concurred with Kavanagh, J.

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Per Curiam. In this case, the Court of Appeals has reversed a felony conviction, but has left undisturbed an accompanying conviction of possession of a firearm during the commission of the felony. We believe that this was error, and we reverse the defendant’s felony-firearm conviction. I The information in this case listed three counts of criminal conduct. Count I alleged that the defendant had committed an assault while armed with a dangerous weapon (felonious assault). MCL 750.82; MSA 28.277. Count II alleged that the defendant had possessed a firearm "while in the commission or attempt to commit said felonious assault as more fully set forth in Count I above”. MCL 750.227b; MSA 28.424(2). Count III alleged that the defendant had carried a weapon in his automobile (CCW). MCL 750.227; MSA 28.424. A jury found the defendant guilty of all three counts. He was sentenced to a term of from one to four years in prison for assault with a dangerous weapon, a term of two years in prison for the felony-firearm conviction, and a term of from one to five years in prison for carrying a weapon in his automobile. The trial court ordered that the sentences for Counts I and III be served concurrently and that they be served consecutively to the sentence for Count II. The defendant appealed to the Court of Appeals, raising several issues. In an unpublished per cu-riam opinion, the Court of Appeals agreed with the defendant that the trial court had erred in permitting testimony that suggested that the defendant had possessed a controlled substance at the time of his arrest. The Court of Appeals further agreed with the defendant that testimony concerning his silence at the time of arrest violated People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). Finally, the Court of Appeals agreed with the defendant that the trial court had given an erroneous instruction on the charge of assault with a dangerous weapon. "Defendant next argues that the trial court erred in instructing the jury on the elements of felonious assault. We agree. Although the trial court did instruct based on CJI 17:4:01, it omitted the first paragraph in that instruction. Therefore, although the jury was properly instructed that defendant could be convicted of felonious assault on either of two different theories, under only one theory was it instructed that the defendant [would] need a dangerous weapon. As such, under the first theory it was instructed that it need not find that defendant used a dangerous weapon. Using a dangerous weapon is necessary. People v Stevens, 409 Mich 564; 297 NW2d 120 (1980); People v Stubbs, 110 Mich App 287; 312 NW2d 232 (1981), lv den 413 Mich 950 (1982).” The Court of Appeals explained that, "[conjoining these three errors”, it was reversing the defendant’s conviction of assault with a dangerous weapon. The Court went on, however, to explain that neither the felony-firearm conviction nor the CCW conviction would be reversed. "Conjoining these three errors, we reverse defendant’s felonious assault conviction. However, we decline to reverse either his carrying a concealed weapon or felony-firearm conviction. Unless the error is per se reversible, we will not reverse a conviction if defendant’s defense is not legally recognized. Defendant’s only defense to the charges was intoxication. Although intoxication is a defense to felonious assault, People v Polk (On Rehearing), 123 Mich App 737; 333 NW2d 499 (1981), it is not a defense to a general intent crime like carrying a concealed weapon. People v Lane, 102 Mich App 11, 15; 300 NW2d 717 (1980). Felony-firearm requires that the firearm be carried or possessed during the course of a felony or an attempted felony. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis 444 US 948 (1979). As such, because felony-firearm is also a general intent crime, intoxication is again not a legal defense. Therefore, because defendant’s only defense in this case is not a legal defense to either of these crimes and because none of the errors complained of are per se reversible, we find the errors harmless for his convictions for felony-firearm and carrying a concealed weapon. "Even though the felony-firearm charge was predicated on the felonious assault and not the carrying of a concealed weapon, we will not reverse the felony-firearm conviction merely because we have reversed the felonious assault conviction. Michigan courts allow inconsistent verdicts. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). The errors requiring reversal for felonious assault in this case do not in and of themselves require reversal for felony-firearm. See People v Morgan [123 Mich App 27; 333 NW2d 163 (1983)].” The defendant has applied to this Court, asking us to reverse his two remaining convictions. The prosecutor has filed an application for leave to cross-appeal, asserting that the trial court properly instructed the jury on the crime of assault with a dangerous weapon. II This defendant was charged with possession of a firearm "while in the commission or attempt to commit said felonious assault as more fully set forth in Count I”. The jury found the defendant guilty as charged, and affirmed its finding of guilt "of the crime of carrying a concealed weapon, felonious assault, and of felony-firearm in the manner and form that the people have in their information in this cause charged”. The Court of Appeals determined that this defendant’s conviction of assault with a dangerous weapon must be reversed. The issue is whether the felony-firearm conviction must also be reversed. Ill The felony-firearm statute reads: "(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years. "(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony. "(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).” In Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), we said that felony-firearm is clearly a separate crime, and not merely a sentence enhancement measure. The relationship between a felony-fire arm offense and the underlying felony was more fully explored in People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). In that case, we dealt with three cases in which juries had entered acquittals on the underlying felony, together with convictions of felony-firearm. The defendants in Lewis argued that a verdict of not guilty on the felony charge represented a finding by the jury that the defendant did not commit the felony, and since he did not commit the felony he could not be guilty of felony-firearm. We observed, however, that such an argument looks at the matter from only one side, and that the conviction of felony-firearm may, with equal validity, be read as an implicit finding that the defendant did commit the felony. Thus the inconsistent verdicts suggested that the juries either compromised or were lenient. We later observed, "[w]hile the felony-firearm statute makes commission or the attempt to commit a felony an element of the offense of felony-firearm, it does not make conviction of a felony or an attempt to commit a felony an element of the offense”. We went on to explain that a jury should be instructed that a felony-firearm conviction may not be had unless the defendant committed or attempted to commit a felony, but that it would be error to instruct the jury that a felony-firearm conviction may not be had unless there is a conviction of an underlying felony. The juries in Lewis reached inconsistent verdicts through compromise or leniency. We observed in People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980), that juries "are not held to any rules of logic” and possess the "capacity for leniency”. We added, however, that "[tjhese considerations change when a case is tried by a judge sitting without a jury”. An appellate court likewise does not normally enjoy the freedom to be inconsistent or to compromise. In explaining that the reversal of the conviction of assault with a dangerous weapon did not mandate reversal of the felony-firearm conviction, the Court of Appeals offered two explanations. The first was that the defendant’s only defense to the charges was intoxication and that intoxication is no defense to felony-firearm. The second was that inconsistent results were permissible. "Even though the felony-firearm charge was predicated on the felonious assault and not the carrying a concealed weapon charge, we will not reverse the felony-firearm charge merely because we have reversed the felonious assault conviction. Michigan courts allow inconsistent verdicts. People v Lewis, 415 Mich 443; 330 NW2d 16 (1982). The errors requiring reversal for felonious assault in this case do not in and of themselves require reversal for felony-firearm. See People v Morgan [123 Mich App 27; 333 NW2d 163 (1983)].” Neither reason is persuasive. It does not matter whether intoxication is a defense to felony-firearm —it is a defense to the underlying felony of assault with a dangerous weapon. Our explanation in Lewis that no conviction of the underlying felony need be had does not alter the requirement that the underlying felony must have been committed. As explained above, Lewis does not grant an appellate court the option of reaching an inconsistent result. Lewis thus does not support the analysis of the Court of Appeals in this case. Neither does Morgan, since our subsequent decision to grant relief to the prosecution removed the inconsistent nature of the result in that case. People v Steven Morgan, 417 Mich 1064; 335 NW2d 907 (1983). The jury in this case was improperly instructed on the underlying felony of assault with a dangerous weapon. The assault conviction has therefore been reversed. More importantly, the jury’s factual finding that the assault was committed may no longer be relied upon. Absent such a finding, the felony-firearm conviction must also be reversed. For these reasons, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we modify the judgment of the Court of Appeals to provide that the felony-firearm conviction is also reversed. We are unpersuaded that there is any merit to the other issues raised by the defendant or the prosecution, and thus the judgment of the Court of Appeals is in all other respects affirmed. Williams, C.J., and Kavanagh, Levin, Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred. Docket No. 62522, decided August 4,1983. Our reversal of the felony-firearm conviction renders it unnecessary to comment on the trial court’s order that the sentence for carrying a weapon in an automobile be served consecutively to the felony-firearm sentence.

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Per Curiam. In this wrongful discharge action, plaintiff, Michael E. Grant, appeals as of right from the circuit court’s order denying his request for an order of superintending control and to show cause. We affirm. Citing incompetence, defendant, Meridian Charter Township discharged plaintiff—a Vietnam war veteran—from his employment as a paramedic. Plaintiff alleges that the discharge was in violation of the procedures outlined in the Veterans’ Preference Act (vpa), MCL 35.401 et seq., and that in reviewing the matter the circuit court failed to properly employ the applicable standard of review. Generally, we review a circuit court’s decision to deny a request for superintending control for an abuse of discretion. In re Gosnell, 234 Mich App 326, 333; 594 NW2d 90 (1999). However, to the extent that resolution of this matter requires that we interpret the provisions of the vpa, our review is de novo. See, e.g., Oakland Co Bd of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998). The first issues to be resolved in this matter are whether defendant complied with the procedural requirements of the vpa in discharging plaintiff and, if not, what remedies are available to plaintiff as a result of that failure. Section 402 of the vpa provides, in relevant part, that “[n]o veteran . . . shall be removed . . . except for . . . incompetency; and [that] such veteran shall not be removed . . . except after a full hearing before . . . the township board . . . .” MCL 35.402. This section further provides that, at least fifteen days before the pretermination hearing, the veteran must be given written notice of both the cause for removal and the fact that the veteran can only be removed on written order of the board after a full hearing has been held. Id. In this case, it is undisputed that plaintiff was never afforded such notice and was removed before a hearing before defendant’s township board, in clear violation of the quoted statutory language. See Sherrod v Detroit, 244 Mich App 516, 523; 625 NW2d 437 (2001), quoting Jackson v Detroit Police Chief, 201 Mich App 173, 176; 506 NW2d 251 (1993). However, in addition to the pretermination notice and hearing requirements discussed above, the vpa provides “[t]hat where [a] veteran has been removed . . . other than in accordance with . . . this act, he shall file a written protest. .. within 30 days . ..; otherwise the veteran shall be deemed to have waived the benefits and privileges of this act . . . .” MCL 35.402. Relying on this language, as well as this Court’s decision in Adams v Detroit, 184 Mich App 589; 458 NW2d 903 (1990), defendant argues that the posttermination hearing held at plaintiff’s request was sufficient to meet the requirements of the vpa, despite defendant’s failure to afford plaintiff a pretermination hearing. We disagree. This Court more recently discussed the apparent conflict within § 402 as follows: Defendants rely on Adams [supra at 597], where this Court expressed strong disagreement with the plaintiff’s argument that the vpa required his employer to hold a full hearing before his termination. Id. However, another panel of this Court, in Jackson, supra at 177, n 1, rejected the conclusion in Adams that the employer need not hold a hearing before taking action. We are bound to follow Jackson, which was issued after November 1, 1990. MCR 7.215(H)(1). Moreover, Jackson conforms with the plain language of the act, which states that a “veteran shall not be removed, transferred or suspended for any cause above enumerated from any office or employment, except after a full hearing . . . .” MCL 35.402] ] (emphasis added). See also Jackson, supra at 177. * * * . . . [T]he quoted language does not give employers the option to hold the hearing after the suspension. Rather, the language is akin to a preservation requirement in that the employee must either file a written protest within the specified period or waive the privileges of the vpa. See, e.g., Cook v Jackson, 264 Mich 186, 188; 249 NW 619 (1933). Further, to allow the employer to hold the hearing after the adverse employment action would render nugatory the language stating that the “veteran shall not be . . . suspended . . . , except after a full hearing . . . ." This Court avoids any construction that would render any part of a statute surplusage or nugatory. People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999). [Sherrod, supra at 524-525.] Accordingly, we conclude that defendant violated the vpa when it failed to afford plaintiff a full hearing before discharge. However, although violation of the VPA may be a criminal misdemeanor subject to a fine or imprisonment, MCL 35.403, a veteran’s right to relief under the act is limited. As we stated in Jackson, supra at 177: [T]he remedy the VPA provides for a violation of the right to notice and a hearing is not automatic reinstatement with back pay. Because plaintiff was demoted without a hearing, he was required to file a written protest with the mayor or he would be deemed to have waived the protections of the vpa. MCL 35.402[ ]. If plaintiff filed such a protest, the mayor would be required to conduct a hearing, or refer the protest to the city’s legal department to conduct a hearing. Id. Plaintiff would be entitled to back pay only if the mayor found plaintiff’s allegations to be true and determined that he should be reinstated. Id.; see also Valentine v Redford Twp Supervisor, 371 Mich 138, 147; 123 NW2d 227 (1963). Further, we have stated: MCL 35.402[ ] entitles veterans removed from public employment to back pay only in situations where they are reinstated. We also are reluctant to award back pay in situations where a discharge is substantially proper but proceduraily deficient. Because defendants discharged plaintiff for cause, he suffered no economic loss. An award of back pay would serve only to penalize defendants. The record reveals that the delay in holding a Veterans’ Preference Act hearing resulted primarily from confusion over who would hold the rather unusual hearing. Under these circumstances, we do not believe an award of back pay would deter future procedural errors and are not inclined to award back pay. [Ingham Co Employees’ Ass’n v Ingham Circuit Court, 170 Mich App 118, 122; 428 NW2d 7 (1988).] The record in the instant matter similarly holds no evidence of an intentional violation of the act. Therefore, we affirm the circuit court’s decision because, although it incorrectly held that plaintiff was afforded “all the process that was due and was required,” plaintiff is nonetheless entitled to no relief under the vpa. MCL 35.402, 35.403; Ingham Co Employees Ass’n, supra; Jackson, supra. Next, we consider whether the circuit court properly employed the applicable standard of review, i.e., whether the township board’s decision to terminate plaintiff was supported by competent, material, and substantial evidence. Smith v Mayor of Ecorse, 81 Mich App 601, 604-605; 265 NW2d 766 (1978). See also Egan v Detroit, 150 Mich App 14, 20; 387 NW2d 861 (1986) (discussing circuit court review under the VPA). Our review of the circuit court’s decision is limited to determining whether the court “applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). In other words, this Court reviews the circuit court’s decision for clear error. Id. A decision is clearly erroneous when, “on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made.” Id. at 235. In applying the competent, material, and substantial evidence test, the circuit court must review the entire record, not just those portions supporting the lower tribunal’s findings. Great Lakes Sales, Inc v State Tax Comm, 194 Mich App 271, 280; 486 NW2d 367 (1992). Substantial evidence is any evidence that reasonable minds would accept as sufficient to support the deci sion; it is more than a mere scintilla of evidence but may be less than a preponderance of the evidence. See Korzowski v Pollack Industries, 213 Mich App 223, 228; 539 NW2d 741 (1995). If there is sufficient evidence, the circuit court may not substitute its discretion for that of the lower tribunal, even if the court might have reached a different result. Black v Dep’t of Social Services, 195 Mich App 27, 30; 489 NW2d 493 (1992). Further, the tribunal’s findings of fact are afforded deference. THM, Ltd v Comm’r of Ins, 176 Mich App 772, 776; 440 NW2d 85 (1989). This is especially true with respect to witness credibility and evidentiary questions. Arndt v Dep’t of Licensing & Regulation, 147 Mich App 97, 101; 383 NW2d 136 (1985). Here, although in denying plaintiff’s request the circuit court did not specifically mention whether the township board’s decision was supported by “competent, material and substantial evidence on the whole record,” Egan, supra at 20, it did, after properly recognizing that it could not substitute its opinion for that of the township board, Black, supra at 30, find that “there was evidence on the record to support [the board’s] findings.” This oral ruling was a sufficiently proper characterization of the substantial evidence test to lead us to conclude that the circuit court neither misapprehended nor misapplied the applicable standard of review. Boyd, supra. Moreover, after reviewing the record, we are not persuaded that the circuit court clearly erred in finding that the board’s factual findings were supported by the requisite quantum of evidence. Id. Although plaintiff presented the township board with testimonial and documentary evidence favorable to his request for reinstatement, additional evidence presented to the board indicated that there were serious concerns regarding plaintiffs competence as a paramedic. Inasmuch as a reasoning mind could accept this latter evidence as sufficient to support the board’s decision, Korzowski, supra, we are not left with a definite and firm conviction that a mistake has been made. We affirm. We have consolidated plaintiff’s repetitive issues for appeal.

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Ryan, J. We are asked to determine whether a board of county road commissioners, as a governmental agency responsible for the maintenance of roadways pursuant to MCL 224.21 and 691.1402; MSA 9.121 and 3.996(102), may be impleaded by a defendant-third-party plaintiff on a claim for contribution pursuant to MCL 600.2925; MSA 27A.2925. As a corollary thereof, we are required to determine whether, assuming that such a third-party defendant may be impleaded pursuant to a claim for contribution, the third-party plaintiffs’ claims in these cases are barred by the statute of limitations. We answer the first question in the affirmative, and the second in the negative. I Bernice Sziber and her four-year-old son, Harry E. Sziber, Jr., died as a result of injuries suffered in a two-car automobile collision that occurred at an open intersection in Tuscola County in September of 1973. One day short of three years later, in September of 1976, plaintiff Karen Tausch, as special administratrix of the estates of Bernice Sziber and Harry E. Sziber, Jr., filed a wrongful death action against Harry Sziber, Sr., the husband and father of the decedents and the driver of the car in which they were passengers at the time of the accident, and against Brian J. Stout and Geraldine A. Stout, the driver and the owner, respectively, of the other car involved in the accident. The collision occurred at the intersection of Swaffer and Willits Roads which divided the counties of Lapeer and Tuscola. In April and June of 1978, the defendants each brought a third-party action against the Boards of County Road Commissioners of the counties of Lapeer and Tuscola (hereinafter the road commissions), seeking contribution for all or any part of any judgment which might be entered against them. The third-party defendant road commissions moved for accelerated judgment pursuant to GCR 1963, 116.1(5), asserting that the two-year statute of limitations established in MCL 691.1411; MSA 3.996(111) barred the third-party complaints. In an opinion dated October 26, 1978, and by judgment dated May 1, 1979, the trial court granted the third-party defendants’ motions for accelerated judgment on the ground that the complaints were indeed barred by the statute of limitations because the contribution actions were not brought within two years of the accrual of the underlying causes of action. On August 18, 1980, a consent judgment was entered in favor of the estate of Harry E. Sziber, Jr., against the Stouts in the amount of $12,933, and against Harry E. Sziber, Sr., in the amount of $12,120. On August 25, 1980, a consent judgment was entered in favor of the estate of Bernice Sziber against the Stouts in the amount of $25,000, and against defendant Harry E. Sziber, Sr., in the amount of $20,000. Apparently those judgments have been satisfied, and it is for those amounts that the third-party plaintiffs Harry E. Sziber, Sr., and the Stouts seek contribution from the third-party defendant road commissions. The Court of Appeals affirmed the trial court’s accelerated judgments dismissing the third-party actions, but did not address the issue whether the third-party plaintiffs’ claims were barred by the statute of limitations. The Court concluded instead that the "third-party plaintiffs’ actions are not within the scope of the waiver of governmental immunity found in MCL 691.1402; MSA 3.996(102)”. The Court of Appeals said: "We find that by its plain language MCL 691.1402; MSA 3.996(102) permits a cause of action to be brought against a county road commission only by that class of persons who have sustained bodily injury or damage to their property as a result of that governmental agency’s failure to keep a highway in reasonable repair. Third-party plaintiffs do not fall within this class, and, therefore, their action is barred by the doctrine of governmental immunity.” 111 Mich App 450, 458; 315 NW2d 166 (1981). We granted the third-party plaintiffs’ application for leave to appeal. 414 Mich 864 (1982). II In the contribution actions, the road commissions, adopting the reasoning of the Court of Appeals, maintain, inter alia, that the third-party plaintiffs may not prevail because they are not within the class of persons who may bring an action against a county for defective roads. We begin our resolution of this first issue recognizing that unless "otherwise provided” by the Legislature, all governmental agencies are immune from tort liability when engaged in the exercise and discharge of a governmental function. MCL 691.1407; MSA 3.996(107) provides: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases when the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” (Emphasis supplied.) This Court has held that the road commissions are governmental agencies within the meaning of the governmental immunity statute, and that the maintenance and improvements of highways are governmental functions. Thomas v Dep’t of State Highways, 398 Mich 1, 11-12; 247 NW2d 530 (1976). However, the Legislature has "otherwise provided” a statutory exception to that general grant of tort immunity by enacting § 1402 which provides, in relevant part: "Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.” MCL 691.1402; MSA 3.996(102). (Emphasis supplied.) The road commissions argue that MCL 691.1402; MSA 3.996(102) does not authorize third-party plaintiffs to bring their contribution action because the statute expressly limits relief to persons who suffer bodily injury or property damage and the third-party plaintiffs have not suffered any such loss. Therefore, the argument continues, since the third-party plaintiffs have no cause of action against the road commissions under the maintenance-of-roads exception to the governmental immunity statute, and since no other applicable exception has been shown to exist, the road commissions are immune from liability in this case. Different panels of the Court of Appeals have reached conflicting conclusions in resolving this issue. In Genesee County Road Comm v State Highway Comm, 86 Mich App 294, 298-299; 272 NW2d 632 (1978), the principal defendant-third-party plaintiff road commission brought an action for contribution against the third-party defendant State Highway Commission. The Court stated: "Although this [§ 1402] would have permitted the action in behalf of [the injured original plaintiff] to be pursued against the state, it does not authorize the sort of action attempted here. This is because the statute limits relief to that class of persons who suffer bodily injury or property damage. Plaintiffs [Genesee County Road Commission] of course, have suffered no such loss. Statutory exceptions to governmental immunity are to be strictly construed”. See also Lenawee Road Comm v Transportation Dep’t, 128 Mich App 528, 530; 340 NW2d 316 (1983); Converse v Isabella County, 126 Mich App 331, 340; 336 NW2d 918 (1983). Three years later, in May v Wolverine Tractor and Equipment Co, 107 Mich App 163; 309 NW2d 594 (1981), app dis 412 Mich 863; 325 NW2d 1 (1982), another panel of the Court of Appeals considered a third-party action brought by a tractor manufacturer against the Oakland County Board of Road Commissioners for contribution arising out of a claim against the tractor manufacturer for injuries suffered by a workman in a highway accident. As to the third-party plaintiff tractor manufacturer’s right to maintain an action against the road commission for contribution, the Court stated: "We disagree with [the] narrow interpretation [given the statute in Genesee County, supra], Concededly, statutes in derogation of a common law are to be strictly construed. Notwithstanding that rule, a statute must also be construed sensibly and in harmony with the legislative purpose. "A plaintiffs lack of diligence, oversight or deliberate choice in not naming a governmental defendant must not be permitted to place upon a named defendant an unfair share of responsibility.” 107 Mich App 163, 168-170. Our resolution of this issue is more easily understood if we defer it until after we discuss the road commissions’ next theory of defense, because the former follows logically from the latter. The road commissions next assert that not only are the third-party plaintiffs not afforded a right of action under the statute waiving immunity of governmental entities for defective roads for the reasons stated in Genesee County Road Comm, supra, they also may not rely upon either GCR 1963, 204 or the contribution statute, MCL 600.2925; MSA 27A.2925, because neither the rule nor the statute provides a substantive cause of action. According to the road commissions, GCR 1963, 204 merely sets forth a procedure governing third- party practice and does not provide a substantive right of action, Morgan v McDermott, 382 Mich 333, 345, 352; 169 NW2d 897 (1969). We agree. "The substantive basis for defendant’s claim against the third-party defendant must be found elsewhere before [Rule 204, which does not create substantive rights] becomes operative, [and t]hat basis may be found in principles of indemnity, subrogation, contribution, warranty, or other substantive right”. 1 Honigman & Hawkins, Michigan Court Rules Annotated, Rule 204, Authors’ comments, p 508. It is well settled in federal practice that Federal Rule of Civil Procedure 14, the federal counterpart of our Rule 204, does not establish a substantive cause of action and merely provides a procedure to govern federal third-party practice. See FR Civ P 14; 3 Moore’s Federal Practice (2d ed), ¶ 14.03; 6 Wright & Miller, Federal Practice & Procedure, § 1442 and supp; 7 West’s Federal Practice Manual (rev 2d ed), §8702 and supp. We think the same conclusion is required concerning GCR 1963, 204. The rule does not create a cause of action for contribution. The road commissions further assert that the third-party plaintiffs cannot rely on the contribution statute, MCL 600.2925; MSA 27A.2925, as a basis for their action because the statute did not provide a substantive right of action. The basis for that assertion is apparently the theory, earlier stated, that notwithstanding the right created in § 2925 to maintain a contribution action against a private tortfeasor, the only cause of action which may be maintained against the road commissions, otherwise immune from liability, is that for which the Legislature has specifically and narrowly waived immunity in MCL 691.1402; MSA 3.996(102), viz., an action for bodily injury or property damage. We disagree. MCL 600.2925; MSA 27A.2925 provided in part: "(1) Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share is entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment. Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution. No person may be compelled to pay to any other defendant an amount greater than his pro rata share of the entire judgment.” (Repealed, 1974 PA 318.) (Emphasis supplied.)_ Although, concededly, there is some language in Morgan v McDermott, supra, which can be read as supporting the reasoning of the road commissions, just one year after the decision in Morgan this Court held, in Moyses v Spartan Asphalt Paving Co, 383 Mich 314, 322-332; 174 NW2d 797 (1970), that § 2925(a), the statute applicable in this case, provided the identical substantive right as did the predecessor statute, 1941 PA 303. More importantly, five years later, in Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975), the Court discussed the history and theory of the contribution doctrine as well as the effect of Moyses on the doctrine of contribution. The Caldwell Court stated: "The general rule of contribution is that one who is compelled to pay or satisfy the whole or to bear more than his aliquot share of the common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares.” 394 Mich 417. The Caldwell Court then noted that the Moyses Court overruled the remnants of Michigan’s common-law rule that barred wrongdoers from the equitable right of contribution. "Clearly Moyses returned the doctrine of contribution among non-intentional wrongdoers to the original equitable rules.” Caldwell, pp 419-420. In Caldwell, in implicit recognition that contribution is substantive in nature and not dependent on the whim of the original plaintiff, the Court stated that the "plaintiff’s caprice in choosing to join or not to join third-party defendants is not determinant of third-party plaintiffs’ right to contribution.” Id., p 420. It is clear that Caldwell, although not explicitly, recognized that the right to contribution was substantive in nature. Our recognition in Moyses and Caldwell that the Michigan statute abrogates the common-law bar prohibiting contribution among "wrongdoers” and established a substantive cause of action independent of the underlying suit which gave rise to it was consistent with the understanding of the contribution doctrine in sister jurisdictions. The Supreme Court of Wisconsin, in State Farm Mutual Automobile Ins Co v Schara, 56 Wis 2d 262, 266; 201 NW2d 758; 57 ALR3d 922 (1972), stated: "The nature of the newly accrued cause of action [i.e., contribution] is not dependent on whether the obligation discharged resulted from contract or tort. The cause of action that accrues depends not one whit upon the nature of the origin of liability. It is enough that joint liability from whatever source exist. We said in Wait v Pierce, 191 Wis 202, 226; 209 NW 475; 210 NW 822 (1926): " 'Whether the common obligation be imposed by contract or grows out of a tort, the thing that gives rise to the right of contribution is that one of the common obligors has discharged more than his fair equitable share of the common liability.’ "All contribution claims have in common the characteristic that the party having a right against another also liable has discharged more than his share of the liability. It is the bearing of a greater share of a common liability than is justified, and not the source of the underlying liability, that characterizes a cause of action for contribution. "Accordingly, the right of contribution is the same irrespective of its origins. Brown v Haertel, 210 Wis 354, 358; 244 NW 633; 246 NW 691 (1933).” The significance of the conclusion that the contribution statute establishes an independent, substantive cause of action is that it renders irrelevant the argument that the third-party plaintiffs’ case does not fit within the provisions of the statutory exception to the governmental immunity that the road commissions would otherwise enjoy. It is of no moment that the third-party plaintiffs may not bring an action in tort against the road commissions because they suffered no "bodily injury or property damage” if the right created by the contribution statute is a separate and independent right of recovery and not a traditional action in tort. We conclude that it is just that. We hold, therefore, that the statute creates a substantive cause of action for contribution available to the third-party plaintiffs in this case which is wholly independent of the underlying tort ac tion, unaffected by the governmental immunity statute, and which may be prosecuted to judgment, providing that the other requirements of the contribution statute are met. Ill We turn now to the question that was originally put to the Court of Appeals, but which remains unanswered: whether the third-party plaintiffs’ cause of action against the road commissions for contribution is barred by the statute of limitations. In an opinion filed October 26, 1978, the trial court granted motions for accelerated judgments, dismissing the third-party actions on the basis that they were barred by the statute of limitations. The trial court noted first that the question was one of determining when the statute of limitations began to run on a claim for contribution brought by a defendant against a third-party defendant. The road commissions claimed that the period of limitations began to run on the day of the accident, September 28, 1973, whereas the third-party plaintiffs claimed "that there is no statute of limitations applicable or that the time would commence as of when they were sued — September 27, 1976, or possibly when they may pay, discharge, or settle a claim against themselves”. The trial court recognized that the general rule is that a statute of limitations does not begin to run against the right to enforce contribution until a cause of action in favor of the party seeking contribution arises and that, said the trial court, "is when an event occurs which throws an inequitable share of a common burden on him, usually the time of payment, discharge or satisfaction of some or all of the original claim made by the principal plaintiff”. However, the trial court felt bound by the reasoning of this Court in Morgan v McDermott, supra, p 356, and held that the third-party action in the case was barred. In Morgan, the principal defendants, as third-party plaintiffs, sought judgment against the third-party defendant Oakland County Road Commission, for contribution of one half of any judgment that might be rendered against the defendant-third-party plaintiffs. The road commission was brought in as a third-party defendant over a year after the occurrence of the injury. The road commission moved for accelerated judgment upon the ground that the county had not been given notice under the then-existing statute which required that, as a condition of imposing liability upon counties for defective highways, notice of the injury and the defect had to be served upon the responsible governmental unit within 60 days of the time of injury. This Court upheld the trial court’s dismissal of the third-party action, stating that the claim was indeed barred because of the failure to give the requisite statutory notice. The 60-day notice was held applicable to any action maintained against boards of county road commissioners under the statute. Responding to the argument that the statutory 60-day notice requirement would be applicable to an action in tort against the road commission for damages for the plaintiff’s bodily injury and property damage and not to a claim for contribution, the Morgan Court stated: "The county’s immunity cannot be lost simply on the basis of its having been a joint tort-feasor rather than its having been the sole tort-feasor”, 382 Mich 356. Applying the reasoning of the Morgan Court to the case at bar, the trial court said: "However, in a case quite similar to the present case, the Michigan Supreme Court ruled that the action was barred as to a governmental unit if not filed timely. Morgan v McDermott, 382 Mich 333 (1969). The Court at page 356 said: " 'The county’s immunity cannot be lost simply on the basis of its having been a joint tort-feasor rather than its having been a sole tort-feasor. The public policy behind the 60-day notice requirement is even more compelling in the case of a claim for joint tort-feasance than when the county only is the alleged tort-feasor’.” "This court is aware that the former 60-day notice provis [sic] has been declared unconstitutional, however the reasoning of the Morgan case is still applicable when the claim is made beyond the year statute of limitations provision as to governmental units.” (Emphasis in the original.) Our first task is to determine what statute of limitations applies to the suit for contribution and then whether it operates to bar the action. The Court of Appeals, as we have said, did not address the issue. The parties are less than clear in their assertions as to what statute of limitations applies and as to when the period of limitation begins to run. The road commissions claim that the two-year statute of limitations contained in MCL 691.1411(2); MSA 3.996(111)(2) is applicable, and they apparently believe that the period began to run on the date of the accident, September 28, 1973, although they do not explicitly say so. The third-party plaintiffs do not address this issue, although at the hearing on the motion for accelerated judgment before the trial court they claimed that the six-month statute of limitations found in the contribution statute, MCL 600.2925; MSA 27A.2925, was applicable, and in the Court of Appeals argued that the statute of limitations did not begin to run until the cause of action for contribution accrued, that is, when the consent judgments were rendered and satisfied. The statute waiving governmental immunity against tort liability for various causes of action, including defective roads, MCL 691.1402; MSA 3.996(102), provides a two-year statute of limitations: "Sec. 11(1). Every claim against any governmental agency shall be subject to the general law respecting limitations of actions except as otherwise provided in this section. "(2) The period of limitations for claims arising under section 2 of this act shall be 2 years. "(3) The period of limitations for all claims against the state, except those arising under section 2 of this act shall be governed by chapter 64 of Act No. 236 of the Public Acts of 1961.” MCL 691.1411; MSA 3.996(111). But "section 2 of this act”, to which reference is made in subsection (2) declares, in relevant part, that it is for an action for damages by "[a]ny person sustaining bodily injury or damage to his property” that the governmental immunity otherwise extant is waived. By its terms, then, it seems clear that the two-year period of limitation on an action for "bodily injury” and "damage to his property” does not govern the contribution action. A further indication, of course, is the fact that the Legislature established a different statute of limitations in the contribution statute. MCL 600.2925(d); MSA 27A.2925(4). That provision, which was in effect at the time of the accident in this case, provided that any claim for contribution had to be "asserted within 6 months after discharge by such party of the common liability or payment of more than his pro rata share”. Concededly, a correct determination of the question as to which statute of limitations is applicable in a contribution action is complicated in a case such as this in which both a governmental entity and private parties are involved as parties defendant and the Legislature has created one statute of limitations for an action against the governmental unit and another and different period of limitation for an action against the private parties. Resolution of the question was not made any easier for the learned trial judge by his perception that he was bound to follow the reasoning of the Morgan case, supra, which we hold hereafter to have been erroneously decided. We think, as a point of beginning, that it is indisputable that the statute of limitations governing a contribution action begins to run when the cause of action for contribution accrues, and that the action accrues when a judgment has been taken or rendered and the third-party plaintiff has paid more than his aliquot share. "The right of contribution between joint tortfeasors arises at the time of the concurring negligent acts. Until one of the joint tortfeasors pays more than his proportionate share of the underlying claim, the right remains contingent, subordinate and inchoate. When a tortfeasor pays more than his proportionate share, the right ripened into a cause of action”. Minneapolis, St Paul & S S M R Co v City of Fond du Lac, 297 F2d 583, 585; 93 ALR2d 1378 (CA 7, 1961). Similarly, see Kelly v Sproul, 153 Mich 691; 117 NW 327 (1908); Sziber v Stout, 111 Mich App 450, 459-460; 315 NW2d 166 (1981) (the instant case in the Court of Appeals, Cavanagh, J., dissenting); Doall v Michigan Consolidated Gas Co, 23 Mich App 454, 457, fn 2; 179 NW2d 26 (1970); Duncan v Beres, 15 Mich App 318, 332; 166 NW2d 678 (1968), and the cases cited therein. See also Bd of County Road Comm’rs of Wayne County v American Airlines, Inc, 369 F Supp 698 (ED Mich, 1974); Anno: When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 ALR3d 867. Since the cause of action for contribution does not accrue until payment of greater than the third-party plaintiff’s pro-rata share, the action for contribution cannot be barred simply because the statute of limitations would have barred suit by the original plaintiffs against the third-party defendants, if the plaintiffs had attempted to sue the road comiriissions on the date the contribution actions were filed. We conclude that the causes of action for contribution in these cases accrued when the consent judgments were entered against the principal defendants and were satisfied, that the applicable statute of limitations is six months as provided in the former contribution statute, and that it began to run when the contribution actions accrued. Since the third-party actions were actually filed in April 1978, well before the judgments in the underlying cases were entered and satisfied, the contribution actions are not time barred. We are not unaware of some of the problems suggested by our holding today. We note at least one of them not only in anticipation of the oft-repeated observation that "the Court’s opinion raised more problems than it solved”, but to provide some guidance to the bench and bar for application of today’s holding to other cases in the future. In Forest v Parmalee, 402 Mich 348; 262 NW2d 653 (1978), this Court upheld, against a claim of violation of equal protection, the two-year statute of limitations applicable to suits brought against government tortfeasors for injuries resulting from negligently maintained highways. The comparable statute of limitations applicable to private tortfea-sors was three years. In so holding, we noted that: "[B]y setting a time limit of two years, the state is assured that plaintiffs will promptly conduct such investigations as necessary to determine the merits of their claims and will not be unduly dilatory in commencing their suits. This is especially important in times such as these when governments are continually launching highway improvement programs. "Moreover, the statute is essential to the organization of the finances of state and local government agencies in that it allows them to estimate with some degree of certainty the extent of their future financial obligations. It cannot be overlooked that no private party has a potential tort responsibility comparable to that of the government for injuries allegedly caused by defective or unsafe conditions of highways.” 402 Mich 360. (Emphasis in the original.) See also Kutner, Contribution Among Tortfeasors: The Effects of Statutes of Limitations and Other Time Limitations, 33 Okla L Rev 203, 218-223 (1980). Allowing the contribution actions in these cases to be filed against the road commissions 4-1/2 years after the automobile accident may appear to some to undermine, to some extent, the rationale underlying the short statute of limitations applicable to tort actions against governmental entities, viz., allowing governmental units to estimate the extent of their future financial obligations and to plan for them and to correct promptly defective or unsafe conditions. However, to hold otherwise would not only disregard the plain language of the contribution statute then in effect, it would effectively permit a plaintiff to choose which of several possible defendants would bear the entire burden of paying a judgment simply by filing his lawsuit before the expiration of the three-year statute of limitations applicable to private tortfeasors, but after expiration of the two-year statute applicable to governmental units, and would thereby substantially limit the effectiveness of the contribution statute. To hold, in this case for example, that the two-year statute of limitations for injuries resulting from defective highways applied to the third-party defendants, and that the period of limitations commenced at the time of the original accident, "would permit a plaintiff to determine governmental liability by deciding whether or not to include the government as an original defendant. The contribution statute itself was amended by 1961 PA 236 to avoid such a result among nongovernmental litigants. The amendment permits contribution from joint tortfeasors who are joined as third-party defendants. Previously, contribution was only possible when a judgment had been recovered jointly against the tortfeasors. The potential for abuse was eliminated by depriving plaintiffs of the ability to prevent contribution. See Hawkins, Practice Commentary and Committee Comment, MCLA 600.2925, pp 780, 786. * * * A plaintiff’s lack of diligence, oversight or deliberate choice in not naming a governmental defendant must not be permitted to place upon a named defendant an unfair share of responsibility.” May v Wolverine Tractor and Equipment Co, 107 Mich App 163, 169-170; 309 NW2d 594 (1981), app dis 412 Mich 863 (1982). See Caldwell v Fox, supra, p 420: "plaintiff’s caprice in choosing to join or not to join third-party defendants is not determinant of third-party plaintiff’s right to contribution.” We have stated in Section II that there is a substantive right to contribution and that the right to contribution accrues only when judgment against a defendant-third-party plaintiff has been taken and satisfied. To hold that the statute of limitations governing the underlying tort action is applicable to the later action for contribution would mean that the statute of limitations governing the contribution actions expired in this case before the third-party plaintiffs’ claims accrued. We cannot suppose that the Legislature intended such an absurd result. Thus, we hold that the third-party plaintiffs’ causes of action for contribution herein are not barred by the statute of limitations governing the underlying tort actions. See Anno: What Statute of Limitations Applies to Action for Contribution Against Joint Tortfeasor, 57 ALR3d 927, 929, § 3, and the cases cited therein, and Kutner, supra, 33 Okla L Rev 210-216. Although we hold that the third-party plaintiffs’ causes of action for contribution are not barred by the statute of limitations of the underlying actions, there remains the problem of the statutory written notice provision for actions against governmental agencies for "injuries” and "property damage” caused by defective highways. As we observed earlier, this Court held in Morgan, supra, that the statutory provision which then required written notice by the injured person of the injury and highway defect within 60 days of the accident was a condition precedent to the imposition of liability upon a road commission and was applicable to any action, including one for contribution. It is argued that the notice requirement, although now a 120-day provision under the current statute, MCL 691.1404; MSA 3.996(104), is likewise applicable to the actions for contribution before us, and, since no notice was given in these cases, stands as a bar to recovery of contribution from the road commissions. Although the matter sharply divided this Court at the time, it appears to be clear that the decisions in Reich v State Highway Dep’t, 386 Mich 617; 194 NW2d 700 (1972), and Hobbs v Dep’t of State Highways, 398 Mich 90; 247 NW2d 754 (1976), have effectively eviscerated the holding in Morgan. The weight of authority supports the view espoused by Justice Black in his dissent in Morgan that failure by the plaintiff to give statutorily required notice to the appropriate governmental agency does not bar the third-party plaintiff from impleading a third-party defendant-governmental agency pursuant to a claim for contribution. The 120-day notice provision of MCL 691.1404; MSA 3.996(104) by its terms and in the light of its obvious purpose is simply inapplicable to actions for contribution, especially where, as here, the actions for contribution accrued when it was no longer possible to comply with the statute by its terms. To the extent that Morgan is inconsistent with our decision today, it is overruled. IV In conclusion, we hold that the defendant-third-party plaintiffs have a substantive right to contribution against the third-party defendants-road commissions that is not barred by statutory governmental immunity. Moreover, the right to contribution is not barred by the statute of limitations governing the underlying tort actions. Since the plaintiffs could have proceeded directly against the road commissions, third-party plaintiffs herein may proceed to prosecute their claims for contribution providing the remaining conditions of the contribution statute are met. We remand this case to the Circuit Court for the County of Tuscola for further proceedings not inconsistent with this opinion. Reversed and remanded. Williams, C.J., and Kavanagh, Levin, Brick-ley, and Boyle, JJ., concurred with Ryan, J. Cavanagh, J., took no part in the decision of this case.__ The right to contribution among joint tortfeasors existed pursuant to statute, MCL 600.2925; MSA 27A.2925. Although it has since been repealed by 1974 PA 318, the former statute is applicable to the proceedings before us. The amending statute, MCL 600.2925a; MSA 27A.2925(1) applies only to torts committed after January 1, 1975. That statute of limitations provides that the period of limitations for claims arising from the statutory authorization for suit against governmental agencies for defective highways is two years. MCL 691.1411(2); MSA 3.996(111)(2). GCR 1963, 204 provides: ".1 When Defendant May Bring in Third Party. "(1) Subject to the provisions of Section 3030 of the Insurance Code of 1956, before the service of his answer a defendant may move ex parte or, after the service of his answer, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may thereafter be liable to such third-party plaintiff, by right of contribution or otherwise, for all or part of the plaintiff’s claim against him. "(2) If the motion is granted and the summons and complaint are served, the person so served, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiffs claim as provided in Rule 111 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 203. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. "(3) The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff, and, the third-party defendant thereupon shall assert his defenses as provided in Rule 111 and his counterclaims and cross-claims as provided in Rule 203. "(4) Any party may move for severance, separate trial, or dismissal of the third-party claim; the court may direct a final judgment upon either the original claim or the third-party claim alone in accordance with the provisions of subrule 518.2. "(5) A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant, upon obtaining leave of court. ".2 When Plaintiff May Bring in Third Party. When a claim or counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.” The accompanying Committee Comment explained: "The next to the last sentence in (1) is inserted to accomplish the result intended in Rule 204.1, that the right of contribution should not depend on whether or not the plaintiff saw St to sue both joint tort-feasors. (4) is also changed to allow for the defendant’s asserting the right of contribution against the third party defendant. Barring contribution receives little support from the authorities. " 'One difficulty is that several such enactments permit contribution only between tort-feasors against whom a judgment has been rendered — i.e., a joint judgment is a condition precedent to the operation of the statute. * * * When one defendant has no right against a co-defendant until a joint judgment has been rendered against them both, the decision of the plaintiff whether or not there will be a joint judgment and who will be included therein also determines what right, if any, there will be to contribution. This permits the plaintiff to make his own selection and, insofar as he exercises it, the policy of the statute may be defeated. The reasons for allowing contribution, however, apply as strongly to those cases in which the plaintiff sues only one tort-feasor as to those in which there is a joint judgment. " 'In Texas, this weakness was largely remedied by permitting a defendant sued singly to implead his co-tort-feasors.’ 1 Harper and James, The Law of Torts, 720 (1956).” (Emphasis supplied.) See, also, Geiger v Calumet County, 18 Wis 2d 151; 118 NW2d 197 (1962) ("[T]he equitable right to contribution is independent of the underlying cause of action which results in a judgment requiring one tort-feasor to pay more than his proportionate share. This independent existence makes consideration of the basis of such underlying cause of action irrelevant whether it be common law or statute”); Coniaris v Vail Associates, Inc, 196 Colo 392, 395; 586 P2d 224 (1978) ("A claim for contribution is an action separate and distinct from the underlying tort. The rights and obligations of the tortfeasors flow, not from the tort, but from the judgment or settlement itself’); People ex rel Dep’t of Transportation v Superior Court of Los Angeles County, 26 Cal 3d 744, 748; 163 Cal Rptr 585; 608 P2d 673 (1980) ("[A] tort defendant’s equitable indemnity action is separate and distinct from the plaintiffs tort action” [superseded by statute]). See, generally, Uniform Contribution Among Tortfeasors Act, 12 ULA, § 1. We address, in Section III, the significance of this holding in regard to the applicable statute of limitations. The statute in effect at the time the claim for contribution was asserted provides that "[i]f there is a judgment for the injury or wrongful death against the tort-feasor seeking contribution, a separate action by him to enforce contribution shall be commenced within one year after the judgment has become final by lapse of time for appeal or after appellate review”. MCL 600.2925c(3); MSA 27A.2925(3)(3). However, the provisions of this act are applicable only to torts committed on or after January 1, 1975. 1974 PA 318. See, generally, Kutner, Contribution Among Tortfeasors: The Effects of Statutes of Limitations and Other Time Limitations, 33 Okla L Rev 203, 210-216, 218-222 (1980). See, e.g., and compare the opinions of Viscount Simonds and Lords Porter, Reid, Tucker, and Keith of Avonholm, George Wimpey & Co LD v British Overseas Airways Corp, Law Rpts [1955] Appeal Cases 169, 177-196 (House of Lords, 1954), aff'g Littlewood v George Wimpey & Co LD, Law Rpts [1953] 2 QB 501 (time limitation was a notice requirement). See also Ainswrth v Berg, 253 Wis 438; 34 NW2d 790 (1948), vacated on other grounds 253 Wis 445a; 35 NW2d 911 (1949); State Farm Mutual Automobile Ins Co v Schara, supra; Waldinger Co v P & Z Co, Inc, 414 F Supp 59 (D Neb, 1976); Markey v Skog, 129 NJ Super 192; 322 A2d 513 (1974); Ezzi v DeLaurentis, 172 NJ Super 592; 412 A2d 1342 (1980); Godfrey v Tidewater Power Co, 223 NC 647, 649-650; 27 SE2d 736 (1943); Thomas v Przbylski, 83 Wash 2d 118; 516 P2d 207 (1973). See, generally, Uniform Contribution Among Tortfeasors Act, 12 ULA, § 1 & supp. See Keleket X-Ray Corp v United States, 107 US App DC 138, 140; 275 F2d 167 (1960) (defendant-third-party plaintiffs claim to contribution did not accrue before defendant had been sued by the original plaintiff, and the government’s contention on this point, if sustained, would mean that a suit under the Tort Claims Act could be barred before it came into existence. "We know of no reason why the law should let action or inaction of the injured party defeat a claim to contribution”); Markey v Skog, fn 9 supra, p 201 (The policy of the contribution statute "seeks to prevent plaintiffs, by their unilateral actions, from electing where to place the burden of a common fault”); Olsen v Jones, 209 NW2d 64, 67 (Iowa, 1973) ("we refuse to attribute to this legislation an intention to permit an injured claimant to elect which of two equally culpable tort-feasors shall bear the whole burden simply because one happens to be a governmental unit”); Royal Car Wash Co v Wilmington, 240 A2d 144, 145-146 (Del Super Ct, 1968) ("[i]t [is] inconceivable that the Legislature should purport to grant the valuable right of contribution among joint tortfeasors but, for all practical purposes, place it within the power of the original plaintiff to decide whether or not it should be exercised”); Waldinger Co v P & Z Co, Inc, fn 9 supra, p 60 (to accept the argument that the claim for contribution arises when the injury is incurred will allow plaintiff to choose which defendant would bear the burden by simply filing his lawsuit after the statute of limitations has run). See generally Anno: Claim for Contribution or Indemniñcation From Another Tortfeasor as Within Provisions of Statute or Ordinance Requiring Notice of Claim Against Municipality, 93 ALR2d 1385. Minneapolis, St Paul & S S M R Co v Fond du Lac, supra (applying the law of Wisconsin); Waldinger Co, fn 9 supra (applying Nebraska law); Thomas v Przbylski, fn 9 supra (third-party plaintiff seeking to join municipal corporation as a third-party defendant need not comply with the claim statute before he has made payment to plaintiff or had judgment rendered against him); Roehrig v City of Louisville, 454 SW2d 703 (Ky App, 1970); Markey v Skog, fn 9 supra; Olsen v Jones, fn 10 supra; Ezzi v DeLaurentis, fn 9 supra (noncompliance by a plaintiff with notice provisions did not bar defendants’ third-party claim against municipal third-party defendant; however, defendants would be required to comply with the notice provisions once the third-party claim accrued); Geiger v Calumet County, fn 5 supra; Royal Car Wash Co v Wilmington, supra; Ainsworth v Berg, fn 9 supra; People ex rel Dep’t of Transportation v Superior Court of Los Angeles County, fn 5 supra. See also Morgan v McDermott, 8 Mich App 260; 154 NW2d 576 (1976), rev’d 382 Mich 333; 169 NW2d 897 (1969). The parties have not raised and we have not considered, for example, the issue whether the third-party defendants are "joint tortfeasors” within the meaning of the contribution statute.

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O’Connell, P.J. In these five cases consolidated on appeal, plaintiffs appeal as of right from various trial court orders from the Oakland and Wayne Circuit Courts. In each case, we are asked to decide whether Const 1963, art 9, § 3 provides that plaintiffs are entitled to taxable values of real property that, as percentages of true cash value, equal the average ratio of taxable value to true cash value of all other property in the taxing district. Because we agree with the trial courts’ conclusion in each case that Const 1963, art 9, § 3, as amended by Proposal A, imposes no such requirement, we affirm in all cases. I. PROCEDURAL HISTORY In Docket No. 224234, plaintiffs appeal as of right from the December 10, 1999, order of the trial court granting summary disposition in favor of defendant city of Troy pursuant to MCR 2.116(C)(8). In Docket No. 224813, plaintiffs appeal as of right from the January 19, 2000, order of the trial court dismissing with prejudice plaintiffs’ claim against defendant Canton Township. In Docket No. 226224, plaintiffs appeal as of right from the March 13, 2000, order of the trial court granting defendant city of Oak Park’s motions for summary disposition pursuant to MCR 2.116(C)(8) and (10). In Docket No. 228106, plaintiff appeals as of right from the June 14, 2000, order of the trial court denying plaintiff’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), and granting judgment in favor of defendant Southfield Township pursuant to MCR 2.116(I)(2). Finally, in Docket No. 232132, plaintiffs appeal as of right from the January 4, 2001, order of the trial court finding no cause of action on behalf of plaintiffs and entering judgment in favor of defendant city of Southfield. Plaintiffs filed the complaints in the Wayne and Oakland Circuit Courts, alleging that the taxable values of plaintiffs’ properties were of percentages of true cash value greater than the average percentage of all other properties defendants taxed in the applicable city or township. Plaintiffs further alleged that because Const 1963, art 9, § 3 requires uniformity in taxation, defendants’ method of taxing plaintiffs’ real property violated our state constitution. In the complaints, plaintiffs sought a declaratory judgment holding that defendants taxed plaintiffs in violation of the state constitution, and a refund for “the unconstitutional portion” of plaintiffs’ taxes. In each case, the trial courts concluded that plaintiffs’ argument was without merit. Specifically, the trial courts rejected plaintiffs’ assertion that Const 1963, art 9, § 3 required uniformity in the ratio of taxable value to true cash value among all real property in the taxing district. The trial courts also recognized that by accepting Proposal A, the electorate provided for a cap on real property tax assessments. Specifically, the courts recognized that taxes are now levied according to a property’s taxable value, and because a property’s taxable value is contingent on whether its owner retains or sells it, the percentages of taxable value to true cash value among identical pieces of property will not be uniform. Plaintiffs now appeal as of right in all five cases. H. STANDARD OF REVIEW In each case, with the exception of the court’s ruling in Docket No. 232132, the lower courts ruled in favor of defendants in the summary disposition context. This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). In Docket Nos. 224234, 226224, and 228106, the trial courts observed that summary disposition was granted pursuant to MCR 2.116(C)(8) and (10). A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone. The purpose of such a motion is to determine whether the plaintiff has stated a claim upon which relief can be granted. The motion should be granted if no factual development could possibly justify recovery. [Beaudrie v Henderson, 465 Mich 124, 129-130; 631 NW2d 308 (2001), citing Spiek, supra at 337.] Further, in Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999), our Supreme Court articulated the standard of review for summary disposition motions brought under MCR 2.116(C)(10): A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Moreover, in Docket Nos. 224813 and 228106, the trial courts denied plaintiffs’ motion for summary disposition and granted judgment in favor of defendants pursuant to MCR 2.116(I)(2). “ ‘Summary disposition is properly granted [under this rule] to the opposing party if it appears to the court that that party, rather than the moving party, is entitled to judgment.’ ” Gyarmati v Bielfield, 245 Mich App 602, 604; 629 NW2d 93 (2001) (alteration in original), quoting Sharper Image v Dep’t of Treasury, 216 Mich App 698, 701; 550 NW2d 596 (1996). Finally, whether the Uniformity of Taxation Clause is violated where the ratio of taxable value to true cash value of plaintiffs’ real property is not uniform with the average ratio of taxable value to true cash value for all real property in a city or township is a question of law. This Court reviews de novo such questions of law. See, e.g., TIG Ins Co, Inc v Dep’t of Treasury, 464 Mich 548, 557; 629 NW2d 402 (2001). HI. ANALYSIS Plaintiffs argue that pursuant to the Uniformity of Taxation Clause of Const 1963, art 9, § 3, they are entitled to taxable values that, as a percentage of the true cash value of their real property, are uniform with the average ratio of taxable value to true cash value for all real property in the city or township where plaintiffs’ real property is located. Plaintiffs further claim that they are not seeking to alter the property taxation system in Michigan; rather, they contend that they are only seeking a reduction of their taxable values to the extent that they mirror the average ratio of taxable value to true cash value for all real property in the taxing district. In response, defendants assert that nothing in the plain language of Const 1963, art 9, § 3 requires uniformity in the ratio of taxable value to true cash value; rather, the provision only requires uniformity in assessment. Defendants also argue that because of the cap on property assessments implemented with the passage of Proposal A, taxable values by their nature are inimical to uniformity because they are dependent on how long a property owner has owned the property or how quickly the property rises in value. Defendants also contend that by accepting Proposal A’s mandate that property assessments be capped, the electorate could not have intended that taxable values remain uniform. According to defendants, by enacting 1994 PA 415, the Legislature facilitated the electorate’s intention to cap the increase in property assessments by adding the term “taxable value” to the General Property Tax Act (gpta), MCL 211.1 et seq. The Attorney General, the State Tax Commission (STC), and the Michigan Townships Association (mta) support defendants in these appeals. In their briefs on appeal, the Attorney General, the STC and the mta note that before Proposal A, ad valorem property taxes in Michigan were assessed on the basis of state equalized valuation (sev). Once the electorate passed Proposal A, it authorized a narrow exception to the uniformity requirement, allowing the ratio of taxable value to true cash value to be disparate depending on whether property is sold or retained by an owner. Further, the Attorney General, the STC, and the mta observe that pursuant to Proposal A, property taxes are now spread against taxable value, rather than sev, and it was the clear intent of the electorate that the ratio of taxable value to true cash value need not remain uniform. A OVERVIEW OF REAL PROPERTY TAXATION IN MICHIGAN Because plaintiffs’ main issue on appeal involves real property taxation, a brief overview of how real property is taxed in Michigan is instructive. At issue here is the uniform ad valorem taxation of real property mandated by Const 1963, art 9, § 3. In Michigan, our state constitution has required the uniform ad valorem taxation of real property since 1850. Fino, The Michigan State Constitution: A Reference Guide (Westport: Greenwood Press, 1996), pp 180-181. See also Const 1850, art 14, §§ 11, 12; Const 1908, art 10, §§ 3, 7. An ad valorem tax is “ ‘[a] tax levied on property or an article of commerce in proportion to its value as determined by assessment or appraisal.’ ” Meijer v Midland, 240 Mich App 1, 3, n 1; 610 NW2d 242 (2000), quoting Black’s Law Dictionary (6th ed). At the heart of the instant cases is the proper interpretation of Const 1963, art 9, § 3, as amended by Proposal A, which provides as follows: The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law except for taxes levied for school operating purposes. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments. For taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each parcel of property adjusted for additions and losses, shall not increase each year by more than the increase in the immediately preceding year in the general price level, as defined in section 33 of this article, or 5 percent, whichever is less until ownership of the parcel of property is transferred. When ownership of the parcel of property is transferred as defined by law, the parcel shall be assessed at the applicable proportion of current true cash value. The legislature may provide for alternative means of taxation of designated real and tangible personal property in lieu of general ad valorem taxation. Eveiy tax other than the general ad valorem property tax shall be uniform upon the class or classes on which it operates. A law that increases the statutory limits in effect as of February 1, 1994 on the maximum amount of ad valorem property taxes that may be levied for school district operating purposes requires the approval of% of the members elected to and serving in the Senate and in the House of Representatives. As noted, Const 1963, art 9, § 3 expressly provides that real property shall not be assessed in excess of fifty percent of its true cash value. MCL 211.27(1) defines “cash value” as “the usual selling price at the place where the property, to which the term is applied is at the time of assessment, being the price that could be obtained for the property at private sale, and not at auction sale . . . .” True cash value is synonymous with fair market value. Great Lakes Division of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 389; 576 NW2d 667 (1998). Although not directly relevant to the instant appeals, it is well settled that [t]he three most common approaches for determining true cash value are the capitalization-of-income approach, the sales-comparison or market approach, and the cost-less-depreciation approach. However, variations of these approaches and entirely new methods may be useful if found to be accurate and reasonably related to fair market value. Meadowlands Ltd Dividend Housing Ass’n v Holland, 437 Mich 473, 485; 473 NW2d 636 (1991). [Great Lakes, supra at 390 (citation omitted).] See also Meijer, supra at 4, n 5. After the electorate accepted Proposal A in a special statewide election on March 15, 1994, the Legislature enacted 1994 PA 415 to revise relevant portions of the gpta, effective December 29, 1994. Specifically, MCL 211.27a, as amended by 1994 PA 415, now provides: (1) Except as otherwise provided in this section, property shall be assessed at 50% of its true cash value under section 3 of article IX of the state constitution of 1963. (2) Except as otherwise provided in subsection (3), for taxes levied in 1995 and for each year after 1995, the taxable value of each parcel of property is the lesser of the following: (a) The property’s taxable value in the immediately preceding year minus any losses, multiplied by the lesser of 1.05 or the inflation rate, plus all additions. For taxes levied in 1995, the property’s taxable value in the immediately preceding year is the property’s state equalized valuation in 1994. (b) The property’s current state equalized valuation. (3) Upon a transfer of ownership of property after 1994, the property’s taxable value for the calendar year following the year of transfer is the property’s state equalized valuation for the calendar year following the transfer. [Emphasis supplied.] MCL 211.27a(6) and (7) also specify what does and does not constitute a “transfer of ownership.” Further, MCL 211.24b, as amended by 1994 PA 415, now provides that real property taxes are assessed on the basis of a parcel of property’s “taxable value.” The former language of MCL 211.24b specified that taxes were assessed on the basis of a parcel of property’s state equalized valuation. See School Dist No 9, Pittsfield Twp, Washtenaw Co v Washtenaw Co Bd of Supervisors, 341 Mich 388, 406-407; 67 NW2d 165 (1954); Consumers Power Co v Muskegon, 13 Mich App 334, 341; 164 NW2d 398 (1968). The current version of MCL 211.24b provides in pertinent part: (1) The tax roll and the tax statement shall clearly set forth the latest taxable value for each item of property. (2) The supervisor or assessor shall spread the taxes on the tax roll on the taxable value for each item of property. [Emphasis supplied.] Similarly, MCL 211.24(1) requires the property assessor, in preparing the assessment roll, to “estimate, according to his or her best information and judgment, the true cash value and assessed value of every parcel of real property and set the assessed value down opposite the parcel.” Subsection 24(1) of the gpta also requires the assessor to “calculate the tentative taxable value of every parcel of real property.” Once the assessment rolls are prepared, they are reviewed by the local board of review. MCL 211.29. Taxpayers protesting their tentative property valuation may then appear before the local board of review. MCL 211.30. Once the board of review indorses the assessment roll, MCL 211.30(3), the board of commissioners of each county reviews the roll to determine “whether the real and personal property in the respective townships or cities ha[ve] been equally and uniformly assessed at true cash value.” MCL 211.34(2). If the county board of commissioners concludes that an inequality exists, “they must equalize to ‘produce a sum which represents the true cash value of the property.’ ” Allied Supermarkets, Inc v Detroit, 391 Mich 460, 464; 216 NW2d 755 (1974), quoting MCL 211.34. Real property valuations are then equalized at the state level as well. MCL 209.1 et seq.; Richland Twp v State Tax Comm, 210 Mich App 328, 332; 533 NW2d 369 (1995); Brittany Park Apartments v Harrison Twp, 104 Mich App 81, 87; 304 NW2d 488 (1981). As Justice Coleman observed in Allied Supermarkets, supra at 466, the goal of equalization is to produce uniformity in taxation. See also Conroy v Battle Creek, 314 Mich 210, 225; 22 NW2d 275 (1946) (“The constitutional requirement of a .‘uniform rale of taxation’ can be satisfactorily effected through the process of equalization.”); O’Reilly v Wayne Co, 116 Mich App 582, 594; 323 NW2d 493 (1982) (“The purpose of equalization is to adjust or correct all of the different modes of assessment to achieve uniformity among government units within a county and uniformity among all of the counties of the state.”). Legislative analysis reflects that the Legislature amended the gpta following the passage of Proposal A to “flesh out in statute” the new concept of taxable value. House Legislative Analysis, HB 5945 (Second Analysis), January 9, 1995, p 1. Typically, [before Proposal A,] property has been assessed for tax purposes based on market value; the millage rate is applied to the state equalized valuation (sev), which is supposed to be set at 50 percent of market value. But with the [Proposal A] assessment cap in place, a parcel of property will have both a state equalized valuation and a taxable value, which might or might not be the same amount. Property whose value is increasing faster than the rate of inflation will, due to the cap, have a taxable value below (perhaps, over time, far below) state equalized valuation. Upon its sale or other transfer of ownership, the property’s taxable value and sev would be the same until the cap was applied once again. [/&] Because plaintiffs’ challenge to defendants’ methods of taxing real property requires us to consider whether ratios of taxable values to true cash value that are not congruent with the average for a whole city or township violate the Uniformity of Taxation Clause, a review of the purpose underlying this clause is also helpful. B. THE PURPOSE OF MICHIGAN’S UNIFORMITY OF TAXATION CLAUSE In one of the earlier pronouncements discussing the purpose of Michigan’s Uniformity of Taxation Clause, Chief Justice Martin, considering Const 1850, art 14, opined in People ex rel St Mary’s Falls Ship Canal Co v Auditor General, 7 Mich 84, 90 (1859): This provision of the constitution has no reference to the power to exempt, or to remit taxes; which is, and necessarily must be, to a great extent, left to the discretion of the legislature. Its design was to secure, to every portion of the state, and to every class of property taxed, a uniform rate,—to secure equality, so that property in one quarter should not be taxed at a higher rate than in another, or the same kind taxed unequally. The legislature has the power of prescribing the subjects of taxation, and of exemption, but it can not arbitrarily tax property according to locality, kind, or quality, without regard to value, but in this respect it must act by uniform rules. [Citation omitted.] Chief Justice Cooley’s observations regarding taxation in Michigan, offered in a different context, are likewise illuminating. The control of the state in regard to taxation is certainly very great, but it is by no means unlimited, and it can not be exercised in an arbitrary manner, nor without regard to those principles of justice and equality on which it is based. It is of the essence of all taxation that it should compel the discharge of the burden by those upon whom it rests; and if the state should attempt to compel any single county by taxation to pay the salaries of the state officers, or the expenses of the legislature, no one would for a moment doubt that, while the act was arbitrary, unjust and tyrannical, it was also unconstitutional. [Ryerson v Utley, 16 Mich 269, 276 (1868).] Further, in Pine Grove Twp v Talcott, 86 US (19 Wall) 666, 675; 22 L Ed 227 (1873), the United States Supreme Court considered Const 1850, art 14, § 11, and Justice Swayne, writing for the Court, discussed this constitutional provision’s purpose: The object of this provision was to prevent unjust discriminations. It prevents property from being classified and taxed as classed, by different rules. All kinds of property must be taxed uniformly, or be entirely exempt. The uniformity must be co-extensive with the territory to which the tax applies. If a State tax, it must be uniform all over the State. If a county or city tax, it must be uniform throughout such county or city. See also Williams v Mayor of Detroit, 2 Mich 560, 570 (1853) (state constitution “enjoins a just principle of equality in regard to all public burdens, and prescribes as a limit to the exercise of the taxing power, that common burdens should be sustained by common contributions, regulated by some fixed general rule and apportioned according to some uniform ratio of equality”) (emphasis in original); Wood v Rockwood, 328 Mich 507, 511; 44 NW2d 163 (1950) (recognizing that to satisfy the Uniformity of Taxation Clause, a tax must be “levied in accordance with some definite plan designed to bring about a just distribution of the burden”); Armco Steel Corp v Dep’t of Treasury, 419 Mich 582, 592; 358 NW2d 839 (1984) (recognizing that the prevailing principle of the Uniformity of Taxation Clause is that of equal treatment for similarly situated taxpayers); Grand Traverse Co v Michigan, 450 Mich 457, 478; 538 NW2d 1 (1995) (concluding that Const 1963, art 9, § 3 requires that “uniformity must be coextensive with the territory to which it applies”). Likewise, in East Grand Rapids School Dist v Kent Co Tax Allocation Bd, 415 Mich 381, 395-396; 330 NW2d 7 (1982), our Supreme Court echoed its earlier statement in Huron-Clinton Metropolitan Authority v Bds of Supervisors of Five Counties, 304 Mich 328; 8 NW2d 84 (1943), in construing the language of Const 1963, art 9, § 3 before its amendment in 1994. “ ‘What is meant by the words ‘taxing by a uniform rule?’ And to what is the rule applied by the constitution? No language in the constitution, perhaps, is more important than this; and to accomplish the beneficial purposes intended, it is essential that they should be truly interpreted, and correctly applied. “Taxing” is required to be “by a uniform rule;” that is, by one and the same unvarying standard. Taxing by a uniform rule requires uniformity not only in the rate of taxation, but also uniformity in the mode of the assessment upon the taxable valuation. Uniformity in taxing implies equality in the burden of taxation; and this equality of burden cannot exist without uniformity in the mode of the assessment, as well as in the rate of taxation.’ ” [Huron-Clinton Metropolitan Authority, supra, quoting Exchange Bank of Columbus v Hines, 3 Ohio St 1, 15 (1853).] See also Edward Rose Building Co v Independence Twp, 436 Mich 620, 640; 462 NW2d 325 (1990) (The uniformity requirement of the Michigan Constitution is concerned with uniformity in the mode of assessment and the rate of taxation and “compels the assignment of values to property upon the basis of the true cash value of the property . . . .”). Most recently, our Supreme Court has recognized that there is no discernible difference between the Equal Protection Clause and the Uniformity of Taxation Clause when considering the constitutionality of a statute. TIG, supra at 563; see also Taylor Commons v City of Taylor, 249 Mich App 619; 644 NW2d 773 (2002); Syntex Laboratories v Dep’t of Treasury, 233 Mich App 286, 290; 590 NW2d 612 (1998); Ann Arbor v Nat’l Center for Mfg Sciences, Inc, 204 Mich App 303, 306; 514 NW2d 224 (1994). C. PRINCIPLES OF CONSTITUTIONAL INTERPRETATION As mentioned, these five consolidated cases require us to interpret the current version of Const 1963, art 9, § 3, as amended by Proposal A. In Michigan, the rules of constitutional interpretation are well settled. Specifically, this Court is guided by the principle that a constitutional provision is to be interpreted in accordance with the “common understanding.” American Axle & Mfg, Inc v Hamtramck, 461 Mich 352, 362; 604 NW2d 330 (2000). Thus, we must strive to effectuate the electorate’s intent in ratifying the amendment of Const 1963, art 9, § 3. People v Bulger, 462 Mich 495, 507; 614 NW2d 103 (2000). “A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. ‘For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.’ ” [Bolt v Lansing, 459 Mich 152, 160; 587 NW2d 264 (1998) (emphasis in original), quoting Traverse City School Dist v Attorney General, 384 Mich 390, 405; 185 NW2d 9 (1971), in turn quoting Cooley’s Const Lim 81.] Where the people’s intent in adopting the provision in question can be gleaned from a review of the instrument itself, our Supreme Court has cautioned that further construction is inappropriate. Michigan Coalition of State Employee Unions v Civil Service Comm, 465 Mich 212, 222; 634 NW2d 692 (2001). “The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the lawgiver that is to be enforced. But this intent is to be found in the instrument itself. . . . ‘Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction.’ ” [American Axle, supra at 362 (emphasis in original), quoting Cooley, Constitutional Limitations, (Little, Brown and Company, 1868), p 55.] As an initial matter, plaintiffs point to our Supreme Court’s decision in In re Appeal of General Motors Corp, 376 Mich 373; 137 NW2d 161 (1965), arguing that that decision entitles plaintiffs to “uniform assessment.” In this vein, plaintiffs point to the language in Const 1963, art 9, § 3 that “property shall be uniformly assessed” to support their argument. Plaintiffs further argue that the Supreme Court interpreted this specific language in General Motors, supra, to require the relief that plaintiffs seek in the instant cases. According to plaintiffs, the electorate was aware of the Supreme Court’s interpretation of this language when it ratified Proposal A in March 1994, and therefore the electorate confirmed plaintiffs’ rights in this regard. Plaintiffs further argue that the term “taxable value” is synonymous with “assessment” because both refer to the value on which taxes are based, and therefore plaintiffs are entitled to uniform taxable values under Const 1963, art 9, § 3 as amended. In General Motors, supra at 376, the plaintiff, General Motors Corporation, appealed to the Supreme Court from the State Tax Commission’s personal property assessment. In assessing the plaintiff’s personal property, the stc had placed the assessment at the average level for all personal property in the city of Livonia, but had disregarded the average level of assessment for real property. Id. The Supreme Court, in reviewing the plaintiffs appeal, phrased the main issue in the following terms: The main question presented is: Is the Michigan State tax commission required by law to reduce an intentionally unequal personal property assessment to the level of assessment for all property—both real and personal—taxable in the assessment district? [Id. at 377.] After reviewing the language of Const 1908, art 10, §§ 3 and 7, the Court also concluded that the then-current GPTA required the uniform assessment of both real and personal property. General Motors, supra at 377. “Thus, all taxable property, real and personal, is placed in one category to be uniformly assessed and taxed.” Id. at 378 (emphasis in original). The Supreme Court went on to express its concern that the constitutionally entrenched principle that property be assessed at fifty percent of its cash value was not strictly adhered to, and that as a result, “[assessments often bear no relation to the actual cash value of the property or to the level of assessments in adjoining governmental units.” Id. at 378-379. Concluding that the standard of true cash value had been all but destroyed, the General Motors Court noted that “the standard of uniformity becomes even more imperative.” Id. at 379. The Court then offered the following observation that plaintiffs seize on as support for their argument in the instant cases. “As a practical matter, unequal assessments must be reduced to the average level of assessment if the taxpayer is to have a remedy.” Id. Upon the record before us, General Motors’ personal property was assessed at an average of 83.7% of State equalized value. The weighted average of all property—real and personal—would be 76% of State equalized value. This is the average which (assuming the correctness of the commission’s findings) should have been used in computing General Motors’ personal property tax liability. We hold that the mode of assessment used by the State tax commission was incorrect in that, having adopted a standard of average assessment levels to determine the question of uniform treatment of General Motors, it did not take into account the average assessment level of all property, real and personal. [Id. at 379-380 (emphasis in original).] As an initial matter, we note that in General Motors, supra, the Court did not rule that the language requiring that “property shall be uniformly assessed” as set forth in Const 1963, art 9, § 3 required that the plaintiff be granted relief similar to that sought by plaintiffs here. Indeed, this language did not even exist in the 1908 version of the state constitution, which merely called for a “uniform rule of taxation.” General Motors, supra at 377. Further, the key issue in General Motors was whether, in assessing personal property, the STC erred in adopting a standard of average assessment levels to determine the question of uniform treatment of the plaintiff, but did not take into account the average assessment for all property, both real and personal. Id. at 377, 380. Therefore, contrary to plaintiffs’ assertions on appeal, General Motors does not stand for the narrow proposition that the ratio of taxable value to true cash value need be equal to the average ratio for all property in a township or city. Indeed, the Supreme Court rendered its decision in General Motors before the electorate amended Const 1963, art 9, § 3. See, e.g., Waterford Twp v Oakland Co Tax Allocation Bd, 312 Mich 556, 559; 20 NW2d 497 (1945) (where there are amendments of the state constitution, prior cases may be rendered inconsistent or inapplicable to the extent that they are of limited value). Hence, we agree with the trial courts in these cases that General Motors, supra, is of limited value in resolving the issue in these present appeals. Plaintiffs further maintain that the electorate was aware of the Supreme Court’s decision in General Motors, supra, and ratified plaintiffs’ rights that flow from that decision. Plaintiffs are correct in their assertion in their briefs on appeal that “[w]here a constitutional provision has received a settled judicial construction, and is afterward incorporated into a new or revised constitution, or amendment, it will be presumed to have been retained with a knowledge of the previous construction, and courts will feel bound to adhere to it.” [People v Kirby, 440 Mich 485, 491-492; 487 NW2d 404 (1992), quoting Richardson v Secretary of State, 381 Mich 304, 311; 160 NW2d 883 (1968).] See also People v Antkoviak, 242 Mich App 424, 462; 619 NW2d 18 (2000). However, we are of the view that a plain reading of the clear terms of the current constitutional provision, viewed against the backdrop of the circumstances leading to the passage of Proposal A, reveals that plaintiffs’ argument on appeal is without merit. Specifically, the electorate, through the passage of Proposal A, has manifested its intention that, under certain circumstances, the ratio of taxable value of real property to true cash value need not be uniform with the city- or township-wide average. One of the most important methods of ascertaining the meaning of a constitutional provision is to consider “ ‘the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished . . . House Speaker v Governor, 443 Mich 560, 580; 506 NW2d 190 (1993), quoting Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 745; 330 NW2d 346 (1982), in turn quoting Traverse City School Dist, supra; see also Bolt, supra at 160. This rule is particularly applicable when considering a constitutional amendment. “The language of a constitutional amendment should be read in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then construed, if there be therein any doubtful expressions, in a way, so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted.” [Civil Service Comm v Auditor General, 302 Mich 673, 681-682; 5 NW2d 536 (1942), quoting Maxwell v Dow, 176 US 581; 20 S Ct 448, 494; 44 L Ed 597 (1900).] Proposal A was presented to the electorate on March 14, 1994, the culmination of a bipartisan effort to reform the school financing system in Michigan. House Legislative Analysis, Senate Joint Resolution S (Second Analysis), March 1, 1994, p 1. Proposal A “authorized an increase in the state sales and use tax for use in school aid, limited use of local property taxes for school purposes, and authorized other changes in school finance.” Durant v Michigan, 456 Mich 175, 212, n 42; 566 NW2d 272 (1997). As relevant to the present appeals, part of Proposal A’s purpose was to limit the annual increase in property assessments. WPW Acquisition Co v Troy, 243 Mich App 260, 267-268; 620 NW2d 883 (2000), lv gtd 465 Mich 885 (2001). Proposal A was one of two separate financing plans that the Legislature developed to reform school financing and to restore funding for schools that was lost with the passage of 1993 PA 145, which eliminated all school operating property taxes effective December 31, 1993. House Legislative Analysis, Senate Joint Resolution S (Second Analysis), March 1, 1994, p 2. At the heart of the school financing problem is the local property tax. Michigan is by most accounts a high property tax state, regularly raising more revenue from that source than from sales and income taxes combined. It is a highly visible, unpopular tax, that is often described as inconsistently administered from community to community. . . . The Citizens Research Council said in a recent report that, in 1990, ‘Michigan property taxes were 31 percent higher than the national average.’ [Id.] See also Fino, supra at 180 (noting that when Proposal A was presented to the electorate in March 1994, “there [was] a general feeling that Michigan property taxes [were] too high”). Thus, Proposal A aimed to curb property tax assessments by placing a cap on how quickly assessments could increase. House Legislative Analysis, Senate Joint Resolution S (Second Analysis), March 1, 1994, p 4. Under the plan, an assessment would not increase from one year to the next by more than five percent or the rate of inflation, whichever was less. Id. Once property is transferred, Proposal A provided that it would be reassessed on the basis of market value. Id. After Proposal A, Michigan’s property tax burden fell from one of the highest in the nation to below the national average. Chris Christoff: Engler’s Michigan: Gamble on Proposal A Pays Off for Governor, The Detroit Free Press, January 15, 2002. Thus, an understanding of the circumstances leading to the passage of Proposal A demonstrates that in March 1994 the electorate was dissatisfied with Michigan’s high property tax and therefore sought to prevent its rapid expansion. Further, none of the parties disputes that the amendment of Const 1963, art 9, § 3 was intended to curb the growth of property tax assessments. Thus, our task is to construe Const 1963, art 9, § 3 in a manner that forwards the purpose of the constitutional amendment. Civil Service Comm, supra at 681-682. After reviewing the language of Const 1963, art 9, § 3 as amended by Proposal A against the backdrop of its purpose and the circumstances leading to its adoption, we disagree with plaintiffs’ contention that the electorate intended that the ratio of taxable values to true cash values remain uniform with the average ratio for all property in the taxing district. Plaintiffs are correct in their assertion that Const 1963, art 9, § 3 provides that “[t]he legislature shall provide for the determination of true cash value at which such property shall be uniformly assessed.” (Emphasis supplied.) However, we believe that plaintiffs’ argument overlooks the remaining language of Const 1963, art 9, § 3, which provides: For taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each parcel of property adjusted for additions and losses, shall not increase each year by more than the increase in the preceding year in the general price level, as defined in section 33 of this article, or 5 percent, whichever is less until ownership of the parcel of property is transferred. When ownership of the parcel of property is transferred as defined by law, the parcel shall be assessed at the applicable proportion of current true cash value. [Emphasis supplied.] In our view, plaintiffs’ argument fails to account for the electorate’s understanding, as provided by the above language, that property assessments remain capped until a parcel of property is transferred. To accept plaintiffs’ argument would require us to ignore the clear import of the above constitutional language, which reveals that the ratio of taxable value to true cash value of an individual parcel of property may be disparate from the average ratio for the taxing district, depending on whether the owner sells or retains the property. Specifically, Const 1963, art 9, § 3 expressly provides that when a parcel of property is transferred, “the parcel shall be assessed at the applicable proportion of current true cash value." (Emphasis supplied.) Accepting plaintiffs’ argument, which runs contrary to the language of the constitutional provision, would violate one of the primary tenets of constitutional interpretation, “that requires that a [constitutional] provision be interpreted to give reasonable effect to all, not just some, of its parts.” House Speaker, supra at 579. Moreover, if we were to accept plaintiffs’ argument, the practical result would be that the electorate’s amendment of Const 1963, art 9, § 3, providing for a cap on property assessments, would in essence be nullified. “[WJherever possible, an interpretation that does not create constitutional invalidity is preferred to one that does.” Council of Organizations & Others For Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997). In sum, we reject plaintiffs’ assertion that the electorate, in adopting Proposal A in March 1994, understood its action to mean that the ratio of taxable value to true cash value of an individual parcel of real property remain uniform with that of the average in the taxing district. We must give the constitutional amendment its “ ‘plain meaning as understood by its ratifiers at the time of its adoption.’ ” Michigan United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 373; 630 NW2d 297 (2001) (Young, J., concurring) (emphasis in original), quoting Bulger, supra at 507. We conclude that the inteipretation advanced by defendants in these consolidated cases, that the ratio of taxable value to true cash value need not be uniform with the average of all property in the taxing district, is the meaning “ ‘which reasonable minds, the great mass of the people themselves, would give [Const 1963, art 9, § 3].’” Bolt, supra at 160, quoting Traverse City, supra at 405 (emphasis omitted). Thus, we decline plaintiffs’ invitation to graft onto the plain language of Const 1963, art 9, § 3 a meaning that was not clearly intended by its ratifiers in March 1994. See MUCC, supra at 374-375. Further, we disagree with plaintiffs’ contention that the words “assessment” and “taxable value” in the constitution are synonymous because they both refer to the value on which taxes are generally based. Plaintiffs point to other provisions of the state consti tution, arguing that the provisions support plaintiffs’ theory that the word “assess” in the constitution means the value on which property tax is based, and that assessments and taxable value are synonymous, and therefore uniform taxable values are required. According to plaintiffs, it would render an “absurd result” for the Court to hold that “assessment” means one thing in the constitution as a whole, that being the value on which taxes are based, and another in the Uniformity of Taxation Clause. Other than plaintiffs’ repeated insinuations to the contrary, there is simply nothing in the plain language of Const 1963, art 9, § 3 that indicates that taxable value and assessment are one and the same to the extent that plaintiffs are entitled to uniform ratios of taxable value to true cash value. Although plaintiffs point to other provisions of the constitution that recite the terms “assess” and “assessment,” we do not believe that these citations support plaintiffs’ theory that “taxable value” and “assessment” are synonymous. As the esteemed Justice Cooley acknowledged in his seminal work on constitutional interpretation, a constitutional provision should be interpreted by reference to the instrument as a whole, “with a view to arriving at the true intention of each part.” 1 Cooley, Constitutional Limitations (8th ed), p 127 (emphasis omitted). However, although it can be presumed that the same word is used to convey the same meaning in different parts of the constitution, id. at 135, Justice Cooley, quoting Story, Commentaries on the Constitution of the United States, § 454 (1833), has cautioned against the “arbitrary” use of this rule: “It does not follow, either logically or grammatically, that because a word is found in one connection in the Constitution with a definite sense, therefore the same sense is to be adopted in every other connection in which it occurs. This would be to suppose that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen and practical reasoners. And yet nothing has been more common than to subject the Constitution to this narrow and mischievous criticism. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the Constitution a word used in some sense which falls in with their favorite theory of interpreting it, have made that the standard by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning when it seemed too large for their puiposes, and extending it when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled where they have sought only to adjust its proportions according to their own opinions.” In the absence of clear language in Const 1963, art 9, § 3 suggesting that taxable value and assessment are one and the same, it appears that plaintiffs are engaging in the type of constitutional misinterpreta tion against which Justice Cooley cautioned. In our opinion, if the drafters of the amendment of Const 1963, art 9, § 3 had intended to provide for uniformity in the ratio of taxable value to true cash value, they could have so stated. Likewise, there is nothing in the language of Const 1963, art 9, § 3 that would indicate that the electorate’s common understanding of this provision is that an individual parcel of property’s ratio of taxable value to true cash value is to remain uniform with that of all other property in the taxing district. Rather, the circumstances surrounding the adoption of this amendment would suggest otherwise, since it was the electorate’s intent to cap increases in property assessments. Justice Young’s comments in MUCC, supra at 374-375, are instructive in this regard: Th[e] rule of [common understanding] acknowledges the possibility that a provision of the constitution may rationally bear multiple meanings, but the rule is concerned with ascertaining and giving effect only to the construction, consistent with the language, that the ratifiers intended. Thus, our task is not to impose on the constitutional text. . . the meaning we as judges would prefer, or even the meaning the people of Michigan today would prefer, but to search for contextual clues about what meaning the people who ratified the text in [1994] gave to it. Finally, to the extent that plaintiffs contend that the Legislature acted improperly in amending provisions of the GPTA in response to the electorate’s passage of Proposal A, we conclude that this argument is simply without merit. Specifically, plaintiffs maintain that the Legislature sought to eliminate plaintiffs’ purported rights under General Motors, supra, by providing that taxes now be spread against “taxable value.” In support of their argument, plaintiffs cite our Supreme Court’s observation in Westinghausen v People, 44 Mich 265, 270; 6 NW 641 (1880): It is hardly necessary to say that subsequent legislation could not change the meaning or effect of any part of the Constitution; that instrument can only be changed by the combined action of the Legislature and the people. If the Legislature could, by merely calling things by particular names, alter constitutional provisions, it would be quite unnecessary to consult the people on the subject of amendments. However, plaintiffs fail to note that Const 1963, art 9, § 3 clearly provides that “[f]or taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each parcel of property . . . shall not increase each year by more than the increase in the immediately preceding year in the general price level ... or 5 percent, whichever is less . . . .” (Emphasis added.) Thus, the plain language of Const 1963, art 9, § 3 provides the Legislature with the authority to provide for the definition of taxable value. Further, “[t]he power to levy taxes for governmental needs is in the legislature subject only to limitations and regulations found in the Constitution.” Shivel v Kent Co Treasurer, 295 Mich 10, 15; 294 NW 78 (1940). Likewise, the judiciary is not to concern itself with the policy of state taxation adopted by our Legislature. C F Smith Co v Fitzgerald, 270 Mich 659, 670; 259 NW 352 (1935). By the mandate of the Constitution . . ., it is made the duty of the legislature to provide a uniform rule of taxation, and an essential element of that uniform rule is, that all assessments of property shall be at its cash value. The power to impose taxes is vested exclusively in the legislative department of government and cannot be exercised except in pursuance of its authority. The legislative department has, subject to the limitations of the Constitution, a broad and uncontrollable discretion over the general subject of taxation,—the raising of revenue for the support of the government. The power of the legislature of this State is as omnipotent as that of the parliament of England, save only as it is restrained by the Constitution of the United States and the Constitution of this State. Within constitutional limits, the legislature has full control over the subject of taxation. [Hudson Motor Car Co v Detroit, 282 Mich 69, 79; 275 NW 770 (1937) (citations omitted).] Rather than attempting to divest property owners of their constitutional rights, it is clear that the Legislature amended the gpta in 1994 in an attempt to legislatively facilitate the assessment cap the electorate accepted in passing Proposal A. See House Legislative Analysis, HB 5945 (Second Analysis), January 9, 1995, p 1. Because taxes were levied on a property’s SEV before the passage of Proposal A, MCL 211.24b, the Legislature amended the legislation to provide for a new vehicle by which to assess property taxes, that being taxable value. Because the Legislature did not act outside its constitutional limits in prescribing the method of taxation, we decline plaintiffs’ implied invitation to speculate regarding the Legislature’s motives. “[S]o long as the legislation is . . . confined to the enactment of what is in its nature strictly a tax law, and so long as none of the constitutional rights of the citizen are violated in the directions prescribed for enforcing the tax, the legislation is of supreme authority.” Cooley, The Law of Taxation (1st ed) (1876), p 35. Affirmed in all cases. Cooper, J., concurred. Plaintiffs are commercial property owners in the city of Troy, Canton Township, the city of Oak Park, Southfield Township, and the city of Southfield. Although plaintiffs list seven separate issues in their statement of questions presented, six of the delineated issues concern the core issue on appeal, whether Const 1963, art 9, § 3 requires that the proportion of taxable value to true cash value be uniform among all property in a taxing district. In Meadowbrook Village Associates v Auburn Hills, 226 Mich App 594; 574 NW2d 924 (1997), the petitioner advanced the identical issue raised in the present appeals. This Court declined to rule on the merit of the petitioner’s argument in Meadowbrook, concluding that the Tax Tribunal lacked jurisdiction to decide this constitutional issue. Id. at 597. However, the Meadowbrook Court, in dicta, observed that [the] petitioner seeks a ruling that the terms “taxable value,” “assessment,” and “assessed” in Const 1963, art 9, § 3 have the same meaning. This interpretation would invalidate the statutes that implement the constitutional provision because they provide for taxation based on taxable value, not assessed value. See [MCL 211.27a, 211.24b.] The trial court denied plaintiffs’ motion for summary disposition and granted judgment in favor of defendant pursuant to MCR 2.116(I)(2) in an order and opinion entered December 13, 1999. In Docket No. 232132, the parties submitted the matter to the trial court on stipulated facts and briefs. The trial court found “no cause of action on Plaintiffs’ Complaint and enter[ed] Judgment for Defendant.” Although the court did not indicate under what subsection of MCR 2.116 it was granting judgment in favor of defendant, it appears that it found plaintiffs’ complaint deficient as a matter of law. Thus, both plaintiffs and defendant in Docket No. 232132 agree that it would be appropriate to review the trial court’s decision pursuant to MCR 2.116(C)(8). In Docket No. 224813, the trial court observed that it reviewed plaintiffs’ summary disposition motion pursuant to MCR 2.116(C)(10). Const 1850, art 14, § 11 provided: The legislature shall provide a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, That the legislature shall provide a[ ] uniform rule of taxation for such property as shall be assessed by a state board of assessors, and the rate of taxation on such property shall be the rate which the state board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for state, county, township, school and municipal purposes. Const 1850, art 14, § 12 provided: All assessments hereafter authorized shall be on property at its cash value. Const 1908, art 10, § 3 provided: The legislature shall provide by law a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law: Provided, That the legislature shall provide by law a uniform rule of taxation for such property as shall be assessed by a state board of assessors, and the rate of taxation on such property shall be the rate which the state board of assessors shall ascertain and determine is the average rate levied upon other property upon which ad valorem taxes are assessed for state, county, township, school and municipal purposes. Const 1908, art 10, § 7 specified that “[a]ll assessments hereafter authorized shall be on property at its cash value.” The italicized portions represent the amendments enacted by Proposal A, effective April 30, 1994. Before the passage of Proposal A, Const 1963, art 9, § 3 provided: The legislature shall provide for the uniform general ad valorem taxation of real and tangible property not exempt by law. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments. The legislature may provide for alternative means of taxation of designated real and tangible personal property in lieu of general ad valorem taxation. Every tax other than the general ad valorem property tax shall be uniform upon the class or classes on which it operates. MCL 211.27a has subsequently been amended by 1996 PA 476 and 2000 PA 260. Plaintiffs also point to this Court’s decision in Hoerner-Waldorf Corp v Ontonagon, 26 Mich App 542, 545; 182 NW2d 759 (1971), where this Court cited General Motors, supra, and stated, “Hoemer-Waldorf is entitled to relief only if its property was assessed at a ratio of trae cash value greater than the ‘average level of assessment’ of all property, real and personal, in the taxing district.” Plaintiffs also cite NeBoShone Ass’n, Inc v State Tax Comm, 58 Mich App 324, 342-344; 227 NW2d 358 (1975), where a panel of this Court, after considering the language of Const 1963, art 9, § 3 before its amendment in 1994, followed General Motors, supra, and Hoemer-Waldorf, supra, concluding that the plaintiff was entitled to relief if its property assessment of assessed value to true cash value exceeded the average in the taxing district. See also Shaughnesy v Tax Tribunal, 420 Mich 246, 249; 362 NW2d 219 (1984) (noting in dicta that where a taxpayer protests a property valuation before the local board of review, he may only obtain relief from a tenta tive valuation before equalization if “he can show that his property has been assessed at a different proportion of true cash value than the rest of the property within the same class in the taxing district”); Brittany Park, supra at 88 (“The Supreme Court has recognized a taxpayer’s right to complain that his assessment was not made in uniformity with other assessments. If the claim is based on lack of uniformity, the taxpayer must show that the ratio of assessed value to fair market value of his property is greater than the ratio of average assessed value to the average fair market value in the taxing district.”) (Citations omitted.); Great Lakes, supra at 427 (“The taxpayer may obtain relief only when it is shown that the property was assessed at a different proportion of true cash value than the rest of the property within the same class in the taxing district.”). However, the courts in these cases did not address the precise issue plaintiffs raise in the instant cases. However, in NeBoShone, supra at 342, the Court, considering Const 1963, art 9, § 3, ruled that the stc was required to proceed under the mandate set forth by General Motors, supra. The other was a statutory plan to take effect if the electorate rejected Proposal A. Plaintiffs also cite myriad cases in their appellate briefs, arguing that the cases support their argument that “assessment” and “taxable value” are identical for the purposes of interpreting Const 1963, art 9, § 3. We have reviewed plaintiffs’ pinpoint citations to these cases, none of which stands for plaintiffs’ stated proposition. Plaintiffs also cite Owendale-Gagetoum School Dist v State Bd of Ed, 413 Mich 1; 317 NW2d 529 (1982), for the proposition that taxable value and assessment are one and the same. In Owendale, the Supreme Court reviewed the statutory language of § 461 of the School Code of 1955, and concluded that a transfer of property from one school district to another needed to be approved by the school tax electors when the transfer amount was greater than ten percent of the “latest available taxable valuation of the district.” Owendale, supra at 10. Although the Court referred to the term “taxable valuation” in portions of its ruling, id. at 5, 6, which was gleaned from the language of the pertinent statute, there is nothing in Owendale that supports plaintiffs’ proposition that the words “taxable value” and “assessment” as used in Const 1963, art 9, § 3 are identical. To the extent that plaintiffs direct our attention to the ballot language that was presented to the voters in March 1994, we believe that reliance on this material is inappropriate in discerning the electorate’s common understanding, where its intent may be gleaned from the language of the constitution itself. Our Supreme Court has recently cautioned lower courts that reference to extrinsic material is of dubious and limited value when the plain language of the constitution expresses the electorate’s intent. American Axle, supra at 362. Given our disposition of plaintiffs’ initial issue in these appeals, we need not address the issue concerning the circuit court’s jurisdiction regarding tax refunds.

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Ryan, J. In these consolidated cases, the Court is asked to interpret and adjudge the constitutionality of 1978 PA 392. Plaintiffs are domestic and foreign corporations seeking refunds of corporate franchise fee deficiencies paid by them for various tax years preceding 1975, under former 1921 PA 85, commonly referred to as the franchise fee act. Act 392 is a legislative attempt to validate retroactively the Treasury Department’s consistent refusal to grant the requested refunds. The Court of Appeals panels in each of these consolidated cases held that Act 392 has denied plaintiffs equal protection of the law. I The controversy in these cases emanates from this Court’s decisions in Borden, Inc v Dep’t of Treasury, 391 Mich 495; 218 NW2d 667 (1974), and Clark Equipment Co v Dep’t of Treasury, 394 Mich 396; 230 NW2d 548 (1975). In Borden, an equally divided Court affirmed the decision of the Court of Appeals, holding that once the Department of Treasury computed a corporation’s franchise fee upon the basis of the corporation’s annual report, it exhausted its authority under the franchise fee act. The Court specifically held that the department had no authority either to conduct field audits of a corporation’s books or to recompute a corporation’s franchise fee if the department subsequently obtained, from whatever source, information about the corporation’s affairs that it regarded as more accurate. The Court rested its holding upon the historical fact that, as originally enacted, the franchise fee was merely a licensing measure rather than a revenue-raising tax. When the fee was subsequently transformed into a major source of revenue, the statutory procedures for collecting it nevertheless remained unchanged. The Court declined to permit the Department of Treasury to augment these existing procedures without legislative authorization. Although Borden was decided by an equally divided Court, Justice Levin’s opinion for affirmance in Borden was subsequently expressly adopted by a majority of the Court in Clark Equipment, supra, p 399. The legislative response to the Borden and Clark decisions was the passage of 1975 PA 13, amending §§9 and 10 of the franchise fee act. MCL 450.309-450.310; MSA 21.210-21.210(1). These amendments, in pertinent part, authorized the division to audit corporations subject to the franchise fee and provided a four-year limitations period within which deficiencies could be assessed. However, in International Business Machines Corp v Dep’t of Treasury, 75 Mich App 604; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977), the Court held that 1975 PA 13 would be given prospective effect only, finding no indication in the act of any legislative intent to make the act retroactive. Therefore, for those tax years preceding the passage of 1975 PA 13, the rule of Borden and Clark Equipment remained controlling. Acquiescing in these decisions only in part, the division cancelled or rescinded those deficiencies which remained unpaid, but refused to grant refunds to those corporate taxpayers who had paid their assessments and later sought repayment. Relying upon Borden and Clark Equipment, two Court of Appeals panels subsequently affirmed judgments awarding corporate litigants refunds of deficiencies paid by them following unauthorized audits and recomputations. St Clair-Macomb Consumers Cooperative, Inc v Dep’t of Treasury, 78 Mich App 287; 259 NW2d 462 (1977), lv den 402 Mich 869 (1978); Giffels Associates, Inc v Dep’t of Treasury, 81 Mich App 730; 265 NW2d 809 (1978), lv den 403 Mich 808 (1978). Faced with a potential loss to the state treasury of up to $35 million in taxpayer refund actions, the Treasury Department again sought remedial legislation. The Legislature responded with the passage of 1978 PA 392, the subject of these appeals. II In various tax years preceding 1975, plaintiffs were issued deficiency assessments following unauthorized audits and recomputations. Plaintiffs were among those corporate taxpayers who first paid their deficiencies and subsequently filed refund requests with the Franchise Fee Division. The division denied the requests, prompting plaintiffs to file suit. Plaintiffs in Armco Steel first filed suit either in the Michigan Tax Tribunal or the Michigan Court of Claims, or both. Later, however, they filed the instant action in the Ingham Circuit Court seeking a declaratory judgment concerning the interpretation and constitutionality of 1978 PA 392. The circuit court held that 1978 PA 392 constituted a denial of equal protection as to those plaintiffs who timely requested refunds for tax years prior to 1975. The Court of Appeals affirmed. 111 Mich App 426; 315 NW2d 158 (1981). We granted leave to appeal. 417 Mich 886 (1983). Plaintiffs in Great Scott filed an action for refund in the Michigan Tax Tribunal. Although the tribunal declined to order a refund, the Court of Appeals reversed, also holding that 1978 PA 392 unconstitutionally denied plaintiffs equal protection of the law. 113 Mich App 679; 318 NW2d 537 (1982). Again, we granted leave to appeal. 417 Mich 887 (1983). Ill The circumstances prompting the institution of these suits is not disputed. The division admits that following the decision in IBM, holding that 1975 PA 13 would be given prospective effect only, it refused to rescind deficiency assessments which remained unpaid, but carried out a considered policy to refuse refunds to corporate taxpayers who had requested them. Moreover, it appears that even after the enactment of 1978 PA 392, the division continued its disparate treatment of these two groups of taxpayers. In at least one instance of which we have been made aware, plaintiff Upjohn Company filed a written request with the division for a refund in 1974, even before Clark Equipment was decided. However, no response was received from the division until 1978, after Act 392 had passed, when Upjohn’s request for a refund was denied on the basis of the new act. By contrast, in an order of redetermination issued to another corporate taxpayer, not a party to this litigation, deficiencies which had been assessed for the tax year 1974 and which remained unpaid were rescinded on the basis of the Borden and Clark Equipment decisions, notwithstanding the fact that this redetermination was made two months after the date of the letter to Upjohn Company, and four months following the effective date of Act 392. Again, these facts are not disputed by the division. It contends instead that a lawful tax need not be refunded simply because its levy and collection were irregular; that plaintiffs have paid only what was legally owed by them under the franchise fee act; and that since the Legislature was empowered to validate retroactively anything which it initially had the power to authorize, the passage of Act 392 terminated plaintiffs’ rights to refunds. The division argues that plaintiffs were simply "caught” through the division’s use of unauthorized audits, and were asked to pay only what was legally required of all corporate taxpayers under the franchise fee act. They should not now be heard to complain. We think these arguments fail to address adequately plaintiffs’ challenge to the constitutionality of Act 392. Plaintiffs have alleged that the act, as applied to them, violates the Equal Protection Clause of the United States Constitution, and the Equal Protection and Uniformity of Taxation Clauses of the Michigan Constitution. US Const, Am XIV; Const 1963, art 1, § 2, and art 9, § 3. This Court has held that the rights provided under the Michigan Constitution are coextensive with those provided under the United States Constitution. Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967); Wolodzko v Wayne Circuit Judge, 382 Mich 528, 534; 170 NW2d 9 (1969). In Allied Stores of Ohio v Bowers, 358 US 522, 527; 79 S Ct 437; 3 L Ed 2d 480 (1959), the United States Supreme Court stated: "[TJhere is a point beyond which the State cannot go without violating the Equal Protection Clause. The State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary. The rule has often been stated to be that the classification 'must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.’ ” These principles are equally applicable to cases involving taxing statutes. In Beauty Built Construction Corp v City of Warren, 375 Mich 229; 134 NW2d 214 (1965), the City of Warren imposed a special water tax fee upon all new homes in response to the unexpected growth that was burdening the city’s water and sewage system. Existing buildings were exempt from the tax. This classification in the city’s ordinance between existing buildings and new homes was held to violate the Equal Protection Clauses of both the United States and Michigan Constitutions: "This Court has repeatedly held that classification of objects to which a municipal ordinance may be made applicable must be based on natural distinguishing characteristics and must bear a reasonable relation to the object of the ordinance. * * * "Where an ordinance fails to include and affect alike all persons of the same class, and extends immunities or privileges to one part and denies them to others of like kind by unreasonable or arbitrary classification, the same is contrary to the equal protection guarantees of the State and Federal Constitutions.” Beauty Built Construction Co, supra, pp 235-236. (Emphasis in original.) Similarly, under the Uniformity of Taxation Clause of the Michigan Constitution, the controlling principle is one of equal treatment of similarly situated taxpayers. Avis Rent-A-Car System, Inc v City of Romulus, 65 Mich App 119, 128-129; 237 NW2d 209 (1975), aff'd 400 Mich 337; 254 NW2d 555 (1977). As a practical matter, in cases involving taxing statutes, there is no discernible difference between the Equal Protection and Uniformity of Taxation Clauses. Some rational basis for a disputed classification must be shown to exist. The division has failed to suggest any persuasive rational basis justifying its disparate treatment of those corporate taxpayers who paid their deficiency assessments following unauthorized audits and recomputations, and those who did not. Its reasoning that plaintiffs have no basis for complaint because they have paid only what was legally due under the franchise fee act is flawed in two respects. First, it is inappropriate to compare plaintiffs to corporate taxpayers who may have correctly determined their own franchise fee liability in the first instance. It was the Legislature who provided for a self-assessment scheme under the franchise fee act. The relevant class to be considered in analyzing plaintiffs’ equal protection challenge is that group of corporate taxpayers who were unlawfully assessed deficiencies following unauthorized audits and recomputations. Second, the deficiency assessments which plaintiffs paid were no more legally due under the law than those deficiency assessments which were rescinded by the division pursuant to Borden and Clark, supra. Therefore, even if it is true that plaintiffs have paid only that which was legally due, it is a non sequitur to then conclude that plaintiffs have not been denied equal protection of the law. In Sioux City Bridge Co v Dakota County, Nebraska, 260 US 441; 43 S Ct 190; 67 L Ed 340 (1923), the United States Supreme Court addressed a situation wherein plaintiff claimed that, while its property had been assessed at 100% of its true value in conformity with the relevant state tax statute, other real property in the county had been assessed at only 55% of its value. The Nebraska Supreme Court had held that plaintiff’s only remedy was to have the property of others which was assessed below its true value raised, rather than to have its own property, assessed at its true value, reduced. The United States Supreme Court reversed: "The dilemma presented by a case where one or a few of a class of taxpayers are assessed at 100 per cent of the value of their property, in accord with a constitutional or statutory requirement, and the rest of the class are intentionally assessed at a much lower percentage, in violation of the law, has been often dealt with by the courts, and there has been a conflict of view as to what should be done. There is no doubt, however, of the view taken of such cases by the Federal courts in the. enforcement of the uniformity clauses of state statutes and constitutions, and of the equal protection clause of the 14th Amendment. * * * The conclusion in these and other Federal authorities is that such a result as that reached by the supreme court of Nebraska is to deny the injured taxpayer any remedy at all, because it is utterly impossible for him, by any judicial proceeding, to secure an increase in the assessment of the great mass of under assessed property in the taxing district. This court holds that the right of the taxpayer whose property alone is taxed at 100 per cent of its true value is to have his assessment reduced to the percentage of that value at which others are taxed, even though this is a departure from the requirement of statute. The conclusion is based on the principle that where it is impossible to secure both the standards of true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law. In substance and effect, the decision of the Nebraska supreme court in this case upholds the violation of the 14th Amendment to the injury of the Bridge Company. We must, therefore, reverse its judgment.” Sioux City, 260 US 446-447. (Emphasis added.) Although Sioux City is factually dissimilar to the instant cases, the broader proposition for which it stands is clearly apposite. When faced, as in this case, with a choice between securing that which is due under the law and upholding the constitutional requirements of uniformity and equality, the latter is to be preferred "as the just and ultimate purpose of the law”. Under the franchise fee act, corporate taxpayers were provided with two procedural remedies by which they could challenge the division’s determination of their franchise fee liability. Under § 9 of the act, MCL 450.309; MSA 21.210, a corporate taxpayer could petition the division for a redeter-mination of its liability, and withhold payment of the fee pending the division’s decision. Under § 10, MCL 450.310; MSA 21.210(1), corporations were permitted to follow the procedures used by plaintiffs in these cases. Following payment of their fees as determined by the division, corporations were given three years within which to file a written petition for a refund. Under this legislative scheme, it is apparent that corporate taxpayers choosing either procedural remedy were to be treated equally. Nevertheless, taxpayers who refused to pay their deficiency assessments before obtaining a redetermination as provided in § 9, or still worse, taxpayers who refused to pay without pursuing even this statutory remedy, have consistently been excused from payment by the division, while those corporate taxpayers who chose the alternative remedy provided by the Legislature in § 10 have been just as consistently denied the refunds they have requested in their petitions to the division. Each of these taxpayers, however, was subject to the division’s power, or lack thereof, under the franchise fee act. The only distinction existing between them is that one group paid their deficiencies while the other group did not. This is not a natural distinguishing characteristic which bears a reasonable relationship to the object of the classification. Beauty Built Construction Corp, supra, p 235. The distinction has become important only because of the division’s disparate treatment of these two groups. Although not determinative of our decision in this matter, case law in other jurisdictions has held it unconstitutional to benefit or prefer those who do not pay their taxes promptly over those who do. That, of course, is the precise effect of the fashion in which Act 392 has been applied to the plaintiffs in these cases. While it is undisputed, therefore, that the Legislature can validate retroactively anything that it could have originally authorized, it is not empowered to validate the division’s persistent discrimination between two groups of taxpayers who are in reality but one class. The judgment of the Court of Appeals in each of these consolidated cases is affirmed. Williams, C.J., and Kavanagh, Levin, Brick-ley, and Boyle, JJ., concurred with Ryan, J. MCL 450.321; MSA 21.213(1): "All audits performed by or at the direction of the department of treasury for the purpose of determining liability for a corporate franchise fee levied pursuant to former Act No. 85 of the Public Acts of 1921, and all payments received and refunds made on the basis of those audits before the repeal of former Act No. 85 of the Public Acts of 1921 are declared to be valid and to have been in fulfillment of the legislative purpose to provide for fair administration and enforcement of that act.” MCL 450.301 et seq.; MSA 21.201 et seq. This act was called the fees, taxes and charges act. It was repealed effective May 14, 1977 by 1975 PA 230, contemporaneously with the enactment of the Single Business Tax Act, 1975 PA 228, MCL 208.1 et seq.; MSA 7.558(1) et seq. It was provided in 1975 PA 230, however, that the act would extend beyond its repeal date to the extent necessary for enforcement and collection of franchise fees due prior to its repeal. As originally enacted, the franchise fee act specified the minimum ($50) and maximum ($10,000) fees that could be imposed. In 1951, however, amendments to the act increased the rate at which the fee would be computed and eliminated the maximum amount of the fee that could be assessed, converting the act into a major revenue-raising measure. Notwithstanding this transformation, the Legislature did not add to or alter the collection powers of the Corporation and Securities Commission, which was then responsible for administration of the act. Notably absent was the statutory authorization to utilize audits in determining the correct fees and a limitations period beyond which deficiencies could not be assessed. Then, by the Executive Organization Act of 1965, 1965 PA 380, § 90, MCL 16.190; MSA 3.29(90), responsibility for the administration of the franchise fee act was transferred from the commission to the Department of Treasury. Thereafter, armed with the Treasury Department’s facilities for investigation and collection of taxes, the Franchise Fee Division began auditing corporations subject to its tax and recomputing their fees in 1966. Although the state treasury faced a loss of up to $35 million at the time Act 392 was passed, the statute of limitations would now bar many refund actions that were originally included within this estimate. Therefore, refund actions pending currently involve less than $2.5 million. Plaintiffs also sought and were granted a writ of superintending control holding in abeyance the cases previously filed in the Tax Tribunal and Court of Claims. The order granting the writ was the subject of an earlier interlocutory appeal by the division. That dispute has not been pursued in this appeal. Snow’s Mobile Homes, Inc v Morgan, 80 Wash 2d 283, 287; 494 P2d 216 (1972); Perk v City of Euclid, 17 Ohio St 2d 4, 7; 244 NE2d 475 (1969); State ex rel Tharel v Bd of County Comm’rs of Creek County, 188 Okla 184, 192; 107 P2d 542 (1940); Richey v Wells, 123 Fla 284, 290; 166 So 817 (1936); Simpson v Warren, 106 Fla 688, 691; 143 So 602 (1932), reh den 106 Fla 691; 144 So 324 (1932); State ex rel Matteson v Luecke, 194 Minn 246, 251; 260 NW 206 (1935).

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Per Curiam. Plaintiff Deedra Duranceau appeals as of right the order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant Alpena Power Company in this gender discrimination action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq., and the Equal Pay Act, 29 USC 206(d)(1). We affirm. Defendant hired plaintiff into the general labor/meter reader classification in 1990. She started at $7.50 an hour and received regular increases until she reached the $10.50 maximum for her classification. When defendant and the union could not agree on a new contract in 1992, defendant instituted the terms of its last best offer and union members worked without a contract. Defendant’s last best offer contained the basic structure of its 1989 collective bargaining agreement insofar as it maintained the maximum wage for the general labor/meter reader classifications while providing increases for other classifications. The effect of these terms was to freeze the wages of the three female union members, all of whom were in the general labor/meter reader classification, while granting increases for the remaining classifications, which were populated by male union members. However, nonunion female employees also received pay increases during this period. In 1993, plaintiff, together with two other female employees who were employed as meter readers at the time the 1989 collective bargaining agreement was ratified, and the union filed suit against defendant, alleging sex discrimination in violation of the Civil Rights Act and Equal Pay Act. The trial court granted summary disposition of the discrimination claims. In an earlier appeal, this Court reversed the trial court’s order awarding summary disposition to defendant and dismissing with prejudice plaintiff’s claims. See Donajkowski v Alpena Power Co, 219 Mich App 441; 556 NW2d 876 (1996), aff’d on other grounds 460 Mich 243; 596 NW2d 574 (1999). This Court concluded that the trial court erred in granting summary disposition of the then plaintiffs’ discrimination claim because the plaintiffs established a prima facie case of discrimination under the disparate treatment theory and the disparate impact theory. Thus, this Court reversed the grant of summary disposition and remanded for further proceedings consistent with the opinion. On remand, defendant conducted additional discovery and again moved for summary disposition. Following a hearing on defendant’s motion, the trial court granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). A prima facie case of discrimination under the Civil Rights Act can be made by proving either disparate treatment or disparate impact. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). Disparate treatment requires a showing of either intentional discrimination against protected employees or against an individual plaintiff. Disparate impact requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. Lytle v Malady (On Rehearing), 458 Mich 153, 177, n 26; 579 NW2d 906 (1998). Plaintiff alleged that defendant’s act of freezing the wages of the one job classification in which all the female union employees were employed resulted in discrimination toward female employees. To avoid summary disposition under the disparate treatment theory, the plaintiff must present sufficient evidence to permit a reasonable juror to find that for the same or similar conduct the plaintiff was treated differently from a similarly situated male employee. Id. at 181-182. Gender must be proved to be a determining factor in the allegedly discriminatory decision. Town v Michigan Bell Telephone Co, 455 Mich 688, 706; 568 NW2d 64 (1997). Here, plaintiff primarily relies on two comments allegedly made by defendant’s president to establish a motive to discriminate on the basis of gender. However, one comment occurred three to four years before the pay scale modification and four to five years before plaintiff accepted employment with defendant. The statement was too vague and remote in time to raise a triable issue of fact. Phelps v Yale Security, Inc, 986 F2d 1020, 1026 (CA 6, 1993). The second comment, made five months after plaintiff was hired, recognized that those employees in the general labor classification were all women at the time the statement was made. Plaintiff asserts that this comment supports the allegation that defendant moved the male employees out of the meter reader positions before implementing the pay freeze for a combined general labor/meter reader classification so that only females would be affected by the pay freeze. However, plaintiff was the only female of seven employees hired in the general labor classification after the implementation of the wage freeze. Hence, similarly situated male employees were subject to the same pay scale as was plaintiff. Plaintiff failed to raise a triable issue of fact that gender was a determining factor in defendant’s decision to freeze the pay scale of the general labor/meter reader classification. Betty v Brooks & Perkins, 446 Mich 270, 281; 521 NW2d 518 (1994). To avoid summary disposition under the disparate impact theory, plaintiff had to show that female employees were burdened on account of their gender by some facially neutral practice. Roberson v Occupational Health Centers of America, Inc, 220 Mich App 322, 329-330; 559 NW2d 86 (1996). Here, the pay scale modifications challenged by plaintiff applied equally to employees in the classification, regardless of gender. Plaintiff’s allegation that defendant intentionally eliminated male employees from the general labor classification in order to reduce the compensation paid to female employees is not supported by plaintiff’s own testimony that six of the seven employees hired into the classification following the implementation of the wage freeze were male. Plaintiff failed to show that a facially neutral policy, that is, the pay range modification, resulted in similarly situ ated male employees being paid a higher wage than female employees. Plaintiff also contends that summary disposition of her equal pay claim was inappropriate. To avoid summary disposition of the equal pay claim, plaintiff needed to show that defendant paid lower wages to her than to male employees for equal work on jobs. However, plaintiff admitted that no comparable male employee hired into her job classification was paid more than she was. Hence, she failed to meet her burden of proving that a male worker was paid more for performing substantially similar work. Corning Glass Works v Brennan, 417 US 188; 94 S Ct 2223; 41 L Ed 2d 1 (1974). Affirmed. The two other female employees are no longer part of this lawsuit. They both stipulated an order dismissing their claims with prejudice. Plaintiff argued on remand that the law of the case doctrine precluded the trial court from considering defendant’s motion for summary disposition. On appeal, plaintiff does not specifically make this argument. Nonetheless, we note that additional discovery was taken that unveiled new facts and that the case that this Court previously relied on in its decision was reversed by the Supreme Court. See Lytle v Malady (On Rehearing), 458 Mich 153; 579 NW2d 906 (1998). Under these circumstances, the law of the case doctrine did not prevent the trial court from entertaining defendant’s motion for summary disposition.

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Per Curiam. Defendant appeals by leave granted from the trial court’s order denying its motion for summary disposition of plaintiff’s claim under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq. We affirm. Defendant employed plaintiff from 1983 until plaintiff was discharged on September 21, 1998. From 1995 until his termination, plaintiff was the managing director of defendant’s Showcase West Theater in Flint. In October or November 1996, plaintiff began a sexual relationship with Coleen Heathcoat, who was also employed by defendant. After the relationship ended in January 1997, Heathcoat began to make threatening telephone calls to plaintiff at his home, prompting plaintiff to change his telephone number. Heathcoat also complained to plaintiff’s supervisor, Brad Wick, who told plaintiff that he would have to work with Heathcoat in a businesslike manner and advised plaintiff not to let the personal relationship affect his work. In the fall of 1997, plaintiff and Heathcoat resumed their sexual relationship, which lasted until July 1998. In August 1998, Heathcoat again made threatening telephone calls to plaintiffs home. At the time, plaintiff had a live-in girlfriend, Linda Ptacek, who was unaware of plaintiff’s sexual relationship with Heathcoat. On August 27, 1998, plaintiff contacted the police, who recommended that plaintiff request a personal protection order (ppo). Plaintiff then requested a ppo to try to stop Heathcoat from calling his home and threatening his girlfriend. Plaintiff admitted that the ppo pertained to Heathcoat’s harassment at his home and did not have anything to do with her conduct at work. On August 31, 1998, Wick met with plaintiff again and offered to arrange a transfer for plaintiff. During this period, Ptacek contacted a senior vice president at defendant’s corporate office and reported that plaintiff was being subjected to a hostile work environment because of Heathcoat’s conduct and that plaintiff had applied for a ppo. At that point, Cindy Montgomery, an employee from defendant’s headquarters, told plaintiff to go home until she was able to arrive in Michigan to investigate. Plaintiff was assured that he would be paid, but was asked not to have any contact with the theater. On September 4, 1998, plaintiff went to Heathcoat’s home to ask her why she was harassing him. During a meeting with Montgomery, plaintiff admitted that he had gone to Heathcoat’s home. Although plaintiff did stay away from the theater as requested, Montgomery apparently believed that plaintiff’s contact with Heathcoat violated her instruction. At a meeting on September 21, 1998, Montgomery informed plaintiff that he was terminated. Montgomery admitted that among the factors she considered in recommending plaintiff’s termination were the second incident of threatening telephone calls by Heathcoat and plaintiff’s relationship with Heathcoat. In October 1998, plaintiff filed a complaint alleging several claims, including that defendant violated the wpa by discharging him in part because he sought a ppo against Heathcoat. Defendant moved for summary disposition of plaintiff’s claims. Regarding the wpa claim, defendant argued that plaintiff was not engaged in a protected activity under the wpa because the necessity for a ppo arose out of a personal affair between plaintiff and the co-worker and that plaintiff neither could show any direct connection between the ppo and defendant’s business nor could claim that his need for a ppo was based on any desire to inform the public on a matter of public concern. The court granted summary disposition for the defendant with respect to plaintiff’s claims of breach of contract and sexual discrimination; however, the court denied summary disposition with respect to plaintiff’s claims under the wpa and of discharge in violation of public policy. Plaintiff subsequently agreed to dismiss the latter claim. Defendant sought and was granted leave to appeal the trial court’s denial of its motion for summary disposition regarding plaintiff’s wpa claim. This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). Because the trial court looked beyond the pleadings in deciding defendant’s motion, we review the motion under MCR 2.116(C)(10). A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court considers the pleadings, affidavits, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR 2.116(G)(5). Summary disposition may be granted if, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). In order to establish a claim of an unlawful discharge under the WPA, plaintiff was required to show that (1) he was engaged in protected activity as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between the protected activity and the discharge. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998). A person is engaged in “protected activity” under the WPA where the person (1) reports a violation or suspected violation of a law or regulation to a public body, (2) is about to report such a violation to a public body, or (3) is asked by a public body to participate in an investigation. Id.) MCL 15.362. The principal issue in this case is whether plaintiff was involved in a protected activity, as that concept is delineated in the WPA, that was causally connected with his discharge from his employment. There is no question that plaintiff reported a violation or sus pected violation of the law to a public body when he sought the ppo against his co-worker. Moreover, our Supreme Court has held that the wpa protects reports made against a co-worker, not just an employer. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 74-75; 503 NW2d 645 (1993). However, defendant maintains that the finding that plaintiff engaged in protected activity by requesting a PPO regarding a matter that was not related to defendant’s business is not consistent with the intent behind the WPA. The wpa was enacted to encourage employees to assist in law enforcement and to protect employees who participate in whistleblowing activities. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378; 563 NW2d 23 (1997). The underlying purpose of the act was to protect the public and to promote public health and safety by removing barriers that may interfere with employee efforts to report violations or suspected violations of the law. Id. at 378-379. A plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act. As interpreted, the act provides protection to employees who report violations of law by either their employers or fellow employees. . . . Frequently, a close connection exists between the reported violation and the employment setting, although no such limitation is found in the statute. [Id. at 381 (citations omitted).] In Dolan, the plaintiff alleged that she was fired for reporting to the Drug Enforcement Agency the names of two airline passengers who fit a suspect profile after the defendant adopted a policy against employees directly contacting the dea without prior manage ment approval. The Supreme Court found that the reported violation was sufficiently related to the plaintiffs employment setting to be protected under the wpa, commenting: “This is not to say that only those violations that are connected to the employment setting are contemplated under the WPA, only that the reported violation in the present case was sufficiently connected to the employment setting to be contemplated under the majority opinion in Dudewicz.” Dolan, supra at 382. In Dudewicz, supra at 70-71, the plaintiff was assaulted by a co-worker while on the job as the result of the plaintiffs having involved one of the owners of the business in a customer service dispute. The plaintiff filed criminal charges against the coworker and was told to drop the charges or he would be fired. The Supreme Court concluded that the activity at issue, reporting a co-worker’s violation of the Criminal Code resulting from a dispute over the handling of company business, fell within the WPA. Id. at 75-76. The Court stated: Admittedly, a strictly liberal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances. ... However, this is not the case and these are not the facts to test the outer limits of this rather broad statute. In concluding that it was intended to bar a discharge of an employee for reporting a crime by a fellow employee under the circumstances of this case does not begin to test those limits. In saying that, we note that not only was this a crime alleged to have been committed by a fellow employee, but the alleged crime arose out of a work incident at the work site. It is, therefore, very much within the employer-employee setting. [Dudewicz, supra at 77-78.] While the appellate courts of this state have opined that there are “outer limits” to a claim under the wpa, neither this Court nor the Supreme Court has defined those outer limits, leaving the issue to be decided case by case. See Terzano v Wayne Co, 216 Mich App 522, 528-529, 532; 549 NW2d 606 (1996). Although this case presents a close question, we conclude that summary disposition was properly denied. It is apparent that the plain language of the WPA does not limit protected activity to that which has a close connection to the work environment or to the employer’s business practices. MCL 15.362; Dolan, supra at 381. Moreover, remedial statutes, such as the WPA, should be “liberally construed in favor of the persons intended to be benefited.” Dudewicz, supra at 77. Therefore, we decline to interpret the wpa so as to create a limitation that is not apparent in the unambiguous language of the statute. Further, the submitted evidence established some connection, albeit a tenuous one, between plaintiff’s request for a ppo and defendant’s employment setting. Plaintiff showed that once he obtained the PPO, it became more difficult for him to work with Heathcoat. Further, there was evidence that, in firing plaintiff, defendant took into account the ongoing problems between plaintiff and his co-worker and how it was affecting defendant’s operations. Even if we were to conclude that the wpa only protects activity that is related to the conduct of the employer’s business, we would find that the evidence in this case meets that test. Defendant argues that plaintiff obtained the PPO for purely personal reasons, not out of concern for the public and, therefore, was not engaged in a protected activity, citing Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 621; 566 NW2d 571 (1997). However, the facts of Shallal are clearly distinguishable from the present case. In Shallal, the plaintiff told her agency’s president that she would report his alleged wrongdoing “if [he didn’t] straighten up.” Id. at 614. Our Supreme Court found that the threat was sufficient evidence that the plaintiff was “about to report” a violation or suspected violation of the law. Id. at 621. However, the Court concluded that the plaintiff failed to establish a causal connection between her actions and her firing because she used the threat of a report to prevent her termination. Id. at 622. [I]t is clear that plaintiff used her own situation to extort defendant not to fire her. . . . Furthermore, it is clear that the decision to fire plaintiff was made before her threat to [the agency president] and that plaintiff knew of this decision .... Plaintiff cannot use the whistleblowers’ act as a shield against being fired where she knew she was going to be fired before threatening to report her supervisor. To hold otherwise “would encourage other employees to hold off blowing the whistle until it becomes most advantageous for them to do so. Plaintiff has offered no evidence which suggests that the Michigan Legislature intended the Whistleblowers Act to be used as an offensive weapon by disgruntled employees.” [Id. at 622 (citations omitted).] Although plaintiff’s decision in this case to obtain a PPO may have been motivated by personal reasons, plaintiff did not use his protected activity to extort his employer, as did the plaintiff in Shallal. Further, although plaintiff’s primary purpose may have been to protect himself and his girlfriend from harassment, reasonable jurors could conclude that plaintiff was acting in the public’s interest, in addition to his own. Assuming the truth of plaintiffs assertions, Heath-coat’s threatening telephone calls could constitute aggravated stalking, a felony and a serious public safety issue. See MCL 750.41 li. Moreover, in this case there is evidence of a causal connection between plaintiff’s protected activity and his termination, namely, Montgomery’s admission that plaintiff was discharged because of circumstances surrounding Heathcoat’s harassment. Accordingly, we believe that the evidence, viewed most favorably to plaintiff, was sufficient to create a genuine issue of fact regarding whether plaintiff engaged in a protected activity for purposes of the wpa. Therefore, the trial court did not err in denying defendant’s motion for summary disposition. Affirmed. Plaintiff also alleged that (1) defendant terminated him in violation of public policy, (2) his discharge was in breach of a contract with defendant under which he could not be terminated without good cause, (3) defendant discharged him because of his gender in violation of MCL 37.2202, and (4) defendant slandered him. Plaintiff later stipulated the dismissal of his slander claim.

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On Remand Cavanagh, J. In this case, on remand from the United States Supreme Court, we are asked to determine whether the search by the police of the trunk of the vehicle defendant was operating immediately prior to his arrest was permissible. Michigan v Long, — US —; 103 S Ct 3469; 77 L Ed 2d 1201 (1983). I. Procedural History This case needs little introduction. The trial court denied defendant’s motions to suppress evidence of marijuana seized from both the passenger compartment and the trunk of a vehicle defendant was operating immediately prior to his arrest. Thereafter, defendant was convicted by a jury of possession of marijuana. MCL 335.341(4)(d); MSA 18.1070(41)(4)(d). He was sentenced to two years probation, assessed a fine of $750, and ordered to pay court costs of $300. The Court of Appeals affirmed his conviction, finding: (1) that the marijuana seized from the passenger compartment of the vehicle was properly admitted under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and (2) that the marijuana seized from the trunk of the vehicle was properly admitted as the product of an inventory search under South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). People v Long, 94 Mich App 338; 288 NW2d 629 (1979). In reversing defendant’s conviction, we addressed at length only the former issue. Although citing both US Const, Am IV, and Const 1963, art 1, § 11, we merely found that the "warrantless search of the interior of the vehicle * * * violated the constitutional proscription against unreasonable searches and seizures”. People v Long, 413 Mich 461, 471; 320 NW2d 866 (1982). That conclusion was based on our interpretation of Terry, supra, and other federal cases, i.e., "Terry authorized only a limited pat-down search of a person suspected of criminal activity. That case did not authorize the search of an area”. 413 Mich 472 (emphasis in original). As to the search of the trunk, we stated that it "occurred subsequent to the deputies’ decisions to arrest the defendant for possession of marijuana and to impound the car. The defendant’s arrest was based on evidence obtained by unlawful police action. We find that the evidence of marijuana found in the trunk was the 'fruit’ of that illegality which should have been suppressed. Wong Sun v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963).” 413 Mich 473. Subsequently, the United States Supreme Court granted the prosecution’s petition for a writ of certiorari, Michigan v Long, 459 US 904; 103 S Ct 205; 74 L Ed 2d 164 (1982), and reversed the decision of this Court, finding: (1) that our decision did not rest on an adequate and independent state ground, i.e., Const 1963, art 1, § 11; Michigan v Long, — US —; 103 S Ct 3469; 77 L Ed 2d 1201, 1212-1216 (1983), and (2) that the search of the passenger compartment of the vehicle did not violate the federal constitution. 77 L Ed 2d 1217-1222. Nevertheless, the Supreme Court found a remand to this Court necessary "to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court”. Michigan v Long, supra, 77 L Ed 2d 1222-1223. On August 24, 1983, pursuant to the Supreme Court’s mandate, this Court issued the following order: "The Court having received the mandate of the Supreme Court of the United States, the Court’s order of June 14, 1982, is vacated. The parties are directed to file supplemental briefs in 24 typewritten copies on the question whether the search of the automobile trunk was permissible under South Dakota v Opperman, 428 US 364 (1976), or the Michigan Constitution. Defendant-appellant’s supplemental brief and appendix, if necessary, are to be filed and served not later than October 3, 1983, and plaintiff-appellee’s brief shall be filed and served not later than November 7, 1983.” 417 Mich 1145 (1983). II. Facts Although the facts underlying this case have been summarized by our Court of Appeals, this Court, and the United States Supreme Court, we find our previous rendition to be both accurate and succinct: "Shortly after midnight on August 25, 1977 while Deputies Howell and Lewis of the Barry County Sheriff’s Department were on routine road patrol, they observed a car traveling past them in the opposite direction at an excessive speed. They turned their vehicle around and pursued the speeding vehicle. They saw the vehicle make a left turn, proceed down a side road, then swerve. The vehicle came to a stop with the front of the car in a shallow ditch and the back of the car on the roadway. "As the deputies approached, the defendant, the only occupant of the car, got out of the car, leaving the driver’s side door open, and met the deputies at the rear of the car. Deputy Howell asked the defendant to produce his driver’s license. The defendant made no response. The deputy repeated his request, and the defendant produced his license. When asked for his vehicle registration and proof of insurance, the defendant again made no response. When the request was repeated, the defendant began walking toward the open door. At this juncture, Deputy Howell had formed the opinion that the defendant 'appeared to be under the influence of something’. "The deputies followed the defendant. As they approached the open door, the deputies saw a closed folding Browning knife on the floorboard of the driver’s side. The defendant was told to halt and put his hands on the roof of the car. He did. One deputy picked up the knife while the other deputy conducted a pat-down search of the defendant, which produced no weapons. "Deputy Howell then shined his flashlight into the front seat of defendant’s car to search for other weapons and saw 'something leather’ under the armrest. He knelt in the vehicle, lifted the armrest and observed an open leather pouch containing a small plastic bag of what appeared to be marijuana. According to the testimony of the deputies at trial, Mr. Long was standing by the rear of the car under the control of Deputy Lewis during Deputy Howell’s search. "Deputy Howell removed the pouch and showed it to Deputy Lewis. The defendant was arrested for possession of marijuana. The interior of the car was searched for additional contraband, and the glove compartment was searched for the registration certificate. Neither was found. "The deputies decided to impound the car. Deputy Howell asked the defendant if he had a trunk key. The defendant stated that he had no key. The deputy, noticing that the trunk lock had been punched out, used his pocket knife and reached in and unlatched the latch. Deputy Howell testified as to why he opened the trunk as follows: " 'Number one, because I already found marijuana, suspected marijuana, in the interior of the car, there may have been more in the trunk. Secondly, I check them for valuables. I do.’ "Upon opening the trunk the deputy found two paper bags, which were split open, containing approximately 75 pounds of marijuana. "The defendant was handcuffed, placed in the police car and taken to the sheriff’s department along with the towed car. We also note, as did the Court of Appeals, 94 Mich App 343, that evidence introduced at trial tended to show that defendant did not own the vehicle in question. Obviously, from such evidence, defendant wanted the jury to draw the inference that he did not know that the vehicle contained contraband. III. Analysis The first question for our consideration is whether the search of the vehicle’s trunk was a valid inventory search under US Const, Am IV. We hold that it was not because the police department had no established or standard procedures for conducting inventory searches. In this regard, we adopt in pertinent part the concurring opinion of the late Justice Moody written when this case first appeared here: "[A] different question is presented regarding the marijuana discovered in the trunk of the car. The prosecution limits its argument to the effect that the marijuana discovered in the trunk of the car was validly seized pursuant to a proper inventory search following defendant’s arrest and a deputy’s decision to impound the subject vehicle.2 Relying upon South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), the prosecution contends that '[warrantless inventory searches of impounded cars are a proper caretaking function of the police’. "Yet Opperman and the instant case involve clearly distinguishable fact situations. Accordingly, the reasoning set forth in Opperman does not apply. Therefore, the search of the trunk in the instant case was unreasonable and violated the Fourth Amendment to the United States Constitution. "In Opperman, defendant’s illegally parked car was towed to a city impound lot where a police officer observed a watch on the car’s dashboard and other items of personal property located in the passenger area of the car. These items were visible from outside the car. A police officer inventoried the contents of the automobile using a standard inventory form pursuant to standard procedures of the local police department. Marijuana was found in the unlocked glove compartment. * * * The locked trunk of the vehicle was not searched.3 "The plurality opinion in Opperman concluded that an inventory search without a warrant was not 'unreasonable’ and did not violate the United States Constitution. That opinion emphasized that * * * this was a routine administrative caretaking function performed pursuant to standard department procedures at the impound lot. "The concurring opinion of Justice Powell emphasized that 'the search here was limited to an inventory of the unoccupied automobile and was conducted strictly in accord with the regulations of the Vermillion [South Dakota] Police Department’. 428 US 380. Justice Powell agreed that the constitution permits routine inventory searches. As he observed, '[inventory searches are conducted in accordance with established police department rules or policy and occur whenever an automobile is seized.’ 428 US 383. 'Upholding searches of this type provides no general license for the police to examine all the contents of such automobiles.’ 428 US 380. * * * Furthermore, and '[m]ore importantly, no significant discretion is placed in the hands of the individual officer’. 428 US 384. "In comparing the facts in Opperman and those in the instant case, significant differences emerge. * * * "[The m]ost important [distinction is that] no standard departmental policy was followed, and no inventory form was introduced [in the instant case]. Although the officer testified as to his personal 'standard’ procedure, this procedure does not meet the requirements of reasonableness as suggested in Opperman. A standard departmental practice gives some assurance that the particular vehicle or part of the vehicle was not singled out for a search based upon an improper motive.9 Without a departmental policy, too much discretion is placed in the hands of a police officer. His decision to search may be an arbitrary one. "Whether the Opperman rationale or a more restrictive interpretation of the Michigan Constitution is to be adopted by this Court is left for future determination. Nevertheless, as one commentator concluded after reviewing Opperman: " 'What is needed in the vehicle inventory context, then, * * * is not probable cause but rather a regular ized set of procedures which adequately guard [sic] against arbitrariness.’ " 'Inventories should not be upheld under Opperman unless the government shows that there exists an established reasonable procedure for safeguarding impounded vehicles and their contents and that the challenged police activity was essentially in conformance with that procedure. This means that a purported inventory should be held unlawful when it is not shown, "for [instance], that standard inventory forms were completed and kept for future reference (showing presence or absence of valuables), nor that a place of safekeeping for valuables so secured was maintained.” ’ 2 LaFave, Search and Seizure, § 7.4, pp 576-577, quoting State v Jewell, 338 So 2d 633, 639 (La, 1976). "Accordingly, the procedures followed in this case fail even to measure up to Opperman’s requirements. For the reasons expressed by Justice Moody, the marijuana seized from the trunk was not admissible as evidence at defendant’s trial. Further, given the general jury verdict of guilt, we cannot say that the error in admitting that evidence was harmless beyond a reasonable doubt. Indeed, the general verdict makes it impossible to determine whether the jury found defendant guilty of possession of marijuana on the basis of the marijuana found in the passenger compartment or of that found in the trunk. Consequently, defendant must be afforded a new trial. IV. Conclusion Whenever a motor vehicle has been lawfully impounded, the Fourth Amendment permits the police, absent a warrant, to conduct an inventory search pursuant to standard procedures, so long as the police department has established or standard procedures for conducting inventory searches. The judgment of the Court of Appeals is reversed, defendant’s sentence is vacated, and this case is remanded to the Barry Circuit Court. Upon retrial, evidence of the marijuana seized from the trunk of the vehicle in question shall not be admitted as substantive evidence of guilt. Williams, C.J., and Levin and Brickley, JJ., concurred with Cavanagh, J. Ryan and Boyle, JJ., concurred in the judgment. "[W]hen, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision. "Our review of the decision below under this framework leaves us unconvinced that it rests upon an independent state ground. Apart from its two citations to the state constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Not a single state case was cited to support the state court’s holding that the search of the passenger compartment was unconstitutional. Indeed, the court declared that the search in this case was unconstitu tional because '[tjhe Court of Appeals erroneously applied the principles of Terry v Ohio * * * to the search of the interior of the vehicle in this case.’ 413 Mich 471; 320 NW2d 869. The references to the state constitution in no way indicate that the decision below rested on grounds in any way independent from the state court’s interpretation of federal law. Even if we accept that the Michigan constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears in this case that the Michigan Supreme Court rested its decision primarily on federal law.” 77 L Ed 2d 1214-1216. "Although Terry did involve the protective frisk of a person, we believe that the police action in this case is justified by the principles that we have already established in Terry and other cases. "Contrary to Long’s view, Terry need not be read as restricting the preventative search to the person of the detained suspect. "Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop, although the 'bright line’ that we drew in [New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981)] clearly authorizes such a search whenever officers effect a custodial arrest. An additional interest exists in the arrest context, i.e., preservation of evidence, and this justifies an 'automatic’ search. However, that additional interest does not exist in the Terry context. A Terry search, 'unlike á search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime * * *. The sole justification of the search * * * is the protection of police officers and others nearby * * *.’ 392 US 29. What we borrow now from Chimel v California, 395 US 752 [89 S Ct 2034; 23 L Ed 2d 685] (1969) and Belton is merely the recognition that part of the reason to allow area searches incident to an arrest is that the arrestee, who may not himself be armed, may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity. This recognition applies as well in the Terry context. However, because the interest in collecting and preserving evidence is not present in the Terry context, we require that officers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry." Michigan v Long, supra, 77 L Ed 2d 1217-1221: See Terry, 392 US 21. '[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Id., p 27. If a suspect is 'dangerous,’ he is no less dangerous simply because he is not arrested. If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Coolidge v New Hampshire, 403 US 443, 465 [91 S Ct 2022; 29 L Ed 2d 564] (1971); Michigan v Tyler, 436 US 499, 509 [98 S Ct 1942; 56 L Ed 2d 486] (1978); Texas v Brown, 460 US 730, 744 [103 S Ct 1535; 75 L Ed 2d 502] (1983) (plurality opinion by Rehnquist, J., and opinion concurring in the judgment by Powell, J.). "The circumstances of this case clearly justified Deputies Howell and Lewis in their reasonable belief that Long posed a danger if he were permitted to reenter his vehicle. "In this case, the officers did not act unreasonably in taking preventive measures to ensure that there were no other weapons within Long’s immediate grasp before permitting him to reenter his automobile. Therefore, the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous. "IV "The trial court and the court of appeals upheld the search of the trunk as a valid inventory search under this Court’s decision in South Dakota v Opperman, 428 US 364 (1976). The Michigan Supreme Court did not address this holding, and instead suppressed the marijuana taken from the trunk as a fruit of the illegal search of the interior of the automobile. Our holding that the initial search was justified under Terry makes it necessary to determine whether the trunk search was permissible under the Fourth Amendment. However, we decline to address this question because it was not passed upon by the Michigan Supreme Court, whose decision we review in this case. See Cardinale v Louisiana, 394 US 437, 438 [89 S Ct 1162; 22 L Ed 2d 398] (1969). We remand this issue to the court below, to enable it to determine whether the trunk search was permissible under Opper- man, supra, or other decisions of this Court. See, e.g., United States v Ross, 456 US 798 [102 S Ct 2157; 72 L Ed 2d 572] (1982). Long suggests that the trunk search is invalid under state law. See Tr of Oral Arg, pp 41, 43-44. The Michigan Supreme Court is, of course, free to determine the validity of that search under state law. "V "The decision of the Michigan Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. "It is so ordered.” Michigan v Long, supra, 77 L Ed 2d 1222-1223. In addition to briefing the issue directed by this Court’s order of August 24, 1983, defendant also challenges the propriety of the search of the passenger compartment as violative of Const 1963, art 1, § 11. However, besides being outside the scope of this Court’s order, that issue is untimely. Indeed, defendant did not raise any state constitutional claims until he was before the United States Supreme Court and his reason for doing so now is meritless: "The Supreme Court remanded the case for proceedings consistent with its opinion. It would be consistent with the United States Supreme Court’s opinion to hold as a matter of state constitutional law that the searches of Long and the interior of the car he was driving were illegal.” "1 Browning is a brand of knife. This knife had a four-inch blade. The defendant was not charged with carrying a concealed weapon in violation of MCL 750.227; MSA 28.424.” 413 Mich 468-470. Since we conclude that the inventory search was improper under federal constitutional law because of the lack of established or standardized procedures, we need not address defendant’s state constitutional challenge. Furthermore, we need not determine at this time the permissible scope of a routine inventory search, or whether the intent of the officer conducting the inventory is a relevant consideration in determining the reasonableness of the search. "4 US Const, Am IV provides: " 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ "A number of courts have interpreted the search and seizure provisions of state constitutions in a more restrictive manner and have refused to permit various inventory searches. E.g., State v Opperman, 247 NW2d 673 (SD, 1976), and State v Sawyer, 174 Mont 512; 571 P2d 1131 (1977) (inventory search restricted to safeguarding articles in plain view), Miller v State, 403 So 2d 1307 (Fla, 1981) (advice must be given to owner or possessor, if present, that vehicle will be impounded unless such person provides a reasonable alternative). The United States Supreme Court’s remand order directed that we determine whether the search of the trunk was permissible even in the absence of a valid inventory search. Other possible justifications for the search are that it was conducted as part of a search incident to arrest or pursuant to the "automobile exception” to the warrant requirement. The prosecution, however, neither relied upon nor developed any argument that the search of the trunk was a valid search incident to an arrest. Rather, the prosecution merely mentioned the idea in a solitary footnote. See Long, supra, 413 Mich 481, fn 2 (Moody, J., concurring). Further, the prosecution abandoned that claim before the United States Supreme Court and it does not present any argument based on that theory now. Thus, we view that claim as waived. In addition, the prosecution never mentioned the automobile exception to justify the search of the trunk. Thus, although that claim was presented to the United States Supreme Court and is advanced here now, we view it too as waived. "2 Plaintiff, in a brief footnote, concludes that the search of the trunk may have arguably been a search incident to defendant’s arrest. We decline to rule on that question as the argument is not relied upon or developed in this case. Nor does the plaintiff rely upon the 'automobile exception’ to the warrant requirement in order to justify the search of the trunk. Cf. United States v Ross, [456] US [798]; 102 S Ct 2157; [72] L Ed 2d [572] (1982) (search of closed container in automobile). Furthermore, Ross and the 'automobile exception’ do not address inventory searches. Id., p 809, fn 11. "3 In the instant case the unlocked trunk was searched. In Opperman, the unlocked glove box was searched, but not the locked trunk. The fact that a trunk was searched in the instant case does not by itself suggest an unreasonable search. It could be argued that it is more reasonable to inventory an unlocked trunk than a locked trunk. "9 As to motive, the Court of Appeals opinion states: " 'Deputy Howell testified that his inspection of the vehicle’s trunk was motivated by a belief that discovery of the plastic bag of marijuana inside the car suggested the possibility of additional marijuana in the trunk, and because it was his policy to check for valuables to protect himself against subsequent claims by the vehicle’s owner.’ People v Long, 94 Mich App 338, 348; 288 NW2d 629 (1979).” 413 Mich 481-486 (Moody, J., concurring).

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Per Curiam. Petitioner, Florida Leasco, LLC, appeals as of right from the Tax Tribunal’s order dismissing its petition for lack of jurisdiction. The Tax Tribunal dismissed petitioner’s appeal as untimely because it was sent by certified mail within, but received one day after, the thirty-five-day deadline set by MCL 205.22(1). We reverse. This appeal presents an issue of statutory construction, which we review de novo. In re MCI Telecommunications Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999). The only statutory provision providing any guidance with regard to what constitutes a “filing” is MCL 205.735, which, in pertinent part, provided as follows at the time that petitioner filed its appeal in this case: (2) The jurisdiction of the tribunal in an assessment dispute is invoked by a party .. . filing a written petition on or before June 30 of the tax year involved. Except in the residential property and small claims division, a written petition is considered filed by June 30 of the tax year involved if it is sent by certified mail on or before June 30 of that tax year. In the residential property and small claims division, a written petition is considered filed by June 30 of the tax year involved if it is postmarked by first-class mail or delivered in person on or before June 30 of the tax year involved. All petitions required to be filed or served by a day during which the offices of the tribunal are not open for business shall be filed by the next business day. In all other matters, the jurisdiction of the tribunal is invoked by a party in interest, as petitioner, filing a written petition within 30 days after the final decision, ruling, determination, or order that the petitioner seeks to review. This statutory section is ambiguous. The first three sentences, which speak of “an assessment dispute” and “the residential property and small claims division,” suggest that its terms are limited to property tax disputes, which are not at issue here. The fourth and fifth sentences, which speak of “all petitions” and “all other matters,” suggest that its application is more general, including the sales and use tax appeal at issue here. In any event, the second and third sentences of this section provide the only statutory indication available regarding when a “filing” occurs, i.e., in certain cases, when it is “sent by certified mail” or, in other cases, when it is “postmarked by first-class mail or delivered.” The specific question presented is whether the Legislature intended, through this ambiguously drafted section, that a filing would be effective, in any case, upon a certified mailing (the more stringent of the mailing options), rather than only upon an actual delivery. In amending the statute to allow these “filing by mailing” alternatives, the Legislature specifically stated that its intent was to “codif[y] the petition filing provisions of Rule 201 ... of the Michigan tax tribunal.” 1985 PA 95, § 2. Rule 201, as in effect in 1985, provided in relevant part that “[a] petition shall be considered filed when mailed by certified mail ... or when delivered in person,” for all matters, not just property tax matters. 1979 AC, R 205.1201. Appellee concedes that the 1985 amendments of the statute were enacted in response to General Motors Corp v Detroit, 141 Mich App 630, 634; 368 NW2d 739 (1985), where our Court concluded that, in the absence of a statutory definition otherwise, “filing” occurs upon delivery rather than upon mailing. Because the statute is ambiguous, we may consider this enacted statement of legislative intent and this legislative history in its interpretation. Joe Panian Chevrolet, Inc v Young, 239 Mich App 227, 234; 608 NW2d 89 (2000). We conclude that, in contrast to the decision in General Motors, supra, and consistent with the referenced Rule 201, the Legislature intended that filing would be effective, in any event, upon either a certified mailing or actual delivery of a petition to the Tribunal. Because appellant sent its petition by certified mail within the thirty-five-day deadline applicable here, the Tax Tribunal had jurisdiction over the appeal. We reverse the order of the Tax Tribunal dismissing appellant’s petition. The statute has since been amended by 2000 PA 165, effective June 20, 2000. We decide this appeal without reference to that amendment or appellant’s argument that it indicated the legislative intent behind the prior incarnation of the statute effective here. In light of this conclusion, we need not consider whether the Tax Tribunal was equitably estopped from asserting that appellant’s petition was not timely filed.

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Levin, J. The principal question presented is whether the distributorship agreement between Lorenz and American Standard is a "contract for the sale of goods” within the meaning of § 2-201 of the Uniform Commercial Code. We hold that it is not and affirm the decision of the Court of Appeals affirming the judgment entered by the circuit court on the jury’s verdict in favor of Lorenz._ I Lorenz pleaded and the jury found that Lorenz entered into a distributorship agreement with American Standard. The only written evidence of this agreement was a letter from American Standard to Lorenz that "welcome[d]” Lorenz "to the numbers of American Standard distributors across the country.” Section 2-201 does not require that the terms of a contract for the sale of goods, other than the quantity term, be expressed in writing. The requirements of § 2-201 are satisfied if the writing indicates that "a contract of sale has been made between the parties” and "specifies] a quantity”. 2 Anderson, Uniform Commercial Code (3d ed), § 2-201:97, p 61. The concurring opinion recognizes that the quantity term of a distributorship agreement is generally uncertain, and to require that it be stated with certainty would put most distributorship agreements out of compliance with §2-201 and, hence, if a distributorship agreement is a "contract for the sale of goods”, make them unenforceable. The concurring opinion seeks to avoid this dilemma by inferring a quantity term. The quantity term must, however, under § 2-201, be specifically stated. A requirements or output term of a contract, although general in language, nonetheless is, if stated in the writing, specific as to quantity, and in compliance with § 2-201. However, not all distributorship agreements are requirements or output contracts. The jury was not asked to decide whether the instant distributorship agreement contained a requirements or output term, and this Court would exceed its role if it were to imply a provision akin to a requirements term. Under the construction advanced in the concurring opinion, American Standard could maintain an action against Lorenz for failure to purchase its requirements whether the parties agreed thereto or not. Because many distributorship agreements are not requirements or output contracts and in such cases the quantity term is generally uncertain, we conclude that the drafters of the Uniform Commercial Code did not intend that all distributorship agreements be regarded as "contracts] for the sale of goods”. II A writing that satisfies § 2-201 does not prove the terms of a contract; such a writing merely removes the statutory bar to the enforcement of the contract whether its terms — other than the quantity term which alone must be specified in writing — be written, oral, or partly written and partly oral. In the instant case, the letter from American Standard to Lorenz welcoming him as a distributor indicates that a contract was made between the parties. If one concludes, as would the author of the concurring opinion, that the letter satisfies the requirements of §2-201, then the terms of the instant agreement, whatever those terms might be, are enforceable. Because the terms of a contract for the sale of goods, other than the quantity term, need not be stated in writing, the declaration in the concurring opinion that § 2-201 applies to distributorship agreements does not bear on the disputed terms of the instant distributorship agreement. HI Turning to another issue, American Standard was not prejudiced by the jury’s apparent misunderstanding of the judge’s instruction that it must bring in a verdict of at least $65,100 on American Standard’s counterclaim; the parties have consented to a judgment on the counterclaim in excess of that amount. The jury’s $45,000 verdict on Lorenz’s claim against American Standard for breach of the agreement for the sale of inventory is not inconsistent as a matter of law with its finding that American Standard breached the distributorship agreement. It is generally a question of fact whether a breach by a buyer, Lorenz, is so far material as to justify the seller, American Stan dard, in terminating their contract. American Standard did not ask for a jury finding on this issue and thereby waived such a finding. This Court would exceed its role if it were to decide as a matter of law that Lorenz’s failure to pay a portion of the amount admittedly owed by Lorenz to American Standard was a material breach justifying American Standard in terminating the distributorship agreement that the jury found was entered into. IV We all agree that the other assignments of error were adequately dealt with in the opinion of the Court of Appeals. Affirmed. Williams, C.J., and Kavanagh, Ryan, Cav-anagh, and Boyle, JJ., concurred with Levin, J. Plaintiff Lorenz Supply Company and defendant American Standard, Inc., entered into an agreement whereunder Lorenz agreed to purchase $420,000 worth of plumbing inventory from American Standard. The jury found that, at the same time, the parties agreed that Lorenz was to become a distributor of American Standard products in the Detroit area. The terms of the inventory sale agreement, but not the distributorship agreement, were set forth in writing. Subsequently, a dispute arose concerning the performance of the inventory sale agreement. Lorenz withheld payments totaling $65,100 for goods received because it believed that it was owed over $70,000 for alleged errors pertaining to the inventory sale. American Standard then refused to supply additional products under the distributorship agreement unless Lorenz paid cash in advance. Lorenz filed the instant action claiming breach of both the written inventory sale agreement and the oral distributorship agreement. The complaint sought $2,000,000 in damages. American Standard counterclaimed for approximately $72,000 for products delivered under the inventory sale agreement. The jury awarded Lorenz $45,000 on the inventory claim and $255,000 on the distributorship claim. Although the circuit judge directed the jury to find for American Standard on its counterclaim in an amount between $65,100 and $72,106.08, the jury found no cause of action on the counterclaim. After the judge ordered a new trial on the counterclaim issue only, the parties stipulated that American Standard would recover $69,873.40 on the counterclaim. The Court of Appeals affirmed. 100 Mich App 600; 300 NW2d 335 (1980). This Court granted leave to appeal. 412 Mich 864 (1981). MCL 440.2201; MSA 19.2201. The Official Comment to § 2-201 provides, in part: "The required writing need not contain all the material terms of the contract and such material terms as are stated need not be precisely stated. All that is required is that the writing afford a basis for believing that the offered oral evidence rests on a real transaction. * * * The only term which must appear is the quantity term which need not be accurately stated but recovery is limited to the amount stated. The price, time and place of payment or delivery, the general quality of the goods, or any particular warranties may all be omitted.” (Emphasis added.) It appears that most, if not all, commentators agree with Anderson’s observation that § 2-201 requires that a writing must specify a quantity. See, e.g., Calamari & Perillo, The Law of Contracts, § 313, p 486; White & Summers, Uniform Commercial Code (2d ed), § 2-4, pp 59-60; 3 Duesenberg & King, Uniform Commercial Code Service (Bender), § 2.04[2][a], p 2-59. See fn 4 and Doral Hosiery Corp v Sav-A-Stop, Inc, 377 F Supp 387, 389 (ED Pa, 1974), stating that the written inclusion of a quantity term is "mandatory” under the UCC. See Cox Caulking & Insulating Co v Brockett Distributing Co, 150 Ga App 424, 426; 258 SE2d 51 (1979); 3 Duesenberg & King, Uniform Commercial Code Service (Bender), § 2.04[2][a], p 2-59; 2 Anderson, Uniform Commercial Code (3d ed), §§ 2-201:lÍ3, 2-201:114, p 70. Other courts have refused to hold that a distributorship agreement contains an implied term that the seller will supply the buyer with its requirements. See, e.g, Eastern Dental Corp v Isaac Masel Co, Inc, 502 F Supp 1354, 1364 (ED Pa, 1980); Cavalier Mobile Homes, Inc v Liberty Homes, Inc, 53 Md App 379, 395; 454 A2d 367 (1983). We express no opinion on the question whether a distributorship agreement may fall within the broader category of “transactions in goods” within the meaning of § 2-102 of the UCC, MCL 440.2102; MSA 19.2102. See Farnsworth, Contracts, § 8.16, p 612; 3A Corbin, Contracts, § 700, p 309. Even if Lorenz’s failure to pay $20,100 constituted a breach, it was for the jury to determine the materiality of the breach. It is not for this Court to decide as a matter of law whether Lorenz’s failure to pay $20,100 of the $65,100 admittedly owed to American Standard justified, under the circumstances, American Standard in terminating the distributorship agreement.

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Brickley, J. This case presents the question whether a person receiving work-loss benefits under the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq., may continue to receive those benefits despite having suffered an unrelated heart attack which independently renders the person unable to work. The Court of Appeals held that statutory entitlement to work-loss benefits continued in such a situation. 108 Mich App 705; 310 NW2d 848 (1981). We reverse. The parties have stipulated to the following facts: "This is an action brought by plaintiff Donald A. MacDonald seeking first party benefits under the Michigan no-fault insurance act from his insurer, State Farm Mutual Insurance Company. "Plaintiff, a 56-year-old self-employed carpenter, while in the course of driving his vehicle, insured through State Farm Policy No. 4650-286-821-228, was involved in a single-car accident in Kalkaska County, Michigan. The date of the occurrence was November 10, 1976. "From the accident plaintiff received injuries to his neck and shoulders from which he was disabled from gainful employment as defined under the Michigan no-fault insurance act for a period of 28 months. "Plaintiff, during the pendency of his disability resulting from the automobile accident, was subsequently disabled as a result of the unrelated myocardial infarction which occurred November 25, 1976; that disability continues as of this point in time. "Either occurrence acting independently of the other would give plaintiff a work-loss disability. "The plaintiff claims he is entitled to work-loss benefits pursuant to § 3107(b) for the period of disability causally related to the automobile accident. "The defendant claims plaintiff is only entitled to work-loss benefits pursuant to § 3107(b) from the date of the automobile accident to the date of the subsequent disability, in this case being approximately 15 days.” Resolution of this case is dependent on the meaning of two sections of the no-fault act, § 3107(b) and § 3107a. Section 3107(b) provides that a no-fault insurer is liable to pay benefits for: "Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured”. If § 3107(b) stood alone, work-loss benefits would clearly be unavailable to plaintiff for the period after his heart attack. Our no-fault act is patterned after the Uniform Motor Vehicle Accident Reparations Act, and § 3107(b) of our act, in relevant part, is virtually identical to § 1(a)(5)(h) of that act. See 14 ULA, Civil Procedural & Remedial Laws, Uniform Motor Vehicle Accident Reparations Act, pp 50, 54. As we have explained previously, by adopting the language of such a model act, it is evident that the Legislature "was cognizant of, and in agreement with, the policies which underlie the model acts’ language”. Miller v State Farm Mutual Automobile Ins Co, 410 Mich 538, 559; 302 NW2d 537 (1981). The drafter’s comments to § 1(a)(5) of the UMVARA, and by extension to § 3107(b) of the no-fault act, are in part, as follows: " 'Work loss’, as are the other components of loss, is restricted to accrued loss, and thus covers only actual loss of earnings as contrasted to loss of earning capacity. Thus, an unemployed person suffers no work loss from injury until the time he would have been employed but for his injury. On the other hand, an employed person who loses time from work he would have performed had he not been injured has suffered work loss * * *. Work loss is not restricted to the injured person’s wage level at the time of injury. For example, an unemployed college student who was permanently disabled could claim loss, at an appropriate time after the injury, for work he would then be performing had he not been injured. Conversely, an employed person’s claim for work loss would be appropriately adjusted at the time he would have retired from his employment.” A reading of both the clear language of § 3107(b) and the drafter’s comment to the uniform act leads us to conclude that work-loss benefits are available to compensate only for that amount that the injured person would have received had his automobile accident not occurred. Stated otherwise, work-loss benefits compensate the injured person for income he would have received but for the accident. In the present case, plaintiff would have worked and earned wages for two weeks, until the date of his heart attack. After that date plaintiff would have earned no wage even had the accident not occurred and, therefore, is ineligible for work-loss benefits after that date under § 3107(b). The meaning of § 3107(b), however, does not end our inquiry. Plaintiff contends, and the Court of Appeals found, that plaintiff had an independent statutory right to recover work-loss benefits under § 3107a of the no-fault act. We find that § 3107a does not support that position. Section 3107a was added to the no-fault act by 1975 PA 311, and provides: "Subject to the provisions of section 3107(b), work loss for an injured person who is temporarily unemployed at the time of the accident or during the period of disability shall be based on earned income for the last month employed full time preceding the accident.” It was added to the no-fault act for the reason that "[the lack of a concise definition of loss of income in § 3107(b)] has given rise to certain problems in connection with persons who are seasonally employed or temporarily unemployed as a result of lay-offs, and who are disabled as a result of an auto accident. In the case of a worker who is unemployed at the time of an accident or during the period of disability, the law might be construed as providing for no work loss benefits since the worker would have had no income at that time, had he/ she not been injured. In addition, disabled workers are not entitled to unemployment compensation since benefits are not payable to a person who is unable to work. An unemployed worker who is disabled in an auto accident may thus find him/herself without benefits of either sort.” Analysis, HB 4221, November 21, 1975. Although § 3107a was added to the no-fault act to allow temporarily unemployed persons to recover work-loss benefits, we cannot find that § 3107a provides an independent source of benefits for plaintiff. Section 3107a identifies an amount which is deemed by that section to be the work loss for temporarily unemployed persons. It allows persons temporarily unemployed at the time of an automobile accident to recover benefits notwithstanding that they have no existing wage, and it allows those already receiving work-loss benefits to continue receiving benefits for those temporary periods when they would have had no wage had the accident not occurred. But § 3107a does not expressly state that persons unable to work for physical reasons are temporarily unemployed, and we cannot read such a meaning into the statute. The phrase "temporarily unemployed”, it is evident to us, refers to the unavailability of employment, not the physical inability to perform work. The legislative analysis of HB 4221 reveals a legislative concern with those who but for their disability could have received unemployment compensation as a substitute income. That concern evaporates with those already disabled, who lose no unemployment compensation when they receive a second disabling injury, and with those who suffer a second disability after being disabled in an automobile accident. In short, those who are temporarily unemployed in the colloquial sense by a disability unrelated to an automobile accident are not "temporarily unemployed” in the statutory sense because they have no income from work or its equivalent to lose. Benefits for "work loss”, therefore, are unavailable. Our result is consistent with the overall purpose of the no-fault act, "to accomplish the goal of providing an equitable and prompt method of redressing injuries in a way which made the mandatory coverage affordable to all motorists”. Tebo v Havlik, 418 Mich 350, 366; 343 NW2d 181 (1984). That goal could hardly be accomplished with an interpretation which required automobile insurers to pay work-loss benefits to persons who would be disabled from working regardless of whether there was an automobile accident. And notwithstanding plaintiff’s contention to the contrary, our interpretation of §§ 3107(b) and 3107a will lead to no less prompt awards or any greater administrative morass than was contemplated in the creation of the no-fault system. The act already provides for the periodic examinations of claimants and requires payment by the insurer only as the work loss to the claimant accrues. See §§ 3110(4), 3142(1), 3151. Our decision today will merely allow insurers to use the act as it was intended and avoid paying compensation not due the claimant. Reversed. Kavanagh, Levin, and Ryan, JJ., concurred with Brickley, J.

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Blair, J. Complainants are the owners of a five-story brick office building in the heart of the business center of the city of Saginaw. The defendants are the owners of a three-story office building upon an adjacent lot. Both buildings are substantially flush with the west line of Franklin street. This street extends north and south, and is one of the main thoroughfares of the city. It was dedicated to the public in 1850, and has been used as a public highway for upwards of 40 years. The street is paved and has cement sidewalks in front of these buildings. The Weaver building has a frontage on Franklin street of 80 feet. The McCormick building has a frontage on Franklin street of 42 feet. The McCormick building is equipped with an elevator, and the offices are rented principally to dressmakers who have a large patronage. On an average, upwards of 800 people daily pass to and from this building. The entrance to the building is on Franklin street. The defendants intend to construct an iron stairway 3 feet wide on the outside of the Weaver building on Franklin street appurtenant to the building, to extend one story high, 15 or 18 feet, on and over the west side of said street. The south wall of the Weaver building is adjacent to the north wall of the McCormick building. The stairway, if built, will occupy 3 feet in width of the west sidewalk of said street. The complainants filed a bill in the circuit court for the county of Saginaw, in chancery, alleging that the construction of such a stairway at this place would be a private nuisance, and asked the court to restrain the defend ants from erecting the stairway over the street as contemplated. Testimony was taken in open court, and the circuit judge dismissed their bill, holding that the defendants were authorized by the common council of the city of Saginaw to erect this stairway. The complainants have appealed from the decree entered by the circuit judge, and claim: 1. That the common council had no power to authorize a permanent encroachment upon this street. 2. That the erection of the proposed stairway would constitute a nuisance. 3. That the complainants have such a special interest in the subject-matter that they may maintain this suit. The important question for consideration in this case is whether the erection of the proposed stairway would constitute a nuisance. If this question must be answered in the affirmative, the case, in our opinion, is ruled by Freud v. Forbes, 139 Mich. 280. As early as 1849 it was held by this court that whether an obstruction of a public street constituted a nuisance presented a question of fact, and not of law, and from that day to this that doctrine has never been questioned, but has frequently been cited with approval. People v. Carpenter, 1 Mich. 273. In Everett v. City of Marquette, 53 Mich. 450, it is said: “But it is not necessary in this case to determine whether the permission given by the village council was in due form for the purposes of a permanent appropriation, or even whether the council had the power to consent to such an appropriation. It is undoubted that the council had general control of the streets under the village charter; and it was a part of its duty to prevent the creation of any public nuisance . within them. It is not to be assumed that consent would have been given to such a nuisance, and when, by formal resolution, the council assumed to give permission to complainant to make the openings and build the stairways complained of, it must have been done in the belief that no public inconvenience would follow. If the permission was effectual for no other purpose, it at least rebutted any presumption which might otherwise have existed that this partial appropriation of the street was per se a nuisance.” The trial judge based his decree dismissing the bill of complaint upon his conclusion that as a matter of law the city of Saginaw had authority under its charter and ordinances to grant permission to defendants to obstruct the public street by the stairway. He does not otherwise express any opinion upon the facts. The provisions relied upon by the circuit judge are as follows: “Title 6, § 1, of the charter (Act No. 465, Local Acts 189?) of the city of Saginaw, provides: “ ‘The common, council of the city of Saginaw shall have full power to lay out, open, widen, alter, close, fill in or grade and vacate or abolish any highway, streets, avenues, lanes, alleys, public grounds or spaces in said city.’ “Section 5, p. 203, of the compiled ordinances of the city of Saginaw, among other things, provides: “ ‘ No person shall erect or maintain any sign, show-case or stand which shall extend more than three feet from the building into or over any street or sidewalk.’ “ Section 20 of said ordinances also provides: “ ‘No person shall erect any balustrade or balcony to extend beyond the line of any street less than twelve feet from the ground without permission from the common council, and in the event of permission being granted, iron braces and railing shall be used in the construction of any such balustrade or balcony, and the same shall not project beyond the line of the street more than three feet.’” Counsel for defendants cites, in addition, section 8, tit. 3, of the charter, which provides: “The common council, in addition to the powers and duties specially conferred upon them in this act, shall Lave the management and control of the finances, rights, and interests of all property, real and personal, belonging to the city, and make such orders and by-laws relating to the same as they shall deem proper and necessary.” The temporary or permanent character of the obstruc tion must necessarily have an important influence in determining whether it was a nuisance or whether the common council had authority to permit it. It satisfactorily appears from the evidence that the improvement contemplated was a permanent one, for the benefit of the People’s Savings Bank, one of defendants’ tenants. The existing inside stairway was to be taken out and replaced with this outside- stairway, which would furnish the only means of access to the upper stories. In our opinion the sections cited from the charter and ordinances do not empower the council to authorize such an obstruction to the street. On the contrary, we think it is expressly prohibited by the provisions of section 8, tit. 17, of the city charter (Act No. 465, Local Acts 1897), which reads: “ The common council shall not grant * * * exclusive privileges to the use of the streets or public grounds of said city.” Taylor v. Railway Co., 80 Mich. 77; Horner v. City of Eaton Rapids, 122 Mich. 117; Detroit Citizens’ St.-Ry. Co. v. City of Detroit, 110 Mich. 384, 388 (35 L. R. A. 859); Freud v. Forbes, supra. Since the stairway in question has not been erected, its effect can only be determined by inference from other facts and circumstances. The great weight of authority holds that a permanent obstruction like the one in question is a nuisance per se, and under our own rule we do not think it necessary to go further than to show the permanent character of the obstruction, the width of the street and sidewalk, the character of the locality, whether business- or residence, the extent of the business or traffic, the amount of travel, and the effect of similar obstructions under similar circumstances. It appears from the record that Franklin street is one of the main business thoroughfares of the city, and that at times the portion of the street in question is much traveled; that on Saturday nights and circus days and other public occasions the entire width of the sidewalk is likely to be required for foot travelers; that, unless prevented, idle people will be likely to congregate about the stairway, expectorate upon the walk, and be offensive to passersby, and particularly to ladies; that numerous complaints have been made to the police force of such stairways; and that it is difficult to enforce observance of the ordinances and prevent obstructing and expectorating upon the walks. We think that the erection of the stairway, in view of the facts and circumstances disclosed by this record, would be a nuisance. It is a necessary consequence of the erection of the stairway that it will obstruct the view of complainants’ building, and complainants are entitled to complain thereof under the rule laid down in Freud v. Forbes, supra. The decree is reversed, with costs of both courts to complainants, and a decree may be entered in accordance with this opinion. McAlvay, Grant, Montgomery, and Moore, JJ., concurred.

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Carpenter, C. J. Early in 1902 Edward Frohlich (plaintiff’s son), doing business as the Edward Frohlich Glass Company, and defendant entered into, a written contract whereby the latter agreed to sell, and the former to buy, upon 60 days’ credit, 15,000 boxes of glass at a stated price; the'same to be, delivered at the convenience of defendant during the following months of May and June. On the 21st of April, 1902, defendant wrote said Edward Frohlich Glass Company “that no specifications have been issued on account of your May and June contract, nor will they be until a full settlement of your unpaid account (for glass sold during the preceding year) * * * is received in this office.” This indebtedness was not paid, and no glass was delivered. The cause of action was assigned to plaintiff, and he brought this suit to recover damages for the breach of said contract. He did recover in the court below a verdict and judgment for the amount of $3,450. He asks this court to reverse that judgment upon the ground that the jury, by the? direction of the trial judge, applied an improper rule in measuring his damages. The trial judge charged the jury that the measure of damages was the difference between the contract price of the glass and its market value on the 21st of April, 1902. (This was the day defendant notified the Frohlich Glass Company that it would not deliver the glass unless an old indebtedness was paid.) Plaintiff insists that the proper measure of damages was the difference between the contract price and the market value of the glass at the time when defendant was bound to perform its contract. ( Defendant was bound to perform its contract June 30, 1902, and plaintiff’s testimony tended to prove that the market price of glass was higher that day than it was on the 21st of April.) The plaintiff’s contention is correct, unless it may be held that defendant’s letter of April 21st changed the time for the performance of the contract. That letter did not change the time of performance unless it amounted to a renunciation of the contract on the part of defendant, and thereby imposed upon plaintiff’s assignor the obligation to take immediate steps to lessen his damages by purchasing glass elsewhere. It is well settled that a statement made by a party to a contract before the time arrives for its performance cannot be considered a renunciation unless it is a “distinct, unequivocal, and absolute refusal to receive performance or to perform on his own part.” 2 Mechem on Sales, § 1087; Wigent v. Marrs, 130 Mich. 609; Dingley v. Oler, 117 U. S. 490. The statement in defendant’s letter of April 21st that it would not perform its contract unless paid an old indebtedness then due was at most. a conditional refusal. It was not a “distinct, unequivocal, and absolute refusal,” «and it had therefore no effect upon the contractual obligations of the parties to this suit. We are therefore of the •opinion that the measure of damages was the difference between the contract price of the glass and its market price at the time the defendant was bound to deliver the .same (viz., June 30, 1902) and that the charge given was •erroneous. To prevent any misapprehension we think it proper to say that it follows from our reasoning that another portion of the charge not heretofore referred to was also erroneous, viz., that part of the charge which permitted the jury to lessen plaintiff’s damages because his assignor did not buy from defendant glass for cash during the months of May and June, 1902. Defendant contends that these errors were not prejudicial for several reasons: First. That defendant accepted the proposition of plaintiff’s assignor to purchase the glass in question “ subject to strikes, fires and delays beyond our control,” that plaintiff’s assignor never assented to this condition, and that, therefore, there was no valid contract upon which this action can be maintained. We are persuaded.that this contention is based upon an erroneous understanding of the testimony. We are unable, after diligent search, to find any testimony which supports it. Even the testimony introduced by defendant tends to prove that plaintiff’s assignor did assent to this acceptance. Second. Defendant contends that the following statement, viz.: “We also beg to advise you that we cannot use any more Barnesville glass (this describes only a small part of the glass made by defendant) at any price, and -trust you will make the assignments with standard tank factories whose produce is up to the usual standard of quality,” contained in a letter written March 28, 1902, by plaintiff’s assignor to defendant justified the latter’s refusal to perform its, contract. This statement did not justify defendant’s refusal to .perform its contract. It was clearly not a “distinct, absolute and unequivocal refusal to receive performance,” and, under the reasoning of this opinion, had no effect upon the contractual obligations of the parties. Third. It is insisted that the refusal of plaintiff’s assignor to pay his old indebtedness destroyed his credit and absolved defendant from its obligation to perform the contract sued upon. We may answer this as we answered a similar contention in F. W. Kavanaugh Manfg. Co. v. Rosen, 132 Mich. 44: “ Nothing short of a breach of contract or actual insolvency would excuse (the defendant) from fulfilling the contract on its part.” Fourth. It is insisted that plaintiff’s' assignor “ having-supplied himself with the glass called for by his contract without showing any actual loss, suffered no damages.”' This contention may be answered by saying that the testimony warrants the inference, if it does not conclusively prove, that plaintiff’s assignor did not supply himself with the glass called for by his contract. Fifth. It is contended that the lower court never acquired jurisdiction because of a fraudulent use of its process. This question was properly raised by a plea of' abatement. This plea was overruled, and defendant pleaded the general issue. By doing this, it waived the. objection made in the plea of abatement. See Griffin v. Wattles, 119 Mich. 346. The error heretofore pointed out was, in our opinion,, prejudicial, and the judgment must therefore be reversed,, and a new trial ordered. McAlvay, Blair, Ostrander, and Moore, JJ., concurred.

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Per Curiam. Plaintiff made application for change of venue under Act No. 309, Pub., Acts 1905. The respondent changed the venue to another county in his circuit, notwithstanding the suggestion of the relator’s counsel that it be changed to some county other than one presided over by him. After this change had been made from the county of Benzie to the county of Wexford, relator made an application on the ground of the prejudice of the presiding judge. This motion was denied, and the relator now asks the writ of mandamus to compel an order for the change. , We think the relator is not entitled, as a matter of right, to more than one change of venue under the statute. We cannot hold that the legislature intended to confer upon a party litigant the right to successive changes of venue from one county to another. It is, however, urged that the prejudice of the judge is sufficient for the second change, and that this was not sufficiently known to the relator in his first application. It was his duty to state in his first application all the' causes he then had for asking the change. We think the record discloses that the reason for the present application was known to the relator when he made his first application. The writ must therefore be denied.

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Per Curiam. This is an application for mandamus to require respondent to grant relator’s petition for leave to filó a supplemental answer in the chancery case of Village of Frankfort v. Schmid, setting forth the status of the case pending at law in said court of Schmid v. Village of Frankfort, 131 Mich. 197, and also to modify respondent’s order setting aside the stipulation of the parties vacating complainant’s default in said chancery cause and providing that the testimony theretofore taken in the case at law might be used on the hearing of the chancery suit: A similar application was denied by this court in Schmid v. Benzie Circuit Judge, 138 Mich. 452, where and in the cases therein referred to the facts are sufficiently set forth. Respondent contends that the orders were within his ■discretion, which cannot, or at least ought not, to be reviewed, and that this court has sustained the ruling of the respondent that the matters involved in the chancery suit should be held in abeyance till the determination of the suit at law. It appears from the record that the court’s opinion that the hearing of the chancery case should await the final determination of the law case was the real basis of his rulings. The construction placed upon our ■decision in 138 Mich. 452, is incorrect. We held in that case that it was within the discretion of the trial judge to refuse to proceed with the hearing of the chancery case when the suit at law involving the same controversy was pending in this court and its determination might settle the entire controversy. Upon the reversal of the judgment and granting of a new trial in the lawsuit [141 Mich. 291], the cases stood upon an equal footing and the defendant in the chancery suit had a right to bring it to a bearing. Under the circumstances, we think both petitions should bave been granted, and the writ will issue as prayed.

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McAlvay, J. Plaintiff sued defendant in assumpsit to recover damages for the nonperformance of a certain written agreement, whereby it is claimed defendant agreed to sell and convey, and plaintiff to purchase from him cer tain land situated in Barry county in exchange for lands to be sold and conveyed to him by her. Defendant pleaded the general issue, and denied under oath the execution of any contract with plaintiff. Upon a trial had in the Wayne circuit court before a jury plaintiff recovered a verdict. This was set aside on a motion by defendant for a new trial, on the ground that the evidence ..did not show that there was a written contract between the' parties relative to the sale and exchange of real estate. Afterwards, by stipulation between the parties, the evidence taken on the former trial was considered as introduced, and the court instructed a verdict for defendant. Upon such action and instructions on the part of the court errors are assigned. The question to be considered is whether the written proposition of defendant to McBride, the indorsement on it signed by plaintiff, and the letter of defendant, constitute a written agreement between the parties to this suit relative to a sale and exchange of real estate. It is immaterial, and therefore unnecessary to state the circumstances surrounding this transaction, for the reason that the case must be disposed of upon a construction of the writings. The following is the proposition in writing made by defendant upon which plaintiff’s acceptance appears: “Detroit, Michigan, Nov."28, 1903. “Louis C. McBride, Esq., “Detroit, Michigan. ‘ ‘ Dear Sir: I will give you or your assigns a warranty deed of my farm, located in Hastings township, Barry county, Michigan, and described as .the northwest one-quarter (i) section 26 (twenty-six), town three (3), range eight (8) west except one acre on the northwest corner, which the school district has the right to use so long as it is occupied for school purposes, for a warranty deed of' the two-story double frame house located on the southwest corner of Hubbard and Brandon avenues, Detroit, Michigan, and the two-story double frame house situated immediately on the rear, all being better known and described as lot one (1) Martin’s subdivision of lots thirty- eight (38) and thirty-nine (39) of Scotten’s subdivision of Hubbard’s subdivision of private claim No. 77, situated on the southwest corner of Hubbard and Brandon avenues, Detroit, Michigan. Said last-mentioned property to be deeded to me subject to mortgages of thirty-seven hundred ($3,700) now on said property,'same being payable on or before two years from their date, and bearing interest at the rate of six per cent. (6;í) per annum, payable semiannually. “ I further agree to place a mortgage for you or your assigns on my above-described property for the sum of twenty-five hundred dollars ($2,500), payable on or before three years from its date, bearing interest at the rate of six per cent. (6* )per annum, payable semi-annually from its date. In case there is any commission to pay for said loan of twenty-five hundred dollars ($2,500) you or your assigns are to pay an amount up to fifty dollars ($50) for procuring same. “I further agree to take a second mortgage on my above-described farm for the sum of seven hundred dollars ($700), for you or your assigns, payable on or before one year from its date and bearing interest at the rate of six per cent. (6*) per annum, payable semi-annually. • “In addition to the warranty deed above mentioned to be given to me, I am to receive one thousand dollars ($1,-000) in cash and the above mentioned seven hundred dollars ($700) mortgage. “ Each to furnish a satisfactory abstract brought down and certified to date and showing good marketable title and property free and clear of and from all liens, taxes and incumbrances, excepting the above-mentioned mortgages of -thirty-seven hundred dollars ($3,700)' on the property located.on the southwest corner of Hubbard and Brandon avenues, it being agreed and understood that I shall have the privilege of removing twenty-one oak trees (21) from said farm. “ Charles F. Burton.” “ I hereby accept the above proposition and agree to ^arry out my part of the same. “M. Kaufmann.” The material facts relative to the' crucial question are practically undisputed. This, written proposition to sell bn the part of defendant was made in duplicate to Mc.Bride and his assigns. It was not accepted or assigned by him. Both duplicates were delivered to McBride. When one of them was returned to defendant an acceptance under the signature of defendant was signed by plaintiff. It is disputed whether prior to this time defendant had any knowledge that McBride claimed to be acting for a third person. Plaintiff contends that because defendant received this paper with plaintiff’s acceptance written thereon without objection, he accepted her as a party to the agreement; and also that his letter to plaintiff’s attorney constitutes a written acceptance. The following is the letter referred to: “Detroit, Mich., Dec. 30, 1903. “Mr. Lemuel H. Foster, “50? Hammond Bldg., “Detroit, Mich. “Dear Sir: In reference to the agreement of which you wrote me on the 28th inst. ‘ ‘As I wrote you yesterday, I have not met Mr. Kaufman, and do not know what relation he has to the property mentioned in the paper. There was brought to me in the course of negotiations an abstract of the property beginning with Mr. Daniel Scotten and closing with Mr. Peoples, such an abstract does not show any title, because there is nothing to indicate where Mr. Scotten obtained title. “On the partial abstract which was presented, there was apparently an outstanding dower interest in Mrs. Peter Lane, I think, anyhow, the wife of the first grantee from Mr. Scotten. “ The partial abstract that was brought me shows that' there is on the property or was on the property one mortgage for $1,800 and one mortgage for $100. The mortgage for $1,800 runs five years, whereas the contract provided for a mortgage to run to be payable on or before two years. I am informed that there are other mortgages on the property not shown by the abstract, that differ both in time of payment and in amount of payment and in terms of interest from that specified in the contract. The full contents of these mortgages I am not informed of, nor did I give the abstract that careful and thorough investigation and study which I should desire to give to a full and complete abstract before accepting the title. “ I will frankly say that the contract was not prepared by me nor under my instructions, it was brought to me in the condition in which it is (I think one change was made after it was first presented), and its full force and effect was not carefully considered at the time it was signed. I think that probably both the signing parties affixed their signatures without a full and careful consideration of the full scope and bearing of the writing. “ I have not and shall not refuse to perform under the contract, but because of the facts I have stated above, I shall insist upon the full and complete performance of all conditions precedent to such performance on my part, and my present opinion is that the conditions precedent to my action cannot be complied with, at least I do not see how they can. “Very respectfully, “ C. F. Burton.” We do not think that receiving this paper signed by plaintiff amounted to a substitution of her for McBride. The writing was made by defendant with a party of his selection. It was enforceable by McBride or his assigns, if properly accepted in writing.. The indorsement was by a stranger to the agreement, and must be considered in the nature of a counter proposition. The claim of McBride that defendant knew he was acting as agent for a person named Kaufmann, even if true, can make no difference. It is fundamental that an agreement relative to the sale or exchange of real estate must be in writing signed by the party to be charged or some person lawfully authorized. The mere receipt of plaintiff’s counter proposition by defendant, and not signed by him, does not create a contract between the parties to this suit.' After an examination of the letter from defendant to plaintiff’s attorney, which is relied upon as an acceptance in writing of plaintiff’s counter proposition we agree with the court below, that “it was not an agreement to enter into contract relations ” with plaintiff, and that the effect of the language “ is a statement on the part of Mr. Burton that the offer to McBride is still open,” and that the evidence did not show a written contract between the par ties, relative to an exchange of properties. It is not necessary to consider other questions raised. The judgment is affirmed. Grant, Blair, Montgomery, and Moore, JJ., concurred.

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McAlvay, J. Respondent was informed against on a charge of an assault with intent to commit the crime of murder. The evidence against him was entirely circumstantial. He was not sworn as a witness in his own behalf. H© was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to a term of not less than five years in the State prison at Marquette. But one question of law is raised in the case. This question was raised in the court below by a request to charge, which was refused, and afterwards by a motion for a new trial based upon the refusal to charge. The request refused was as follows: “ The defendant in this case had a right to go upon the witness stand and testify in his own behalf, if he chose to do so. The law, however, expressly provides that no presumption adverse to him is to arise from the mere fact that he does not place himself upon the witness stand. So, in this case, the mere fact that this defendant has not availed himself of the privilege which the law gives him should not be permitted by you to prejudice him in any way. It should not be considered as evidence either of his guilt or innocence. The failure of the defendant to testify is hot even a circumstance against him, and no presumption of guilt can be indulged in by the jury on account of such failure on his part.” The statute in this State which makes a defendant in a criminal case a competent witness reads: “No person shall be disqualified as a witness in any criminal case or proceeding, by reason of his interest in the event of the same as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility: Provided, however, That a defendant in a criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment. -to be made to or upon such neglect.” Section 10211, 3 Comp. Laws. The consideration of statutes similar to this has been before the courts of several States. It will be noted that the statutes of some of these States differ in some respects from the statute in this State. In Missouri and Minnesota, both court and counsel are prohibited by statute from making any comments whatever upon the fact that a defendant has not testified. State v. Robinson, 117 Mo. 649; State v. Pearce, 56 Minn. 226. In Iowa and Texas, where the statute prohibits the attorney for the State from referring to the fact that defendant has not testified, and makes such reference a misdemeanor and cause for new trial, the courts hold that a charge instructing the jury that such failure to testify raises no presumption against him was not prohibited. State v. Weems, 96 Iowa, 426; Fulcher v. State, 28 Tex. App. 465. See, also, State v. Skinner, 34 Kan. 256. The same was held in Ohio under a statute practically the same as in this State. Sullivan v. State, 9 Ohio Cir. Ct. Rep. 652. In New York, a charge'given by the court, on its own motion, broader than the charge requested in the case at bar, was held not to be erroneous. People v. Hayes, 140 N. Y. 485 (23 L. R. A. 830), citing and approving Ruloff v. People, 45 N. Y. 213. See, also, People v. Fitzgerald, 20 App. Div. 139. In several States it has been held proper to give such a charge, but not error to omit it in the absence of a request to do so. People v. Flynn, 73 Cal. 511; Metz v. State, 46 Neb. 547; Felton v. State, 139 Ind. 531. In Maine and Illinois the question raised in the case at bar was squarely before the courts. In State v. Landry, 85 Me. 95, the court said: ‘ ‘ The requested instruction should have been given. It was in exact verbal accordance with the rule laid down in State v. Banks, 78 Me. 490. The legal proposition was relevant to the issue. It was founded upon the statutory provision that the fact that the person accused does not testify in his own behalf shall not be taken as evidence of his guilt. The respondent was entitled to have the jury know of the existence of the statute and understand the effect of it. If not so, then a statute expressly created for the benefit of a class of persons is wholly useless to them. The natural inclination of the jury would lead them to adopt the presumption which the statute was designed to prevent. * * * ” The request refused by the court was “that, in determining their verdict, they should entirely exclude from their consideration the fact that the defendant did not elect to testify, substantially as if the law did not allow him to be a witness.” The judge did not cover the request in his charge. It also appears in this case that the jury must have been present when the request was discussed. The court said: “The refusal of the judge to give the instruction asked for in the present case must have led the jury to believe that the principle invoked by the counsel for the defense was incorrect, and that belief would naturally be intensified by the remark of the judge that the government’s case was uncontradicted.” In Illinois the statute is identical with the statute in this State. The defendant did not testify, but his codefendant did. We quote from the opinion: “An instruction was asked on behalf of plaintiff in error to the effect that no presumption of guilt should be indulged against him because he had not testified in his own behalf, but it was refused. Section 426, chap. 38, Rev. Stat., expressly provides that the neglect of a defendant, on trial charged with crime, to testify, shall not create any presumption against him. No reason whatever is suggested for the refusal of the instruction asked. The giving of it became doubly important to the plaintiff in error by the giving of one on behalf of the people as to the weight to be given to codefendant Norton’s testimony, by which the attention of the jury was directed to the statute making defendants in criminal causes competent to testify in their own behalf. The instruction should have been given.” Farrell v. People, 133 Ill. 244. The supreme court of Nebraska (which had previously held, under a statute similar to, but not in the exact words of, ours, that it is not error for the court on its own motion to charge with reference to the provisions of the statute and a defendant’s rights under it), in a case where' defendant sought a reversal upon the ground that the charge of the trial court was given without a request and was too indefinite, said: “If counsel for accused did not regard the words, ‘Nothing shall be taken against him because he did not testify,’ sufficiently specific and definite, he should have drafted and presented to the court an instruction embodying his views upon that subject. Having failed to do so, he cannot complain of the vagueness of the instruction.” Ferguson v. State, 52 Neb. 432. And, further, after quoting its own language used in Metz v. State, supra, said: “The fair and reasonable inference to be drawn from this language is that it is discretionary with the trial judge whether he will instruct or will not charge the jury upon the question.where no request has been made to so instruct. * * * When a prisoner is not sworn, it is the duty of the court to inform the jury, if requested so to do, that they are not to draw any inference of guilt from the fact that he did not testify.” In support of this proposition, the court quoted the Illinois statute, and cited the case of Farrell v. People, supra. In the case at bar the learned circuit judge filed an opinion which is before us, and in which he reviews at length some of the cases to which we have called attention. His conclusion was that, nothing having occurred in this case to call attention of the jury to the fact that defendant had not testified, the court was not warranted in making any reference whatever to defendant’s rights under the statute.. He held that “under a reasonable construction of the statute, in ordinary cases, the court itself has no right to make any reference to the fact that the accused has failed to testify.” This question has never been before this court. This statute was considered in People v. Hammond, 132 Mich. 429, where error was claimed because the prosecutor, in answer to statement of respondent’s counsel, had referred to the fact that he had not testified. The majority opinion stated that, under the circumstances,— “We are not, therefore, prepared to hold that it waB error, particularly in view of the fact that the jury were instructed that the fact that the respondent did not take the stand in his own behalf should not weigh against him in any manner.” Eliminating from our consideration those cases where the court is by statute prohibited from referring to or commenting upon the fact that a defendant has not testified, we find from an examination of all these authorities that they may be classified as follows: 1. It is not error for the court on its- own motion to give such a charge as was requested in this case. 2. That the court is not required to give such a charge, in the absence of a request so to do. 3. That, where such a request to charge has been made, it is error to refuse to give it. From the reasoning of the decisions in the first class of cases, it would seem to follow logically that they would hold it erroneous to refuse a request so to charge. If it is proper, as a matter of law, for the court to so instruct the jury on its own motion, the conclusion cannot be escaped that a defendant would be entitled to require such statement of the law. In the second class, the courts of California and Indiana intimate strongly that it would be erroneous to refuse to give such request, and in Nebraska the court has.so held. Ferguson v. State, supra. It is contended that in the Maine and Illinois cases the circumstances were such that such a charge was made necessary, and the decisions are to be accounted for on that ground. We do not so construe these opinions. In both States the courts hold defendants were entitled to have the law in this regard stated to the jury. The peculiar circumstances are mentioned as emphasizing the proposition. Where such request to charge has been made, we find no authority warranting its refusal. The contention of respondent in this case is founded both upon reason and-authority. A respondent is protected in his right under the statute to elect not to testify. A jury, upon his request, should be informed of that right, to prevent the creation in their minds of any presumption of guilt by reason of his silence. The court was in error in refusing to give the request as presented. The judgment is reversed, and a new trial ordered. Grant, Blair, Montgomery, and Moore, JJ., concurred.

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Grant, J. The respondent was convicted under Act No. 210, Pub. Acts 1903, of inducing and directing another to cut and remove certain timber from State tax homestead lands. The statute provides that every person not lawfully authorized, who shall enter upon or induce or direct any person to enter upon such lands and cut timber therefrom, shall be deemed guilty of a felony, and be punished by imprisonment in the State prison for a term not exceeding two years, or by a fine not exceeding $500, or by both such fine and imprisonment. The act which this amended (1 Comp. Laws, § 1394) provided for the punishment of a “willful ” trespass, making it a misdemeanor, punishable by imprisonment for not more than one year, or by a fine not exceeding $500, or both. 1. The main question in the case is: "Was it necessary for the people to show the intent to commit a trespass, or to induce another to do it ? It is admitted that the trespass was committed by the direction of the respondent, that' the State had a tax deed, and that it was recorded in the office of the register of deeds in the county where the land trespassed upon was situated. Respondent claims that he relied upon a quitclaim deed from some third person, without any examination of the title. The legislature evidently intentionally left out the ingredient of willfulness or intent. Experience had shown the difficulty in proving the trespass to be willful or intentional. It is of no consequence that the crime is called a felony. It might as well have been called a misdemeanor. People v. Rotter, 131 Mich. 250. In that case the punishment was not to exceed $500 or imprisonment not more than three years, or both, and the offense was termed a misdemeanor. If the contention of the respondent be sustained, the statute is of little worth, because any one can purchase a quitclaim deed, which of itself is suspicious, and say he acted in good faith. It is just as competent for the legislature to make an act of trespass per se criminal as it is to make the opening of a saloon per se criminal. The saloon-keeper is responsible for the acts of his bartender, though he be ignorant of the act. The power of the legislature to do away with intent in such case is undoubted. People v. Longwell, 120 Mich. 311. In that case we said: “ It is as easy for liquor dealers to employ clerks and agents who will carry out their instructions not to make prohibited sales as it is to employ those who will obey their instructions not to open their places of business contrary to law.” See, also, 12 Cyc. p. 148. It is just as easy for lumbermen to ascertain the title to the lands from which they propose to take timber, especially where the title is a matter of public record. Trespasses upon public lands have become notorious. Considering the law previous to the amendment, and as amended, and the particular mischief to be remedied (Michigan Dairy Co. v. Runnels, 96 Mich. 109), we think there is no difficulty in reaching the conclusion that the legislature intended to eliminate the question of intent. See, also, Clark & Marshall on the Law of Crimes (2d Ed.), p. 63; Caldwell v. Ward, 83 Mich. 14. A similar statute was so construed by the supreme court of South Dakota. State v. Dorman, 9 S. Dak. 528. The court in that case say that it is ruled by State v. Sasse, 6 S. Dak. 212, wherein the respondent was convicted of selling intoxicating liquor to a minor, and it was held that good faith was unimportant. See, also, People v. Rotter, supra, and authorities there cited. 2. The people introduced the State tax homestead deed, dated August 25, 1896, and recorded September 23, 1896, in the office of the register of deeds of Alcona county. The deed recites that the lands were bid off to the State at the tax sales in the years 1877 to 1895, inclusive, and -that they were, in compliance with the law, deeded to the State as tax homestead lands. The people further introduced the State tax land list, which showed the various years for which they had been bid off to the State. The trespass was committed in December, 1904. It was urged that it was the duty of the people to introduce all the tax proceedings upon which this tax deed was based, and to show their validity. The statute (Act No. 84, Pub. Acts 1903) imposes a limitation to the right to bring suit to six months from the time the act took effect. The act took effect in September, 1903. A like statute of limitations was held valid by this court. Semer v. Auditor General, 133 Mich. 569. 3. Error is alleged upon the refusal of the court to permit the respondent to testify to the contents of a letter he claims to have received from the commissioner of the land office some time in the fall of 1904, and which he claimed was lost. He claims that he “wrote the land, commissioner, asking him what claim they had to this land. I got a reply that they did not have any claim against that particular forty.” Before the judge ruled, upon the question, counsel for respondent stated that he had telegraphed for a certified copy of the letter-press copy of such letter, but had not received it. The court then held: “ I think the formal objection is well taken. If there is a letter-press copy, and that letter in the office of the official who wrote it, it could be easily procured.” We are compelled to hold that this was error. There are no degrees in secondary evidence, and for this reason the conviction must be reversed. McAlvay, Blair, Montgomery, and Moore, JJ., concurred.

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Blaib, J. In February, 1904, the plaintiffs, copartners under the name of the “ Traverse City Sprayer Company,” entered into an agreement with the defendant, a 'Corporation, for the manufacture by it of 100 spraying machines. The contract contained, among other clauses, the following: “We hereby propose to enter your order for 100 of your spraying machines complete, which includes attachments for both fruit trees and potatoes, as per sample submitted, at a price of thirty-two dollars ($32.00) each, net cash 30 ■days after date of shipment, it being understood that we, will make any changes without additional charge where •such changes do not increase our cost of manufacture. You, however, to pay us an additional price where any changes made by you will increase our cost of manufacture. * * * We agree to manufacture all machines like sample submitted, or as may be changed hereafter, according to clause 1 above, all to be done in a workmanshiplike manner, we to make good any defects in workmanship or material when called upon during the first •season.” Plaintiff proposed an amendment to this contract before it was accepted and signed, as follows: “It being specially agreed upon and understood that all machines manufactured under this contract shall work equally as well as the machine submitted as a sample.” Defendant refused to accept this clause, saying in its letter: “We cannot accept a condition that throws upon us the responsibility of all of the machines working equally as well as the sample submitted, as we will not have anything to do with the operation of the machines. As manufacturers, the only thing that we can agree to do is to build the machine like the sample you submitted and apply in the construction of the machines good workmanship and materials, being perfectly willing to stand the responsibility of any defects in that particular on our part. It, therefore, would only be necessary to use the clause in the contract that we had in the other one covering this jpoint.” Upon receipt of this letter, plaintiffs signed the contract in its final form cóntaining the clause originally proposed by defendant. The plaintiff copartnership was composed of the following persons, viz.: John Monroe, contractor, dock builder, etc.; Lawrence Doerr, inventor and patentee of spraying machine; Harold S. Kneeland, mechanical engineer; William Loudon, machinist and manufacturer of wagons, carriages, and sleighs; Benjamin Thirlby, William Thirlby, and William Calkins, all competent machinists, doing business under the name of Traverse City IronWorks; C. L. Greilick, engaged in lumber mill business; Arthur E. Wilson, contractor and builder; Dr. Kneeland, well posted in agricultural implements. Each member of the firm was a competent man about machinery. It was agreed between the parties that Mr. Doerr, the inventor of the machine, should go to defendant’s factory at Bowling Green, Ohio, and superintend the construction of one machine as a sample. Mr. Doerr went to the factory at Bowling Green about February 10, 1904, and remained there until about the 1st of March. The first machine was nearly completed when he left the factory. It was made up of the parts of the old machine as far as they could be used with the changes made. The frame and tongue were maple and beech and some of the castings were malleable iron. It is claimed by the plaintiffs that the machine built by Mr. Doerr was to be the sample or model machine, but this machine was shipped to plaintiffs for their use in making sales as soon as completed, about March 16, 1904. The machine the defendant’s employes understood to be the sample machine was made entirely new and was almost completed when Mr. Doerr left the factory. Mr. Doerr testified upon this subject, as follows: “In these conversations with the employés of the factory they expressed it in their judgment that southern pine would be better than maple or beech for these purposes, and they also said that the gray castings would be sufficient for the purpose for which they were to be used on these machines, and I told them if they were sufficient to answer the purpose and the pine was better than hardwood, I had no objections to their being used. I was there for the purpose of superintending the construction of the sample machine and wanted the machine as quick as I could get it. * * * “ When I came back from the factory the second time, I made report to the other plaintiffs in the case, telling them as near as possible how near the sample machine was done when I left and that everything was satisfactory to me as far as the sample machine was concerned. I told the plaintiffs about the use of the pine in the machines. I did not tell them anything about the cast iron because I did not know whether the cast iron would stand the test or not and had no idea whether they would be used. I told the employés of the defendant of what the sample machine was made and that I was the inventor of the machine and understood the mechanism of it and am accustomed to hardware and understand machinery and told the employés of the said defendant in talking about gray castings that if the things were strong enough I had no objection. I wanted a strong and durable built machine. • I told them that [if] cast iron was strong enough, its use was immaterial to me, and I had nothing to say about it. I told them I didn’t think pine was as good as hardwood, but if it was as good I had no objection to its use. The sample machine was all I' had anything to do with. ” The defendant substituted, in constructing the machines, long leaf southern pine for maple and cast iron for certain malleable iron castings. The defendant shipped 25 of the machines April 2, 1904. They were examined by at least three of the plaintiffs, Kneeland, Doerr, and Lou-don. Upon receipt and examination of the machines the plaintiffs wrote a letter complaining of defects in the machines, as follows: Bad painting, small cotter pins, pet cock not at 40 gallon mark, no bolts to fasten seats to frame and no'connecting rods, various parts bunched together, requiring sorting to assemble the machines. The defendant promptly replied, explaining the cause of the defects mentioned, offering to make them good or pay the ex pense of doing so, and sending the parts by express that were missing. The missing parts were so forwarded and were received. No other complaint as to construction of machines was ever made, and no demands were ever made upon the defendant to make good any defects in workmanship or materials. When Mr. Mull, defendant’s president, met the plaintiffs in June and in August, he told them to make a list of the parts they desired and the defendant would send them. The plaintiffs received the first 25 machines about April 9th. On May 31st, they paid the defendant $1,000 on the contract. When Mr. Mull was at Traverse City, on June 25th, 51 machines had been shipped to plaintiffs and 44 were in defendant’s warehouse at Toledo. It was then agreed that if on his return he would wire plaintiffs that the machines had all been shipped, they would pay $2,200 more. This covered the contract price, but not the bill for extra work. On July 1st the plaintiffs paid $1,000, and July 7th, $1,200. Plaintiffs gave evidence tending to show that the machines did not work properly on account of the change of materials, and claimed that they were worthless. Mr. Mull testified that, if the defendant had been required to make good all the defects claimed by plaintiffs in these machines arising from changes in material used in construction or defects in workmanship, the cost to it would have been: For each clutch lever, not to exceed 10 cents. For each clutch, 12 to 15 cents. For each malleable iron crank shaft, 60 to 75 cents. For pitmans for each machine, 10 to 12 cents. For enlarging cotter pinholes, each ■machine, 10 to 15 cents. For maple or beech tongues, each, 80 to 90 cents. For axle boxes, each machine, 5 cents. For new platforms, maple or beech, each, $2.50. Total for each machine, $4.72. If the fault had been solely that of the defendant, it could, under the contract, have supplied the defective parts in the same materials as were used on the old machine, for the entire 100 machines, for $472. No at tempt was made to deny this testimony, and no claim was made by any one that defendant had been requested to make good any defects in workmanship or material, other than the letter calling for certain bolts, and those were promptly sent by express. Plaintiffs’ declaration, after alleging that the parties entered into a written contract, whereby the defendant agreed to construct 100 machines according to a certain sample machine, which said sample machine was well and siibstantially constructed, the wood being of substantial hardwood, the metal part of said machine constructed of wrought, cast, and malleable iron and of sufficient strength, etc., to perform the services it was intended to perform, proceeds, as follows: “ That by the terms and conditions of said contract said defendant was under obligation to construct said 100 spraying machines in a good and workmanlike manner, and of the same material of the sample as furnished by said plaintiffs to said defendant, and as referred to in said contract. That said defendant, disregarding his contract and obligations in that behalf, did not manufacture said 100 spraying machines according to the terms and conditions of said contract; but, on the contrary, wholly failed and neglected to perform said cQntract; that in the attempted performance of said contract the defendant, in place of hardwood, used pine timber for the thills and in place of wrought and malleable iron, in many parts used cast iron, so that said machines when constructed were so poorly constructed and of such poor and weak material that said machines were wholly unsuitable for the purpose for which the same were constructed. “ That at the time said contract was entered into said defendant understood that said plaintiffs desired to sell said machines to farmers and others having use for a spraying machine, and that plaintiffs intended to engage in the business of selling such spraying machines and needed such machines as were provided for by the terms of said contract. That owing to the neglect and default of said defendant in the performance of said contract and owing to the fact that said defendant performed said contract in such a negligent, careless, and unskillful manner, and because said defendant failed to use such material, wood, wrought, malleable, and cast iron as was required by the terms of said contract, whereby and by reason, whereof said plaintiffs were unable to sell said machines, as they otherwise could and would have done; and that owing to such failure on the part of defendant to perform said contract according to its terms, a large number of said machines which said plaintiffs had sold were rescinded and said spraying machines were returned to said plaintiffs, whereby said plaintiffs sustained great damage.” At the outset, defendant’s counsel objected to the introduction of the contract in evidence for the reason that the declaration did not count upon it but upon a different contract, and at the close of the proofs, defendant’s counsel requested an instruction that the jury render a verdict of no cause of action, which motion was based upon the above reason and the following reasons: “The second is: Whatever changes were made in the material that went into the construction of these machines, was done and made by an understanding between the plaintiffs and the employés of the defendant, for which the defendant is in no wise responsible. And, further, that these machines were shipped to Traverse City after the conversation between one of the plaintiffs and the employés of the defendant in regard to materials to be used in the construction of the machines had been reported by him, but whether reported by him or not, he was one of the principals, and his acts would be that of a principal. But they were shipped here and with every opportunity to examine the machines and no payment had been made until all had been manufactured and then payments to the extent of $3,200 were made on the contract to the defendant for the manufacture of these machines.” Defendant’s counsel also requested the court to charge the jury, as follows: “ Under the contract in the case, I charge you that the only liability on the part of the defendant was to make good any defects in materials or workmanship in the manufacture of the machines. There is no claim that plaintiffs requested the defendant to make good any defects in the machines and, therefore, the plaintiffs cannot recover.” The court refused to give this request'and submitted the case to the jury. The reasons given by the court for overruling defendant’s motion are as follows: “ The only question I can see on this motion is whether, under the wording of the contract, this clause. ‘ We agree to make , good any defects in workmanship or material when called upon during the first season,’ is the exclusive remedy provided by the contract, or whether this is simply permissive, that they may do it, that they may make good any defects. Under the facts as shown in this case, I am not so inclined to hold. I think that it was optional with the buyer, that is, 'optional with the plaintiffs whether they would return them or whether they would bring their action at law, and the motion of the defendant is denied.” I think that the defendant’s motion should have been granted. There was an express warranty in this case that all the machines manufactured by defendant should be like the sample, and in such case no other warranty can be implied. McGraw v. Fletcher, 35 Mich. 104. Apart from the general rule that an express warranty excludes an implied warranty, the facts of this case would conclusively negative the implication of a warranty that the machines should be fit for the purpose for which they were to be used. The defendant, in its letter rejecting’ plaintiffs’ amendment to the proposed contract, expressly refused to assume responsibility for the working of the machines. The plaintiffs did not rely upon defendant’s superior knowledge in the construction of the machine, but vice versa. Doerr was the inventor of the machine, and knew from experience about its working. The defendant knew nothing about the machine from practical experience, and undertook to construct it in accordance with the sample or model constructed by Doerr. The rule that manufacturers furnishing articles ordered for a specific purpose impliedly warrant that they are fit for that purpose has no application to the facts of this case. I think it is clear, also, that the parties fixed the damages for a failure to perform the contract. Defendant, in refusing to assume any responsibility for the working of the machines, expressly notified the plaintiffs of their construction of the language of the contract, viz.: “ As manufacturers, the only thing that we can agree to do is to build the machines like the sample you submitted and apply in the construction of the machines good workmanship and materials, being perfectly willing to stand the responsibility of any defects in that particular on our part.” The contract expresses the same meaning except that it limits the time when defendant could be called upon ‘ ‘ to make good any defects in workmanship or material,” to the first season. Under this contract, defendant had a right to be notified to remedy defective materials or workmanship before suit was' brought against them therefor. Sloan v. Wolf Co., 59 C. C. A. 612. The judgment is reversed, and a new trial granted. Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred.

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Moore, J. Stephen Bakker died upon the operating table at a hospital in Grand Rapids, while defendant Apted was administering to him chloroform preparatory to the removal of a tumor by the defendant Welsh. The plaintiff is the father of the deceased, and, after being appointed administrator of the estate of deceased, brought this suit; his counsel stating upon the trial that his claim was under what is known by the lawyers and the courts as the “ Death Act.” The trial judge directéd a verdict in favor of the defendants. The case is brought .here by writ of error. Stephen Bakker was 17 years old. He lived with his father on a farm. He was a large healthy-appearing person. He had a tumor upon his left ear about the size of ■a dove’s egg. Some time before his death he had received treatment, and the tumor nearly disappeared; but prior to the middle of February, 1904, it reappeared, and he came to Grand Rapids to consult some physician about it. He had an aunt about 60 years old and two adult sisters living in Grand Rapids, with whom he went to the office of the defendant Welsh, who was a specialist and had . practiced medicine and surgery a long time. After an ■examination he was told it would be necessary to have a microscopic examination made to determine the character of the growth, and he was sent to Dr. Williams, another ¡specialist, who made an incision and obtained a specimen' from the tumor, and young Bakker returned to his father’s. On the following Saturday or Sunday he again went to the office of Dr. Welsh, accompanied by at least one of his sisters, and was informed of the report made by Dr. Williams, and was told it would be best to have the tumor removed by a surgical operation at the hospital. The testimony is somewhat conflicting as to what was said. The sister claims Stephen objected to taking an •anaesthetic, and was told there was no danger. The doctor- says that he told him there was always some danger in taking an anaesthetic, but that he advised him to have the operation performed. On Tuesday afternoon Stephen, with his aunt and at least one sister, went again to the office of Dr. Welsh and was sent from there to the hospital, where they all understood an operation should be performed the following day. In the meantime Dr. Welsh had .arranged with Dr. Apted, an expert in the administration of ansesthetics, to administer the chloroform. A careful examination of the heart and lungs of the young anan was made. They appeared to be normal, and in the presence of the hospital nurse and the doctors, with the usual appliances for successful operations at hand, young Bakker was put upon the table. Dr. Apted began to administer chloroform by means of the mask and drop method, and had administered about one-third of an ounce, taking from seven to ten minutes in which to do it, and Dr. Welsh was just about to commence the operation, when suddenly the heart of the patient stopped beating. Every means known to the profession was used to revive the patient, but he was already dead. The record shows the father did not know an operation was to be. performed. There were two counts in the declaration-stripped of legal verbiage, the first count stated that Stephen Bakker was a minor and it was known to the defendant Welsh he was a minor, and that it was Dr-Welsh’s duty to inform the father and get his consent before entering upon this operation. The second count charges what is known as malpractice or want of skill in the operation, and that young Bakker died by reason of an improper administration of an anaesthetic. The record, instead of disclosing want of skill in the operation,, shows quite the contrary. We have no hesitancy in saying the trial judge was quite right in so- saying when he. directed a verdict. We then cometo the question: Are defendants liable in this action because they engaged in this operation without obtaining the consent of the father ? Counsel for the plaintiff are very frank with' the court, and say in their brief: “We are unable to aid the court by reference to any decisions in point. We have devoted much time and research to this interesting question, but have been unable to find any decisions of a higher court either supporting or opposing the plaintiff’s contention, and we will therefore have to be content by calling the court’s attention te such general reasoning as leads us to take the view herein contended for.” They then argue at length, and with a good deal of force,, that, as the father is the natural guardian of the child, and. is entitled to his custody and his services, he cannot be deprived of them without his consent. We quote: “We contend that it is wrong in every sense, except in cases of emergency, for a physician and surgeon to enter upon a dangerous operation, or, as in this case, the administration of an ansesthetic, conceded to be always accompanied with danger that death may result, without the knowledge and consent of the parent or guardian. It is against public policy and the sacred rights we have in our children that surgeons should take them in charge without our knowledge and send to us a corpse as the first notice or intimation of their relation to the case.” On the part of defendants it is contended: 1. Consent of the father was unnecessary. 2. The lack of consent was not the cause of the boy’s death, hence not actionable. 3. That if it were, the action does not survive under the death act. 4. That the action, if any, is in the father,' not in the administrator. ■ . We do not think it necessary to a disposition of the case to decide all of the defenses interposed by the defendant. The record shows a young fellow almost grown into manhood, who has been for a considerable period of time, while living with his father, afflicted with a tumor. Ho has attempted, while at home, to have it removed by absorption. It does disappear, but after a time it reappears. He goes up to a large city, and with an aunt and two sisters, all adults, submits to examination, receives some advice, and goes back to his father with an agreement to return later to receive the report of the expert who is to make the microscopic examination. He returns accordingly, and, with at least some of his adult relatives, arranges to have .a surgical operation of a not very dangerous character performed. Preparations are made for its performance. There is nothing in the record to indicate that, if the consent of the father had been asked, it would not have been freely given. There is nothing in the record to indicate to the doctors, before entering upon .the operation, that the father did not approve of his son’s going with his aunt and adult sisters, and consulting a physician as to his ailment, and following his advice, We think it would be altogether too harsh a rule to say that, under the circumstances disclosed by this record, in a suit under the statute declared upon, the defendants should be held liable because they did not obtain the consent of the father to the administration of the anaesthetic. Judgment is affirmed. McAlvay, Grant, Ostrander, and Hooker, JJ., concurred.

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Moore, J. This is an application for a writ of manda< mus to compel the respondent to vacate an order changing the venue in the case of Robert S. Moreland and Eugene W. Crane v. American Electric Fuse Company, which was commenced in justice’s court, and appealed by the defendant to the circuit court on December 29, 1905. This order was based upon an application, duly served, filed in said court on March 12, 1906, which application was accompanied by a notice dated March 5, 1906, that the defendant would move the court on March 19th for a. change of venue. It was also accompanied by a motion for a change of venue dated March 7, 1906, and by the affidavit of Theodore M. Joslin, dated March 12, 1906, who stated therein that he is the attorney for the above-named defendant and appellant. The question involves a construction of Act No. 309 of the Public Acts of 1905. It is claimed: First. That this statute does not apply to appeals in justice’s court. Second. If it does not apply, that there was no proper motion made for the following reasons: (a) The notice of the motion was dated March 5th, the motion was dated March 7th, the affidavit upon which it is claimed the motion was based is dated March 12th; (6) because the notice stated that the motion would be based upon the affidavit of Mr. Jones, when he in fact made no affidavit, but the affidavit was made by his attorney, Mr. Joslin. Third. Because the statute provides that a change of venue may be made upon the application of either party, and in this case the affidavit is not made by the party, and cannot be treated as an application made by the party. Fourth. Because said motion was not entered and notice of application served within 10 days after issue joined, nor within 20 days after Sup. Ct. Rule 58 took effect. We will consider these objections in the order in which they were presented. First. A reference to Act No. 309 will show that it was intended to apply to any civil action pending in the circuit court. The language of the statute is broad enough to include cases appealed from justice’s court which were then pending in the circuit court. Second. The return of the respondent shows that the notice, the motion, the affidavit, and the application, though bearing different dates, were all filed with the clerk on the 12th of March, and were presented on that day, and we think the judge very properly considered them as one proceeding. It is true the motion stated it was based upon the files and affidavit of Frank G. Jones hereto annexed, but it is also true that the affidavit annexed to the motion when made and the copy which was served, was not the affidavit of Frank G. J ones, but was the affidavit of his attorney. No one was misled thereby. The statute itself does not restrict the making of the affidavit to one of the parties to the suit, but states that the change of venue may be made upon the application of either party made upon affidavit, etc. Third. It has already appeared that the statute does not require the affidavit to be made by one of the parties to the litigation, and we think in that respect an affidavit made by the attorney of one of the parties to the litigation is a compliance with the statute. Fourth. Supreme Court Rule 58 was adopted February 16, 1906. It took effect February 20, 1906. It provides that in cases pending and at issue when this rule should take effect said motion shall be entered within 20 days therefrom. The 11th of March came on Sunday. The motion was made on Monday, the 12th of March. We think it was made in time, under Supreme Court Rule 58, construed in connection with Circuit Court Rule 36, and Supreme Court Rule 25. The application for the writ of mandamus is denied. Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.

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Campbell, J. Laing, as mortgagee from one Lewis Berger, sued Perrott in trover for the conversion of part of the goods mortgaged, by seizure and sale of them specifically and separate from the entire stock, under execution against Berger. It has been uniformly held that such a levy and sale cannot be justified. But the question chiefly disputed here is as to the proper form of action. The court below held that trover could only lie where plaintiff had a possessory right, and that in this case there was no such right, because the mortgage was not due when the property was sold, and the mortgagee had no right to assume possession until then, unless one of the conditions of retaining the property should have been broken. The mortgage was made on a stock of goods in a store, and was in the usual form, recognizing the business as existing. There was no agreement that the mortgagor should retain possession, but there was a condition, such as is very common in such forms, that if the mortgagor should “ sell, assign, or dispose of, or attempt to sell, assign, or dispose of, the whole or any part of the said goods or chattels, or remove or attempt to remove the whole or any part thereof from the said city of Bay City without the written assent of the party of the second part,” he might take possession and dispose of the property. • There was evidence that previous to the levy and without such assent of the mortgagee, Berger had used a considerable amount of goods to pay an existing debt of $109. "Whatever may have been the right of the mortgagor to make sales in the ordinary course of retail business, and to keep possession while doing so — upon which we need not express any opinion — it is very clear to us that a sale of such an amount not for pay but to apply on a debt is not .such a sale as he could lawfully make, and was a distinct violation of the condition, which gave the mortgagee a right of possession. If lie could make such a disposition he might easily strip the mortgagee-of his whole security. Sales in the ordinary way would give an equivalent and aid in raising money to pay the mortgage, but dispositions which brought in no equivalent would destroy the security and have no tendency to help the mortgagor to funds. As the .court below ruled otherwise the judgment must be reversed with costs and a new trial ordered Cooley and Marston, JJ. concurred.

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Cooley, J. This is an action on a replevin bond, and has been twice tried. Quackenbush was plaintiff in the replevin suit, and Henry set up a special property under an execution against one Parmlee. Quackenbush failed in his replevin suit, and as the property had been delivered to him, Henry waived return, and took judgment for the amount of his lien. He then brought suit on the replevin bond against Quackenbush and Peter and Charles Ferguson, who were his sureties. This is the second trial of that suit. On the first trial the Fergusons undertook to show that Henry had never made any valid levy of his writ. Their right to make this showing was conceded by the plaintiff, and the case was made in the circuit court to turn upon it. Henry obtained judgment which this court reversed for erroneous rulings in respect to the levy. Quackenbush v. Henry 42 Mich. 75. When it went down to trial again the plaintiff changed front and took the position that the judgment in the replevin suit was conclusive of Henry’s special property as against Quackenbush and his sureties;. and'so the circuit court held. The Fergusons undertook to-show that one of them held a chattel mortgage on the property which antedated the levy, but they were not permitted to do so, and Henry again had judgment. We of course are not precluded by our judgment on the former record from questioning in any other case the legal soundness of the concessions then made by counsel; but it does not follow that the party himself, in the same litigation,, is at liberty to dispute the grounds of our judgment. There is certainly no more reason for permitting him to do so when his own concessions entered into the judgment, than there would be if it were entered as the result of our independent conclusions. The case is within Great Western R. Co. v. Hawkins 18 Mich. 427, 432. Our former decision affirmed the right of the sureties to make this defence; and although we expressly refrained from questioning what counsel conceded, the rule laid down must govern the case throughout. But speaking for myself only I am of opinion that if the point were undecided, the sureties should be held entitled to make the defence. The statute I think has expressly provided for it. It declares that “In any action, prosecuted on such bond given by the plaintiff in an action of replevin, for the deliverance óf any property, the defendants may show, in mitigation of the damages, that the obligee in such bond had only a lien upon, or special property, or part ownership in, said property at the time of commencement of suit in replevin, and that the defendants, or either of them, had at the same time a part ownership or other valuable interest in said property; and if such lien, special property, part ownership, or other interest of said obligee, with interest thereon, amount to less than the value of the property replevied, a corresponding reduction shall be made from such value.” Comp. L. § 6766. This section seems plain enough and seems expressly intended to protect the sureties against being concluded by a judgment against their principal in a replevin suit, as they would have been before this statute was passed. Williams v. Vail 9 Mich. 162. The old rule operated sometimes with great oppressiveness; for a party having an interest but not a present right of possession could not become surety on a replevin bond without putting his interest at the risk of a suit to be managed by another and which might go off on some technicality or because of negligent attention. But a person thus interested is obviously the proper person to become surety, rather than a mere stranger. It is not questioned that the defence might have been made if the defendant in the replevin suit had taken a return of the property instead of a judgment for damages; but a distinction of this sort rests upon no sound reason. It would be grossly unjust if it should be at one party’s mere option to cut off the rights of another by electing as to the form of judgment he would take ; and a statute that would permit it would savor so much of making the party a judge in his own cause that its •constitutional validity might well be questioned. But this statute makes no such distinction. It expressly provides that “In any action prosecuted on such bond given by the plaintiff in replevin for the deliverance of property ” the defence may be made. It is impossible to make use of more comprehensive terms. It is said, however, that this court decided otherwise in Ryan v. Akeley 42 Mich. 516. The decision in that case only went to this extent: that in a suit on the replevin bond, given to an officer from whose possession property he had levied upon had been taken, it was not competent to show that the defendant in his writ had no leviable interest as between him and the plaintiff in replevin ; that that was a question necessarily involved in the replevin suit and deter mined by it. But tbe case does not determine that sureties may not in a suit on the bond set up rights in themselves. They have no other opportunity to set them up; for the section of the statute sometimes supposed to reach the ease —Comp. L. § 6754 — provides only for the investigation of the claims of the parties to the record in the replevin suit. The judgment should be set aside and a new trial ordered. Marston, J. concurred. 'Campbell, JJ. concur on the ground first stated.

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Graves, C. J. The corporation having sued and recovered on the common counts the defendant below asks a review upon writ of error and bill of exceptions. ' According to the plaintiff’s theory of the action what was-demanded consisted of two classes of items, the first an sing-as follows: Both parties were engaged in manufacturing lumber at Big Rapids, — running mills for that purpose; and in the course of their business considerable exchanges of lumber had occurred between them, of which a running-account had been kept, extending from December, 1871, to 1878. This account included a few items besides lumber. The second class arose in this manner: In the spring of 1872 each party had a large quantity of logs in- the west branch of the Muskegon river, and wishing to run them out to the main stream, they agreed to join and run them out in a common mass by joint efforts, each party furnishing his-due share of the required labor, implements and provisions, such share to be in proportion to the quantity to be run down for each, and in case of its turning out on final settlement that one had exceeded his proportion, the other in that-case should make it up by payment. The corporation did supply more than its quota under the contract, which on investigation by the parties was found to be $875. Such is in substance the construction of the case as stated by the counsel for the corporation. Whether on this explanation a portion of the claim would not be unrecoverable on the common counts is a question not presently important. Neither is it now material to consider the conflicting evidence adduced by Stimson. The first subject of inquiry is whether the judgment can be defended on the circumstances brought out to obtain itr and on recurring to those circumstances the first matter which challenges attention is whether in the evidence for the corporation there was any tendency to prove that the parties completed an adjustment of their operations relative to running the logs under the contract, and struck a balance in favor of the corporation which Stimson undertook to pay, and whether on the showing by the corporation itself in regard to the running of the logs and the contract therefor and the incidents relating thereto any case was developed making Stimson liable under the common counts. "Waiving questions on evidence the case made by the corporation on this part of the litigation is open to no doubt. It is that the parties made an express contract to unite in running down their respective logs in a common mass to the main river and that each should furnish in labor and necessaries a given portion of the quantity needed for the whole operation; but it was not made a condition that if one failed to provide his full quota the other should be bound to supply the deficiency and charge it over; that the logs were run to the main river under this agreement, but that Stimson failed to provide his full share of labor and necessaries thereunder and therefore failed to perform to the full extent his share of the contract, and that the corporation kept the business going by at once supplying the deficiency caused by Stimson’s non-performance; that differences arose thereafter in regard to this and other transactions having reference to the running down the main river and to lumber exchanges, and the parties met to adjust and close up all subjects of dispute between them; that they proceeded to liquidate one after another of their mutual claims until reaching one made by Stimson of $500 for running the logs of the corporation down the main river, and this the corporation utterly rejected. They had gone over the lumber exchange business and the transactions relative to the drive to the main river, but had not considered all the subjects involved. This claim of Stimson’s now introduced remained to be disposed of. The parley had proceeded on the faith that whatever adjustment, if any should be made, should cover all claims, and that no matter or question brought under consideration should be deemed settled if any one in the series was the subject of disagreement and should be left unadjusted. The purpose was not to pick out this or that claim or item and agree upon it and leave others unsettled. On the contrary the consultation had for its object the settlement of all matters as an entire arrangement and producing a single and definite result. And when the corporation refused to consider this claim of $500 Stimson at once drew back and announced that the controversy would have to be settled by arbitration. He was still in a situation to withdraw. As yet the whole business was open. The parties had not passed the stage of trying to agree, and the failure on the claim of $500 involved the whole parley in failure. Now it is not difficult to see that the theory of the action was not sustained and that on the showing of the corporation itself there was no basis for recovery under the common counts for anything which may have been provided by the corporation under the special contract or to secure its being carried out. Accepting the version given on its behalf, and that submitted-on the other side is less favorable to the judgment, the rights of the parties relative to the outlay for running the logs must depend on the express contract. Each agreed with the other to contribute a certain quantity of labor and necessaries to accomplish a common enterprise, and the complaint in effect is that one kept the contract while the other ■broke it by failing to furnish his share. Assuming this to have been so it would have entitled the party not in fault to sue on the contract for the damage to him caused by such breach, and if the fact was as claimed, that the party complaining actually supplied the deficiency yhich the other was bound to furnish, the genuine cost of such supply, if found reasonable and just under the circumstances, or if found to have been acquiesced in by the defaulting party, would afford a criterion of damage to be recovered. The gist of the action is an alleged breach of Stimson’s stipulation to furnish labor and necessaries for the joint benefit and not for the individual benefit of the corporation. ¡mil it excludes the idea of a distinct legal interest of •the corporation, as against Stimson in the labor and necessaries supplied. They were intended for the joint benefit, and the facts will not allow any particular part to be. considered as separated for the purpose of being dealt with as labor supplied and goods sold and delivered by one individual to another. The endeavor to effect a settlement exploded, and no debt was liquidated on which indebitatus assumpsit might be based. In short, no conditions appear ■on which to found any right to institute a claim by the common counts. They are not applicable and the court erred in holding otherwise. It is needless to discuss all the rulings the court would not be at liberty to approve, because there is no likelihood they will be repeated. One or two may be briefly noticed. A witness for the corporation was allowed to use its private •account books to support its bill of particulars and was then permitted, on testifying, to make use of the latter as competent and trustworthy for the purpose of charging Stimson for labor and articles claimed to have been furnished by it in carrying out the contract for running the logs. These entries in the books not being shown as against 'Stimson to be rightly there, were purely self-made testimony and wholly ineffectual to help the bill of particulars. It was an attempt to prop up one broken reed with another. At another stage of the trial the jury were allowed to ■charge Stimson with the value of two canoes, when there was not only no evidence at all of an express sale, but when the facts were repugnant to one by inference, implication or presumption. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

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Marston, J. This was a bill filed to set aside an execution sale of certain lands claimed as a homestead. The complainant purchased and obtained a deed of the premises in ■question April 3d, 1879. At this time and until December 16, 1879, complainant, with his family, was residing upon another parcel of land in an adjoining county. He had, however, after his purchase, and before removing upon the land, placed a third person in possession of the land to take charge of and till it for him. On July 21, 1879, a writ of attachment was issued out of the circuit court of Lapeer county, in a cause wherein Stephens was the plaintiff and this complainant the defendant, and a levy by virtue thereof was made upon this land. The cause proceeded to trial and judgment, execution was issued, and these lands levied on by virtue thereof January 27, 1880. It is claimed that as the complainant was in the actual possession of the premises, claiming the same as his homestead prior to and at the time of the execution levy in January, 1880, the same was exempt from levy and sale under the execution. The defendant in this case claims that as this was not the homestead at the time of the attachment levy, the lands were not then exempt, and that the defendant in that case could not afterwards defeat the levy so made, by taking actual possession and claiming the lands as a homestead. It is not and could not successfully be claimed that these lands constituted complainant’s homestead, prior to the time he with his family took actual possession thereof in December. Hp to this time his domicile and place of residence was with his family, in an adjoining county. And had an •execution been issued and a levy been made thereunder previous to December there can be no 'doubt whatever but that the levy would have been good, as the essential requisites of a homestead up to this time were wanting. The statute provides that the writ of attachment shall command the sheriff to attach so much of the lands, etc., of the defendant not exempt from, execution, wheresoever the same may be found within the county, and the sheriff is directed to execute the writ by seizing the lands. §§ 6101, <‘>402. The statute farther declares that real estate shall be bound, and the attachment shall be a lien thereon, from the time when it was attached, on complying with certain provisions, which was done in this case. § 6406. Where due diligence has been observed by the creditor in the prosecution of his claim, this lien continues until a reasonable time has elapsed for the issuing of an execution and levy thereimder, and there can be no doubt but that the execution levy relates back to the time of the attachment and holds the interest which the debtor then had. It would seem to be too clear for controversy, that the debtor by his own voluntary act could not by taking possession and claiming the property as his homestead defeat the attachment lien thus created. If he has this power, then in most-cases where real estate is levied on by virtue of an attachment, the debtor, by a sale of part of his property, can in many cases defeat the security thus obtained. In like manner, where personal property hot exempt has been seized, by a sale of exempt property prior to an execution levy the debtor could release property from the levy made by claiming it as exempt. It is not thus in the power of the debtor to deprive the creditor of the benefit of a security which the law gives to him, and the authorities' cited in the brief of counsel for defendants fully sustain the views thus expressed. We find nothing in the Constitution that would give any color whatever to the right of the creditor to defeat the lien so acquired under an attachment. It is true that the Constitution only exempts the homestead from a forced sale on execution or other final process, but this does not by implication, even, destroy a levy previously made. Were this provision construed literally, it would only prevent a sale under an execution or other final process, while permitting a levy by virtue thereof. No such construction can be given this clause, and the practical construction always has been otherwise. The decree of the cornt below dismissing the bill must be affirmed with costs. The other Justices concurred.

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Campbell, J. The controversy in this case arises out of proceedings begun in the probate court and appealed to the circuit court of St. Joseph county, for the payment or delivery over to Mrs. Langrick, who is widow of the decedent, of an annuity, and of the possession of personalty and realty. The questions raised related (1) to the amount of an annuity; (2) to her rights in the general personal assets; and (3) to her rights in realty. It is claimed on her behalf that the will did not cover the realty during her life, and that there is an excess of personalty which is also not willed during the same period. The circuit court directed the payment to her of an annuity at the rate of $50 a month, and the possession of the land during life; but declined to give her the personalty, except the statutory allowances and property bequeathed. The estate of decedent consisted of a large amount of land, valued at about $30,000, and of personalty valued at nearly $12,000. The will gave money legacies to a brother and two sisters of $1000 each, and a small fund for cemetery purposes. It also gave to the daughter of Jane Gospel certain items of personalty in present or future enjoyment. The legacies and devises which we are called on to construe are those to Mrs. Langrick and Jane Gospel. There was given to Mrs. Langrick by express provision a life estate in the homestead and furniture, “ with an annuity of fifty dollars payable monthly from the date of my decease, out of any money which comes into the executor’s hands, by their rights as executors of my last will and testament, which I direct to be paid through my executors, whom I shall hereafter name.” We think this clearly indicates a continuing annuity-amounting to $50 a month. We also have no doubt that the fund from which it is to be paid is the personalty of the deceased, inasmuch as that is the property which absolutely belongs to the executors officially for disposal. The will containing no directions confining payments to the income- or interest of this fund, we are of opinion that it sets apart the whole not required for other purposes as a trust fund to-secure this annuity, and that there is no intestacy as to any of it. Any balance unexpended for this purpose would accrue as a resulting trust and not as intestate property, to the legatee, Jane Gospel. To Jane Gospel the legacy is as follows: “I give and bequeath to my niece, Jane Gospel, the balance of all my estate, both real and personal, after Jane E. Langrick’s (my wife’s) death, to have and to hold forever.” No devise is made of the estate during Mrs. Langrick’s life — beyond the homestead — unless implied in this devise to Mrs. Gospel. If not so devised it is admitted to be intestate property. Under our statutes any intestate property left out of a will by a testator is dealt with precisely as if there were no will. This is not seriously questioned. Our statutes of descents give to the widow, where there are no descendants, a life estate in the land whereof the husband dies seized in fee. Comp. L. p. 1367 § 4309. In this case the will does not affect this life estate in any way expressly, but it devises the remainder in fee to Mrs. Gospel. We are not at all satisfied that according to the general presumption against intestacy this may not fairly imply that the life estate was to go to the wife, at whose death Mrs. Gospel should succeed her in the enjoyment. But inasmuch as the intestacy would make the same disposition it is not important to consider the construction. In our opinion the wife, Mrs. Langrick, is entitled to the life use of the land. Inasmuch as the probate court has power to order the ■executors under proper circumstances, such as are shown in this case, to relinquish possession of the lands, (Laws 1881, p. 278,) that court had jurisdiction to hear the petition in the cause, and so had the circuit court on appeal. The decision of the circuit court, being in accord with the views we have expressed, it must be affirmed and the proper certificate made accordingly. We think the case a proper'one to have the taxable costs allowed out of the •estate, and therefore no costs are awarded against either party. The other Justices concurred.

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Marston, J. The statute relating to primary schools gives to the township board power to remove from office upon satisfactory proof, any district officer who shall have illegally used or disposed of any of the public moneys •entrusted to his charge, or who shall persistently and without sufficient cause, refuse or neglect to discharge any of the duties of his office. Act No. 164, Laws 1881, ch. 13, § 8. Mrs. Hazen was holding and exercising the duties of the •office of moderator, and the board undertook to remove her upon a written complaint, charging — yirsi, that she was not duly elected; and secondly, that she was guilty of a gross-violation of duty in hiring her husband to teach the school and in agreeing to pay him more wages than was requisite to have obtained a good or .better teacher. It is sufficient to say, that the statute does not authorize-a removal on any such charges, and even if it did, the evidence introduced did not tend to support the charges made.. The proceedings therefore must be quashed .with costs. The other Justices concurred.

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Cooley, J. Johnson sued- HoLensworth upon a covenant contained in a deed of conveyance, which he counted upon as a covenant against encumbrances. The only question which the record presents is, whether the plaintiff was correct in his construction of the covenant. The deed bears date November 13, 1875. It purports to-convey a certain lot of land in Washington, D. C., “subject to the sum of sixteen hundred dollars, existing as an encumbrance on said lot, and secured by two deeds of trust; ” and it contains the following covenant: “ And the said parties of the first part [Hollensworth and wife] for themselves and for their heirs, executors and administrators do hereby covenant promise and agree to and with the said party of the second part, his heirs and assigns, that they, the said parties of the first part and their heirs shall and will warrant and forever defend the said piece or parcel of ground and premises and appurtenances unto the said party of the second part, his heirs and assigns, from and against the claims of all persons claiming or to claim the same or any part thereof by, from, under or through them or any of them, and against all persons whomsoever and all claims whatsoever except the sum of sixteen hundred dollars hereinbefore assumed by the party of the second part, with the interest thereon.” Following this was a covenant for further assurance. To show a breach of the covenant the plaintiff gave evidence that the encumbrances by the two deeds of trust exceeded the sum specified by nearly three hundred dollars. He also showed that the whole amount had fallen due, and that he had made ■ payment in full, without awaiting foreclosure or other proceedings for collection. This constituted the plaintiff’s case. On the other hand the defendant contended that the •covenant in question was not a covenant against encumbrances, but only a covenant of warranty of title except as .against encumbrances to the specified amount of sixteen hundred dollars. As a warranty of title it would be broken •only when there had been eviction of the grantee, or those claiming under him, or when acts had occurred which were the legal equivalents of eviction; such as the actual assertion of some title or claim against which the warranty undertook to protect, and a surrender to it. It was conceded that if this could be held to be a covenant against encumbrances it was broken immediately and the covenantee might recover substantial damages on making payment. Post v. Campau 42 Mich. 90; Norton v. Colgrove 41 Mich. 544. It must be conceded that the covenant is peculiar in form. It is a warranty of title as against the grantors and all persons claiming under them or either of them, and as such would run with the land in subsequent conveyances. If this were all, the existence of an encumbrance would be no breach, though it might result in a breach if it should ■ever be enforced against the land. But we think there is something more here than a warranty of title. There is no fixed or essential form for any covenant; a* covenant is merely a promise under seal, and to ascertain what it is in legal import, we have only to see what the promissor has undertaken for; in other words, what is the legal interpretation of the language in which the promise is expressed. In ordinary deeds of conveyance several covenants are usually contained, and some of these are likely to be such as will run with the land and some not. Each covenant may constitute a separate sentence, but they may all be blended in a single sentence as well, and a single promise may embody the substance of several covenants, and thus constitute an undertaking to protect against existing claims or defects, and also to give assurance for the future. The promise now under consideration is one of this peculiar form. The same promise constitutes a covenant of warranty and also an undertaking to protect tlie title conveyed “ against. all persons whomsoever or claims whatsoever ” ■except the specific encumbrance of sixteen hundred dollars. “Claims” is a broad term, and to the common understanding w&uld embrace encumbrances, at least where they are in the nature of money charges. No man of ordinary intelligence could fail to understand this promise as a warranty against all claims of a pecuniary nature existing against the land, with the exception mentioned, “ and this is equivalent to saying that, in the opinion of all men of ordinary intelligence, a contrary construction would be wrong.” Smith v. Lloyd 29 Mich. 382, 386. How much further it would extend its protection we need not speculate. The conclusion is that the judgment entered for the plaintiff should be affirmed with costs. The other Justices concurred.

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Per Curiam. This ease is brought here by writ of error.. There is no finding of facts and no special exception. The exception relied upon is a general exception to the judgment. It is now claimed that error appears by a comparison of the judgment with the declaration and the bill of particulars ; in this way, that by that comparison the judgment is shown to be more than could regularly have been given under the bill of particulars. But nothing appears by the record to show that the attention of the circuit judge was ever called to any such question, or that he ever saw the bill of particulars. We review only the rulings of the circuit judge; and to enable the party to raise this question he should either have obtained special findings, which he could then claim do not support the judgment, or he should have had a ruling upon the point and taken his exception to the-ruling. Motion denied.

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Campbell, J. Plaintiff sued in a justice’s court to recover for injury caused to his building by rain dripping from defendants’ neighboring house, and by snow thrown between the buildings and on his land from the latter. The chief injury being consequential and not direct, we think there can be no objection to the form of action, which was case. So far as the damage from snow is concerned there was proof that it was shovelled upon plaintiff’s land from defendants’ house by defendants’ order, and by their servant in the course of his service. We think there was no error in holding defendants liable for this. But the court did not qualify the liability under all circumstances for the consequences of rain dripping from defendants’ roof, and held it was absolute. This liability does not exist unless it arises from some fault or neglect of duty, and it was so held in Underwood v. Waldron 33 Mich. 239. Eor this error the judgment must be reversed and a new trial granted. The other Justices concurred.

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Cooley, J. Tlie plaintiff on an affidavit that “ be has, as-be has good reason to believe, a just cause of action against John Williams and Jonathan D. Wright in said county, against whom he applies for process by warrant for wrongfully trespassing on the north 60 acres of the northeast quarter of section two, range four north, six west, to the damage of one hundred dollars or under,” obtained a warrant from a justice of the peace on which the defendants were arrested. On being brought before the justice the defendants were required to plead immediately, and they did plead the general issue, and the suit was then adjourned. On the day to which the suit was adjourned the parties appeared with counsel and the defendants made a motion to quash, which was overruled. The plaintiff then moved for a continuance, which was also overruled. The defendants then asked leave to amend by giving notice under the general issue, that the supposed trespass was lawfully committed in the service of an execution issued on a judgment rendered against one Pratt and placed in the hands of defendant Williams, who was a deputy of the sheriff of the county, for service. The justice refused leave unless the defendants would consent to an adjournment, which they declined to ■do. The case therefore proceeded to trial, and the plaintiff had judgment which was reversed on certiora/ri. The plaintiff now brings the case to this court by writ of error. The circuit court is supposed to have reversed the judgment upon the ground that the defendants were of right •entitled to give notice of justification under the execution; .and the plaintiff insists that this is an error; that they could give the notice by favor only, and that they put themselves in the wrong when they refused to consent to the condition the justice imposed. But there were errors preceding that action. In the first place the affidavit on which the warrant issued was fatally defective, in that it failed to show “ probable cause ” on oath. Const. Art. vi § 26. “ Good reason to believe ” is not probable cause; but facts must be sworn to. DeLong v. Briggs 47 Mich. 624. In the second place the justice should not have required the defendants to plead immediately on their being brought before him, but should have allowed them a “ reasonable time ” to consult counsel .and put their defense in proper form. Comp. L. § 5309. The injustice of requiring an immediate plea in this case is manifest; for it not only gave the justice jurisdiction of the persons of the defendants which otherwise he would not have had, but at the same time it cut them off from their justification. Under the circumstances we think the circuit •court was correct in holding that the defendants were -entitled of right to put in amended pleadings on the adjourned day; the first plea having been put in under comjDLilsiou. It may be that the defendants should have con■sented to an adjournment; though why the justice should have required their assent when he might, on plaintiff’s motion, have granted it without; we do not understand. But as the defendants had been brought into court on a wrongful arrest, we are not inclined to criticise with severity an ungracious act on their part, or to deprive them of rights because of it. The judgment of the circuit must stand affirmed with costs. The other Justices concurred.

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Grates, C. J. The plaintiff sued defendant by summons personally served, whereupon Sarah J. Harrison, appearing as defendant’s guardian, joined with him in pleading in abatement of the service that at the time of its occurrence he was under guardianship as an insane person. The plaintiff demurred, but the court sustained the plea and quashed both service and process. The sole question raised is whether the existence of the guardianship took away the defendant’s legal capacity to be served with the summons, and we think it did not. He continued liable to suits and liable to notification of their institution. Sternbergh v. Schoolcraft 2 Barb. 153, and authorities cited; Crippen v. Culver 13 Barb. 424. See, also, Bush v. Pettibone 4 Comst. 300; Ibbotson v. Lord Galway 6 Term 133; Cock v. Bell 13 East 355. The judgment is reversed with costs and the plaintiff will have judgment on the demurrer, that the plea is overruled, and the cause will be remanded to be proceeded in according to law. The other Justices concurred.

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Graves, C. J. For many years prior to May 14, 1878, •complainant and defendant Cummin owned in common the S. óf sec. 13 and tbe N. E. J of see. 24 in township 5 N., of B. 2 E., Shiawassee county. Cummin’s interest was under mortgage to defendants Gallagher and at the date mentioned the complainant filed his bill against Cummin and said mortgagees in the circuit court for the county of Shiawassee, in chancery, to obtain partition. Such proceedings were had that partition was decreed and on the nomina tion of the parties through their solicitors the defendants Gale, Dawson and McKellop were appointed commissioners. January 7, 1880, they reported that they allotted to Cum-min the south quarter of the south half of section 13 and all the northeast quarter of section 24, and to complainant the north three-quarters of said south half of section 13, and that the lien of the mortgage held by defendants Gallagher should remain attached exclusively to the premises so allotted to Cummin. The report was not objected to and the court entered a decree confirming it and establishing the partition as made by it, and on the 19th of February, 1880, the ■decree was enrolled. In September following the complainant petitioned the ■court for leave to file a bill impeaching the decree for fraud and in October the- court passed an order granting leave and this bill was then filed. The defendants Gale and Cummin suffered it to be taken as confessed, but the others answered. The bill called for answers on oath, but those put in were not sworn to and complainant raised no objection and filed the usual replications. The effect was to permit the answei-s to stand as unsworn pleadings. Morris v. Hoyt 11 Mich. 9. The parties actively contending went into evidence and on final hearing the court set aside the decrees, both interlocutory and final, as vitiated by fraud, and decreed that complainant and defendants Cummin and Gallaghers were restored to their former respective rights. The defendants Gallaghers and Dawson and McKellop appealed. The record contains no evidence that defendants had notice of the hearing of the petition which preceded the bill and it is now objected that the omission of it involves the failure of the whole case. It does not seem that any question on this ground was suggested in the court below, although the appellants must háve known whether they had received notice or not. They did not deny being notified, but went on and- answered and proceeded as though they had been, and now they cannot go back and allege the contrary whereby to impeach their own practice as well as that. ■of complainant. The case is that of an original bill in the nature of a bill of review, and the essence of it is that the commissioners appointed by the first decretal order acted fraudulently in dividing the property and deceived the court and led it to cover their misconduct with the formal sanction of a decree and that the mortgagee defendants and Cummin support and ratify this misconduct and insist on having and retaining the benefit of it. The aptness of the bill in view of the equities relied on is clear enough. Eveland v. Stephenson 45 Mich. 394; Richmond v. Tayleur 1 P. Wms. 734; Galley v. Baker Cas. Temp. Talb. 199; Barnesly v. Powel 1 Ves. Sr. 119; Manaton v. Molesworth 1 Eden 18; Mussel v. Morgan 3 Brown Ch. 74 (Perk. ed.) 65; Kennedy v. Daly 1 Sch. & Lef. 355; Harrison v. Corporation of Southampton 21 E. L. & E. 343; Pearse v. Dóbinson L. R. 1 Eq. Cas. 241; Colonial Bank of Australasia v. Wiliam L. R. 5 Privy Council Cases 417: 9 Eng. 225; Flower v. Lloyd 6 Ch. Div. 297: 22 Eng. 824; French v. Shotwell 5 Johns. Ch. 555; Loomer v. Wheelwright 3 Sandf. Ch. 135; Pitcher v. Carter 4 Sandf. Ch. 1; Galatian v. Cunningham Hopkins 48; Dobson v. Pearce 2 Kern. 156; Hackley v. Draper 60 N. Y. 88; Verplanck v. Van Buren 76 N. Y. 247; Carneal v. Wilson 3 Litt. 85; Terry v. Commercial Bank of Alabama 92 U. S. 454; Pratt v. Northam 5 Mason 95; Clark v. Underwood 17 Barb. 202; Mitf. Pl. 93; Story Eq. Pl. §§ 426, 428; Daniell Ch. Pr. 173 note 2, — 1584, 1585; Adams Eq. top paging 33 ; Earl of Bandon v. Becher 3 Cl. & Fin. 479. Some of these authorities have a very close application. The cause of action here is not the same as in the partition case. The matter in question there was on the existence of a state of things giving the right to partition and on the principles which should govern in making it. But the question here is whether the commissioners did not in fact contemn those principles and commit what amounted to a fraud on the court and on complainant, and whether Cummins and the mortgagees have not connived and in the view of equity made themselves parties to the wrong. The case assails the decree as vicious on account of the alleged vice' through which it was brought about and on which it was founded, and it cannot be set up to bar proof of its own fatal contamination. When the matter which is being tried is whether the ground of a decision can or cannot sustain it the decision itself is no authority. The charge against the-commissioners carries with it a necessary implication that their authority ought to be revoked and hence it was proper to ask an extension of the relief to the abrogation of the order by which they were appointed. The theory of the case would not authorize anything less radical. It may not have been necessary to join the commissioners, but the-doing so was not error. Daniell Ch. Pr. 297, 298, 322; Story Eq. PI. § 232. There seems to have been no serious-fault in the procedure by complainant. The case is next to be considered with reference to the facts and circumstances. The circuit judge was convinced by them that the assailed proceedings were fraudulent, and the general question, which cannot be turned aside, is whether this court is ready to disagree with him and by setting his decree aside to virtually restore the partition. The commissioners were not clothed with any despotic power. They were in a situation of trust and confidence described by statute and subject to the principles which vitalize the moral equity of the law. They were bound to-apply their experience and judgment faithfully and fairly to the case, and to execute honestly and impartially the trust reposed ; and by such means to divide the estate and allot the portions and shares to the parties, quantity and quality relatively considered, according to the respective rights and interests of the parties. We have seen already what division they made. But how it is in point of justice, and whether in making it they acted in good faith or otherwise is yet to be considered. If it so happened that they innocently went astray in the forum of judgment, and fell into error through mere injudiciousness, the result is not impeachable on this bill. On the contrary if they went seriously wrong with their eyes open and made a division which plainly affronts common sense and all onr ideas of justice a case for relief is presented. In order to settle this and find whether they did or'’did not ignore their duty and proceed fraudulently we are to judge by the surrounding facts and the course they elected. We are to look at their act and see whether it can be rationally credited either to good faith or a mere blameless lapse from propriety, or whether we are bound to regard it as a fraud in the sense of equity. To fix the latter character upon it the evidence need not be specific. The conclusion may be drawn from incidents. Rea v. Missouri 17 Wall. 532; Humes v. Scruggs 94 U. S. 22; Hennequin v. Naylor 24 N. Y. 139. The complainant resided in Detroit. lie was not acquainted with the character of the land and was not able to form any opinion of the equity of the division from the statement specifying the tract assigned to each party. Ilis solicitor having charge of the case resided in Detroit and was no better informed; and it does not appear that another gentleman who seems to have been loosely connected with complainant’s interest, either knew much about the matter or felt any special solicitude in regard to it. In any view which the facts will authorize his relation to the case has no special importance. The entire premises,. as we have seen, consisted of 180 acres, and the award, as formerly noticed, gave to each co-owner one equal half in quantity. The quality is seen at once by going upon the land. Of the share allotted to complainant about sixty acres are upland with some nine acres cleared, while the residue of about one hundred and eighty acres is’marsh and swamp. The part assigned to Cummin on the other hand embraces two hundred acres of upland with one hundred and seventy-four acres under cultivation, and thirty acres only of lowland and about twenty of swamp. But the inequality thus indicated by the disparity in character of the land and in the quantity under improvement is further illustrated by the difference in value. Seven witnesses testify on the subject and according to their evidence the share assigned to Cummin is worth all of twice and a half as much as the share set off to complainant. The entire showing respecting the quality and value of the property and the inequality of the partition was made by complainant, and the way was clear for appellants to make-a counter showing or to adduce mitigating evidence if the truth permitted. But no attempt has been made to break the force of complainant’s evidence or to furnish ground for argument that the commissioners kept within the range allowed for diversity of opinion. The accuracy of complainant’s exposition is therefore substantially acknowledged. Page v. Stephens 23 Mich. 357; Wallace v. Harris 32 Mich. 380; Smith v. Brown 34 Mich. 455; Heath v. Waters 40 Mich. 457; McDonough v. O’Niel 113 Mass. 92. The greatness of the inequality in value did not depend upon obscure causes which might escape attention; but on conditions no observer could overlook. It was so evident that no man of common sense could fail to discern and mark it after inspecting the property, and there is no pretence that the appealing commissioners were not perfectly aware of the proved difference between the shares. Mr. Gale was somewhat enfeebled and he confined his inspection to such view as he was able to obtain in passing along the road bordering the land on a part of one side-. The others made a more particular examination, as the proof indicates, and he confided in their representations; and finally acceded to their wishes and explanations and gave up a scheme of his own and accepted theirs, which is the same that is the-subject of complaint. They represented, as he testifies, that if any choice existed, their allotment was more favorable toeorbplainant than to Cummin, and he relied on'their repre> sentation, and soon after the award was handed in he expressed his opinion of -the justice of the partition to the-solicitor of complainant and repeated what his associates had said. The solicitor communicated this information to complainant, and no reason presenting to induce suspicion of any misdoing the proceeding was allowed to be silently confirmed. The complainant was not in any fault for assuming that-the commissioners had acted faithfully and blamelessly, and that the partition, they had made was impartial and wfell considered. He was not to suppose that the division they had made and solemnly reported to the court as one that was just and equal and had recommended to him as eminently in accord with his interest was yet most intemperate and injurious, and that the formal representation to the court and the informal information to himself were alike deceptive and misleading. We see from what has been said that the alleged demerit of the allotment is not only undisputed but is substantially confessed, and that no defence whatever of the act itself is found in the record. Had the truth about the proceeding been made known to the court there would have been no confirmation. On the contrary the partition would have been rejected instantly on account •of its glaring injustice. This is not denied. But the claim is asserted that the court is now powerless to redress the wrong. We think differently and are disposed to agree with the court below that the misdoing amounted to fraud •and is sufficient to justify ample relief. It has long been admitted by the courts of common law that a fatal bias in the jury may be inferred from the extreme unreasonableness of the verdict. 1 Grraham & Waterman on New Trials M2 ■et seq. And it is a well-known rule in equity that where there is such gross inadequancy of consideration as shocks -the conscience it is sufficient to imply fraud. Byers v. Surget 19 How 303-311; Van Cortlandt v. Underhill 17 Johns. 405; Story’s Eq. § 246. By fair analogy the case before us is subject to similar reasoning. The award is so extravagantly one-sided as to shock the conscience, and considering all the circumstances the inference must be of the same nature as both law and equity draw from kindred premises. Indeed, the case seems to be impelled to this end by its own gravity. There is no pretence of vindication and the unquestioned wrong is abandoned to the inference that it originated in the will of those who were engaged in the act. The record will tolerate no other explanation. In conclusion it may be just to observe that it is not the meaning of the court that the commissioners Were really actuated by a specific and sedate design to perpetrate a cheat. But the view is that they fully intended to act precisely as they did, and that whatever notion was in point of fact in their minds the court in judging of the proceeding in reference to its quality in equity is bound to construe it as fraudulent. The result is that the decree should be affirmed with costs. The other Justices concurred.

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Cooley, J. Complainant filed his bill for a divorce from the bonds of matrimony for the cause of extreme cruelty. The defendant, with an answer denying the cruelty, filed a cross-bill charging the husband with extreme cruelty, and praying a divorce therefor. The circuit judge found both cases made out; awarded a divorce on each bill, and gave the wife $800 for alimony. The wife has appealed. When the circuit judge reached the conclusion that each party had been guilty .of such conduct as under the statute was cause for divorce, he should have dismissed both bills and left the parties where their misbehavior had placed them. A proper administration of justice does not require that courts shall Occupy their time and the time of people who are so unfortunate as to be witnesses to the misdoings of others in giving equitable relief to parties who have no equities. And it is as true of divorce cases as of any others that a party must come into a court of equity with clean hands. Divorce laws are made to give relief to the innocent, not to the guilty. But as the case now presents itself in this court we cannot do with it what the circuit judge might and should have done. The wife alone has appealed, and according to the settled practice of the court we cannot, without appeal by the husband, modify the decree to her prejudice. Proctor v. Robinson 35 Mich. 284; Match v. Hunt 38 Mich. 1; Heath v. Waters 40 Mich. 457. The decree awarding her a divorce on her cross-bill must therefore stand, and the allowance for alimony must also stand to the extent made below. What we can consider is, whether the husband’s divorce on the original bill shall stand also. A review of the evidence satisfies us that the most serious misbehavior proved was not on his part, and that the proofs establishing it, unconnected with the recrimination which was set up, would fairly entitle him to a divorce. And we are also of opinion that as the circuit court gave effect to the recrimination by making an original and independent case of it, and awarded to the woman a divorce upon it, it should now be considered, for the purpose of disposing of the appeal, as eliminated from the case. The decree for a divorce in his favor will therefore be allowed to stand. The question of the sufficiency of the alimony is also an open question here. As it-is settled by the decree in her favor that she had cause for a divorce, the right to reasonable alimony is settled also. But alimony may be larger or smaller according to the behavior of the parties, and this ease is not one in which the sympathy is enlisted for either party.' The husband is a farmer, having real estate which we estimate at $3000; his personal estate is proportionate to this small domain, and he owes some debts. The allowance of $800 to the woman seems to us rather small, and it will be increased to $1200. But we make no allowance to her for expenses on the appeal. The husband must also make equal division with her of the household furniture. The details of the decree will be settled on drafts being submitted. Campbell and Marston, J J. concurred.

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Marston, J. This case was tried in -justice’s court, the set-off allowed and judgment rendered against the plaintiff, which on cerbiora/ri to the circuit court was affirmed. There is no evidence tending in even the slightest degree to show that the plaintiff was legally liable for the suit of clothes furnished by the defendants to Capt. Jones. There was no gift of a suit of clothes, no authority given to Capt. Jones to order them and have them charged to the plaintiff, and no written or verbal promise by the plaintiff to pay for them. The judgments of the circuit and justice’s courts must be reversed with costs of all courts to the plaintiff. Cooley and Campbell JJ. concurred.

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Cooley, J. Defendants were sued in justice’s court as-makers of a promissory note. The note was signed “ Arnold & Ackley,” and defendants were declared against as partners. Arnold alone was served with process. To cast upon the plaintiffs the burden of proving the note, Arnold made and filed with the justice an affidavit in which, referring to the note which was on file, he affirmed that “ he did not sign the same, neither did he authorize any person to sign it for him.” The justice held that this was not a sufficient denial of the execution of tbe note by tbe alleged partnership, and entered up judgment upon it as upon admission. The circuit court reversed the judgment. It lias seemed to me that this affidavit was evasive, and that Arnold in making it intended to make his denial of individual execution accomplish the purpose of a denial of partnership execution, which perhaps he could not truthfully make. But my brethren think the affidavit sufficient,, and it must be so held. They think that a denial of execution by himself or by any one authorized by him is at least an argumentative denial of execution by any partnership of' which he was a member; and that that was sufficient to put the plaintiffs to the proof of the instrument. We all agree that the affidavit should not be technically construed, but should be held sufficient if in good faith it seemed to be intended to meet the plaintiffs case. McCormick v. Bay City 23 Mich. 457. The judgment will be affirmed with costs. Graves, C. J. and Campbell, J. concurred.

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Campbell, J. Plaintiffs sued defendant for not carrying-out an agreement to furnish them with shingles. The agreement made by Morehouse was to “ sell to said Baker & Murray all the shingles made by him at his shingle mill out of his own timber, and his one-half made from Seaman’s timber, in the township of Colfax, during the year 1880.” The contract contained some provisions as to size, quality, and handling, and payment of price, which do not become material. As the case was given to the jury they must have found that all the shingles made by Morehouse out of his own timber, and out of his half of Seaman’s timber, in Colfax, were delivered. The court below refused to allow parol evidence that it was agreed the mill should be kept running continuously and that shingles should be made from timber in other towns also. The whole ground of complaint seems to have been the failure to do this. The contract contains no such agreement, and the parties were governed by their written agreement. There was no error in the rulings, and. the judgment must be affirmed with costs. Cooley and Marston, JJ. concurred.

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Campbell, J. This action was brought to recover a penalty of $200 against defendant, who was a deputy sheriff of Wayne county, for refusing for more than six hours to deliver to plaintiff a copy of a warrant under which he had arrested him, after demand and tender of legal fees. The case was made out by testimony in the court below, but the court ordered a verdict for defendant, which is now sought to be justified on- the ground that the law is unconstitutional because including more than one subject, and not including this subject under its title. Comp. L. § 7042. The point is made that this section is included in the Compiled Laws in a general chapter relating to writs of habeas corpus and cerüorcvri, and that there is nothing under these heads or under any of the sub-titles of the chapter relating to such an action as this. But the Compiled Laws are in no sense a re-enactment or an original enactment of the provisions contained in them. The Constitution expressly forbids a revision of the laws, and in providing for a compilation confines it to existing laws; and the approval of it is made by commissioners and not by the Legislature. Const. art. 18 § 15. It is the original law which continues to exist, and the Compiled Laws have no force except as a compilation of existing statutes properly arranged but not altered. There is nothing in the Constitution applying the rule of single subjects and explicit titles to any but future legislation. The statute now in controversy is an ancient one, which has been adopted in this State under both revisions •of 1838 (p. 519) and 1816 (p. 586) as a part of the habeas corpus act; and it is a very important safeguard against wrongful arrests, which the courts are bound to enforce. It is too clear and precise to leave any room for construction. The plaintiff ought to have recovered the penalty. The judgment must be reversed with costs and a new ■trial granted. The other Justices concurred.

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Campbell, J. This bill is filed to enforce a mortgage made in August, 1.865, by Levi Wheelook, deceased, to one Devens to secure certain, promissory notes payable to Devens, or bearer, in one and two years. On the 26th of December, 1865, Devens assigned to complainant, who in August, 1866, made a colorable assignment to Ives G. Miles and John Culp, which the bill states was for complainant’s own purposes, and they reassigned in 1869. The mortgage was recorded erroneously, so as not to show the true description of the land. In March, 1869, it was recorded anew correctly. The assignments from Devens and to Miles and Culp were seasonably recorded. The reassignment was not recorded. ■ In July, 1868, Wheelock made a second mortgage to defendant Bennett, who afterwards assigned it to defendant Babcock, which was duly recorded, and thereby obtained record precedence, as to the land described, over the first mortgage. In February, 1871, the land was sold on chancery foreclosure of the second mortgage to Babcock, the complainant in foreclosure. All persons having record interests were properly brought in, and the proceedings were regular. Complainant was not made a party, but Miles and Culp were, and the decree is admitted to have been warranted by the rules of practice. In the latter part of November, 1873, Babcock conveyed to Wheelock, and some conveyances and reconveyances are set up which need not now be recited. All of the property became ultimately revested in Levi Wheelock except one small parcel in his son Levi A. Wheelock. Some homestead questions are also raised which we do not refer to. Levi Wheelock is dead and a part of the defendants are his widow and children. The bill is filed on the theory that the Bennett mortgage and all the subsequent transactions through which the property passed were purposely fraudulent and collusive, to protect Wheelock .and defraud complainant. The bill does not rely on any general disability of a mortgagor to become purchaser under titles derived from a foreclosure of a second mortgage, and therefore we need not discuss how and when such a disability exists. In the present case, when he purchased, the claim against him personally was outlawed, and he had no remaining duties to his mortgagee. The bill rests on nothing but fraud. There is nothing in the case to indicate that any fraud has been committed by Wheelock or by any of the defendants. Their conduct appears to have been honest and fair throughout, and it is not open to criticism. On the other hand, a delay of more than twelve years to enforce complainant’s mortgage, and of more than six years after Wheelock purchased from Babcock, and the postponement of suit until Mr. Wheelock’s death, might very well lead to some hesitation in allowing so stale a claim to be urged under any but satisfactory circumstances But we think the theory of the bill fails entirely, and all other questions may be passed. The decree dismissing the bill should be affirmed with •costs. Cooley and Marston. JJ. concurred.

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Graves, C. J. The defendant hired the plaintiff’s horse ••to drive from Milford to Holly and back and the animal became sick and died. The plaintiff claimed that this was ■caused by defendant’s ill-usage and neglect and he sued for damages. The jury found against him and he brought this writ of error. Only two rulings are complained of and both were made in admitting evidence. The defendant proved that he left Milford soon after nine o’clock in the morning to go to Holly some fifteen miles away in company with Clark Crawford, and stopped at Buckthorn to give the horse water. He. offered to show a conversation which occurred at that place between himself and Crawford about the appearance and condition of the horse at that time; the object being to-establish that he acted considerately and exercised due care and prudence. The plaintiff’s counsel objected, but the court overruled' the objection and we think rightly. What occurred at that time between Crawford and defendant in reference to the ■ state and condition of the horse was pertinent and proper.. It bore upon the question whether the defendant was rash,. heedless and indifferent, or awake, watchful and circumspect; and how he stood and acted in this respect was involved in the case alleged against him. If he felt and acted as he ought, ho was not liable. The defendant gave evidence that on two former occasions the horse when, driven by other persons fell sick of colic, and adduced other-testimony to raise an inference that the horse’s death was ■ owing to the same difficulty. The plaintiff produced a witness who swore that he was a veterinary surgeon of twenty-five years’ standing, and his opinion as an expert being called for he swore that in his opinion the horse died from, being overfed when too hot, which would produce colic. On cross-examination he said that colic was caused by over-driving and feeding when the animal is too warm ; that all works of good authority spoke of it and that the “ Modern-Horse Doctor, by Dr. Dodd,” was a work of that kind. The defendant then offered to show from this work of' Dr. Dodd, where the author treats of colic, the passage following: “In nine cases out of ten colic is the result of' impaired digestive organs; the food runs into fermentation, and evolves carbonic acid gas.” This evidence was offered to discredit this expert in connection with his cross-examination. The plaintiff objected to its introduction but the-court admitted it. The rule is acknowledged in this State that medical books are not admissible as a substantive medium of proof of the-facts they set forth. But the matter in question was not adduced with any such view. The witness assumed to be a person versed in veterinary science; to be familiar with The' best books which treat of it and among others with the, work of Dodd. He professed himself qualified to give an opinion to the jury from the witness stand on the ailment of the plaintiff’s horse and its cause, and the drift of liisopinion was to connect the defendant with that ailment-He borrowed credit for the accuracy of his statement by" referring his learning to the books before mentioned and by implying that he echoed the standard authorities like Dodd. Under the circumstances it was not improper to resort to-the book, not to prove the facts it contained, but to disprove the statement of the witness and enable the jury to' see that the book did not contain what he had ascribed to it. The final purpose was to disparage the opinion of the witness and hinder the jury from being imposed upon by a* false light. The case is a clear exception to the rule which, forbids the reading of books of, inductive science as affirmative evidence of the facts treated of. Ripon v. Bittel 30 Wis. 614; 2 Whart. Ev. § 666. We think the court committed no error and that the-judgment should be affirmed with costs. The other Justices concurred.

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Graves, C. J. Kroll brought a claim before commissioners who disallowed it, and he appealed. In order to give it a more formal shape he filed a declaration, but-counsel for the estate objected that the declaration made a different case from that determined by the commissioners. The question is practically unimportant, because the original form was produced and now appears in the record, and the controversy is fixed by it. No pleading conld change the identity of the case. Patrick v. Howard 47 Mich. 40. • The demand alleged for certain commissions was not supported by any testimony, and there is no occasion to comment upon it. The actual subject of contention is a claim set forth and explained in substance as follows: That Xroll had contracted with Chappell for a parcel of land of about eighty acres and then orally agreed with the firm of C. & E. Ten Eyck, composed of decedent and Isabella Ten Eyck, that the title should be taken in the name of said firm and that he should retain an interest in the land and should be paid by the firm at the rate of fifty cents per thousand feet for all merchantable pine timber standing and growing on the land, whenever it should be thereafter lumbered. That pursuant to this agreement the land was deeded to said O. & E. Ten Eyck and that there was some two million feet of timber on it of said quality. That ho lumbering was done during the life-time of decedent, although the title was retained until 1880. That the property was then transferred to a firm of the same name, but composed of said Isabella Ten Eyck and two others of the name of McCormick, and that such last firm have been and are lumbering the land, wherefore the claimant demands $1000 and upwards. Considerable testimony was given, but the circuit judge directed a verdict for the estate, and the general question is presented whether this result ought to be disturbed. The controversy suggests several points possessing interest, but the decision may be placed on very familiar ground. The only testimony produced by the claimant to make out the alleged oral agreement with the old firm consisted of the oral testimony of Cogswell and of a letter from decedent to McCormick, and each of these pieces of evidence had its own office and was intended to coroperate with the other for the purpose of an accurate development of the entire transaction. Taken together they were the claimant’s proof to show the true arrangement. They were not alike in regard to the particulars which they tended to establish; but there was no antagonism and neither could be rejected. It was necessary to act on their combined effect. Anything shown by one and not shown by the other would have to be considered as an increment of the case brought out by the claimant himself, and not as any intruding incident to be suppressed for his benefit. It only remains to see whether this evidence so received and considered as a whole is open to any construction which is consistent with the case presented by the claimant according to the letter before referred to.' Kroll’s right to be paid fifty cents per thousand feet was made conditional on his doing “ all the work, lumbering, and delivering it to the boom.” Cogswell swears to what he overheard of what the claimant and decedent said in making the bargain. He does not profess to have heard all that occurred nor pretend to remember all that he heard. It is of no importance that he does not mention the condition as something he recollects to have heard specified. It is sufficient that the claimant shows the fact by means of the letter, which agrees with the oral evidence for the estate. The variance is radical. The case alleged contains no condition of the kind. The result is that the testimony did not conduce to make out the claim set up, but a transaction entirely different and subject to different principles, and hence the ruling below should not be disturbed. The order appealed from is affirmed with costs. The other Justices concurred. Cogswell was an employee of C. & E. Ten Eyck.

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Cooley, J. Tbis is an injunction bill. Tbe object is to liave the rights of complainant in the water-power of tbe Tliornapple river at Ada declared and protected, and certain obstructions which are said to be maintained by tbe defendants in tbe mill-race at that point removed. Tbe bill was filed July 30, 1811. It sets forth that prior to July 19, 1858, one Samuel Clements was owner in fee-simple of a certain parcel of land particularly described, lying upon the Thornapple river, together with a grist mill and flumes erected thereon, with the first right of use of the water from the adjacent mill race sufficient for four run of millstone, with the necessary machinery for a grist and flouring mill by the use of water-wheels that should be as economical in the use of water as those in use in said mill on the day last aforesaid. That the said mill was then used as a grist and flouring mill and was operated by means of said water-power, and from that time has been so continuously operated. That the Thornapple river flowed by and through said land, and there was a dam across the same above said land which created a pond from which the water was conducted by a race to and through said mill, and created the motive power by which the mill was operated. That on the day mentioned Clements sold and convoyed all said described property by warranty deed to Electa Bradfield, and on the fourteenth day of October, 1870, Electa Bradfield by like deed sold and conveyed the same to complainant. That by virtue of said conveyances, complainant became on the day last mentioned and' still is the owner of the first right and interest in the water of the Thornapple river as it flows and of right ought to flow through said race, in amount sufficient at all times and in all seasons to propel four runs of millstones, with the necessary gearing and machinery for a grist and flouring mill by the use of waterwheels as economical in the use of water as those in use in said mill on said premises on July 19, 1858. . That on said October 14, 1870, complainant formed with others the partnership known as E. Bradfield & Sons, which ever since has been running and operating said grist and flouring mill. That some time after said conveyance by said Clements to Electa Bradfield other parties purchased some land and some right to use water from said river and said race, out of what there should be beyond that so conveyed to her, and erected a mill upon said race above complainant’s mill, and that the mill so erected has ever since been operated by means of water taken from said race as the motive power; and since the water comes from said mill before it reaches complainant’s mill, the owners thereof have an opportunity to use and control the water flowing in the race. That in the month of February, 1872, said upper mill property was purchased by and conveyed to James D. Dewell, and on July 1,1876, Cornelius K. Bussell became joint owner with him. That ever since said purchase by Dewell he and others acting with him have kept, supported and maintained in said race a large amount and variety of obstructions to the running and flowing of the water therein to complainant’s mill; the obstructions consisting of posts, timber, stones, etc.; and that by means thereof, said Dewell and his associates have so detained the water as to prevent complainant obtaining the quantity to which he is entitled, and he has been greatly obstructed and injured in his business in consequence. That said Bussell was then engaged in making some radical change in said premises, and in making excavations and embankments, and putting in a stone wall evidently intended to be permanent. and with the- aid of said stone wall and embankments was filling and blocking up the channel and race so as seriously to impede the flow of water to complainant’s mill, and that complainant had remonstrated without avail. And the bill prayed that said Dewell and Bussell “ be restrained from keeping, maintaining and supporting any obstructions to the flow of water through said race to your orator’s mill in amount sufficient to equal what is owned by your orator, and from using any of the water belonging to your orator and from preventing in any manner the coming to your orator’s said mill through said race at all times the amount of water so owned by your orator, and water enough to propel four runs of millstones with the necessary gearing and machinery for a grist and flouring mill using wheels as economical in the use of water as those in use in said mill on the 14th day of February, 1858, and that they be compelled to remove or allow your orator to remove all obstructions that interfere with the flow of the water owned by your orator to your orator’s said mill.” By supplemental bill "William Currie, William Bennett and Thomas C. Broadbent were brought in as additional defendants, as having acquired interests in the upper mill property during the pendency of the suit. The defendant Bennett answered and disclaimed, and the bill as to him was dismissed. The other defendants answered to the merits. They admitted the conveyances under which the complainant claimed, and the purchases and occupation by themselves, but they denied that they had ever encroached upon his rights. They charge hiin with great and extravagant waste in the use of the water, and with neglect and refusal to do his share and pay his proportion towards keeping the dam in condition for use, and aver that there has been at all times since the mills were built an abundance of water running and flowing in the Thornapple river to supply both of said mills with all the water that they are entitled to use if the dam was kept properly in repair, and the head of water kept at six feet as was originally contemplated. They aver their own readiness to contribute their proportion to the repairs at all times; and deny that any obstructions by them maintained materially obstruct the flow of water to complainant’s mill. Yoluminous testimony has been taken in the case, from which it appears that the dam by means of which the power in question is obtained is what is known as a brush dam, made of brush held in place by earth and stones; that by the contract under which it was originally constructed it was to raise the water six feet above low-water mark, and it could not be raised higher without interference with the rights of third parties; that the dam is likely to need annual repairs; and that in respect to what was needed and the cost of making them the parties have had frequent and angry controversies. On his part complainant produced evidence to show that for several years he had been unable iu his mill to do nearly so much business as formerly, which he attributed to the water being wrongfully obstructed or drawn oif by defendants, while they on their part produced evidence to show that it was due to his wasteful use of water, and his failure to unite with them in repairs. To an understanding of what follows it will be necessary to give the decree in full. The recitals in the decree, it will be seen, go quite beyond those contained in the bill. Tbe date of the decree is December 23, 1880. From its recitals it appears that some of the wrongful obstructions to-the flow of the water to complainant’s mill were made “ soon after ” the conveyance by Clements to Small in October, 1864, and presumably therefore long before defendants had possession or were claiming rights in the property. The decree is a mandatory injunction for the removal of these, though they are not specifically described or even referred to in the bill. To justify equitable interference after so groat a lapse of time, a very strong case ought to be made by the bill; and it ought either to be shown that com' plainant protested at the outset, or that circumstances existed which excused the failure to protest. The reasons which excuse the delay in applying for redress ought also to have been set forth. In the record we find evidence tending to explain and excuse the great delay, but there are no averments in the bill to which the evidence is applicable. One method of testing whether a mandatory injunction is proper in the case may be to Consider what the proceedings would be if it were claimed that its command was not obeyed. One branch of the injunction, is that the defendants be restrained from “ maintaining any obstructions in said race” whereby complainant’s right to the use of the specified quantity of water may be wholly or partially interfered with. This must refer in part at least to the obstructions created by Small, and perhaps these are sufficiently described in the decree so that, if their removal were ordered, the decree would be a sufficient guide for the purpose. Their removal, however, is not ordered; only their maintenance is forbidden if it interferes with the passage to complainant’s mill of the water to which, he is entitled. But the defendants are further enjoined “ from interrupting or interfering with the said supply of water for complainant’s mill from ■said mill-race sufficient for four runs of mill-stones, with the necessary machineiy for a grist and flouring mill by the use of water-wheels that shall be as economical in the use of water as those in use in said grist-mill at the date of the -deed from Samuel Clements to Electa Bradfield,” etc. If, therefore, the complainant were to claim at any time hereafter that by some disregard of the injunction he failed to .receive the requisite quantity of water, and were to move for an attachment, there would not only arise on that motion the question whether his machinery was as economical in the use of water as his grant requires, but if that was decided in his favor, then the further question whether the failure to receive the water was due to obstructions created or maintained by the defendants. The decree points out no method-of determining when the exigency of the injunction -is complied with; there is nothing definite in its provisions except that the flow of water sufficient to accomplish a certain-result shall not be interfered with; and the result itself is to-depend upon machinery in respect to which there may be frequent occasion for repairs or changes, so as to open anew the questions of fact which are largely considered in the-record in respect to the economy of the machinery in the-use of water. But an insuperable difficulty with the decree is, that while-in its recitals it recognizes the fact that complainant is under obligation to bear a certain proportion of the expense of repairing the dam, the mandatory clauses assume that complainant has an absolute and unqualified right to the specified quantity of water to be drawn from the race, and forbid, -any obstructions by defendants that will interfere with the-flow to him. What has already been said is sufficient to-show that complainant has no such absolute right. He is-not only under obligation to bear his proportion of the cost of repairs, but his right to use the water is qualified by the-obligation. If therefore the defendants should perform their duty in respect to repairs, and complainant should fail' to pex-form his, it may be that the defendants would be-entirely justified in operating their mill with the water froxn the race, even though the complainant failed to obtain the quantity specified in his conveyance, or any quantity whatever sufficient for any valuable pux-pose. Any question of a breach of the injunction is therefox-e complicated, not mex-ely with the other questions which have been refei’X'ed to, .but also with questions concerning the perfox-mance by the respective parties of their obligations to repaix-. If the dam were a substantial and pennanent stx-ucture, of definite form and height, needing repaix’s but seldom and. under exceptional circumstances, the obligation to divide the cost of repairs might not raise any very troublesome questions after the relative proportion of the cost was once ■determined. But this dam is one of those primitive structures which, though answering a valuable purpose, is very well calculated to be a source of perpetual contention when .there are interests in common in it. It is always expected to be leaky, and is very liable to be partly washed out in freshets. This dam has always been the occasion fpr dispute .and controversy. It does not appear from the evidence that .there is any known and understood standard of excellence for a brush dam, and it is very certain that the parties have never agreed upon any. At times they have disagreed respecting the height at which it should be maintained; they had a right to keep it at six feet, but were not under obligation to do so. Each was interested that it should give him the quantity of water required for his mill, and when complainant failed to obtain his proportion, the question of the responsibility for this involved of necessity the matter of repairs quite as much as the matter of obstructions. But in order to understand all the difficulties of the controversy it is necessary to consider that complainant is Or may be interested in an economical use of water by defend.ants, as much as they are in an economical use of the water by him. He has the first right; but there seems to be water enough in the river for all, and all are to be supplied by means of a dam maintained at the common cost. This dam should give them water through the race sufficient for .seven runs of stone; and complainant cannot be required by defendants to do more than to assist in keeping up a dam sufficient for three runs of stone in addition to his own quantity. Having the first right he is personally interested •only in having a dam sufficient to supply him, and a poor, imperfect and leaky dam might therefore answer his purposes if all the water which it turned into the race was suffered to flow to his mill. The interest of the defendants begins where his interest ceases; as they require for their purposes a dam that shall give them water sufficient for three runs of stone after his greater quantity has been furnished. The dam that answers his purpose may not therefore answer theirs; and if the quantity supplied by the dam constructed jointly proves insufficient for the purposes of both, there is the same opportunity for complainant to raise a controversy over excessive or extravagant use of water by the defendants that they have to accuse him of the like excess or extravagance. A decree should define with precision the rights which it assumes to declare and protect. The necessity for this is-especially imperative when as a part of the relief given a mandatory injunction is awarded for the demolition of structures which have long existed. A decree which requires the defendants to suffer water to flow to complainant sufficient to accomplish a certain result, when his right to it is-dependent on contingencies not specified and which í-equire important action by himself, is wanting in the precision requisite for a judicial determination of rights. How is the-court to give effect to such a decree as we have before us % If what was required was that the parties should jointly maintain a dam that should give a certain head of water, or that should cause a certain quantity in a specified time to flow through a defined canal, and then that the parties-should share the water in specified proportions, there would be in the case elements of certainty which would be guides-to the parties and also to the officers of the court, if the intervention of the court should ever be called for in the enforcement of the decree. But no such elements of Certainty are to be found in the mandatory clauses of this decree. As has been already pointed out the decree fails to-define the obligation of complainant to make repairs, upon which his right to water at any time may depend. Without enjoining the performance of that obligation the decree is quite as likely to breed new litigation as to put an end to-that which before existed; for the real trouble in the case was as much to be looked for in an insufficient or defective dam as in an improper appropriation of the results of the dam. The dam then required the attention of the court as- much as the alleged wasteful appropriation of the water which the dam turned into the race. Unless a dam was maintained which would give to the complainant the quantity of water to which he was entitled, the removal of obstructions from the race could not possibly give him effectual redress. And if, by the fault of both parties, or of complainant alone, the dam should fail to turn through the race the quantity required by both, the defendants might have as much and possibly a better right, to what should flow in the race, than the complainant could have under the circumstances. If so they would be justified in appropriating it notwithstanding this undiscriminating decree. A judgment in the case of such common rights, which is intended not only as a settlement of present controversy, but as a guide for the future, should be as particular to define the rights and obligations of one party as of the other, and should not assume that the violations of right will be on one side exclusively. But wo think the complainant has -been wholly in error in his view of the extent of the obligation resting upon him to make repairs. The error has sprung from the peculiar terms employed in the deed from Clements to Electa Brad-field. That deed conveyed the right to take from the race water sufficient for four runs of millstones, with the necessary machinery for a grist and flouring mill, “ subject to assessment of its just proportion of all expenses on the dam and mill-race that supplied it with water;” but it also contained a further statement that it was estimated by the parties that the whole amount of, water in the stream was sufficient for sixteen runs of stone. Erom this clause the conclusion has been reached by complainant that the “ just proportion of repairs ” to be borne by him was one-fourth, and the court in its decree accepts this conclusion. If there is error in this the complainant has erred from the beginning; and his error is probably chargeable in some degree at least with the litigation. It is probable that when Clements conveyed to Bradfield it was expected that the whole water-power in the stream at tlie point where the dam and race was constructed, would be sold and utilized. If sales had been made of all with provisions in the deeds in respect to repairs like that in the deed to Bradfield, each purchaser would have been under obligation to make repairs in proportion to the power owned by him, and any prior right to water would have made no difference in this regard. Any expectations of a sale of the whole seems however to have been disappointed. Sufficient power for four runs of stone was sold lo Bradfield, and sufficient for three runs to Small, and here the sales stopped. The remainder of the water is not utilized and nothing in this record informs us that any person is under obligation to share the expense of maintaining the dam, except the parties to this suit, and their obligation is not absolute, but only contingent and conditioned on their making use of the water. If complainant should cease to use the water, defendants could not call upon him to aid in making repairs, and if defendants should cease to make use of their mill, the complainant, as we are now advised, would have no alternative but to bear the whole burden. As the interest of the defendants in the water is one-fourth less than that of complainant, the proportion of the cost of repairs to be borne by them, if the whole power was utilized, would be to that borne by him, as three to four. But it is claimed by complainant and conceded by the defendants, that by his purchase he has acquired a right to the power granted to him which, as respects repairs, is not affected by the sale or failure to sell the remainder, and that as between himself and a subsequent grantee he is entitled to water sufficient for four runs of stone, if he makes the proportion of repairs which is specified in his conveyance. The result of this claim is that defendants, as a condition to obtaining the water needed for their purposes, must bear the burden of all the repairs except to the extent that by the Bradfield conveyance they were thrown upon the grantee named therein. And had there been in the stream the water that was estimated when the Bradfield conveyance was made — namely, sufficient for sixteen runs of stone— •one-fourth the cost of repairs would thus be cast upon complainant and three-fourths for their lesser interest upon ■defendants. It appears, however, that the quantity of water in the river is much less than was estimated and instead of being sufficient for sixteen runs of stones, it is only sufficient for ten runs. This deficiency raises the question whether complainant’s proportion of repairs is to be estimated according to the water actually in the river or according to the quantity which was erroneously assumed to be there when Clements conveyed. The difference as is evident is very important, as under one view the complainant must bear perhaps two-fifths of the cost of repairs and under the other ■one-fourth only. Complainant contends that his “ just proportion ” of the ■expenses of repairs is determined by the deed itself whereby there was conveyed to his grantor one-fourth the estimated power. But if the estimate was intended to fix the proportion definitely it is remarkable that the draftsman, instead of saying that the power conveyed shall be subject to assessment for its “ just proportion,”, did not expressly define the proportion and fix the amount definitely, and beyond question at one-fourth the cost. Fewer words than he has employed would have expressed the intent conclusively and directly, while now if it is expressed at all, it is in ambiguous language and by circumlocution. But the terms employed are much better calculated to convey the meaning that the just proportion was subject to contingencies, than that it was definitely fixed ■ and settled by the deed itself. Bradfield purchases power for four runs of stone; the whole is estimated at sixteen runs, and the grantee shall bear a proportion of the repairs which is not expressly named, but shall be determined by right and justice. An estimate, it is always assumed, may not be accurate, and so long as the quantity is only estimated. and not more definitely determined, if it were intended that the grantee shall bear with others a proportional share of the cost of repairs, the proportion could not be more conclusively fixed than by the use of terms requiring that it should, be just. But what would be just could only be determined when the quantity had ceased to be estimated and had become known. And when the quantity is known it is made evident that any apportionment according to the very inaccurate estimate would be' altogether unequal and unjust. But there is the further error" in the complainant’s view that it assumes that his proportion of keeping the dam and race in repair is just the same when only a part of the power is utilized that it would be if the whole were utilized. This would be so if the same dam and race were required to give to him and to the defendants the power they have purchased that would be necessary to utilize the whole power,, but otherwise it would not. The fact that three-tenths or so of the power is now wasted may have an important bearing on this point; for when complainant takes advantage of the fact that the power is not all utilized, to throw upon defendants, as a condition to any use of the water whatever, a proportion of the repairs much larger than he assumes, they have a right to insist that he at least shall not be gainer at their expense, by reason of the same non-use of power whereby they are losers. Now complainant was h> have his power' subject to an assessment that contemplated the use of all the rest; and if less than all is utilized, at a less cost, the saving does not belong to him but to those whe were subsequent purchasers. If he obtains his proportion of the power subject to such proportion of the expense as he must bear if all were utilized, that is all he can claim and all that justice can concede to him. It may be that there would be no considerable difference in the expense of maintaining the dam and race to give power sufficient for seven runs of stone, or to give all that can be obtained; but the difference in the obligation is not to be overlooked and it is conceivable that it may be of considerable practical importance. As Bradfield took from Clements no covenant 'that the latter or his grantees would be at any expense in keeping up the dam and race, it is the good fortune of complainant that any one else by a subsequent purchase^has put himself in position to be under obligation to share with him that expense. But under no circumstances can his just proportion he less than the proportion the 'water he uses bears to the whole water in the stream; and for reasons just given it may be greater if all the power is not utilized. In Hoxsie v. Hoxsie 38 Mich. 78, we had occasion to say that an “ injunction ought not to be granted to regulate the relative rights of mill-owners upon the same stream, except in very clear cases of the intentional violation of such rights.” This case is a forcible illustration of the remark. The questions at issue are such as the parties ought to settle for themselves; but if this is found to be impossible, it must be because of difference of opinion in respect to their rights and obligations, which in the nature of things cannot be definitely settled by an injunction. We are of opinion that complainant has failed to make out a satisfactory case for equitable relief. If under the views expressed in this opinion he conceives himself entitled to redress at law, he is at liberty to pursue the legal remedy. If he should recover at law, he might possibly, on the basis of that recovery, have relief in equity. The decree must be reversed and the bill dismissed with eosts of both courts. The other Justices concurred. The Decree. “This cause came on to he heard on the pleadings and proofs therein, ■and was argued by counsel, and the court, having considered the same, doth find and declare that on the nineteenth day of July, A. D. 1858, Samuel Clements was the owner of certain land and water-power at Ada, in said county of Kent, created by a dam constructed across Thornapple river, and of a grist-mill, mill-race or flume connected therewith; that said grist-mill was propelled by water-power, which water was conducted from said dam by means of a race or flume to said mill; that the waterwheels then in use in said mill were what is known as the “Yale wheel; ” that on the said nineteenth day of July, A.- D. 1858, the said Samuel ■Clements did, by warranty deed, for the consideration of 5037.18-100 dollars sell and convey to Electa Bradfield parcel of his said lands and waterpower, described as follows: All that certain piece or parcel of land situated in the township of Ada, Kent county and State of'Michigan, and being a part of section thirty-four (34), of township seven (7) north, of range ten (10) west, and bounded and described as follows, to-wit: Commencing at a Stake on the south line of the Detroit & Milwaukee Railway 148 feet eastwardly from the center of the first road crossing ■east of the Thornapple river, and running west 19 degrees south 19 rods and 9 links to a hackberry tree on the right bank of the Thornapple river; thence down said river, on the right bank thereof, to the south line of the aforesaid railway; thence eastwardly along said line to the place of beginning; together with the grist-mill and flume erected on said premises, with the first right of use to the water from the adjacent mill-race sufficient for four runs of millstones, with the necessary machinery for a grist and flouring mill, by the use of water-wheels that shall be as economical in the use of water as those now in use in said mill; (reserving to the party of the first part the free right of ingress and egress across said premises, on the south side thereof; and further, the right to cut a race, or erect a flume, across said premises, provided such race or flume shall not. obstruct the discharge of water from said gristmill or interfere with the privileges of .said mill); provided further, that the water-power herein conveyed to the party of the second part, shall at all times be subject to assessment of its just proportion of all expenses for repairs on the dam and mill-race that supplies it with water, it being-understood by the parties thereto that the whole amount of water in the stream (Thornapple river) is estimated as sufficient for 16 runs of millstones; that said deed was duly recorded in the office of the register of ■deeds, for the county of Kent, on the 6th day of September, A. D. 1858, in liber 13 of deeds, on pages 219, 220 and 221. “And this court doth further find and declare that afterwards, on the 18th day of October, A.' D. 1864, said Samuel Clements did, by warranty deed, for the consideration of $2000, sell and convey to Shad-rack Small, Jr., other parcels of said lands and water-power described as follows: Lots four (4) and five (5), in block four (4), bounded as follows: Beginning at the southeast corner of land deeded to E. Bradfield, known as lot six (6) in said block four (4), on the south line of the Detroit & Milwaukee Railway; thence east 36 degrees south along said railway line (excepting two rods wide for a street known in the plat of the village of South Ada as Mill street) 17£ rods or thereabouts; thence south 36 degrees-west about 9 rods from said railway line to the light bank of the Thorn-apple river; thence following the meanderings of said river at low-water mark and down said stream to the point where the land of E. Bradfield intersects said river; thence east 19 degrees north along said line to the place-of beginning, together with the saw-mill situated on lot five aforesaid,' with the fixtures and appurtenances and water to be drawn from the mill-race on said lot sufficient for three runs ®f millstones, with necessary machinery for a grist-mill and flouring-mill; reserving to the party of the-first part, his heirs and assigns, the right to cut a mill-race across said lot 5, block 4, forty feet in width, for the purpose of convoying water from the mill-pond to propel machinery; the party of the first part, his heirs and assigns, to bridge said mill-race (when so cut) sufficiently for a roadway for loaded teams, and to keep said bridge in repair; also lot 6 in block 1 in the said village of South Ada, reference being hereby made to the recorded plat thereof, in the office of the register of deeds for said county of Kent, for all descriptions of lots and blocks in the foregoing description; the same being lots four (4) and five (5), in block four (4); also lot six (6) in block one (1), according to said plat; and further, the small building now situated on lot five (5), in block one (1), is embraced in the above purchase of the party of tbe second part. “This court doth further find and declare that -by two deedSi one dated October 14th, 1870, and recorded May 11th, 1872, and the other dated February 14th, 1875, and recorded February 19th, 1875, all the rights, title and interest of the said Electa Bradfield in the premises and water-power first above described were conveyed to and became vested in Edward Bradfield, the complainant in this suit. And by deed dated August 17th, A.D. 1868. and recorded August 18th. 1868, Shadrack Small, Jr., conveyed all of his right, title and interest in the premises second above described, to Eliphalet Averill, in trust for himself and Nathan T. Bushnell and James D. Dewell, composing the partnership firm of E. Averill & Co., and on the 24th day of April, 1871, the said Eliphalet Averill personally, and also as trustee for himself and Nathan T. Bushnell and James D. Dewell composing the partnership firm of E. Averill & Co., by deed of that date and recorded April 25th, 1871, conveyed said premises as-above secondly described to Nathan T. Bushnell and James D. Dewell; and that on the seventh day of February, 1872. said Nathan T Bushnell .lid by deed recorded February 29th, 1872, convey said premises to James D. Dewell; and that on the first day of July, 1876, said James D. Dewell! did by deed recorded on the 18th day of August, 1876, convey to. Cornelius K. Russell an undivided half of the said premises; and that on the 19th day of July, 1879, said James D. Dewell and Cornelius-11. Russell did by deed convey said premises to William Currie; and that the defendant Thomas C. Broadbent was, at the the time of the filing the supplemental bill in this cause, using and operating the mill erected on said last described premises, under said other defendants, or one of them, and has diverted the water from said race of which said complainant was-entitled to the first use, so as to prevent said complainant from receiving the quantity of water he is entitled to under said deed. 1 ‘ The court doth further find and declare that the complainant, Edward! Bradfield, is, and since the fourteenth day of October, 1870, has been, entitled to the free and uninterrupted enjoyment of the supply of water' from the race or flume mentioned in said deed from Samuel Clements to> Electa Bradfield sufficient for four runs of millstones with the necessary machinery for a grist add flouring mill by the use of water-wheels that are as economical in the use of water as the wheels in use in said mill on the 19th day of July, 1858, and doth further declare that complainant’s right to use said quantity of .water is first and superior at all times-to that of defendants to use water from said race or canal at any and all. stages of water in said Thornapple river or in said race. That the said water-power conveyed by said deed from Samuel Clements to Electa Bradfield, and the complainant’s rights thereunder, is subject to assessment of its just proportion of all expenses for repairs on’ the dam and mill-race, which this court doth declare to be one-fourth part of such expense, and the court finds that said'complainant has always been ready and willing, and has paid his just proportion of all expenses for repairs on the said dam and mill-race. “ And the court doth further find and declare that at the time of the execution of the deed from Samuel Clements to Electa Bradfield the water which furnished the power for the mill therein conveyed was conducted to the mill by means of a race from the pond caused by the dam across Thornapple river, near the upper end of which race were head-gates to regulate the flow of water into said race; there was another head-gate to the flume of the mill at the lower end of the race, and near the mill conveyed by said deed. The distance between these head-gates was and is 113 feet; that soon after the date of the deed from Samuel Clements to Sliadrack Small, Jr., said Small erected a grist and flouring mill on said race, the superstructure of which extended entirely across said race, and was 36 feet in width, and a distance of 22 feet from the upper head-gates of said race. That portion of the mill which is over the race is supported by two rows of posts, four posts in each row, extending from the bottom of the race to the mill above. On the right bank of the race the mill is supported by a stone wall, and in the race and adjoining the stone wall are six posts. The stone wall at the lower end makes a right angle and projects three feet into the canal or race. The water used to propel the wheels of this mill is drawn from the race through gates directly under the mill. Soon after the mill was erected by Small the water broke through under the gates of his mill, and he thereupon filled in with plank, stone and gravel, the race along in front of his gates, the bottom of the race nearly three feet deep, and extending back near to the center of said race. There are two bridges across said race adjoining-said mill, one on the upper side, which is supported by two posts extending from the bottom of said race, and one on the lower side of said mill is supported by three posts extending from the bottom of said race. “ And this court doth further find and declare that the filling in of said race, and the said posts and stone wall erected and maintained in said mill-race, are obstructions to the free and uninterrupted flow of water in said mill-race to said complainant’s mill, and in low stages of water in said mill-race interferes with and obstructs the free flow of said water to complainant’s mill to such an extent as to deprive him of the quantity of water secured to him by said deed from Samuel Clements to said Electa Bradfield. That said obstructions were not placed in said race by or with the consent or assent of said Electa Bradfield or said complainant, but against their protest. “ And this court doth further find and declare that the said defendants, James D. Dewell, Cornelius K. Russell, William Currie and Thomas C. Broadbent, have dx-awn away thx-ough their gates the waters from said mill-race and diverted the same from the said complainant’s mill during the times sot forth in said complainant’s original and supplemental bills of complaint so that said complainant has not had sufficient water from said mill-race for four runs of millstones with the necessary machinery for a grist and flouring mill by the use of water-wheels that were as economical in the use of water as those in use ixx said mill on the 19th day of July, 1858, and have interfered with the x'iglxts of said complainant to the first right to use the water from said mill-race within the. limits and quantities granted in and by said deed from Samuel Clements to said Electa Bradfield by diverting said water fx-om said mill-race, and drawing the same from said mill-x-ace through their gates xxnder their said mill, as well as by maintaining said obstructions in said mill-race as aforesaid. “ And this court doth further find that the wheels in use by complainant during the time mentioned in said bill of complaint were and are as economical in the use of water as were those in use in said mill on the 19th day of July, A. D. 1858, and that he has not used and does not use water exceeding the quantity to which he is entitled under said ■grant from said Samuel Clements to Electa Bradfield. “ And this court doth adjudge and decree that the bill of complainant be dismissed as to the defendant William Bennett, and that he recover as •costs against the complainant a solicitor’s fee of thirty dollars. “And it is ordered, adjudged and decreed that the said defendants, James D. Dewell, Cornelius K. Russell, William Currie and Thomas C. Broadbent, their agents and servants and each of them be and are perpetually enjoined and restrained from interrupting or interfering with the said supply of water for complainant’s mill from said mill-race sufficient for four runs of millstones, with the necessary machinery for a grist and flouring mill by the use of water-wheels that shall be as economical in the use of water as those in use in said grist-mill at the date of the -deed from Samuel Clements to Electa Bradfield, namely, July 19th, A. D. 1858, and from interrupting or interfering with the first right to the use of said supply of water by said complainant at any and all times,, and from diverting or drawing off said water from said mill-race so as to interrupt or interfere with said supply of water or the first right to the use thereof at complainant’s mill. “ And the said defendants, James D. Dewell, Cornelius K. Russell and William Currie are hereby enjoined and restrained from placing obstructions in said race and from maintaining any obstructions in said race whereby said supply of water is or may be wholly or partially interfered with, and from in anywise infringing or permitting to be infringed said complainant’s right to said supply of water. But nothing in this order ■or decree is to extend to dimmish, lessen, hinder or prejudice the using or enjoying by defendants the water and rights granted by Samuel Clements to.Shadrack Small, Jr., by deed bearing date October 18th, 1864, out of any surplus of water there may be in said mill-race over and above the supply and rights as herein declared granted by said Clements to Electa Bradfield by deed dated July 19th, 1858. And it is further ordered and decreed that a writ of injunction be issued in accordance with this decree enjoining and restraining the said defendants as aforesaid. “And it is further ordered that complainant do recover of the said defendants, Dewell, Russell, Currie and Broadbent, his costs of this suit to be taxed, and that he have execution therefor.” Birmey Hoyt, Circuit Judge.

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Ooolet, J. This is a foreclosure suit. After decree entered for the complainants, sale was made under it, and subsequently on petition of the defendant it was set aside. From the order setting it aside appeal is taken by the complainants and also by the purchasers. From the petition it appears that defendants had filed an answer in the case, and after the cause was put at issue, •complainants’ solicitor gave notice for the taking of testimony before a commissioner in a different county from that in which the suit was pending. Defendants’ solicitor, not recognizing the right to take testimony out of the county, paid no attention to this notice; and one of the supposed errors in the proceedings on which the petitioners roly, is the taking of testimony under this notice. But it is familiar practice to take the testimony of witnesses in chancery cases in the county where they reside; and there is no doubt of ■the right. Another objection is that the defendants’ solicitors had no notice of final hearing. They admit, however, that notice of hearing was served upon them for the October1 term of the court, 1880, but they say that they watched the proceedings of that term and were not aware that the case was ever called up. The decree entered in the cause is-entitled of the October term, and recites that it was made-after an argument in which defendants’ solicitors participated, but it was not actually filed until the January following ; and an error in it being then discovered, complainants’’ solicitor served notice of an application to correct it for the-March term, 1881. No notice was taken by defendants of’ this application, and the decree was corrected. If defendants had in fact been taken by surprise in the previous proceedings, this application afforded them an opportunity to make known the fact and have errors and especially the* false recital in the decree corrected, and if they expected to rely upon previous errors, they were guilty of laches in not' moving at the March term. The only excuse now made-for their delay is that they supposed the appearance on that application would operate as a waiver of rights; but it is scarcely credible that this is seriously presented. It certainly does not deserve serious consideration. A sale was made under the decree May 31, 1881, and the petition to set it aside was presented August 8, 1881. It is-manifest from these dates that if defendants had anything to complain of in the proceedings antedating the sale they had ample opportunity to interpose objections and have the-sale stayed, and they ought to be able to present some very satisfactory reasons for permitting a sale to be made under-such circumstances if they intended to contest it afterwards. But they give no excuse -whatever, and have therefore-no equity for relief unless it is to be found in the sale-itself. The complaint of the sale is that the lands were sold for an inadequate price. The showing is not satisfactory, and. when all the affidavits are considered, we do not think any fair case has been made against the sale. Moreover some of the defendants have released since the petition was-presented. We think the order setting aside the sale should be; vacated with costs. The other Justices concurred.

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Graves, C. J. The only question presented by this case is whether the wife during the continuance of the state of marriage is a competent witness for her husband in a suit for criminal conversation. By the common law she was incompetent, and she still remains so unless the rule has been abrogated by the Legislature, and we think this has not been done. The enactments to remove disabilities and liberate the law of evidence from many of its ancient fetters must be considered together. They compose a common scheme intended to prescribe in more or less general terms the doing away of common-law rules of incompetency, and at the same time are intended to declare certain limitations and- excéptions which should not be passed or disregarded. It may be admitted that the broad terms used in that part of the scheme which is employed in taking away disabilities, would, if viewed entirely by themselves, so operate as to render the wife competent in an action of this kind. But such an application of the statute would be a plain misuse of it. Recourse must be had to those parts intended to restrain and cut short the generality of the others and make exceptions thereto. Of that kind is the last clause of Oomp. L. § 6969, which provides that in “ any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.” This appears to the Court as a clear expression by the Legislature that the clauses removing incompetency should not extend to such a case as this. The ruling below was correct, and the judgment is .affirmed with costs. The other Justices concurred.

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Cooley, J. Replevin for a stock of drugs and groceries. The property was taken on the writ and delivered to the plaintiffs. The defendant was personally served with process, and appeared and pleaded the general issue to the -declaration. On the trial the plaintiffs claimed a right to the possession of the property under a chattel mortgage given by one ■Silsbee, the former owner; but it appeared that one Lewis had a prior mortgage covering a considerable portion of the goods, if not all of them, and that Lewis claimed to have taken possession under it. The question, therefore, on the merits was, whether Lewis or the plaintiffs had the better right under their respective mortgages. The defendant not only set up no right in the goods himself, but he denied that he was in possession of them when the writ was issued or when it was served; and on the trial he gave very positive and circumstantial evidence in support of the denial. In submitting the case to the jury the circuit judge called attention to this evidence, and instructed the jury that if defendant was not in possession, as he testified he was not, the action could not be maintained, for in that case he was not guilty of the detention. He also gave appropriate instructions respecting the rights claimed by the'plaintiffs to govern the action of the jury in ease they found an unlawful detention by the defendant. The jury returned a verdict finding simply that the defendant did not. unlawfully detain the goods. Under the evidence and the instructions given to them they could have meant by this no more than that the defendant was not in possession when the suit was instituted. The trial judge, however, supposed the verdict incomplete, and sent the jury back with instructions to assess the value of the replevied property. This they did, and judgment was entered for the defendant for the return of the property. Now it is apparent that the defendant can have no just claim to collect this judgment. Weber v. Henry 16 Mich. 399. He set up no claim to the goods, or to any interest therein, and he did not defend in the right of any one' else. He had no claim to have the goods restored to him, because they were not taken from him. And surely he can have had no right to make them indirectly his own, and recover their value by showing that he had been wrongfully charged with intermeddling with them. When the defendant established the fact that he was not in possession when suit was instituted, he showed that he was entitled to have the ease dismissed out of court, and to recover his costs. But this was the extent of his right. The first verdict of the jury was correct, and the judgment is right so far as it follows that verdict. But the judgment for the return of the property must be reversed with costs-of this court. The other Justices.concurred.

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Cooley, J. This is a summary proceeding for the recovery of the possession of lands. It was begun before a circuit court commissioner by a complaint, sworn to March 6, 1880, upon which a summons issued the next day. The defendant pleaded in abatement the pendency of a former proceeding, begun October 1, 1879, before a justice of the peace, tried October 15, 1879, resulting in a judgment for complainant, which was appealed to the circuit court, where it is now pending and undetermined. The complainant took issue upon this pléa, and the commissioner returns that he overruled it and gave judgment for complainant. The defendant then took an appeal to the circuit court, and in that court moved to dismiss the proceeding, which was-done. The complainant has thereupon brought the ease to this court. The dismissal is claimed to be correct — First, because the-complaint in this case was so defective as not to confer jurisdiction ; and second, because of the pendency of the former proceeding. The supposed defect in this complaint is that it fails to-show a cause of action at the time the proceeding was instituted ; it being sworn to one day before the writ issued. This is supposed not to be in compliance with the statute,, which requires a complaint in writing showing that the person complained of “ is in possession,” etc. Comp. L. § 6707. There are some cases where it has been held that a statute-requiring a certain state of facts to be shown at the time-suit was instituted was not complied with by a showing that the facts existed on a prior day; Wilson v. Arnold 5 Mich. 98; but in this case the statute merely prescribes what the-complaint shall set forth; and it is not suggested that the complaint itself is defective. The argument is that, though sufficient to support a warrant on May 6th, it was not sufficient on May 7th. We do not agree in this. Had there-been any considerable delay the complaint might be deemed abandoned, and so have become functus officio, but there is-no valid reason for so holding where the delay is for a day only. We also think the circuit court should not have dismissed the case because of the supposed pendency of another proceeding for the same cause. The issue upon the plea in abatement was not tried, and it could not be known until trial that if such a former suit was still pending the causes of action were the same. It was legally possible that a new cause of action had originated since the institution of the former proceeding. The order of dismissal must be reversed with costs, and! the record remanded. Campbell and Marston, JJ. concurred.

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Marston, J. Delator applied for a mandamus commanding the respondent to approve'the administrator’s bond in the matter of the estate of Miriam Harris executed by relator as principal and Pathbun and Burch as sureties, and filed in said court November 23, 1880, and to issue to the relator letters of administration in the matter of said estate. In obedience to an order to show cause, the respondent makes return, denying upon information and belief the responsibility of the principal and sureties mentioned, and that he had previously informed the relator that he, the judge, should require the sureties to justify on oath, unless they were known to the court, and especially if either of them resided out of the county of Ottawa. The principal and sureties resided in Kent. Many things are set forth in the petition and answer wholly foreign to the matter at issue; the simple question being whether the respondent should be directed to approve the bond of November 23d and issue letters to relator. That the probate judge should exercise a sound discretion in passing upon the question as to the sufficiency of bonds submitted to him for approval is evident. And he may in the exercise of such discretion require the sureties to justify as to tbeir pecuniary responsibility, and certainly should do so, where unknown to him or where he has any doubts as to their financial standing. He has no right to act arbitrarily in the matter and refuse to approve a bond about which no reasonable doubt could exist, and in the absence of a clear showing to the contrary we cannot presume that lie would do so. In this case the answer satisfies us that the judge acted properly. Had the sureties appeared and justified, it might appear therefrom that the bond should have been approved. It could only be in a case involving an abuse of discretion that this court would interfere. The writ must be denied. Cooley and Campbell, JM. concurred.

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Marston, J. The complainant, as a judgment creditor of Alvin Hosmer and others, filed the bill of complaint in this case to reach two parcels of real estate alleged to have been fraudulently conveyed by said Alvin, one parcel to defendant Harriet Hosmer and the other to defendant Mary Westbrook — or rather, in regard to Harriet Hosmer, to reach certain property purchased with the avails of the farm alleged to have been fraudulently conveyed to her. It appears that on the 8th day of March, 1876, and for a long time prior thereto, Alvin Hosmer was the owner of what is called the “ Home farm,” which was unencumbered and of the value of eight thousand dollars and upwards, and also of a certain eighty-acre lot, held on a University Land certificate on which there was upwards of six hundred dollars unpaid. On March 8th, this certificate was assigned by him to his sister Mary Westbrook in consideration, it is claimed, of $1000, and on the same day the Home farm was conveyed to Harriet Hosmer, another sister, for a consideration as agreed upon, and as set forth in the deed, of $8000. On the twenty-third of June, 1876, Harriet sold the Home farm to Joseph Bently for $9000, and on July 17th the city lot which is sought to be reached was purchased in the name of Harriet Hosmer, and improvements afterwards ■made thereon, amounting in all to over twenty-five hundred dollars. * In so far as these several' transactions are in issue, we have no doubt whatevei’, from the testimony touching the facts relating thereto, but that complainant is entitled to the relief sought. When we consider all these matters, the pecuniary circumstances of all the parties, their relation to each other, that two important sales of all Alvin’s property were made on the same day — one of them without any previous negotiations or even reference thereto having taken place, and the parties as to that parcel, the University lot, having met, as though by chance, on that day, at the house of a relative, and that but little had been said previous to that day about the sale of the Home farm, — and when we look at the way in which the respective considerations were paid, and trace a large part of the Bently consideration for the Home farm into Alvin’s hands and the expenditure thereof upon the improvement of the city lot, we can have no doubt upon this branch of the case. An extended discussion of ail the facts we consider unnecessary in this class of cases. Several legal objections are raised to the right of complainant to obtain relief, and these so far as deemed important will be considered: First. It is claimed that the bill sets forth the recovery of judgments in the two suits referred to therein, while the proof shows that the judgments recovered on that day were afterwards vacated and judgments entered in the same cases on March 19th, which was beyond the power of the court,, without a new inquest or trial. An examination of the record shows that the judgment of March 19th was for the purpose of correcting the judgment entry of March 7th so that it would conform to the- judgment ordered by the court on that day. It does not appear that counsel had no notice of such correction or that it should not have been made, and the only question that can arise in relation thereto in the present controversy would be one of variance between the date of the judgment as set forth in the bill of complaint and proven on the trial. It is not claimed, and indeed could not very well be, that counsel were at all misled by this variance in dates, and were it material an amendment could have been made at any time during the proceedings in the present case. This, however, we do not deem necessary, as the complainant was not confined to the exact date alleged in the bill. In all other respects the judgment was correctly referred to and was sufficient to permit the introduction of the .proofs upon that matter. Second. It is next urged that complainant did not show proper diligence in the pursuit of his remedy at law upon the executions. The fact that the sheriff may have levied upon personal property claimed by and afterwards replevied by third parties, could not bind the complainant to either await the result of sueli suit or to defend the same. If the complainant herein, — the plaintiff in the judgments and in whose favor the executions issued, — had directed the levy, or that the property levied upon belonged in whole or in part, at the time of the levy, to the execution defendant, it might then become material to examine the effect of such a levy, but no such showing has been made. It is a levy upon the debtor's goods that operates prima facie, as a satisfaction, and the facts do not show such a levy to have been made in this case. Neither would the fact that real estate of one of the defendants in the judgments was levied upon, — which it is alleged and admitted, by the answers in this case, had been fraudulently conveyed before such levy, — prevent complainant from proceeding in the present case. The complainant is under no obligation to follow all the fraudulent conveyances made by the several execution defendants, but may seek to have some of them set aside and permit the others to stand. The fraudulent grantees cannot insist upon any such equity in their behalf. Neither would a levy upon the judgment debtor’s equity of redemption in certain real estate about to be sold under a mortgage foreclosure, and which equity expired before a .sale could be made under the execution, prevent the complainant from proceeding in this case. The mortgage was foreclosed in chancery, and the property sold and bid in by the complainant in that case, before a sale could be made by the sheriff under his levy. The execution creditor’s right is not thus cut off from looking to other property of his debtor which had been fraudulently conveyed. After a careful examination of the record, and consideration of the questions raised by counsel in behalf of the defendants, we are of opinion that the decree of the court below must be affirmed with costs. Cooley and'Graves, JJ. concurred. Campbell, J. I do not think any fraud is made out ■against Harriet Ilosmer or Mrs. Westbrook, who are the parties chiefly concerned on this hearing. Both of them paid a full price for the land they purchased, and there is nothing that has impressed me with the idea that any one •whatever had then any wrong purpose. When the sales were made Alvin Hosmer was ont of debt, and did not contemplate incurring any on his own behalf. If he then expected — and of this'there is no satisfactory proof — to join the other parties as endorsers or sureties on the paper subsequently given, there is nothing to indicate that his-grantees knew it, and nothing in my judgment to show that he designed or supposed that the sales could in any way jeopard the bank. Nothing but actual fraud, in which the grantees shared, could avoid their grants, and I do not-think it made out.

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Cooley, J. The plaintiff, who is guardian for William Henry Fairman, an incompetent person, sues to recover a sum of money claimed to be due to the ward on a sale of land to the defendant by one Iliram Fairman. The evidence for the plaintiff is as follows: Mrs. Lydia Fairman testified: • “Iliram Fairman was my son. He is now dead. William Henry Fairman is my. son, and is now living. My son, William Henry Fairman, had some property left by my husband ; a small piece of land which had been set out to him. He had some money from his father’s estate. Never had any money after his father’s death,only a little I gave him. This three hundred and fifty dollars he loaned his brother. That was his own money. lie let his brother Iliram have that $350 for the purpose of paying towards his land. He let him have it with the agreement that when he sold it ho would pay him back his money. William Henry was to have his money back again when Iliram sold it; between us there was no writing, but between us, it was the agreement that when he sold it he should have his money'back again. His brother Iliram had some money belonging to William Henry, for the purpose of paying it on a piece of land, which he did. Iliram afterwards sold the land to the defendant, Mr. Chappel. William Henry was to have his portion of the money out of the land when it was sold. The land was taken in Hiram’s name. William Henry-put in there or loaned Iliram three hundred and fifty dollars towards the purchase of that land, and it was held by him two or three years. The amount of William Henry’s money which was invested in this land in Hiram’s name was three hundred and fifty dollars. This land was conveyed by Hiram Fairman to the defendant, Mr. Chappel. William Henry did not get his money back again out of the land.” Nathaniel Kenyon testified: “ Know the defendant in this case ; know William Henry Fairman; knew Iliram Fairman in his life-time ; knew the piece of land spoken of by the last witness, Mrs. Lydia Fair- man, which was purchased in the name of Hiram Fairman ; Hiram Fairman sold that land to the defendant, Lester Chappel; at one time the defendant, Hr. Chappel, and I were talking about the land; it was at the time that Hiram was talking about selling it and before he sold it; I told the defendant that "William Henry had an interest in that land; he said he knew it. I told him he must not buy unless William Henry’s money was secured, as William Henry was not competent to do business for himself; that is a fact; William Henry was not competent, and has not since then been competent to do business for himself; he was an incompetent at the time of the conversation, which was before the sale to the defendant, and has been an incompetent ever since.” George A. Starkweather testified: “ I drew a deed of some land situated in the township of Plymouth, by which Iliram Fairman conveyed the land to Lester Chappel, the defendant; at the time of making that deed there was a conversation between Hiram Fairman and the defendant, Lester Chappel, in relation to an interest Hiram Fairman’s brother had in the land ; the brother was William Henry Fairman ; he was regarded as an imbecile; the arrangement between Hiram Fairman and the defendant was that defendant should not pay the full consideration for the land ; a portion of it was to remain in defendant’s hands; the sum mentioned to thus remain was five hundred dollars; it was to belong to William Henry Fairman, and was to be paid to him whenever the opportunity occurred, so that it could be properly paid, or whenever there was. any person who could properly and legally receive it.” The circuit judge instructed the jury that plaintiff’s evidence made out no case; and they accordingly gave their verdict for defendant. It is plain that no case is made out on the the testimony of the mother. The original transaction manifestly was in the nature of a loan by William Henry to Iliram, and the former had no interest in the land, but merely expected to be paid from the proceeds when the land was sold. The case then must stand on the evidence of Starkweather as to the arrangement made when the land was sold. This evidence is supposed to show money in defendant’s hands belonging to the plaintiff; but it shows nothing of the sort. It shows only that on a sale of land by Hiram upon which a sum of money became due to him from defendant, it was understood this obligation should be discharged by payment to a third party. The case is therefore strictly within Pipp v. Reynolds 20 Mich. 88, and the cases which have followed it. See Hunt v. Strew 39 Mich. 368, and cases cited. The action is not maintainable. There is nothing else in the case and the judgment must be affirmed with costs. Graves, C. J. and Campbell, J. concurred.

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Marston, J. This case was tried by the court without a jury. A bill of exceptions was settled, but no written finding of facts was asked for or made. Exceptions were taken to rulings made upon the admissibility of certain testimony, but no reference whatever is made thereto in the brief of counsel. We must assume therefore that they have been abandoned. The argument submitted is upon the merits, based upon facts appearing in the bill of exceptions. It is almost needless to say that this court cannot review the facts or evidence in the case. As no question has therefore been presented to this Court which we can consider, the judgment must be affirmed with costs. The other Justices concurred.

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Graves, C. J. Keith & Holland claimed that in January, 1877, they concluded an agreement with Pea & Hale, by which they, said Keith & Holland, were to furnish during that winter at or near Stony Point, on the shore of Lake St. Clair, in Ontario, at the rate of $3 per M. feet, 500 M. feet more or less of good sound elm logs of first-class quality and fourteen feet and a half in length and not less than eighteen inches in diameter; and that Pea & Hale were to take the logs so furnished and pay therefor in Canada currency or its equivalent in United States currency, that is to say, $500 down and the remainder on delivery of the logs. They further claimed that pursuant to this agreement they furnished 473 M. feet and that the supply of that quantity constituted full performance on their part and entitled them to require Pea & Hale to take said quantity as a fulfilment of the agreement and to pay therefor according to the rate and manner stipulated. That 300,000 feet were actually taken and paid for, but the remaining 173,000 feet were refused. They brought this action on the contract to recover damages of Pea & Hale for their failure to take and pay for said residue and were allowed to recover, and the defendants below, being dissatisfied, have brought error. Among the points specially noticeable two relate to the terms of this agreement. The first is that the description of quantity, viz.,’“500,000 feet more or less” was incurably indefinite and rendered the entire agreement non-obligatory; and the second is, that supposing the agreement was binding, still the deviation from the positive quantity named was greater than the qualifying expression authorized, and hence the defendants in error were, by their own admission, in default, and the plaintiffs in error were not bound to take any more than suited their pleasure. Neither of these positions requires many words. As to the first, it was a distinct part of the understanding of the parties that the agreement in regard to quantity shoiild not fix the precise number of feet which the defendants in error should be bound to furnish. The intent was that they should be allowed to deviate somewhat from 500,000 feet and that the plaintiffs in error should be bound to take whatever quantity should be furnished within the limits to which the deviation might properly extend, and it was certainly competent for the parties to bargain in that way. The agreement was not prima fcieiev oid. Brawley v. United States 96 U. S. 168; Cabot v. Winsor and another 1 Allen 546; Moore v. Campbell 10 Exch. 323: 26 E. L. & E. 522; Bourne v. Seymour 16 C. B. 337: 32 E. L. & E. 455; Cockerell v. Aucompte 2 C. B. (N. S.) 440: 40 E. L. & E. 279; Morris v. Levison 1 C. P. Div. 155: 16 Eng. 496; McConnel v. Murphy L. R. 5 Priv. C. 203; 8 Eng. 164; Benj. on Sales §§ 691, 692. The question of construction is distinct and the second point presents it. It is not difficult. Where parties enter into executory arrangements for the sale of chattels to be obtained subsequently by the seller and designedly leave the exact quantity unfixed and see fit to remit its ascertainment to the future act of the seller under and subject to a stipulation that it is to be so much “ more or less,” their practical construction of it ought to have great weight. Several facts of importance are undisputed: Keith & Holland informed Rea & Hale that they had furnished 413,000 feet and that the agreement was thereby fulfilled. What did Rea & Hale do ? Did they object that the quantity was not sufficient to satisfy the agreement? Did they refuse to have any of the logs and repudiate the arrangement? Nothing of the kind. They sent Baxter and Fairchild to scale the logs and the former scaled 358,000 feet and the latter a further quantity. But this is not all. They broke in upon the mass and actually took away some 300,000 feet and not only paid therefor, but for several thousand feet more. It would be difficult to reconcile this conduct with the notion that the 473,000 feet were not mutually considered as meeting the call for 500,000 feet, more or less. But if it be regarded as a question to be settled on authority, the result is the same. The deviation was quite within the degree the courts have held to be reasonable. Cabot v. Winsor and another, and Morris v. Levison, and McConnel v. Murphy, supra. It appeared that in March, 1877, one Aubin, who had got out a parcel of the logs and was employed also by Keith & Holland as their agent in some other matters, sold 21,000 feet to Pike & Kichardson. And among the requests refused were two which proceeded on the assumption that the case contained evidence showing or tending to show that these logs never belonged to Keith & Holland and were not under their power to tender on the agreement. The assumption was not authorized. The evidence was clear and not open to controversy that these and all the other logs were got out by third persons with the express understanding that they were to meet the •contract with Rea & Hale, and be handed over to them in execution of that agreement as soon as ready, and the showing was equally explicit that when Rea & Hale were informed in February that the whole quantity was ready ■and they were requested to take the logs away and make payment, this lot was included and at their disposal, and besides this showing, the further fact was testified to, and not denied, that the sale made by Aubin to Pike & Kichardson in March, and after said notification to Kea & Hale, was with the express assent of the latter. The agreement sued on was oral and on its completion the parties separated. Kea afterwards drew up a writing which he claimed to be an exact embodiment of the unwritten agreement, and desired Keith & Holland to sign it. They did not assent to its accuracy and refused to sign it. On the trial Kea produced a paper which he claimed to be the .same and offered to make it evidence of the true agreement. The court on objection excluded it. This was correct. It was no more than Ilea’s personal declaration. He had prepared the paper and retained it, and no assent by Keith & Holland had been given to it. Moreover if it was the same that he had tendered for their acceptance they had expressly dissented. It was not within any rule permitting writings prepared and kept exclusively by the party offering them and unassented to by the other, to be put in evidence. Flood v. Mitchell 68 N. Y. 507. In connection with the offer of this writing or as part of the same general subject certain notes, by the stenographer, of Holland’s testimony on a former trial were read and immediately stricken out on motion. This was right. They had no place in the actual contention. It is not certain they would have been admissible in any view. But apart from the writing referred to they were wholly irrelevant. It is also a matter of complaint that the court neglected to direct the jury, as requested, to allow nothing for difference between the money of the United States and of Canada. It is not pretended that there was any difference in point of fact and the effect of the charge was to leave the case as though none existed. The exception has no force. There was evidence that after Kea & Hale made default the remaining logs were sold by Keith & Holland to another, and among the numerous requests to charge the following was preferred: “ That the plaintiff's had no right to sell the logs in question without notice to the def endants? and if the jury believe they did so, that was a rescission of the contract in this suit and the plaintiffs cannot recover. ” It is now generally assumed that where the agreement is silent in regard to it and no special incidents appear to con tend for it and where the extent of the vendee’s liability is not to be unalterably decided by the price obtained, no-notice of the re-sale itself is necessary. On the other hand it is held by high authority that to entitle the vendor to proceed by re-sale instead of rescission or by action for the whole agreed price or actual consideration, he must manifest his election.by preliminary notice that he intends to sell and hold the vendee for the loss, or notice to that effect. This notice it will be observed is not a notice of re-sale, but a notice that the vendor will assert the right of re-sale and bind the vendee by the price obtained. The application of this doctrine, requiring notice of an election to re-sell, is now urged by Rea & Hale, who insist that the trial judge in neglecting the above request disregarded it and committed error. No complaint as we understand is made of the treatment of the request as one dealing with the subject of notice of re-sale itself, and it is plain that no ground exists for any. Are these parties entitled to-question the action of the trial judge on the other ground ? We think not. Hnder the practice pursued the subject is-not open. The request was equivocal. It fell short of indicating with any distinctness that the notice alluded to was-notice of election to re-sell rather than notice of actual re-sale itself, and the inference is pretty strong that the judge understood the request as referring to a notice of re-sale only, and shaped his directions to the jury on that understanding and no exception was taken to the charge actually given on this part of the case. As the request was fairly open to such construction and the conception of it by the judge was apparent,. or it was obvious at least that the request had not drawn his mind to the application of it now insisted on, and no offer whatever was made to explain it, it would be hardly reasonable to permit it to be read' herein another sense for the purpose of breeding error, if such would be the result. But this is not all. The very fact that the request was ambiguous and liable to mislead is a. sound reason for deeming its rejection not sufficient for a charge of error. The request should have clearly shown, which notice was meant. Error is alleged on the exclusion of the offer of certain evidence. The complaint is that Eea & Hale were cut off by it from recouping damages. The point is not maintainable. Had the facts embraced in the offer been established' the event would have been the establishment of an agreement wholly distinct and different from that set up by Keith & Holland, and which they were bound to substantiate or fail in the action, and no damages arising from the breach of another and wholly different agreement could be recouped. Thompson v. Richards 14 Mich. 172. The claim seems to be made that the refusal of certain requests in some way prejudiced Eea & Hale’s right of set-off. The suggestion is not very clear. -But it is enough to say without going further that the case did not authorize the remedy by set-off. The action was for the breach of a, special agreement and brought to recover unliquidated damages, and was therefore founded on a demand incapable of being the subject of set-off. Comp. L. § 5796; Smith v. Warner 14 Mich. 152. All the questions worthy of notice have now been considered. The charge to the jury was fair and there is nothing in the record to call for any interference with the-result. The judgment is affirmed with costs. The other Justices concurred.

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Per Curiam. Defendant corporation owned a large tract of land situated in tlie township of South-field, county of Oakland, Michigan. On June 17, 1968 the parties entered into an agreement for the sale and purchase of the property in question. Paragraph 5 of the agreement contained the following language: “If objection to the title is made, based upon a written opinion of purchaser’s attorney that the title is not in the condition as required for performance hereunder, the seller shall have 30 days from the date he is notified in writing of the particular defects claimed, either (1) to remedy the title, or (2) to obtain title insurance as required above, or (3) to refund the deposit in full termination of this agreement if unable to remedy the title or obtain title insurance. If the seller remedies the title or shall obtain such title policy within the time specified, the purchaser agrees to complete the sale within 10 days of written notification thereof. If the seller fails to remedy the title or obtain such title insurance or to give the purchaser the above written notification within said 30 days, the deposit shall be refunded forthwith in full termination of this agreement.” Before execution of the land contract, defendant discovered that it could not convey a valuable portion of the land Avhich constituted 0.241 acres. Defendant could not remedy the title and after negotiation notified the purchaser that the agreement was terminated without liability according to the terms of the contract. There was no return of the down payment because defendant never accepted the down payment. The only question presented in this appeal is whether the court erred in construing the terms of the purchase agreement giving to defendants the right to terminate the agreement. This case is squarely controlled by DePropris v. Smith (1955), 342 Mich 457. In that case the Supreme Court answered the identical question in the negative. That decision is binding on this Court. Affirmed. Costs to defendant.

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Levin, J. The question presented in this action by a bank against a guarantor of payment of a promissory note is whether the parol evidence rule bars testimony that the bank agreed that it would not honor any check drawn on the borrower’s checking account with the bank unless it was countersigned by the guarantor. The bank commenced this action on a $12,000 promissory note signed by one of the defendants, William J. Kahlich, Inc., the borrower. Also named as defendants were Craig Holland and William J. Kahlich who signed a separate written guaranty of payment. The bank obtained a judgment against the borrower for the entire indebtedness, and partial payment reduced the balance owing to $9,665.10. The bank then moved for summary judgment against Craig Holland, claiming that he had not stated a valid defense and that there is no genuine issue of material fact. The motion was denied and the bank appeals on leave granted. In his answer to the complaint Holland admitted execution of the guaranty agreement but denied “any inference that said guaranty is the only instrument or agreement pertinent to such guaranty being issued”. His answer also states a counterclaim; he alleged that in connection with the execution of the guaranty and to secure him against possible loss the bank agreed that his signature would be required on all checks issued against the borrower’s commercial checking account with the bank, and that pursuant to this agreement a signature card was signed by William J. Kahlich and Holland. Holland further alleged that subsequently William J. Kahlich signed a new signature card providing for the countersignature of his wife and that thereafter the bank paid checks not countersigned by Holland. Holland claims that when he learned this he complained to a bank officer and was informed that until the matter was resolved no further checks would be cleared against the account, in which there was then a balance of approximately $8,000. Nevertheless, Holland claims that these funds were later paid out without his authorization. Neither the bank’s motion for summary judgment nor the supporting affidavit challenges the factual allegations in Holland’s answer and counterclaim. Holland responded to the motion for summary judgment by admitting liability under the guaranty but denying that he was liable in the amount stated. He reasserted the allegations in the counterclaim regarding “the establishment of the dual signature checking account and the guaranty by the bank to hold the approximate sum of $8,100 after notice [and contended that this] constituted the establishment of a constructive trust” and that there was a genuine issue of material fact concerning the amount of his indebtedness to the bank. The bank contends that the parol evidence rule bars admission of testimony in support of Holland’s claim that the bank agreed that his signature would be required on all checks drawn against the borrower’s cheeking account. The bank additionally contends that since Holland had no interest in the funds in the borrower’s bank account he has no standing to ask that a constructive trust be established in respect to such funds. Holland’s claim of a constructive trust is, we think, a clear misnomer. A constructive trust arises by operation of law. It is a remedial device “through which the conscience of equity finds expression”. It does not depend on the agreement or intention of the parties. Professor Scott writes that, “A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. # # * A constructive trust is not based upon the intention of the parties but is imposed in order to prevent one of them from being unjustly enriched at the expense of the other”. 5 Scott on Trusts (3d Ed), § 462.1, p 3415. (Emphasis supplied.) Holland relies on an express agreement. He does not claim that the bank unjustly enriched itself when it honored directions from the Kahlichs to pay funds in the checking account without Holland’s signature. The trial judge did not clearly err in ignoring this misnomer. It is apparent, both from Holland’s answer to the complaint and his answer to the motion for summary judgment, that he was relying on an express agreement. We now address ourselves to the bank’s contention that the alleged oral agreement regarding Holland’s countersignature may not be proved because of the parol evidence rule. Under the parol evidence rule, a writing that has been adopted as a complete integration of the terms of a contract may not be varied by evidence of negotiations or understandings that preceded its adoption. However, implicit in the premise that the rule applies only to the extent the writing has been adopted as a complete integration is the concept that contracting parties can agree to reduce some provisions to written form and leave others unwritten, trusting the latter to oral expression. Since a writing cannot prove its own completeness, parol testimony is admissible to show the circumstances under which an agreement was made: “The very testimony that the ‘parol evidence rule’ is supposed to exclude is frequently, if not always, necessary before the court can determine that the parties have agreed upon the writing as a complete and accurate statement of terms. The evidence that the rule seems to exclude must sometimes be heard and weighed before it can be excluded by the rule.” 3 Corbin on Contracts, § 582, p 450. We recently said: “The parol evidence rule is not designed to preclude proofs of other agreements between the parties not expressed in the writing or inconsistent therewith.” S. F. A. Studios, Inc. v. Docherty (1968), 12 Mich App 170, 173. The principle that parol evidence is admissible to show a separate agreement when the writing relied on represents a partial, not a complete, integration of the entire agreement is applicable to contracts of guaranty as well as other contracts. In Piasecki v. Fidelity Corporation of Michigan (1954), 339 Mich 328, the plaintiffs had assigned the mortgagee’s interest in personal property to the defendant and had in writing guaranteed payment to the defendant of the secured indebtedness. The rights of other creditors intervened before the mortgage and the assignment were recorded. The plaintiffs commenced the action to recover for the diminution of the security and increase in their exposure to liability to the defendant caused, they said, by the defendant’s breach of a duty to record the papers. The Michigan Supreme Court held that the plaintiffs should be allowed to prove by parol evidence that the parties intended that the defendant (the party guaranteed) would have the obligation of promptly recording the papers. We are in agreement with the trial judge that the question whether the written guaranty was adopted by the parties as a complete integration of their agreement could not be resolved without hearing the testimony of the parties. He therefore properly denied the motion for summary judgment. The bank’s reliance on Reyburn v. Goodrich (1940), 292 Mich 91, is misplaced. There the defendant guarantor sought to prove that the plaintiff (the person guaranteed) had orally obligated himself to sell pledged collateral upon default in payment of the guaranteed note in the face of a provision in the written pledge agreement authorizing the plaintiff to do so. Here, in contrast with the cited case, Holland does not seek to establish an agreement inconsistent with any provision in the written guaranty, but rather to show a separate agreement regarding the disbursement of funds from the borrower’s checking account. The bank further claims that there is a provision in the guaranty agreement relieving it of responsibility for paying funds from the checking account. The provision relied on reads: “Failure of bank to preserve any rights which it may have in, or to any collateral security shall not constitute a defense hereunder to any claim against the undersigned.” Apart from the fact that it has not been shown by affidavit or otherwise that the funds in the checking account were collateral security for the payment of the borrower’s indebtedness to the bank, Holland’s counterclaim and defense is not based on the bank’s failure to preserve any right which it may have in collateral or to resort to the funds in the account for the payment of the indebtedness. Rather it is Holland’s claim that the bank permitted this asset of the corporation to be depleted without his authorization in violation of an express agreement. It may be, as the bank contends, that the alleged agreement relied on by Holland would be inconsistent with its contractual obligations to its customer, the borrower. However, such a conflict does not preclude the possibility that it, nevertheless, entered into the claimed competing agreement with Holland. Affirmed. Costs to defendant Holland. All concurred. It appears from a photocopy of a signature card in the record that Mrs. Kahlich may have signed the signature card previously signed by her husband and Holland. This signature card provided that two signatures were required on each check. Beatty v. Guggenheim Exploration Co. (1919), 225 NY 380, 386 (122 NE 378). Kent v. Klein (1958), 352 Mich 652, 656; Digby v. Thorson (1948), 319 Mich 524, 539; Stephenson v. Golden (1937), 279 Mich 710, 740; Union Guardian Trust Co. v. Emery (1940), 292 Mich 394, 404; McCreary v. Shields (1952), 333 Mich 290, 294; Transamerican Freight Lines, Inc. v. Quimby (1968), 381 Mich 149, 170, 171 (per Black, J); 22 Michigan Law and Practice, Trusts, §51, p 564; Bogert, Trusts (2d ed), § 55, p 194; Bestatement, Bestitution, § 160, comment h, p 642. Cf. Detroit Trust Co. v. Hartwick (1936), 278 Mich 139, 144, 145. 3 Corbin on Contracts, § 573, p 357. That the terms of a written guaranty cannot be varied by parol, see St. Joseph Valley Bank v. Napoleon Motors Co. (1925), 230 Mich 498; Morris & Co. v. Lucker (1909), 158 Mich 518; State National Bank of Albuquerque v. Wernicke (1915), 185 Mich 281; Richard v. Lee (1919), 205 Mich 92; R. L. Polk Printing Co. v. Smedley (1908), 155 Mich 242; Contrast R. L. Polk Printing Co. v. Smedley (1908), 155 Mich 249; National Building Supply Co. v. Spencer (1920), 211 Mich 228; The Columbus Sewer Pipe Co. v. Ganser (1885), 58 Mich 385. 3 Corbin on Contracts, § 581, pp 440, 441. Similarly, see Massachusetts Bonding & Insurance Co. v. Transamerican Freight Lines, Inc. (1938), 286 Mich 179, 198; Brady v. Central Excavators, Inc. (1947), 316 Mich 594, 608; Martin v. Miller (1953), 336 Mich 265, 276, 277; Beld v. Darst (1906), 146 Mich 143; Stahelin v. Sowle (1891), 87 Mich 124; Antonoff v. Basso (1956), 347 Mich 18, 27. See Anno: Parol evidence rule as applied to written guaranty, 33 ALR2d 960, 979, § 9, and eases there cited. Plaintiff’s motion for summary judgment and supporting affidavit do not assert the absence of a genuine issue of material fact regarding Holland’s countersignature claim. He had, thus, no obligation to show in his answering affidavit that there was a genuine factual issue whether such an agreement was entered into. See Hollerud v. Malamis (1969), 20 Mich App 748, 762, 763. The Supreme Court ruled that the claimed oral agreement was inconsistent with the provision in the note which recited that the security was pledged “with authority to sell same” because there is a marked difference between such an “authorization” and an agreement that the obligee “shall sell the collateral upon default in payment.” (Emphasis by the Court.) Contrast: Piasecki v. Fidelity Corporation of Michigan, supra, p 331.

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Per Curiam. Plaintiffs, abutting property owners, petitioned Livingston County Circuit Court to alter the plat of “Kirk’s Landing Long Lake” by closing the stub-end of Lakeside Drive on October 29, 1968. After investigation by the Conservation Department and filing of a consent by the Attorney General the petition was granted by judgment dated January 28, 1969. Over nine months later non-abutting lot owners petitioned to intervene and to have the judgment set aside. An order was entered October 1, 1969, granting the petitioners the right to intervene and setting aside the judgment. From this order plaintiffs attempted to appeal by filing a claim of appeal on October 3, 1969. An order setting aside a judgment is interlocutory and may be reviewed only after grant of leave to appeal by this Court. An order setting aside a judgment has the same effect as an order granting a new trial and the latter is reviewable only by way of leave to appeal. MCLA § 600.308 (Stat Ann 1970 Cum Supp § 27A.308), GCR 1963, 801, 806. Benmark v. Steffen (1968), 9 Mich App 416; Solner Investment Company v. Thoms (1966), 2 Mich App 189; Sears, Roebuck & Co. v. Holmes (1966), 2 Mich App 190; see also, 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 193. No application for leave to appeal was filed in this case, and this Court is without jurisdiction to entertain this appeal. “When a court is without jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it, is absolutely void.” Fox v. Board of Regents of the University of Michigan (1965), 375 Mich 238, 242; Standard Building Products Company v. Woodland Building Company (1965), 1 Mich App 434; City of Dearborn v. Pulte-Strang, Inc. (1968), 12 Mich App 161; Earp v. City of Detroit (1968), 11 Mich App 659; Hope v. Weiss (1968), 12 Mich App 404; Chevrolet Local 659, UAW-CIO v. Reliance Insurance Companies (1970), 21 Mich App 123. The appeal is therefore dismissed. No costs, appellees not having initiated a motion to dismiss pursuant to GCR 1963, 817.5.

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T. M. Burns, P. J. This is an appeal from the granting of judgment of directed verdict for defendants on plaintiffs’ suit to enjoin foreclosure and sale of plaintiffs’ house for default on a mortgage. The facts appear to be as follows: The plaintiffs purchased their home on a land contract for $12,500 from Paul and Mary Duika in July of 1953. On October 7, 1953, the Duikas assigned their vendors’ interest in the contract to David and Henry Rott. For the next ten years, plaintiffs paid on the contract, making approximately $8,500 in payments. In late 1963, however, plaintiff, James I). Cullins, became ill and was unable to keep up the payments. When the plaintiffs were behind $500 in payments, the Rotts instituted proceedings and foreclosed on the land contract on January 29, 1964, at which time the land contract showed an unpaid balance of $4,200. With the period of redemption about to expire, plaintiffs, in response to an advertisement which indicated that it would stop land foreclosures and repossessions and lend on mortgages, contacted defendant, Magic Mortgage Company. The plaintiffs were told to come into the office and to bring all their papers related to the property and foreclosure. At this first meeting although defendant, El-Chonen, told plaintiffs that he would not let the Rotts get their home for $500, he did not offer, however, to lend them the money needed to redeem. El-Chonen instead discussed the possibility of a mortgage in the approximate amount of $8,500 which was to pay off the balance of $4,200 owed to the Rotts, to pay back taxes on the property, and to pay some $2,000 of accumulated bills with the $2,500 difference to be defendant’s profit. Although no agreement was reached, the plaintiffs did agree to return the next day. When the plaintiffs returned the next day, they found out that the defendants had in the interim purchased the Rotts’ interest in the land contract. El-Chonen then offered the plaintiffs the following arrangement.- He would keep the title to the property. Plaintiffs, in order to demonstrate good faith and reliability, were to make monthly payments of $100. At the end of a year, defendant was to convert the land contract into an $8,500 mortgage, transfer title to plaintiffs, and credit them with the $1,200 in payments. James Cullins testified that he assumed that a personal loan of $2,000, discussed the previous evening when the $8,500 mortgage was mentioned, would be made by defendant to plaintiffs at that time. Plaintiffs agreed to and followed the provisions stated above for over a year, during which time, according to testimony on the record, several of the monthly receipts which were given to plaintiffs indicated that the monthly payments were rent, rather than on the contract. When the plaintiffs objected that they were making purchase payments and not rent payments, they were told to disregard the nomenclature on the receipts. With the passing of a year, plaintiffs sought to have defendants convert the land contract into a mortgage. A dispute arose between the parties concerning the amount of the mortgage. In consideration of the $4,200 contract purchase price, defendants sought an $8,500 mortgage. Plaintiffs, however, considered that since the defendant had never loaned them the $2,000 for personal bills, a mortgage of $6,500 would be fairer. After some negotiations, a mortgage for $7,500 was signed by the plaintiffs. Five months later, James Cullins became ill and being unable to meet the payments, defaulted. Defendants then began foreclosure by advertisement. Plaintiffs started this suit to enjoin the foreclosure by defendants. A temporary injunction was entered and plaintiffs were ordered to make monthly payments to the court. At the time of the trial, plaintiffs had, pursuant to this order, deposited $2,250 with the court. Adding the money deposit with the court to that already paid, plaintiffs’ total investment in their home comes to approximately $12,500. This figure represents $8,500 paid to the original vendors and their successors, the Rotts; $1,200 paid to defendants from August 1964 to August 1965; $500 paid to defendants under the mortgage; and $2,250 paid to the court. At the close of plaintiffs’ proofs, defendants made a “motion for judgment.” The trial court treated it as a motion for directed verdict, GCR 1963, 515.1, and granted it. This motion should properly have been considered as a motion to dismiss. GCR 1963, 504.2. There fore, the trial court erred in considering the motion as one for a directed verdict. The difference between the two motions is significant because of the responsibility of the trier of fact. If there is a jury, the trial judge must not invade their province. Thus, if he is faced with a motion for directed verdict, he must view the evidence in the light most favorable to the party against whom the motion is directed. State Automobile Mutual Insurance Company v. Ropp (1967), 7 Mich App 698, 701. When sitting’ without a jury, however, the trial judge as the trier of fact, Avhen considering a motion to dismiss, must weigh the evidence before him. Mutual Benefit Life Insurance Company v. Abbott (1968), 9 Mich App 547, 552. The motion to dismiss when granted against a plaintiff, therefore, must be accompanied by findings of fact. GGR 1963, 504.2. There were no such findings of fact in this case. Although we might remand for findings of fact, such a remand would leave the substantive question raised by this appeal unanswered. Therefore, we turn to whether the trial court erred in relying on the cases of Gerasimos v. Continental Bank (1927), 237 Mich 513, and Sanderson v. Ressler (1923), 223 Mich 232, 234, in finding that the defendants could sell to plaintiffs or whomever they choose, at any price they choose, without the agreement being declared usurious since they had purchased the vendors’ interest and plaintiffs had failed to redeem. The plaintiffs contend that since the defendants knew of plaintiffs’ plight, an equitable mortgage, was imposed upon them regardless of the form of the transaction. We agree. The trial court erred as to the law. He was, and we are, hound by the decision of our Supreme Court in Wilcox v. Moore (1958), 354 Mich 499. Although the transaction between the plaintiffs and defendants did not take the form of a loan, neither did the transaction before the Court in Wilcox, supra. Yet, an equitable mortgage was established with resultant application of the law of usury. The Court in Wilcox, supra, said on pp 504, 505: “There is no need, at this late date in the law of usury (see Leviticus 25: 35-37; Deuteronomy 23: 19, 20; Saint Chrysostom’s Fifth Homily on the Gospel of St. Matthew; CL 1948, § 438.52 [Stat Ann § 19.12]) to discuss its rationale. Suffice to say that its purpose is to protect the necessitous borrower from extortion. In the accomplishment of this purpose a court must look squarely at the real nature of the transaction, thus avoiding, so far as lies within its power, the betrayal of justice by the cloak of words, the contrivances of form, or the paper tigers of the crafty. We are interested not in form or color but in nature and substance. “It is insisted on the part of appellee that all we have here is a good-faith purchase of property for $15,000 and a subsequent good-faith sale thereof for $21,000, ‘an outright sale on land contract.’ It is not to be denied that there are numerous common characteristics existing between the contract of sale and purchase on the one hand, and that of loan and mortgage on the other. But as has so often been pointed out by discerning courts there is one situation (possibly above all others) in which ‘an atmosphere of doubt at once arises.’ (Judge Denison in Stark v. Bauer Cooperage Co. [CA6, 1925], 3 F2d 214, 216, certiorari denied, 267 US 604 [45 S Ct 464; 69 L Ed 809].) This is where we find, again in the words of Judge Denison, that ‘one recently the indebted owner has shifted his position and become merely an executory purchaser.’ The court continues (p 216): “ ‘If there is an absolute promise to pay the same amount that he was formerly owing, and to do so as a condition of getting back the title with which he had just parted, the inference that there is nothing but a debt with security for its repayment becomes a strong one; but the debt which creates this atmosphere of doubt is not the new debt, it is the old one. “ ‘So far as we can find, every case in which the existence of an absolute promise by an ostensible vendee to pay the sum involved has been thought to indicate that the transaction was merely a loan instead of having the character in which it was made to appear, is a case where the contract vendee had parted with his recent title and was arranging to get it back again.’ ” The principle established in Wilcox v. Moore, supra, which applies here was extended to “credit purchasers” in Matthews v. Aluminum Acceptance Corporation (1965), 1 Mich App 570. Although the defendants assert that the Supreme Court repudiated Wilcox in Ellis v. Wayne Real Estate Company (1959), 357 Mich 115, 120, a careful reading of that case divulges that all the Court said about Wilcox is that “no question of usury has been raised,” there. The central question in cases such as this are whether the plaintiff borrower is “hard pressed” (See Borinstein v. Raycon Land Company (1963), 370 Mich 359, 361), and whether the lender -has knowledge of this predicament and has taken advantage of it unfairly. We find such to be the positions of plaintiff and defendant here. Because of our decision herein, we do not pass on the issue raised by plaintiffs that the payment by defendant of the balance of $4,200 in July, 1964, owed to the Rotts under the land contract was paid on behalf of plaintiffs and established an equitable mortgage. Here, we only reverse the order of the trial court and remand with the direction that the trial court apply the principles of Wilcox to the entire transaction in establishing the amount fairly due. Viewing the case as we do, and in response to defendants’ assertion that a valid compromise was entered into in August of 1965, thus removing the taint of usury from the equitable mortgage, we direct the trial court’s attention to Union Guardian Trust Co. v. Crawford (1935), 270 Mich 207. The Court in Union Guardian Trust Co. v. Crawford, said at pp 210, 211: “It seems to be the rule that the general principle determining when an indebtedness infected with usury is to be deemed disinfected that if the tainted obligation is, with full knowledge and consent of the borrower finally canceled or abandoned, and a new obligation, containing no part of the usury, is executed in legal form, and supported solely by the moral obligation resting upon the borrower to pay the money actually received with legal interest thereon, such new obligation is valid and enforceable. But so long as the original usurious obligation continues to exist, based upon a consideration in which usury inheres, the taint of usury persists whatever be the form which the subsequent dealings of the parties may cause it to asstime, and even though new parties may have been introduced, or the borrower allowed to asume a different relation to the security affected with usury. Carr v. Taylor (1900), 30 Misc 617 (62 NY Supp 849); 39 Cyc 1002; Gladwin State Bank v. Dow (1920), 212 Mich 521 (13 ALR 1233).” (Emphasis added.) Eeversed and remanded for proceedings not inconsistent with this opinion. Costs to appellant. All concurred.

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Per Curiam. Plaintiff brought this action in Ottawa County circuit court for reformation of a land contract to include his name as a tenant by the entireties. The land was purchased with joint funds by his wife, Dean Coeling, from her parents, the other defendants. According to the defendant’s testimony, she conducted all the business for the two of them. She made a practice of endorsing checks made out to plaintiff and depositing them in their joint account. The testimony of both plaintiff and defendant clearly shows that they both contributed their efforts to the acquisition of the moneys in the joint account. The trial court, relying on this joint contribution and the fact that defendant allowed plaintiff to prepare a home site on the purchased land plus the fact that she allowed him to share the 1966 rent ordered reformation of the contract to include the plaintiff’s name as a tenant by the entireties. After a review of the transcript and record on appeal, we find that the trial court’s findings of facts were supported by competent evidence and are not clearly erroneous. G1CR 1963, 517.1. The law applicable to this case is stated in Ridky v. Ridky (1924), 226 Mich 459, 473: “In purchasing this property Mrs. Ridky was acting as agent for her husband so far as his interests were involved. She was intrusted with the entire management of the negotiations and purchase. It was distinctly understood between them that the transfer by the grantor of the property purchased was to be for the benefit of both. It was therefore her duty to have the conveyance made to both or if to herself alone for any reason, then to have a trust in his favor distinctly declared in the conveyance. Under suggested facts somewhat analogous it was said by Justice Cooley in Fisher v. Fobes (1871), 22 Mich 454: “ ‘[I]f he (the agent) failed to have (the) conveyance made in proper form for the protection of complainant’s interests, he would have been chargeable with constructive fraud, and a court of equity would have given complainant the proper relief.’ “Constructive fraud is a basis for a constructive trust, raised by equity to work a just result. “ ‘All instances of constructive trust may be referred to what equity denominates “fraud,” either actual or constructive, including acts or omissions in violation of fiduciary obligations. If one party obtains the legal title of property, not only by fraud, or by violation of confidence or fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner. 1 Pomeroy, Equity Jurisprudence, § 155.’ Nester v. Gross (1896), 66 Minn 371 (69 NW 39).” We find as was found in Ridky, that defendant worked a constructive fraud upon the plaintiff by the use of their jointly accumulated funds in the purchase of the land solely in her name. See also Chlebek v. Mikrut (1953), 336 Mich 414, 420, 421. Therefore, we affirm the trial coui’t’s order of reformation. Affirmed. Costs to plaintiff.

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Per Curiam. On the evening of May 28, 1967, a man, later identified as defendant Floyd Waskowski, was seen trying to pry open a door of a restaurant in Redford Township with a crowbar. Startled by the presence of certain witnesses, the man quickly drove off in an automobile that was soon traced to the defendant. Several hours later, the police found the defendant at his home and arrested him. Asked whether he had any objection to a search of the house and his automobile, the defendant said, “no, I don’t have anything to hide,” and handed the automobile keys to one of the arresting officers. A search of the automobile produced a crowbar. Before trial, the defendant moved to suppress the crowbar, contending that it had been seized illegally, and filed an affidavit wherein he admitted having expressed consent to the search but asserted that he did so only out of fear that if he refused, he “would get in trouble not only with these policemen but with the probation office.” The motion was denied, and the defendant was convicted, June 17, 1968, of attempting to break and enter. The dispositive question on appeal is whether the defendant should be deemed to have consented to the search of his automobile. We conclude that he should. The law applicable to a claim of a consensual search upon arrest is stated in People v. Kaigler (1962), 368 Mich 281, 294: “It is elementary that the obtaining of a search warrant may be waived by an individual and he may give his consent to search and seizure; but such waiver or consent must be proved by clear and positive testimony and there must be no duress or coercion, actual or implied, and the prosecutor must show a consent that is unequivocal and specific, freely and intelligently given. Karwicki v. United States, (CCA 4) 55 F2d 225; Kovach v. United States, (CCA 6) 53 F2d 639. The burden for the prosecution is particularly heavy where the individual is under arrest. Judd v. United States, 89 App DC 64 (190 F2d 649); Amos v. United States, 255 US 313 (41 S Ct 266; 65 L Ed 654).” (Emphasis eliminated.) In the instant case, an arresting officer testified, and the defendant admitted, that consent to the search was unequivocally expressed. At the same time, nothing in the record or defendant’s affidavit suggests that the atmosphere surrounding the arrest was any more coercive than that surrounding any arrest made at an early hour in a suspect’s house. Thus, unless we are to hold that a consensual search simply cannot be made at an early hour, the only reason for saying consent was not given lies in the defendant’s alleged fear of trouble were he to refuse the officers permission to search. However, this fear, standing alone, cannot be regarded as rendering the search invalid, at least when, as here, it goes unmanifested and the arresting officers are not put on notice that the consent is not freely and voluntarily expressed. Under Kaigler, the arresting officers were entitled to rely on the defendant’s unequivocal expression of consent. Having relied on it, they cannot now be faulted for not securing a warrant. Defendant’s motion was properly denied. Affirmed. MOLA § 750.92 (Stat Ann 1962 Rev § 28.287). MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305).

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Per Curiam. Defendant McArthur Warren was convicted by the trial court, after waiving his right to jury trial, of larceny from a person. MCLA § 750.357 (Stat Ann 1954 Rev § 28.589). Defendant brings this appeal as of right. At trial the details of defendant’s juvenile record were admitted into evidence over defendant’s objection for the purpose of impeaching defendant’s credibility. It is defendant’s position on appeal that admission of his juvenile record constituted reversible error. We agree. The statute governing the instant case is MCLA § 712A.23 (Stat Ann 1962 Rev § 27.3178 [598.23]), which provides: “A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper , evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter.” The purpose behind the statute was set out in People v. Smallwood (1943), 306 Mich 49. There the Court stated at 53: “There is no question but that this salutary statute is for the purpose of protecting a child when it becomes a ward of the State. Its aim is ‘to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.’ State v. Guerrero, 58 Ariz 421 (120 P2d 798). It prohibits the use of juvenile court proceedings or evidence obtained therein against a child in any other court to discredit him as one possessing a criminal history. Malone v. State, 130 Ohio St. 443 (200 NE 473).” Defendant also attacks the sufficiency of the evidence and testimony which indicated that he made no statement after he was advised of his constitutional rights by the police. An examination of the record reveals that evidence was introduced which if believed by the trier of fact, was sufficient to sustain the conviction of the defendant beyond a reasonable doubt. As to the testimony that defendant made no statement, no objection was raised below, thereby waiving the issue for appeal. Reversed and remanded for new trial.

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y. J. Brennan, J. This is an appeal by Michigan Consolidated Gas Company and Whirlpool Corporation, defendants and third-party plaintiffs, from an order of the Wayne county circuit court dismissing their third-party complaints against The Williamson Company. One of the principal issues presented by this appeal — whether impleader under GCR 1963, 204, is of right or merely within the discretion of the trial court where a claim of contribution against an alleged joint tortfeasor is involved— has been made dispositive by the Supreme Court’s recent decision in Moyses v. Spartan Asphalt Paving Company (1970), 383 Mich 314. Impleader of an alleged joint tortfeasor under a claim of contribution is not of right, but within the sound discretion of the trial court. Since it is, and since the trial court in the instant case has not been shown to have abused its discretion, we affirm the order dismissing the third-party complaints. Plaintiffs John and Marion Doall filed their complaint in this yet untried cause on October 28, 1963, alleging that a gas refrigerator manufactured by Whirlpool Corporation and sold to them by Michigan Consolidated Gas Company in August, 1960, emitted certain chemicals and gases which, after traveling through the house heating and air-conditioning system, permeated Marion Doall’s skin and hair and formed a brown sticky substance on their furnishings, thereby causing $100,000 in damages to person and property. In May, 1967, after the answers, amendments to answers, replies and various interrogatories had been filed, defendants were granted leave under GCR 1963, 204.1, to file third-party complaints against The Williamson Company, the manufacturer and installer of the heating and air-conditioning system. Each defendant alleges, in part, in its complaint that should it be held liable to the plaintiffs, it is entitled to recovery against The Williamson Company for con tribution. Served with summons and complaint, The Williamson Company moved both for summary judgment (on the ground defendants failed to state a claim upon which relief can be granted) and for accelerated judgment (on the ground that the running of the statute of limitations on any claim plaintiffs might have against it bars a claim by the defendants for contribution). In ruling on these motions, the court reconsidered its grant of leave, concluded that leave had been improvidently granted, and dismissed the third-party complaints. Delay and complication were assigned as the reason for the dismissal. Trial of what the court characterized as an already “ancient” case would be further delayed by additional discovery and pretrial conferences, along with the third-party defendant’s filing of responsive pleadings and a pretrial statement. Moreover, a case already complicated by multiple claims, multiple parties, and a difficult question of causation might well be put beyond the jury’s comprehension with the addition of another party and its theories, claims and evidence. Delay and complication are recognized bases for the discretionary denial of impleader, whether the impleader be on a theory of contribution, indemnity or otherwise: “Impleader is by motion ex parte before service of the answer, or by motion with notice to plaintiff after the service of an answer. The granting of the motion rests within the sound discretion of the court, and there is no absolute right to join a third- party defendant. Generally courts will be liberal in allowing the joinder of third-party defendants, but it should be avoided where there might be prejudice to either party because of the complexity of the case. It should be remembered, however, that if there is objection on this basis, the court can always order separate trials of separate issues under GCR 1963, 505.2. “Joiner [61 Negligence Law Section Bulletin 8, 12] says: “In acting upon a motion made under the rule the judge will weigh the advantages of having the third party in the case against the following: “1. The probability of delay, United States v. Jollimore (1949), 2 FRD 148. “2. Complications of the trial, McPherrin v. Hartford Ins. Co. (1940), 1 FRD 88. “3. The timeliness of the motion, Casey v. Calmar Steamship Corporation (D Del, 1956), 138 Fed Supp 751. “4. The similarity of evidence, Jones v. Waterman SS. Corp. (CA 3, 1946), 155 F2d 992. “5. The possibility of prejudice to the plaintiff, FDIC v. The National Surety Corp. (1950), 13 FRD 201; Casey v. Calmar Steamship Corporation, supra. “6. Possibility of prejudice to third-party defendant, American Fidelity and Casualty Company v. Greyhound Corporation (CA 5, 1956), 232 F2d 89.” 1 Gilmore, Michigan Civil Procedure, Before Trial, pp 332, 333 (quoted with approval in Moyses, supra, and in the concurring opinion of Justice Black in Husted v. Consumers Power Company [1965], 376 Mich 41, 63). The court acted within its discretion by dismissing the third-party complaints. The order is affirmed. All concurred. Defendants’ argument that impleader is of right is based on the pre-Moyses belief that unless impleader of a joint tortfeasor unnamed by the plaintiff in the primary action were allowed, the substantive right of contribution would be lost for all time. Honigman and Hawkins describe the problem in the following terms: “It must be noted that under the contribution statute, RJA § 2925, a right of contribution among joint tortfeasors exists only (1) if tliere has been a joint judgment (that is, as a result of their having been sued jointly by the plaintiff), or (2) if they are summoned in as third-party defendants pursuant to court rule. If a tortfeasor sued separately is not allowed to implead alleged joint tortfeasors for contribution, any right of contribution will be lost. Thus, as to contribution, it is not always true, that the defendant may await the outcome of the main trial and then sue the third party upon the right thus allegedly accruing. Id. at p 378. The defendant, on timely motion, should be allowed to implead the third-party defendant, in order to preserve his right to contribution under the statute. If such joinder threatens to delay or complicate the main action unduly, the remedy is simply to order a separate trial for the third-party claim. Subrule 204.1(4). The court may direct a final judgment on the primary claim alone, in accordance with the provisions of subrule 518.2. Ibid.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1969 Supp, p 82. See also Practice Commentary § 600.2925, 33 MCLA p 780. Under Moyses, defendants may enforce any right to contribution they might have against The Williamson Company by bringing an equitable action after judgment. The running of the statute on the primary plaintiff’s claim against a nonparty tortfeasor does not bar a party tortfeasor’s claim for contribution. Duncan v. Beres (1968), 15 Mich App 318, 332, and cases cited therein. But see Morgan v. McDermott (1969), 382 Mich 333, where a 60-day notice requirement was a prerequisite to governmental liability.

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McGregor, J. This case must be decided on the facts. The law is clear. Does the trial court’s sua sponte discharge of a duly impaneled and sworn jury, on the third day of a murder trial of this defendant and others, preclude a second trial for the same offense under the constitutional provision prohibiting a person from being placed in jeopardy twice for the same offense, unless such action was with the consent or acquiescence of the defendant? See People v. Anglin (1967), 6 Mich App 666. The pertinent but sometimes confusing facts are that, at approximately seven o’clock on the evening of December 22, 1966, this defendant, together with Harold Johnson and George Grimmett, bent upon robbery, entered the retail market of Shaker Aubrey, announced a holdup, and thereafter shot and killed him. The defendants were arrested and arraigned upon an arrest warrant which charged that they “feloniously, wilfully and of their malice aforethought did kill and murder one Shaker Aubrey, * * * contrary to the form of the statute, etc.” At the conclusion of the preliminary examination proofs, on January 6, 1967, the magistrate bound the three defendants over for trial on the first-degree murder charge. Thereafter, the defendants were arraigned upon the information which charged them with first-degree murder, in language identical to that contained in the arrest warrant. A jury trial commenced on January 22, 1968, before the Honorable George W. Crockett, Jr., of the Recorder’s Court of the City of Detroit. In his opening statement to the jury, the prosecutor stated: “It is the position of the people that this crime was premeditated in accordance with a preconceived plan. That it was executed in the course of a robbery which had been agreed upon between the three defendants * # * we intend to prove to you these facts beyond a reasonable doubt.” On the third day of the trial, the attorney for defendant Grimmett informed the court that his client desired to enter a plea of guilty of the offense of murder in the second degree, and it was contended by Grimmett’s attorney that the language of the offense as then charged in the information was that of second-degree murder only. Following legal argument between Judge Crockett and some of counsel, the trial judge agreed with defendant Grimmett’s attorney’s contention and ruled that the information merely charged second-degree murder. The court informed the trial prosecutor that he would permit an amendment to the information to provide for premeditation. Defendant Grimmett’s attorney maintained that the amendment would charge a more serious offense; in this he was joined by the attorney appearing on behalf of defendant Johnson, and both objected to the amendment. Counsel for this defendant remained silent and did not assent to the discharge of the jury. The trial judge, sua sponte, discharged the jury from further consideration of the case, following the granting of the prosecutor’s motion to amend the information. On January 14, 1968, the three defendants were arraigned on an amended first-degree murder information and a new trial date was set. The denial of the defense motion to dismiss because of the former jeopardy of this defendant gives rise to this appeal. The people in their brief have a pertinent paragraph : “The cases of the People v. Gologonoff (1967), 6 Mich App 332 (leave to appeal denied by the Supreme Court October 12,1967, 379 Mich 783), and the People v. Dupuis (1963), 371 Mich 395, as construed by the court * * * had much to do in persuading the court to conclude that the information in the case being tried did not charge the offense of first-degree murder. The court was of the opinion that the language framing the charge did not contain or allege premeditation. The court appeared to be uncertain as to whether or not he could charge the jury on first-degree murder as the information was then worded. He asked the prosecutor: “ ‘The Court: Do you think that under this indictment I can charge this jury on first-degree murder ? “‘Mr. Weiswasser: Yes, your Honor. Especially if we amend the information and I can’t see any reason why not.’ ” In Gologonoff, supra, the question was whether the jury verdict “guilty in manner and form as the people have in their information in this cause charged” convicted the defendant of first-degree murder and complied with the statute, CL 1948, §750.318 (Stat Ann 1954 Rev § 28.550), requiring the jury to ascertain in their verdict whether it he murder of the first or second degree. Our Court held that for such a general verdict to comply with the statute and to convict the defendant of first-degree murder, the information would have to contain the word “premeditation.” This Court did not hold that the information in Gologonoff, supra, was defective, nor that such information would not have sustained a verdict of first-degree murder, provided the jury in their verdict so determined. Gologonoff had nothing to do with the sufficiency of the information but dealt solely with the lack of specificity in the jury verdict. The trial court’s reliance on Gologonoff was totally misplaced. The court’s statement that the defendants might have been misled by the information into believing that the prosecution only intended to ask for conviction of a charge of second-degree murder is not borne out, as the only statute cited in the information and the warrant is that of first-degree murder. Furthermore, the propriety of the trial court’s requiring or allowing the people to amend an alleged murder charge from second-degree to first-degree murder is highly questionable. See People v. Gibbons (1932), 260 Mich 96, 99, where the court held: “While the statute, being part of code of criminal procedure of 1927, was adopted to eliminate some of the technicalities which have surrounded the practice of criminal law, it does not permit the amendment of an information after trial has been begun so as to charge the accused with a different crime, punishable with a more severe penalty.” (Emphasis added.) The information charged that the defendants “* * * feloniously, wilfully and of their malice aforethought, did kill and murder one Shaker Aubrey contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.” This is the language on which this defendant was hound over for trial on a first-degree murder charge. An information need not specify the degree of murder charged; it is sufficient if it charges that the defendant did murder the deceased. Sneed v. People (1878), 38 Mich 248, 251, 252; People v. Page (1917), 198 Mich 524, 535, 536; CL 1948, § 767.71 (Stat Ann 1954 Rev § 28.1011). The information is not defective: the trial court erred in so concluding. An information is to apprise the defendant of the charges against him; an information which fulfills such requirement is a good and proper information. People v. Kearns (1965), 2 Mich App 60; People v. Calvin (1886), 60 Mich 113. Defendant was bound over on a charge of first-degree murder and it is clear that defendant himself was aware of that charge. We are also confronted with the issue of whether this defendant consented or acquiesced in the dismissal of the jury. The transcript shows that defendant Grrimmett’s counsel made the original motion to allow his client to plead guilty of second-degree murder. Defendant Johnson’s attorney is on record as agreeing with some points. At no point does the record show that counsel for this defendant said anything, either in agreement or dissent. Silence cannot operate against a defendant: “In Allen v. State (1906), 52 Fla 1 (41 So 593), we held that the silence of the defendant on trial for a crime or Ms failure to object or protest against an illegal discharge of the jury before verdict does not constitute a consent to such discharge. Such conduct by the accused is not a waiver of the constitutional inhibition against a subsequent trial for the same offense after the improper discharge of the jury. See also, State, ex rel. Dato, v. Himes (1938), 134 Fla 675 (184 So 244); State, ex rel. Alcala, v. Grayson (1945), 156 Fla 435 (23 So 2d 484).” State v. Grayson (Fla, 1956), 90 So 2d 710 (63 ALR2d 777). The prosecution contends that Grimmett’s counsel led the trial judge to believe that all the defendants were of the opinion that the jury should be discharged, giving the defendants an opportunity to meet the amended information at another trial. The following remarks of Grimmett’s counsel are important, including other excerpts of this involved action: “Mr. Sherman (Sidney Sherman, appointed counsel for defendant George Grimmett): In the first place, if the Court please, it is the contention of the defendant, the various defendants, that the right to be informed of the charge and that the charge against them is a valid one. * # # “I am not arguing the constitutionality of the Michigan statutes. I call your attention to this. But, your Honor, as to whether or not they have a right to amend'— “The Court (Interposing): You can argue the constitutionality of the Michigan statute. I think the Michigan statute is safe from constitutional defect by the requirement— “Mr. Sherman (Interposing): Yes, that’s right, your Honor. “The Court (Continuing): — that I discharge the jury and give you an opportunity to meet the amendment to the indictment and have another trial. “Mr. Sherman: That’s right. “Mr. Weiswasser (Assistant Prosecuting Attorney) : Or to proceed with the trial. “Mr. Sherman: May I say one word? “The Court: You can’t proceed with the trial. “Mr. Sherman: You have taken innumerable pleas to lesser offenses where a count is added on the in formation. What is the first thing that is asked of the defendant? Won waive the previous proceedings, the right to an examination, the right to arraignment on a new — on an information charging this added count?’ So- that they cannot amend it. They are amending it as to substance. I agree with your Honor that the Michigan statutes — where we raise the question and they want to amend to substance, we have got to ha(v)e a new jury.” (Emphasis added.) The trial judge apparently believed that the defendants were moving for a termination of the trial proceedings: “The Court: Right, under the appropriate charge. But when the information is set forth as this one is, I am limited to the charge that I can give the jury, based on this information. “Mr. Weiswasser: And we submit— “The Court (Interposing): The information does not charge premeditation and therefore it is not first-degree murder in Michigan. “I grant the defense motion. “If you want to amend I will give you leave to amend. “Mr. Weiswasser: We ask for leave to amend. “The Court: In that case we will have to call the jury back and discharge the jury and refer it to the assignment clerk to set another date.” Following the granting of the defense motion to discharge the jury, the court permitted the prosecutor to move that the information be amended. The record shows that some of the counsel may have been confused as to exactly what motions were presented to the court for consideration. Defense counsel for defendant Johnson addressed the court: “Mr. Hubbell (Stewart Hubbell, appointed counsel for defendant Harold Johnson): Your Honor, as I understand it, the new information will he filed and they will be arraigned again, is that right ? “Mr. Weiswasser: There would have to he an arraignment on the new information. “Mr. Sherman: What I — my motion would he an objection to the amendment of the information to charge murder in the first degree. “Mr. Uubbell: May I join in that? “The Court: That motion is overruled. “I am ruling that the information— “Mr. Sherman (Interposing): No, no. “The Court: I am ruling that the information is defective insofar as it says the charge is murder in the first degree. It does charge murder in the second degree. “People have requested leave to amend to charge murder in the first degree. I am granting that motion to amend. “Under the law I am required under those circumstances to give you an opportunity to meet the new charge. “Whether, or not that necessitates a new examination — I am inclined to think it does. The matter would have to be remanded for a new examination, and it is so ordered. “Mr. Sherman: Thank you. “Mr. Hubbell: Thank you. “This is to all three defendants ? “The Court: This is as to all three defendants. Bring in the jury.” Prom these exchanges, coupled with the lack of any objections to the decisions of the court, the prosecution contends that it is permissible to infer that this defendant acquiesced in the rulings of the court. The only motion presented by any of the defendants was the original motion to allow defendant Grimmett to plead guilty to a charge of second-degree murder. When the court granted the motion, it was obviously not the original guilty plea motion. The only logical interpretation is that the trial court thought it was granting a motion to dismiss the jury. This motion or idea was originated by the trial court, although Grimmett’s attorney apparently agreed. The trial court stated that his rulings applied to all three defendants. “After a jury has been impaneled and sworn, any discharge thereof without sufficient cause operates as an acquittal, in that it effectually bars another trial for the same offense. But to have this operation and effect such discharge must have been made without the consent, express or implied, of the respondent: Joy v. State (1860), 14 Ind 139; Stewart v. State (1864) 15 Ohio St 155; State v. Garvey (1875), 42 Conn 232; Spencer v. State (1854), 15 Ga 562; Rex v. Stokes (1833), 6 Car & P 151; State v. M’Kee (1830), 1 Bailey 651; Commonwealth v. Sholes (1866), 13 Allen 554, 1 Bish Crim Law, § 998, and cases cited in notes 4 and 5, and note 1 p. 600.” People v. Gardner (1886), 62 Mich 307, 311. A consent to the discharge of the jury by this defendant Brown in the instant case can, at best, only be implied. A strong presumption is raised against a waiver of fundamental rights by an accused. A waiver involves intentional relinquishment or abandonment of a known right or privilege. In this case, an implication of waiver of such a right is impossible to justify. While the trial arguments are confusing, to say that silence on the part of this defendant waived his right not to be twice placed in jeopardy would deny him a fundamental right. This determination does not necessarily apply to the other defendants. Double jeopardy is prohibited by the fifth amendment to the United States Constitution, and by Art I, § 15 of the Michigan Constitution of 1963. Jeop ardy is defined in Recorder’s Court Presiding Judge v. Third Judicial Circuit Judge (1954), 340 Mich 193, 201: “In People v. Powers (1935), 272 Mich 303, 307, this Court recognized the general rule that one accused of violating the law is in jeopardy when placed on trial, on such charge, in a court of competent jurisdiction. Among other decisions of this Court involving a claim of double jeopardy are: Preston v. People (1881), 45 Mich 486; People v. Kuhn (1891), 67 Mich 463; People v. Townsend (1921), 214 Mich 267 (16 ALR 902).” From the facts, we find that the attempt to try this defendant on another murder charge puts him in double jeopardy. This defendant’s motion to dismiss should have been granted. Dismissed. All Concurred. CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548).

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Per Curiam. Defendant and his brother, Chester Compton, were jointly tried and convicted by a jury of breaking and entering a gun shop with intent to commit larceny. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). The breaking and entering occurred around 1 a.m., March 4, 1968. Both Comptons were arrested at the scene, Chester inside the gun shop, Kearney outside in a parked automobile. At trial, the manager of the shop testified that the Comptons, together with two other men, were in the shop two days before the breaking and entering. One of the arresting officers testified that after arriving at the scene and while patrolling the alley behind the shop, he discovered a Cadillac automobile with out-county plates parked nearby. He approached the Cadillac and found defendant lying down on the front seat. After ordering defendant out and placing him under arrest, he found a wallet inside the automobile containing the identification of Chester Compton, who had already been arrested. On appeal, defendant alleges error in the trial court’s denial of his motion for a directed verdict of not guilty. Defendant contends that the testimony offered at trial was insufficient to show that defendant aided and abetted or in any way participated in the crime charged in the information. The question presented by a motion for directed verdict of not guilty is whether there is evidence from which the jury can reasonably infer all the elements of the crime charged. People v. Qualls (1968), 9 Mich App 689; 2 Gillespie, Michigan Criminal Law and Procedure, § 632, p 817. From the evidence adduced at trial, the motion for directed verdict was properly denied. Defendant contends that the trial court erred by permitting the jury to suspend its deliberations over the long Memorial Day weekend. At the time of the adjournment on Wednesday, May 29, 1968, the jury was undecided as to one of the Comptons. Since he was arrested outside the shop, defendant surmises that it must have been him and then alleges, without proving, that the holiday dulled the memory of the individual jurors. We will not consider this assignment as the record shows that defendant expressly waived any objection to the adjournment. Additionally, defendant contends that the trial court erred in its rulings on the admissibility of certain statements made by defendant to various police officers. The statements were all in the nature of self-serving hearsay statements. For that reason, one of the statements was properly excluded. People v. Davis (1922), 217 Mich 661; People v. Giovannangeli (1925), 231 Mich 474. The first of the other two statements was volunteered by a police witness during cross-examination by defendant. It was not objected to nor did defendant move to have it stricken. Later, another statement was admitted as inconsistent with the volunteered statement. If there was any error in their admission into evidence, clearly it was not reversible error. Finally, defendant alleges reversible error in that the prosecutor, in his closing argument to the jury, commented on the accused’s failure to testify. The record reveals that it was defendant, not the people, who first alluded to a failure to testify. The court, conscious of the potential error, was quick to interpose with proper instructions. No adverse inference was drawn and defendant was in no way prejudiced. Affirmed.

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J. H. Gillis, P. J, Defendant was convicted by a jury of the first-degree murders of Carl and Gertrude Middledorf. MCLA § 750.316 (Stat Ann 1954 Bev § 28.548). He appeals as of right, alleging an illegal search and seizure and trial error. On the afternoon of February 4, 1967, Detective Robert Shelby of the Saginaw police department was told by an informer that Ronald Johnson and William Eddington had been involved in the SaginaAV murders of Dr. Archer Olaytor and his Avife on February 2, 1967. Detective Shelby Avas also informed that the íavo men were responsible for an armed robbery Avhich had occurred at 916 Norman Street, Saginaw, on January 25, 1967. This information Avas based on statements made to the informer by Johnson. A victim of the Norman Street robbery had previously identified Johnson from a mug "shot as one of the íavo men Avho had robbed her. On February 5, 1967, Detective Sholbv Avas called to 1409 Cherry Street to investigate the killings of Mr. and Mrs. Middledorf. Shelby noticed that a windoAv in the back door of the Middledorf house had been broken, presumably by the killer in gaining entry to the house. While in the house, Sergeant Christensen of the crime laboratory shoAved Shelby a distinctive heel print found near the bathtub A\There Mrs. Middledorf’s body Avas discovered. The print had been dusted Avith fingerprint powder to make it inore readily visible. A second print Avas found on a piece of glass that had been broken from the AvindoAv of the back door. The print Avas distinctive because it Avas smaller than a print made from a regular man’s shoe and had íavo or three, ridges that stood out on the impression. After examining the print, Detective Slielby concluded that the print was made by “Stetson” shoes. He testified at the hearing on defendant’s motion to suppress: “A. The print was a — I would say a print might have come from a Stetson shoe. Now, the print was smaller than a regular man’s shoe and probably approach the size of a woman’s Cuban heel shoe, but they were cross characteristics of a man’s shoe, the crossings, also striations. “Q. And the print itself? “A. Yes, sir. “Q. Have you ever owned any Stetson shoes? “A. Yes. “Q. What kind of shoes does Stetson usually make ? “A. Well, the heel is relatively smaller than the regular men’s wear. It is more of a Cuban type heel. I guess you could — well, the appearance of the print looks like it could have been a beatle type boot. “Q. What? “A. A beatle type boot. “Q. What do you mean by Cuban type heel? “A. I refer to a Cuban type heel as a heel little higher than the regular heel of the shoes men wear, the sole of the shoe. I mean it would be tapered.” None of the shoes examined in the Middledorf house matched Shelby’s description. After leaving the Middledorf residence, Detective Shelby gathered a number of photographs and proceeded to 916 Norman Street to interview Jack Prince, a second victim of the robbery. Prince identified William Eddington as one of the participants. At this juncture of his investigation, Shelby believed that there was a connection between the. robbery and the Clavtor and Middledorf murders. The robbery victims and the decedents were all elderly people; the weapon used in the robbei-y and the Claytor murders was a small caliber firearm; Bonald Johnson possessed a small caliber pistol which at one time had been owned by the informer; “Billy” (Eddington) had this gun when the informer sought to procure it for the police. Eddington was also known to have broken into certain homes by way of the back door as was done in each of the murders; furthermore, the victims of both the Clay-tor and Middledorf homicides had been bound with material found at the scene. Accordingly, Shelby immediately suspected that Eddington had been involved in the Middledorf murders. Shelby then phoned the prosecutor and asked him to procure an arrest warrant against Eddington on a charge of robbery. At a subsequent meeting Shelby and the prosecutor discussed whether it was the appropriate time to pick up both Johnson and Eddington on charges of murder. It was decided that Shelby would arrest Eddington for robbery only. On the evening of February 5, 1967, just before midnight, Detective Shelby, accompanied by several police officers, drove to Eddington’s residence at 1417 Farwell. Neither Detective Shelby nor the police officers possessed a warrant for Eddington’s arrest. Upon arrival Shelby observed a car, which he knew to be Eddington’s, parked near the Farwell address. As he approached Eddington’s apartment, Shelby observed foot and heel prints in freshly fallen snow leading to the apartment. On close examination, Shelby noticed that these prints were similar to those which he had seen at the Middledorf residence. No such prints were observed leading away from Eddington’s apartment door. Detective Shelby testified that, at this moment, he was convinced that Eddington had committed the .Middledorf murders. Shelby then approached the apartment door and heard the rustle of more than one person in the apartment. “At least I seem — it appeared to me that there was more than one person in the house, the apartment.” A knock on the door produced no immediate response. A female voice then asked who was there. Shelby identified himself and asked if “Billy” was home. He was told that Eddington had left the apartment that evening at 10 p.m. Detective Shelby and the officers turned to leave in order to discuss whether to stake out the house, break the door, or to procure an arrest warrant. As the officers were leaving, the female inside Eddington’s apartment said, “Mr. Shelby, is that you?” Detective Shelby again identified himself. Thereafter, a female came to the door, identified by Shelby as Johnetta Hawkins, Eddington’s girlfriend, whom Shelby had known for some time. Miss Hawkins repeated that Eddington was gone; however, Detective Shelby — not totally relying on the representation that Eddington was absent — asked if he could look around. Miss Hawkins opened the door and told Shelby to go right ahead. Detective Shelby then drew his gun and entered the apartment. Detective Shelby described his subsequent conduct as follows: “Q. After you said you wanted to look and see for yourself what did you do? “A. I went — first I turned to the left. I went to the living room on into the bedroom, looked under the bed, as I was going through the closet there is a connecting closet between the bedroom and smaller bedroom I would call it or utility room. I noticed a pair of black shoes setting there. I was looking-in the closet to see if Eddington could have hidden in there. “Q. Was he in there? “A. No, sir. I picked the shoes up, examined them, saw that they were the heel was similar to the one I had seen outside, and the heel was the char acteristic of the one as the Middledorf one in the bathroom where Mrs. Middledorf was found. I also saw fine particles which I thought could have been glass in them. I set the shoes down, come on back through the small bedroom into the kitchen and told Lieutenant Killingsworth he is not here, let’s go.” The officers then left the apartment to discuss what should be done. A police car was called to the scene to wait in the vicinity until the prosecutor could procure orders for warrants. Detective Shelby appeared before a magistrate and obtained a warrant for Eddington’s arrest and a search warrant for the shoes observed in Eddington’s apartment. The officers returned to the apartment and found Miss Hawkins had left and had padlocked the door. They obtained entry by forcing the door and took possession of the shoes. Eddington was arrested on February 8th and charged with the murders of Carl and Gertrude Middledorf. Before trial, defense counsel filed a timely motion to suppress people’s exhibit 2, the pair of shoes taken from Eddington’s apartment. This motion was denied following an evidentiary hearing. At trial, the people introduced into evidence both the shoes and pictures of heel prints and impressions made from the shoes by the state police. This evidence, together with testimony that similar prints were found at the scene of the crime, tended to show that defendant was the perpetrator of the alleged murders. I Defendant first contends that the admission of people’s exhibit 2 as evidence against him was constitutional error. He alleges that Detective Shelby’s examination of the shoes at the time of Shelby’s original entry into defendant’s apartment consti tuted an illegal search in violation of his rights under the Fourth Amendment, as applied to the States through the Fourteenth Amendment, of the United States Constitution. See Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684; 6 L Ed 2d 1081; 84 ALR2d 933). At the outset, we note that consideration of defendant’s constitutional claim is not obviated by the fact that Detective Shelby obtained a warrant to search for defendant’s shoes after having discovered them in defendant’s apartment. If, as defendant contends, Detective Shelby’s action in lifting the shoes and examining their heels constituted an illegal search, the subsequent seizure of the shoes pursuant to a warrant would, on this record, be the “fruit of the poisonous tree,” thus subject to the exclusionary rule. See Silverthorne Lumber Company, Inc. v. United States (1920), 251 US 385 (40 S Ct 182; 64 L Ed 319); Wong Sun v. United States (1963), 371 US 471 (83 S Ct 407; 9 L Ed 2d 441). For it clearly appears from the record that the subsequent ivarrant was issued based on knowledge obtained as a result of Shelby’s examination of the shoes. And, assuming the illegality of that examination, evidence obtained by use of the tainted warrant must be excluded at trial. Mapp v. Ohio, supra; People v. Alverson (1924), 226 Mich 342. To hold otherivise would permit the police to ignore completely the constitutional requirement of a search warrant. It Avould allow them to engage in unlawful searches at will, being assured that if they discovered incriminating evidence, they could thereafter cure their illegal actions by securing a search warrant. Such is not our conception of the Fourth Amendment. We therefore confine our consideration of defendant’s constitutional claim to Detective Shel by’s original entry into defendant’s apartment and his examination of defendant’s shoes. In denying defendant’s motion to suppress, the trial court found that Detective Shelby had probable cause to arrest defendant for armed robbery prior to going to defendant’s apartment. The court also found that, upon arrival at the apartment and after observing the prints embedded in the snow, Shelby likewise had probable cause to arrest defendant Eddington for the Middledorf murders. These findings are not contested by defendant on appeal. The trial court then reasoned: “Arrests without a warrant are valid if based on ‘probable cause’ or ‘reasonable grounds.’ Under the circumstances, both at common law and by statute, the officers were entitled to enter the apartment to make a lawful arrest of defendant Eddington.” (Emphasis supplied.) Defendant’s threshold argument is that, notwithstanding the fact that Shelby possessed “reasonable cause to believe that a felony [had] been committed and reasonable cause to believe that [Eddington had] committed it,” see MCLA § 764.15(d) [Stat Ann 1954 Rev § 28.874(d)], the entry into defendant’s apartment without an arrest warrant was unreasonable and unlawful because the entering officers had no justifiable excuse for their failure to obtain a warrant. A similar contention was presented to this Court in People v. Herrera (1969), 19 Mich App 216, and we rejected it saying: “Upon consideration of US Const, Am 4, and Const 1963, art 1, § 11, we find no valid basis for the adoption of defendant’s cited standard for reasonableness regarding searches as the standard to be applicable to arrests.” 19 Mich App at 223. The Court noted that numerous courts hold that an arrest without a warrant is not unlawful even though the police have adequate opportunity to obtain an arrest warrant prior to the arrest. Nor are we of the opinion that defendant’s absence in fact from the apartment affected the lawfulness of Detective Shelby’s entry. Upon approaching the apartment, Shelby heard what appeared to be the rustle of more than one individual inside the apartment. He had previously seen defendant’s ear parked outside the apartment. These circumstances led him to believe that Eddington was at home. That belief was on this record a reasonable one, and, although Detective Shelby was informed that defendant was not at home, he was not required to rely on Miss Hawkins’ representation. Accord, People v. Sprovieri (1968), 95 Ill App 2d 10 (238 NE2d 115), affirmed (1969), 43 Ill 2d 219 (252 NE2d 531). Having probable cause to arrest defendant and having a reasonable belief that defendant was at home, we conclude that Shelby was entitled to enter the apartment and was lawfully on the premises. Accord, People v. Barbee (1966), 35 Ill 2d 407 (220 NE2d 401); State v. Howard (1968), 274 NC 186 (162 SE2d 495); People v. Sprovieri, supra. Defendant next suggests that, assuming arguendo that the officers had a right to enter the apartment to search for defendant, they did not have the authority to search for evidentiary items. Detective Shelby’s conduct is characterized as a “search incident to an attempted arrest,” which, defendant argues, has been universally rejected by the courts. Two authorities are cited and said to undermine the lawfulness of Detective Shelby’s conduct. They are Mosco v. United States (CA 9, 1962), 301 F2d 180, and Stoner v. California (1964), 376 US 483 (84 S Ct 889; 11 L Ed 2d 856). Both decisions are distin guishable, however, from the facts of the instant case. In Mosco v. United States, supra, officers entered an apartment with the intent, supported by probable cause, to arrest the defendant. The issue presented was stated by the court at 186: “Discovering appellant’s absence, was the [warrantless] search of the apartment and the seizure of the material evidence proper?” (Emphasis supplied.) Likewise in Stoner, officers proceeded to search an apartment after they found defendant was not present. Here, however, Detective Shelby first observed the shoes in the course of a lawful search for defendant Eddington, reasonably believed by Shelby to be hiding in the apartment. Unlike the situation in the cases cited by defendant, the search for the suspect here had not ended. We need not consider, therefore, the validity of a search for evidentiary items following recognition by the police of a suspect’s absence from the premises. In Harris v. United States (1968), 390 US 234, 236 (88 S Ct 992, 993; 19 L Ed 2d 1067, 1069), the United States Supreme Court noted that: “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” This is the so-called “plain view doctrine,” which has been repeatedly applied by Michigan Courts. See People v. Orlando (1943), 305 Mich 686; People v. Kuntze (1963), 371 Mich 419; People v. Tetts (1967), 6 Mich App 254; People v. McDonald (1968), 13 Mich App 226; People v. Tisi (1969), 16 Mich App 316. The trial court, in ruling that defendant’s shoes were admissible as evidence, relied on the doctrine here, considering it applicable to the facts presented. Defendant contends, however, that Harris has no application, since all Detective Slielby conlcl see at first glance was a pair of black shoes. Defendant asserts in his brief, “To see what he wanted to see, it was necessary for Shelby to pick up the shoes, turn them over, and carefully examine the heels.” Contrary to defendant’s assertion, the facts presented at the evidentiary hearing support the conclusion that, immediately upon seeing the shoes, Detective Shelby recognized them as those worn at the scene of the crime. From his examination of the print at the Middledorf residence, Shelby knew that the shoes of the killer were “Stetson” shoes — a peculiarly shaped shoe. He had seen similar prints leading to defendant’s apartment upon his arrival; no such prints were observed exiting the apartment —a situation warranting the conclusion that such shoes were inside the apartment. Under the circumstances, it is unlikely that it was necessary for Detective Shelby to pick up the shoes and examine the heels in order to see what he wanted to see. Nevertheless we decline to rest on this ground. We think it necessary to consider on the merits defendant’s contention that Detective Shelby’s actions in picking up the shoes, turning them over, and examining them constituted a search in violation of the Fourth Amendment. We reach this question because Detective Shelby was never asked by the prosecution at the evidentiary hearing whether he recognized at first glance the shoes as those worn at the scene of the crime. The testimony is at best ambiguous. We therefore decline to apply the plain view doctrine here since the people have failed to meet their burden of proof. See People v. Mason (1970), 22 Mich App 595; cf. State v. Kananen (1965), 97 Ariz 233 (399 P2d 426). The people contend, “surely lifting the shoes up Avas not a ‘search.’ ” We agree. In United States v. Catanzaro (SD NY, 1968), 282 F Supp 68, a postal inspector while lawfully in defendant’s apartment noticed a Springfield rifle on a wall rack, and recalled from his investigation of defendant’s alleged fraudulent use of credit cards the repair of such a rifle under a credit card. He examined the rifle more carefully and observed that the serial number on the rifle matched that of the one repaired through the use of the credit card. The rifle was seized as evidence. A motion to suppress the rifle was filed. It was urged that the inspector’s action in closely examining the rifle constituted an unlawful search. Judge Weinfeld denied the motion to suppress, saying at 69, 70: “The inspector and his companions were lawfully present in defendant’s apartment * * * . Discovery of the rifle required no search * >X: # . The inspector was not precluded from observing what was clearly and plainly there to be seen. Having seen the rifle, the inspector properly scrutinized it more carefully, thereby confirming his suspicions that it was part of the fruit of the alleged crime. That he was required to examine it more closely to identify the serial number did not transform a mere observation into an unconstitutional search. * * mere observation [does not] constitute a “search.” If an officer sees the fruits of crime — or what he has good reason to believe to be the fruits of crime— lying freely exposed on a suspect’s property, he is not required to look the other way, or disregard the evidence his senses bring him.’ ” (Emphasis supplied.) AYe apply similar analysis here. Having seen the pair of shoes during his lawful search for defendant and having good reason to believe that such shoes would, upon examination, prove to be those worn at the murder scene, we conclude that Detective Shelby properly scrutinized the shoes more care fully. That Shelby was required to lift the shoes and examine the heels in order to identify them as evidence of crime did not transform his observations into an unconstitutional search. A “search” in the constitutional sense implies a “prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way” Weltz v. State (Alaska, 1967) 431 P2d 502, 505. Such a definition recognizes the gist of the protection afforded by the Fourth Amendment — -protection of the individual from unreasonable invasion of privacy. “We have recently held that ‘the Fourth Amendment protects people, not places,’ Katz v. United States (1967), 389 US 347, 351 (88 S Ct 507; 19 L Ed 2d 576, 582), and wherever an individual may harbor a reasonable ‘expectation of privacy,’ id. at 361 (Mr. Justice Harlan, concurring), he is entitled to be free from unreasonable governmental intrusion” Terry v. Ohio (1968), 392 US 1, 9 (88 S Ct 1868, 1873; 20 L Ed 2d 889, 899). (Emphasis supplied. ) See also, People v. McDonald, supra, at 235. And, in determining the parameters of personal privacy protected by the Fourth Amendment, not only place, but the type of information seized and, consequently, the means of intrusion, must be considered as relevant factors. See note, “From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection,” 43 NYUL Rev 968, 986 (1968). Application of these principles here leads us to our view that Detective Shelby’s action in lifting defendant’s shoes and examining their heels did not constitute a search in the constitutional sense. We find no “prying into hidden places for that which is concealed.” The shoes had not been hidden; nor were they intentionally put out of the way. Under the circumstances, it does not appear that defendant exhibited a subjective expectation of privacy as to his shoes. Cf. People v. Bradley (1969), 1 Cal 3d 80 (81 Cal Rpt 457, 459, 460 P2d 129, 131). Moreover, any such expectation would have been unreasonable. Our values are not adjusted to view the heels of shoes as within the province of intimate personal control. Finally, it seems to us that the same result should be reached even on the hypothesis that a search was involved. The basic question to be answered is whether or not Shelby’s lifting the shoes and examining their heels was unreasonable under all the circumstances. “Where a warrant has not been obtained, the validity of the search depends on the law’s appraisal of the reasonableness of the search, only unreasonable warrantless searches and seizures being barred.” People v. McDonald, supra, at 232. And see People v. Gonzales (1959), 356 Mich 247, 253; People v. Zeigler (1960), 358 Mich 355, 375; People v. Herrera, supra. On this record we hold Shelby’s conduct to be reasonable in constitutional terms. As previously indicated, Detective Shelby was lawfully in defendant’s apartment. He reasonably believed defendant to be hiding in the apartment and had every right, supported by probable cause, to search for the suspected killer. Shelby’s discovery of the shoes was not the result of a general search for evidence. Rather, the pair of shoes was seen during the course of the search for Kddington. In our view, Shelby’s subsequent actions in lifting the shoes and examining their heels involved no more than “legitimate and restrained investigative con duct undertaken on the basis of ample factual justification.” Terry v. Ohio, supra, at 13. Cf. People v. Herrera, supra; People v. Trudeau (No. 6785, released to the parties February 26, 1970). Finally, we reiterate the absence of any invasion of defendant’s privacy. In summary, we conclude that the trial court correctly denied defendant’s motion to suppress people’s exhibit 2. The shoes were properly admitted into evidence. In light of our conclusion, we need not consider whether Miss Hawkins’ action in admitting the police into the apartment constituted a waiver of defendant’s constitutional claim. II At trial, again over defendant’s objection, the people introduced into evidence five colored photographs of the corpses of Carl and Gertrude Middledorf. The pictures detail the condition of the victims’ bodies as the police found them. On appeal, defendant contends that admission of the photographs was reversible error. It is argued that the photographs could shed no light upon any material point in issue. See People v. Becker (1942), 300 Mich 562, 565. Furthermore, defendant contends that the gruesome nature of the photographs could only prejudice and inflame the jury, and that any probative value of the photographs was clearly outweighed by their prejudicial effect. See People v. Turner (1969), 17 Mich App 123. We hold that the photographs were admissible. The scenes depicted were helpful in throwing light on a material issue — namely, the malice with which the crimes were committed. The people had charged • that defendant feloniously, wilfully, and with malice aforethought did kill and murder Carl and Gertrude Middledorf. The photographs, detailing the nature and extent of the wounds inflicted, were admissible for purposes of clarifying and illustrating testimony relating to the victims’ appearance and condition, and particularly for purposes of substantiating the people’s theory concerning the atrociousness of the crimes, or the malice with which they were committed. See Annotation, 73 ALR2d 769, 831. Cf. People v. Bergin (1969), 16 Mich App 443. People v. Turner, supra, upon which defendant relies, is distinguishable from the present case. The photographs there involved depicted “the corpse as it is left, not by its assailant, but by the probing instruments and procedures of the medical examiner.” 17 Mich App at 132. Moreover, “photographs taken during an autopsy however, must be subjected to more careful scrutiny.” Id. In the present case, the gruesome nature of the photographs is not the product of an intervening medical examiner. The photographs depict the bodies of the victims as left at the scene by the assailant. The question of the admissibility of photographs objected to as prejudicial and inflammatory is within the discretion of the trial judge. People v. Brannon (1968), 14 Mich App 690; People v. Bergin, supra; People v. Turner, supra. Finding no clear abuse of this discretion under the facts and circumstances of this case, we conclude that the photographs in question were properly admitted. Ill At trial, defendant testified in his own behalf and denied killing the Middledorfs. His defense was alibi. It was defendant’s testimony that on the evening of February 3, 1967, the date of the alleged homicides, he was present in his apartment with Johnetta Hawkins. Thus the ultimate question of guilt turned largely upon the jury’s view of defend ant’s credibility. An allegedly improper effort by the people to impeach defendant’s credibility constitutes defendant’s third assignment of error. At the time of trial, defendant had several charges pending against him, including charges that he had murdered Dr. Archer Claytor and his wife. Before calling defendant to testify in his own defense, Eddington’s counsel sought a ruling from the trial court as to whether it would permit the people to use the pending murder charges on cross-examination for impeachment purposes. Defense counsel took the position that any reference by the people to the murder charges would, under the circumstances, be so highly prejudicial as to far outweigh any probative relevance of the pending charges to the issue of credibility. After hearing argument, the trial court decided that it would allow cross-examination with respect to the pending murder charges. The prosecutor was advised by the court, however, that he was to proceed at his own risk, since the court itself considered the prosecutor to be on tenuous grounds in pursuing such cross-examination. Thereafter, defendant took the stand and he was asked on direct examination whether any charges were pending against him. Defendant responded in the affirmative: “Well, I have four or five charges pending.” On cross-examination, the following testimony was elicited by the prosecution: “Q. Now, Mr. Brisbois [defense counsel] asked you if you were — if there were any charges pending against you at the present time and you answered yes. “A. Yes. “Q. And it is a fact that you are also charged in a double murder other than the one that we have at the present time ?” Defense counsel immediately objected. The trial court, apparently relying on its earlier ruling, overruled the objection and permitted the prosecutor to repeat the question. “Q. In fact, you do have two other double murders other than the case at bar pending against you in the circuit court; is that correct ? “A. I am charged with another one, yes.” The people attempt to sustain the foregoing cross-examination by referring to People v. Hoffman (1965), 1 Mich App 557. In Hoffman, it was held that questions about pending charges could be asked, but only in the discretion of the trial judge. Here the trial judge left the decision concerning use of the pending charges to the prosecutor. As a result, it cannot be said that the ruling of the trial court constituted an exercise of discretion. Under these circumstances, reliance by the people on Hoffman is misplaced. Since the prosecutor was warned that he was to proceed at his own risk in using the pending murder charges for impeachment purposes, we conclude that what was said by this Court in People v. Brocato (1969), 17 Mich App 277, applies here and necessitates reversal. We noted at 302, 303: “Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion.” (Citation and footnotes omitted.) In terms of the probable impact upon the minds of the jury, the danger here of prejudicial effect was manifest and overwhelming. Evidence that defendant had also been charged Avith a second double mur der could only suggest to the jury that defendant’s career included repeated assaults upon human life. We share the trial court’s vígav that the prosecutor Avas on tenuous grounds in employing the pending murder charges for impeachment purposes. Defendant Avas entitled to have his guilt or innocence of the Middledorf homicides determined on the specific offenses charged. He Avas not required to risk the possibility of conviction for a series of unproven prior acts Avhich collectively suggested that his career had been reprehensible. Nor are Ave persuaded that since defense counsel questioned Eddington concerning the pending charges on direct examination, defendant is in no position to complain. Defense counsel’s questions hardly extended as far as the prosecutor’s cross-examination. The questions posed merely concerned the number of pending charges, not their nature. In an area involving factors so highly prejudicial— here the nature of the charges — a slight opening of the door by the defense should not permit the prosecution to SAving it totally ajar. See United States v. Beno (CA 2, 1963), 324 F2d 582, 588. Moreover, defense counsel only brought out the pending charges knoAving full Avell that the people Avould be permitted to question defendant concerning the murder charges on cross-examination. This maneuver does not, hoAvever, open the door to the prejudicial cross-examination that took place. Cf. People v. Hines (1967), 87 Ill App 2d 283 (232 NE2d 111). We hold that admission of the pending murder charges for impeachment purposes Avas error. Furthermore, Ave are satisfied that the improper admission of such evidence resulted in a miscarriage of justice. MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096). The question of Eddington’s credibility Avas critical, and, on this record, Ave decline to char acterize the improper impeachment of defendant’s credibility as harmless error. This is especially true here, since defendant was subsequently acquitted of the charges of murdering the Claytors. Other questions raised by defendant need not be considered, as they are likely upon retrial to emerge in a greatly altered context of evidence. Defendant’s conviction is reversed and the case is remanded for new trial. All concurred.

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Fitzgerald, J. Joseph Barbara, Jr., the defendant in the instant case, was charged with the extortion of Mrs. Peter (Delores) Lazaros contrary to CL 1948, § 750.213 (Stat Ann 1962 Rev § 28.410). Defendant stood mute to the charge and a plea of not guilty was entered on his behalf. Following several adjournments, the trial commenced on August 1, 1969. Objection was raised by the defense to holding the trial at that time since the complaining witness was pregnant. The matter was submitted to a jury on August 12, 1969, which found the defendant guilty of the crime with which he was charged. On September 19, 1969, defendant was sentenced to serve 7 to 20 years in prison. During the course of the trial, Mrs. Lazaros testified that Joseph Barbara, Jr., came to her home while her husband was in prison and, through the use of threats upon the lives of members of her family, was successful in efforts to rape and extort money from her. It was alleged that defendant informed Mrs. Lazaros that if she did not cooperate, he would have her husband killed in prison. Complainant charged that similar threats were made on her son’s life. The complainant feared for her husband’s life and informed no one of these events until some six months later when her husband returned from prison. A complaint was then filed with the State Police which resulted in defendant’s arrest. Testimony was also elicited from Nicholas Lazaros, father of Peter Lazaros, to the effect that defendant had come to the Lazaros home while his son and daughter-in-law were at the police station. Threats were made and defendant pushed the elder Lazaros to the ground. Evidence was also introduced that Barbara had agreed to help Peter Lazaros on his appeal from a previous criminal conviction and that Lazaros was angry because things had not gone as well as anticipated. Following the prosecution’s rebuttal, the name of Tischia Lazaros, mother of Peter Lazaros, was re-indorsed upon the information. Her name was originally on the information, but it was removed during trial. She corroborated the testimony previously given by her husband, Nicholas Lazaros. Several issues are raised on this appeal; the first concerns the question of whether the continuous injection by witnesses Peter and Delores Lazaros of extraneous matters in the presence of the jury deprived defendant of his right to a fair trial by an impartial jury. The allegedly prejudicial matters concern references made which imply that defendant and his attorneys were connected with the “Mafia”, thus inferring a guilt by association. Defendant argues that in light of the remarks made, the judge’s instructions to the jury, striking all references to the above subject, were not sufficient because of the inflammatory nature of these utterances. The people argue that defendant’s attorneys deliberately phrased questions which were calculated to bring out references to the “Mafia”, thus inviting error for purposes of having a mistrial declared. In People v. Wolke (1968), 10 Mich App 583, this Court addressed itself to questionable evidence injected into a trial. The Court discussed the question of when objectionable evidence will be held to so prejudice a jury that a new trial must be granted. In analyzing the applicable authorities, it was found that two standards exist; namely, that once a prejudicial remark is made, the “ink spot” may not be blotted from the minds of a jury by express instructions. On the other hand, recognition was also given to a line of cases which presumed that a jury considers only the testimony permitted by a court to stand. This Court held that the choice of which standard to apply ultimately rests upon the degree of prejudice generated by the objectionable evidence. Only if the testimony is inherently prejudicial or inflammatory will there be an “ink spot” on the minds of the jurors which cannot be erased. In the case at bar, we are dealing with unresponsive, irrelevant, and spontaneous answers volunteered by two witnesses. In 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 600, p 778, it is stated: “Error cannot be predicated upon the fact that a witness gives an improper or irrelevant answer where the question was a proper one and neither the court nor counsel was at fault. Improper testimony offered by a witness and promptly struck out by the court on objection is not reversible error. * * * A witness cannot put error into a case by an unauthorized remark, neither called out by a question nor sanctioned by the judge; and if what he says or does improperly is likely to do much mischief, it is presumed that the judge will apply the proper corrective measures in his instructions if requested to do so.” A review of the problem with which we are faced leads to the inescapable conclusion that if error could be easily predicated on the improper utterances of a witness, it would be most difficult ever to conduct a proper trial. People v. Droste (1910), 160 Mich 66. Unresponsive answers, irrelevant in nature alone, are not sufficient to cause reversible error. The instructions to disregard the utterances made were quite sufficient to instruct the jury on those matters not properly before them and cured the possibility of prejudice to defendant. The next question discussed concerns an alleged error in permitting the prosecution to call Mrs. Tischia Lazaros in rebuttal to help prove its case in chief. Defendant asserts that such a last minute action, after the defense had rested its case in rebuttal, unfairly prejudiced defendant’s rights. The people argue that the question of reopening the proofs is solely within the court’s discretion and, further, that the testimony only related to matters which they had previously introduced. In support of this assignment of error, defendant relies on our previous decision in People v. Sacharczyk (1969), 16 Mich App 710. However, the facts are readily distinguished from those in the case at bar. In Sacharczyk,, it was held that the allowance of rebuttal evidence was improper because the witness there introduced had never been indorsed on the information, no explanation of failure to indorse was given, and the testimony itself was improper as it tended to prove surrounding circumstances of the crime. A review of the record discloses that Tischia Lazaros had been indorsed on the information and the testimony elicited was rebuttal of defendant’s earlier testimony. Furthermore, the rule in Michigan places the question of whether to allow rebuttal evidence within the discretionary powers of the trial judge, and this will not be disturbed unless clearly abused. People v. Chimovitz (1927), 237 Mich 247; People v. Delano (1947), 318 Mich 557. The testimony in question does not add anything new, but merely corroborates the earlier testimony of Nicholas Lazaros. The record also evidences the fact that the trial judge instructed members of the jury not to give undue weight to Mrs. Tischia Lazaros’ testimony due to her position in the list of witnesses. Explanation was also given as to why the particular witness had not testified earlier and assurances were made by the prosecution that the situation had been corrected. In People v. Leonard E. Smith (1968), 15 Mich App 173, this Court, citing People v. Cox (1888), 70 Mich 247, ruled on the reception of rebuttal evidence which should have been brought out on direct examination. It was held therein that the reception of testimony on rebuttal which should have been offered on direct examination is within the discretion of the trial court, unless such discretion is clearly abused. It was further held that where the testimony in question merely expands or supports previously admitted testimony, it is not prejudicial. Hence, we find the decision of the trial court in admitting the woman’s testimony to be reasonable and, for the reasons delineated above, reversible error was not committed in the particular instance. The next issue to he considered is whether the trial court erred in not admitting the testimony of two witnesses to contradict the testimony of Peter and Delores Lazaros. Defendant argues that one of these witnesses would have testified to the effect that Mrs. Lazaros had stated that her husband had threatened to kill her and this would have been demonstrative of the fact that she was testifying out of fear of her husband. Defendant further argues that the testimony of the other witness would have lent support to his theory that Lazaros was attempting to snare defendant in a network of lies. The people rely on the trial court’s reasoning that the testimony of the two witnesses only attempts to impeach on a collateral matter and does not show any scheme or design or bias by the prosecution’s witnesses in testifying as they did. It is evident that the trial court was correct in its ruling since defendant has not substantiated his argument that the testimony of these witnesses would show the interest or bias of the complaining witness and her husband, and it appears merely to be an attempt at impeachment on a collateral matter. The reasons why Peter Lazaros might falsely testify about defendant were before the court as a result of other testimony and, in addition, the fact that Mrs. Lazaros had started divorce proceedings against her husband was brought before the jury on cross-examination. The trial court has wide discretion in this area as exemplified by People v. MacCullough (1937), 281 Mich 15, where the Court stated: “The discretion of the trial court upon the subject of cross-examination on collateral matters is not subject to review unless it is shown to have been grossly and oppressively abused. So far as the cross-examination of a witness relates either to facts at issue or relevant facts, it is a matter of right; but when its object is credibility of a witness, its method and duration are subject to the discretion of the trial judge and unless abused, its exercise is not the subject of review.” Therefore, this Court finds that the answer of a witness on cross-examination as to a merely collateral matter becomes binding upon the cross-examiner and may not be contradicted through introduction of further testimony of other witnesses regarding these collateral matters. Last, defendant asserts that it was unduly prejudicial to his cause not to postpone the trial until the complainant had given birth to her child. He contends that having to cross-examine an obviously pregnant woman before the jury created sympathy among the jurors and denied him a fair trial. We cannot accept defendant’s argument, for the law in Michigan is quite clear that a continuance is a matter of discretion with the trial court. The court had good reason for denying the continuance in that considerable delay had already surrounded the proceedings and some of the prosecution’s witnesses wanted to leave the country. In People v. O’Leary (1967), 6 Mich App 115, this Court was faced with a similar situation where the complaining witness in an involuntary manslaughter case was pregnant and a continuance was denied by the trial court. This Court affirmed the decision, stating that such matters were discretionary and no abuse existed. In the instant case, we cannot find that the lower court abused its discretion in denying the continuance. In each of the issues raised on this appeal, it seems eminently clear that the trial court’s rulings were fair and based upon established law. The lower court must be upheld since, in light of CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096), it does not “affirmatively appear” that there has been a “miscarriage of justice”. Affirmed. All concurred.

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Per Curiam: On September 11, 1968, defendant Baymond Spencer plead guilty to assault with intent to rob and steal being armed. Before accepting the plea, the trial court thoroughly questioned the defendant and his appointed counsel. The counsel stated, inter alia, the following: “I have also advised Mr. Spencer that the charge of assault with intent to rob while being armed also carries a maximum penalty of life, but also, there is the possibility of probation, wherein robbery armed there is no probation. I have explained the difference to him and explained the elements of each and we have discussed the facts of the case very, very thoroughly and at length, we went over the examination at length together, and I have discussed the matter with the prosecutor and with the detective in charge and after having discussed this matter, your Honor, Mr. Spencer advises me that he wishes to withdraw his plea of not guilty heretofore entered to the charge of robbery armed and enter a plea of gniilty to the charge of assault with intent to rob while being armed.” In addition, defendant recited his version of the crime: “Well, your Honor, on the 7th day of February, I was hanging around, out of the restaurant with a friend of mine and while we were hanging around, I, I consumed some barbiturates, I consumed some barbiturates on the 7th of February and a friend and I had, with me, he [sic] and him were talking and we were talking about getting some money, so, we went outside and we saw this cab come by, we got in the cab and told the cab driver to go around Hollywood and the Expressway and at that time, we got there, I asked the — I pulled a gun and told the man to give me his money.” After some, additional questioning of the defendant, the trial court accepted the guilty plea. On October 9, 1968, at the sentencing hearing, defendant’s counsel stated, apparently in mitigation of the sentence, that “defendant has admitted he was under the influence of narcotics and that he had not engaged in this type of activity before.” Defendant was sentenced to 10 to 15 years in prison. Defendant’s argument, raised in a motion for new trial and on appeal, is that the guilty plea must be vacated because his earlier testimony indicated that his condition at the time of the crime precluded formation of the requisite specific intent. While a showing of sufficient alcoholic or narcotic intoxication could negative a finding of specific intent to commit a crime, we find no such showing here. Defendant was represented by counsel at all stages of the proceedings below. However, defendant did not raise the issue of narcotic intoxication as a defense until motion for new trial. Examining the record we find no indication of the amount or type of barbiturates consumed, and no showing was attempted at a hearing on the motion. The mere mention by tbe defendant, that he took some unstated amount of barbiturates shortly before commission of a crime is not sufficient basis for setting aside the plea of guilty where the record reveals that defendant claims no impairment as a result of taking' same. We find no miscarriage of justice in the instant case. People v. Dunn (1968), 380 Mich 693. Affirmed. MCLA § 700.89 (Stat Ann 1962 Rev § 28.284). See People v. Guillett (1955), 342 Mich 1; People v. Kelley, (1970), 21 Mich App 612.

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Per Curiam. Defendant Charlie Akers pled guilty and was convicted of assault with intent to rape contrary to MCLA § 750.85 (Stat Ann 1962 Rev § 28.280). On appeal, he contends that the trial court did not sufficiently inquire into the nature of the defendant’s plea of guilty to warrant the acceptance of the plea and that said plea was not freely and voluntarily made. The appellee has filed a motion to affirm pursuant to GCR 1963, 817.5(3). A review of the plea and sentencing transcript reveals that the defendant’s contentions are without merit. It is manifest that the requirements of GCR 1963, 785.3(2) and MOLA § 768.35 (Stat Ann 1954 Rev § 28.1058) were satisfied. Defendant has not shown that there was a miscarriage of justice with respect to the acceptance of a guilty plea. People v. Winegar (1968), 380 Mich 719. The questions presented here on appeal are unsubstantial and require no argument or formal submission. The motion to affirm the defendant’s conviction is granted.

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Saad, J. i NATURE OF THE CASE May a plaintiff who voluntarily signs a broad, unambiguous release before participating in a personal contact sporting event (in which she is injured) avoid the release by claiming that she did not have time to read it or did not understand what she read? We hold that she may not and therefore affirm the trial court’s grants of summary disposition to defendants. n FACTS On March 4, 1994, plaintiff and her husband and several friends went to defendant Woodbridge Tavern. That night, defendant Miller Brewing Company (Miller) was sponsoring a “sumo wrestling event” in which the participants were required to wear large “balloon-type” suits and “jockey” helmets, before bouncing against each other in a “circle-type” ring. Plaintiff decided that the wrestling “looked like fun” and she signed up to participate. Plaintiff asked no questions about the nature of the wrestling, the equipment, or the risks involved in wrestling. When plaintiffs name was called, she was asked to, and did sign, the following release: Lite Beer Sumo Wrestling Waiver Form Release, Assumption of Risk & Indemnification Agreement Sumo Wrestling Event Date: 3/4/1994 In consideration of my participation in the above-entitled event, and with the understanding that my participation in sumo wrestling is only on the condition that I enter into this agreement for myself, my heirs and assigns, I hereby assume the inherent and extraordinary risks involved in sumo wrestling, in the use of sumo wrestling suits, and any risks inherent in any other activities connected with this event in which I may voluntarily participate. I expressly assume the risk of and accept full responsibility for any and all injuries (including death) and accidents which may occur as a result of my participation in this event and release from liability Miller Brewing Company, Entertainment & Leisure U.S.A., Inc. and Eastown Distributors, Co. and each of their officers, directors, agents, representatives and employees. I hereby waive any claim I may hereafter have as a result of any and all injury to my person or property as a result of my participation in the sumo wrestling event, my use of a sumo wrestling suit, and in any other activities connected with this event in which I may voluntarily participate. I hereby agree to indemnify all of the above-named persons and Miller Brewing Company, for any and all claims, including attorney’s fees and costs, which may be brought against any of them by anyone claiming to have been injured as a result of any injury to me or my property which may occur as a result of the sumo wrestling event. I also agree that this release and all its particulars includes Woodbridge Tavern, Inc. I understand that sumo wrestling is a physical sport and that physical injury may result. I certify that I have read and fully understand this release. I am of lawful age and legally competent to make this agreement. Dated: 3/4/94 Signature: /s/ Address: Witness: Plaintiff (and her husband) then donned the “sumo suits” and helmets and entered the ring. The object of the match was for one of the wrestlers to knock the other down. The ring was similar to a child’s inflatable pool with a lip or ridge around the outer edge. Plaintiff stayed to the outside of the ring to avoid being knocked down, but after wrestling for eight to ten minutes, plaintiff caught her foot on “something” as she backed up. The bulk of the wrestling suit prevented her from catching her footing, and plaintiff fell, damaging her left knee. The circuit court granted summary disposition to defendants pursuant to MCR 2.116(C)(7) and (C)(10) with regard to plaintiff’s personal injuiy claim. in ANALYSIS Plaintiff first asserts that she did not fairly and knowingly sign the release because she was not given time to read it before entering the ring. We disagree. The record makes clear that plaintiff’s failure to read the release was caused by her own haste to get in the ring and avoid losing her turn to wrestle, not by defendants’ attempts to mislead or defraud her. See Dombrowski v Omer, 199 Mich App 705, 709-710; 502 NW2d 707 (1993). Plaintiff also argues that she did not fairly and knowingly sign the release because she did not understand that the release blocked claims against defendants’ negligence in maintaining the equipment used in the wrestling matches. Again, we disagree. The release language is not misleading or ambiguous. The language whereby the participant agreed to assume “any risks inherent in any other activities connected with this event in which I may voluntarily participate” and to take responsibility for “any and all injuries (including death) and accidents which may occur as a result of my participation in this event ...” clearly expressed defendants’ intention to disclaim liability for all negligence, including their own. See Skotak v Vic Tawny Int'l, Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994) (“there is no broader classification than the word ‘all.’ In its ordinary and natural meaning, the word ‘all’ leaves no room for exceptions”); Dombrowski, supra at 711-712. This is not a case where defendants invalidated their release by fraud or misrepresentation. Id. at 710-711. Next, plaintiff argues that her injury was outside the scope of the release, because it was not caused by contact with another wrestler but by tripping on a ridge in the wrestling mat. We disagree. We have already observed that the release was broad enough to allow defendants to disclaim liability for all negligence. Skotak, supra at 619. Nor does the case cited by plaintiff, Mott v Fraser Investment Group, unpublished opinion per curiam of the Court of Appeals, issued August 25, 1995 (Docket No. 157857), persuade us to construe the release more narrowly. The language of the release in Mott limited the risks accepted by the releasor to those incurred during “participation or observation of the sport,” which excluded injuries caused by defective premises. The release at issue here, which covered “any risks inherent in any other activities connected with this event in which I may voluntarily participate,” did not exclude injuries caused by defective equipment. In any event, Mott is an unpublished opinion that has no binding precedential effect on our decision. MCR 7.215(C)(1). We hold that the release plaintiff signed was broad enough to bar her claim. Finally, plaintiff contends that the trial court prematurely granted defendants’ motions for summary disposition because at the time the motions were granted, thirty days remained in the discovery period, and plaintiff awaited answers to several discovery requests. We disagree. Plaintiff offered no evidence that the discovery sought could have established that a dispute did indeed exist. See Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994). Plaintiff did not show that acquiring information about the specifications, manufacture, and repair of the wrestling mat and suit used on the night she sustained her injury would further her claims that she signed an invalid release and that her injury was outside the scope of the release. We thus hold that summary disposition was appropriately granted. See Vargo v Sauer, 215 Mich App 389, 401; 547 NW2d 40 (1996). Affirmed. Gage, J., concurred in the result only.

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Cavanagh, J. The prosecutor appeals by leave granted the probate court order finding that the prosecutor did not have standing to file a child neglect petition under the Juvenile Code as a petitioner. We reverse. On February 8, 1996, Allegan County Assistant Prosecutor Michael Buck filed a petition with the probate court alleging that minors Kyle and Rachel Jagers were suffering from various acts of abuse and neglect by their parents, respondents Janice Jagers and Orrin Wells. The petition, filed pursuant to MCR 5.961, was in the name of the People of Michigan. The prosecutor requested that the probate court accept jurisdiction over the minor children, place the children in licensed foster care or with a suitable relative, allow Janice Jagers to have supervised visitation, and order a physical examination of the children. At a hearing on May 15, 1996, the attorney for respondent Jagers argued that the prosecutor had no proper role in the proceedings, because he was not representing the Family Independence Agency (FIA). The fia was also a party in this case but had expressly announced that it intended to retain other counsel. The probate court, relying on In re Hill, 206 Mich App 689; 522 NW2d 914 (1994), agreed that the prosecutor did not have standing to appear in this case independent of any representation of the fia. The probate court further stated that it did not believe “that a petitioner can be a prosecutor because they [sic] are not verifying the information.” The order incorporating this ruling was entered on May 28, 1996. On June 17, 1996, the probate court certified the question whether a prosecutor has standing to file a child neglect petition on behalf of the People of Michigan, and the prosecutor sought leave to appeal pursuant to MCR 5.993. On October 1, 1996, this Court granted the prosecutor’s application for leave to appeal. MCL 712A.11(2); MSA 27.3178(598.11)(2) provides: Beginning June 1, 1988 and except as provided in subsection (3), if a person gives information to the juvenile division of the probate court that a child is within section 2(a)(2) to (6), (b), (c) or (d) of this chapter, a preliminary inquiry may be made to determine whether the interests of the public or of the child require that further action be taken. If it appears that formal jurisdiction should be acquired, the court shall authorize a petition to be filed. [Emphasis added.] Statutory interpretation is a question of law subject to review de novo on appeal. The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. Nat'l Center for Mfg Sciences, Inc v Ann Arbor, 221 Mich App 541, 545-546; 563 NW2d 65 (1997). The Juvenile Code should be liberally construed in order to provide each child coming within the juvenile division’s jurisdiction with such care, guidance, and control as will be conducive to the child’s welfare and the best interest of the state. MCL 712A.1; MSA 27.3178(598.1); People v Dunbar, 423 Mich 380, 386; 377 NW2d 262 (1985). We conclude that the probate court erred in finding that the prosecutor did not have standing to appear in this case independent of any representation of the fia. Under the plain language of MCL 712A.11;. MSA 27.3178(598.11), a petition may be filed by “a person” requesting the court to take action on behalf of a child because of parental abuse or neglect. A prosecutor or an assistant prosecutor assuredly qualifies as “a person.” Moreover, the Supreme Court has stated: The purpose and focus of a neglect or abuse proceeding in the juvenile division of the probate court is the protection of children. To this end, proceedings may be initiated by anyone who has information that a child is in need of the court’s protection. [People v Gates, 434 Mich 146, 161- 162; 452 NW2d 627 (1990), cert den sub nom Gates v Michigan, 497 US 1004 (1990) (emphasis added).] The probate court relied on Hill, supra. However, our review of Hill does not lead us to a different result. In Hill, the issue was whether the prosecutor had independent standing to proceed in child protective proceedings when the Department of Social Services (dss) (now known as the fia) requested and obtained representation from the office of the Attorney General. This Court stated: We find the prosecutor, under certain circumstances, has standing to petition the probate court for the termination of a parent’s parental rights and to appear at all child protective proceedings regardless of the Department of Social Services’ position and representation by the Attorney General’s office. Nonetheless, for the reasons set forth below, we find no error in the circuit court’s affirmance of the probate court’s ruling that the prosecutor had no standing with regard to the instant matters, in part'because the prosecutor did not properly petition the court for termination. [Hill, supra at 691 (emphasis added).] In Hill, unlike in the present case, the prosecutor did not file the original petition in the probate court. Moreover, the prosecutor was not acting on behalf of the DSS. Nevertheless, the prosecutor attempted to amend and supplement the original termination petition, which had been filed by the dss. The Hill Court merely held that one party cannot amend or supplement another party’s petition. See id. at 692. The probate court relied on a statement in Hill that there are only three ways that a prosecutor can obtain standing in a child protective proceeding. See id. at 691. The statutes cited in Hill are those that specifically refer to prosecutorial involvement in a child protective proceeding. MCL 712A.17(4); MSA 27.3178(598.17)(4) and MCR 5.914(A) require the prosecutor to appear at any child protective proceeding when requested by the court. MCL 712A.17(5); MSA 27.3178(598.17)(5) requires the prosecutor to serve as a legal consultant to the dss/fia at all stages of a child protective proceeding when requested to do so by the agency or its agent. MCL 712A.19b(l); MSA 27.3178(598.19b)(1) and MCR 5.974(A)(2) permit the prosecutor and certain other enumerated parties to file original, amended, and supplemental petitions for termination of parental rights after a child has remained in foster care or the custody of a guardian for a specified period. However, there is no authority for the finding that the prosecutor may perform only those duties specifically assigned to him in the statutes and court rules. The powers and duties of the prosecuting attorney are provided by law. See Const 1963, art 7, § 4. Pursuant to MCL 49.153; MSA 5.751, a prosecuting attorney shall appear for the state or county and prosecute or defend in all the courts of the county all prosecutions, suits, applications, and motions, whether civil or criminal, in which the state or county may be a party or is interested. However, the prosecutor’s powers and duties include not only those expressly set forth in the statute, but also such additional functions as may be necessarily implied from those specifically mentioned. Bloss v Williams, 15 Mich App 228, 233; 166 NW2d 520 (1968). We further conclude that the probate court erred in determining that the prosecutor could not verify the petition. MCL 712A.11(4); MSA 27.3178(598.11)(4) requires only that the petition “be verified and may be upon information and belief.” MCR 2.114(B)(2) provides: If a document is required or permitted to be verified, it may be verified by (a) oath or affirmation of the party or of someone having knowledge of the facts stated; or (b) except as to an affidavit, including the following signed and dated declaration: “I declare that the statements above are true to the best of my information, knowledge, and belief.” In the present case, the prosecutor declared that the statements in the petition were true to the best of his knowledge, information, and belief. Thus, the prosecutor fulfilled the statutory requirement that the petition be verified. If the prosecutor cannot support the allegations in the petition with evidence sufficient for the court to assume formal jurisdiction, the court will not authorize the petition to be filed. See MCL 712A.11(2); MSA 27.1378(598.11)(2). Moreover, we believe that public policy favors allowing prosecutors to act independently of the fia. As the probate court noted at the hearing below, the prosecutor and the FLA do not always agree on how a particular case should be handled. When, as in the instant case, the prosecutor believes that a petition should be filed and the fia, for whatever reason, is not persuaded, the prosecutor should not be precluded from taking any action. The state, and every county within it, has an interest in protecting children from abuse and neglect. See MCL 49.153; MSA 5.751. Reversed. No taxable costs pursuant to MCR 7.219, a question of public policy being involved. The father of Kyle Jagers is actually Patrick Jagers. Patrick Jagers is not a party to this appeal. This statute was amended by 1996 PA 409, § 1. The amendment becomes effective on January 1, 1998.

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Per Curiam. This case involves a dispute regarding whether plaintiff, as defendant Marcell Racine’s homeowner’s insurer, must provide coverage for the accidental death of defendants’ three-year-old son. We affirm the trial court’s order granting summary disposition in favor of defendants. Defendants Marcell and Jeri Racine, husband and wife, were divorced in February 1994. At that time, legal custody of defendants’ son, Vance, was awarded to defendants jointly, with physical custody granted to Jeri Racine. Separate households were established, with Marcell Racine enjoying visitation with Vance at least every other weekend and, on a more or less regular basis, one weeknight a week for a total of eight to ten days a month. There was evidence that Marcell Racine maintained a separate bedroom for Vance, where some clothes and toys were kept, and toiletries were available. Shortly before the accident underlying this action, Marcell Racine moved to a new home, where a bedroom was available for his son although it had not yet been furnished. Vance also had clothes and toiletries available, along with toys, at his father’s new home. Marcell Racine was mowing his lawn using a riding mower; Vance was riding with him. The mower tipped, a fire broke out, and Vance was killed. Jeri Racine, as personal representative of Vance’s estate, brought suit against Marcell Racine for negligence. Marcell Racine asked his homeowner’s insurer, plaintiff Vanguard Insurance Company, to undertake a defense and to indemnify him for any liability. Vanguard filed this declaratory action, contending that under certain terms of the insurance policy, it had no duty either to defend or indemnify Marcell Racine for such liability. Defendants brought a motion for summary disposition, which the trial court granted, concluding that the policy provides coverage. The dispute regarding the policy primarily concerns the definition of “insured”: “Insured” means you and residents of your household who are: (a) your relatives; or (b) other persons under the age of 21 in the care of any person named above. The liability coverage provisions of the policy do not apply to bodily injury sustained by any “insured.” Coverage for medical payments is similarly excluded for bodily injury to any person “regularly residing” at the insured location. There are a number of Michigan precedents addressing similar insurance policy language. E.g., Williams v State Farm Mutual Automobile Ins Co, 202 Mich App 491; 509 NW2d 821 (1993); Dobson v Maki, 184 Mich App 244; 457 NW2d 132 (1990); Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675; 333 NW2d 322 (1983). However, all these precedents concern situations in which, if the person in question was held to be a “resident” of the household of the insured, or “domiciled” there, insurance coverage was afforded. Here, the opposite result obtains; if decedent was a resident of his father’s household, there is no coverage. We find these decisions inapposite, considering the general rule that, unless the language of an insurance policy unambiguously so requires, a policy should not be construed to defeat coverage. Shumake v Travelers Ins Co, 147 Mich App 600, 608; 383 NW2d 259 (1985). Previous holdings regarding the “resident” question are not helpful, because in each case the Court properly strove to find that the individual in question was a resident and thus eligible for insurance benefits. There are general rules applicable to the interpretation of insurance policies that do provide guidance for this case. An insurance policy is a contract, and the court must determine what the parties agreed to in the policy in order to determine if a policy covers a particular accident. Fire Ins Exchange v Diehl, 450 Mich 678, 683; 545 NW2d 602 (1996). Where policy language is clear, courts are bound by the specific language set forth in the policy. Heniser v Frankenmuth Mutual Ins Co, 449 Mich 155, 160; 534 NW2d 502 (1995). We must interpret the terms of the policy in accordance with their commonly used meaning if the terms are not defined in the policy or the meaning of the terms are not obvious from the policy language. Arco Industries Corp v American Motorists Ins Co, 448 Mich 395, 404; 531 NW2d 168 (1995). The fact that the term in controversy is not defined in the policy does not alone establish that an ambiguity exists. Trierweiler v Frankenmuth Mutual Ins Co, 216 Mich App 653, 657; 550 NW2d 577 (1996). A provision is considered ambiguous when its words can reasonably be understood in different ways. Engle v Zurich-American Ins Group, 216 Mich App 482, 487; 549 NW2d 589 (1996). Whether the terms of an insurance policy are ambiguous is a question for the court. Jones v Farm Bureau Mutual Ins Co, 172 Mich App 24, 27; 431 NW2d 242 (1988). Any ambiguity in an insurance policy is construed against the insurer and in favor of coverage. Heniser, supra. Applying these principles, we conclude that the policy in this case presents an ambiguous use of the terms “residents” and “regularly resides” under the facts of this case. See Montgomery v Hawkeye Security Ins Co, 52 Mich App 457; 217 NW2d 449 (1974). The policy does not define these terms, and they are susceptible to two different meanings. They could be interpreted as being synonymous with the term “domicile” or primary residence. See Workman v DAIIE, 404 Mich 477, 495; 274 NW2d 373 (1979) (usually, the terms “residence” and “domicile” are legally synonymous). A party generally has only one legal residence or domicile. In this case, the one domicile would be defendant Jeri Racine’s home, which was where Vance spent the majority of his time and where Jeri Racine had physical custody of Vance under the divorce judgment. Conversely, it is possible to interpret the policy in the manner that plaintiff contends is correct. Vance was physically present at his father’s home on the day of the accident, and Vance intended to stay the weekend. Moreover, Vance intended to establish his own room in the new house in the near future. Vance also had his own room in his father’s previous home. It is possible to interpret the term “residents” to include relatives who periodically stay in a home indefinitely, but maintain a legal domicile at some other location during the same period. Because the policy terms are susceptible to two different meanings under the facts of this case, they must be construed against plaintiff as the drafter of the insurance contract and in favor of coverage for defendants. Summary disposition was properly granted to defendants. Accord Nat'l Automobile & Casualty Ins Co v Underwood, 9 Cal App 4th 31; 11 Cal Rptr 2d 316 (1992). We affirm.

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White, P.J. Plaintiff appeals as of right the dismissal of his claim against defendant for maintenance and cure. We affirm in part, reverse in part, and remand. On November 4, 1986, plaintiff was injured while employed as a crewman aboard the vessel M/V Henry Ford II, owned and operated by defendant. On January 20, 1987, plaintiff filed suit in federal district court, alleging negligence under the Jones Act, 46 USC 688, and unseaworthiness under general admiralty and maritime law, as well as a claim for maintenance and cure. The case was mediated, and both parties accepted the $500,000 evaluation. On April 25, 1988, judgment was entered accordingly, awarding plaintiff $500,000 nunc pro tunc to March 1, 1988. On April 21, 1988, plaintiff sent defendant a letter stating: Insofar as Judgment is Nunc Pro Tunc to March 1, 1988, maintenance is owing therefrom. Please bring this up to date. Apparently, there was no further correspondence. On June 17, 1991, plaintiff filed another claim for maintenance and cure in the Wayne Circuit Court. Defendant’s answer pleaded numerous affirmative defenses, among them that plaintiff’s claim was barred by the statute of limitations, by laches, by collateral estoppel and res judicata, and by the rule against double recovery. Defendant requested that the claim be dismissed. In response, plaintiff argued that his claim was not barred by the three-year statute of limitations set forth in 46 USC 763a because the claim sounds in contract, rather than tort, and, therefore, the six-year state statute of limitations for contract claims, MCL 600.5807; MSA 27A.5807, is applicable. Regarding laches, plaintiff argued that maintenance and cure is an ongoing obligation, and that failure to pay it gives rise to a right of action not only for the benefits, but also for any aggravation of the original condition caused by the failure to pay. Plaintiff also argued that the defenses of collateral estoppel, res judicata, and double recovery do not apply because the obligation to furnish maintenance and cure continues after a judgment, and can give rise to serial suits for benefits as they come due; the earlier judgment of $500,000 applied only to maintenance and cure due on March 1, 1988, and the instant claim is for maintenance and cure after that time and for aggravation resulting from defendant’s failure to pay. At the hearing on defendant’s motion, the circuit court granted summary disposition, stating only, "If there was ever a frivolous case filed, that has to be it.” Plaintiff now appeals, arguing that while the circuit court did not specify the grounds on which it granted defendant’s motion, none of the grounds argued before the court was a proper basis for dismissal. I We first address the statute of limitations issue. As he did below, plaintiff argues that Michigan’s six-year statute of limitations for contract claims, MCL 600.5807; MSA 27A.5807, applies rather than the three-year limitation set forth in 46 USC 763a for maritime torts. Plaintiff relies on Reed v American Steamship Co, 682 F Supp 333 (ED Mich, 1988) for support, citing it as binding precedent. In Reed, the federal district court addressed a claim for unearned wages as "part of a broader claim for maintenance and cure.” Id. at 336. It concluded that suits for maintenance and cure were not affected by 46 USC 763a, but, rather, were subject to the doctrine of laches. The court based its conclusion on its review of the statute’s legislative history, on the persuasive reasoning of a leading treatise on admiralty law, and on the essential nature of claims for maintenance and cure, which it described as "mutable,” having characteristics of both contract and tort claims. Id. at 336-338. Observing that maintenance and cure claims, particularly those for unearned wages, are "clearly distinct” from claims for damages for personal injury or death in that they arise from a contractual employment relationship, the court concluded that the analogous state statute of limitations for contracts should be looked to in determining the applicable period for laches. Id. at 338. The court also pointed out that a claim for failure to furnish cure would, by contrast, be a personal injury claim subject to § 763a. Id. The court relied on the following passage from the treatise: Maintenance and cure suits are not affected by the Uniform Statute of Limitations for Maritime Torts. Maintenance and cure is contractual in nature and a continuing obligation. However, the failure to furnish cure is a personal injury which gives rise to a tort remedy and therefore is subject to the three year limitation period. The doctrine of laches applies in maintenance and cure suits. Generally, a state statute of limitations applicable to a similar injury on land may by analogy furnish a suitable yardstick to determine what constitutes laches. [Norris, The Law of Seamen, § 26:43 (1985).] In Oliver v Nat'l Gypsum Co, 187 Mich App 610; 468 NW2d 312 (1991), a case involving a wrongful death claim, this Court took an approach very similar to, and informed by, the decision in Reed. As did the Reed court, this Court held that the doctrine of laches is to be used to judge the timeliness of a claim for maintenance and cure. Oliver, supra at 615. However, while recognizing that such a claim is contractual in nature, arising out of the employment relationship, id. at 615, this Court also stated: Still, because the occasion to assert a claim for maintenance and cure is a personal injury, and the claim is usually appended to Jones Act and unseaworthiness claims, it is appropriate to use the three-year limitation period of § 763a as a standard to evaluate a laches defense. [Id. at 616.] The Court of Appeals for the Sixth Circuit has not addressed the issue. It is Oliver rather than Reed that serves as binding precedent. See Ogle- tree v Local 79, SEIU AFL-CIO, 141 Mich App 738, 750; 368 NW2d 882 (1985). I conclude, therefore, that plaintiffs argument for a six-year limitation period based on MCL 600.5807; MSA 27A.5807 must fail. The timeliness of plaintiffs action is to be judged under the doctrine of laches, using the three-year limitation period as a yardstick. Under this standard, I conclude that the trial court did not err in dismissing plaintiffs claim for maintenance and cure arising from the original accident. Defendant asserted that plaintiff took no action and made no claim for maintenance or cure at any time between April 1988, when the letter was sent and the federal court judgment was entered, and June 1991, when the instant complaint was filed. Plaintiff did not deny this or otherwise assert that he had good reason for the delay in filing this action. This does not, however, address plaintiffs argument, supported by case law, that maintenance and cure is an ongoing obligation, and that failure to pay it gives rise to a right of action not only for the benefits, but also for any aggravation of the original condition arising from the failure to pay, as an additional cause of action, giving plaintiff a viable claim for aggravation occurring during the three years before the filing of the suit. The circuit court did not acknowledge or address this issue. We reverse the court’s grant of summary disposition with respect to this claim and remand for further proceedings. In order to recover for aggravation, plaintiff must establish that he was entitled to additional maintenance and cure during this time, that defendant failed to pay it, and that plaintiff’s condition was aggravated as a result of the failure to pay. II Because plaintiff’s claim for aggravation due to a failure to provide continuing maintenance and cure is dependent on a showing that maintenance and cure was owing during the relevant period, we must address defendant’s assertion that any right to continued maintenance and cure after the entry of judgment in the federal court case is barred by res judicata, collateral estoppel, or the rule against double recovery. Maintenance and cure is designed to provide a seaman with food and lodging (maintenance) and medical costs (cure) when the seaman becomes sick or injured in the ship’s service. Vaughan v Atkinson, 369 US 527, 531; 82 S Ct 997; 8 L Ed 2d 88 (1962). Recovery is not based on fault, is analogous to worker’s compensation, and takes the form of a per diem living allowance and payment of medical costs. Oliver, supra at 613, quoting Szopko v Kinsman Marine Transit Co, 426 Mich 653, 657-658; 397 NW2d 171 (1986). Maintenance and cure is not intended to confer lifetime benefits. Farrell v United States, 336 US 511, 515; 69 S Ct 707; 93 L Ed 850 (1949). However, it covers not only the period during which the seaman is incapacitated from doing the seaman’s work, but continues until the seaman reaches maximum medical recovery. Vaughan, supra. Maximum medical recovery means "until the sick or injured person has been cured, or incapacity has been declared of a permanent character.” Farrell, supra at 517. Because payments for maintenance and cure are intentionally limited to the time needed for recovery, Farrell, supra, lump sums in anticipation of a continuing need or for an indefinite period are inappropriate, although an award may include payment for future maintenance and cure of a particular kind and for a particular, ascertainable period. Calmar S S Corp v Taylor, 303 US 525, 530-532; 58 S Ct 651; 82 L Ed 993 (1938); Farrell, supra at 519; Gypsum Carrier, Inc v Handelsman, 307 F2d 525, 532 (CA 9, 1962); Pelotto v L & N Towing Co, 604 F2d 396 (CA 5, 1979). Thus, at the time of trial, a seaman’s recovery for maintenance and cure is limited to the maintenance and cure thus far accrued, but a court, in its discretion, may add limited amounts for immediate future costs. Calmar S S Corp, supra. Nonetheless, the duty to provide maintenance and cure as needed to the point of maximum recovery is a continuing one. Loverich v Warner, 118 F2d 690, 693 (CA 3, 1941); Farrell, supra; Pelotto, supra at 400-402. For this reason, the doctrines of res judicata and collateral estoppel do not bar serial suits to collect maintenance and cure, and subsequent claims are appropriate where the criteria for collecting such benefits are met. Pelotto, supra at 398, 401-402. However, to establish a right to additional payments in a subsequent suit, a plaintiff must show that maximum cure has not been attained and justify his costs. Id. at 402-404. Additionally, it is recognized that damages awarded under the Jones Act may include the same elements as those covered by maintenance and cure, although comparative negligence is not a defense to a claim for maintenance and cure. Gypsum Carrier, supra at 532-533. Applying these principles, we turn to the question whether plaintiff’s claim is barred by collateral estoppel, res judicata, or the rule against double recovery. The trial court did not specifically address this issue, and the record is otherwise insufficient to support dismissal on this basis. We therefore remand for further consideration of plaintiff’s arguments in light of this opinion. We note that an evidentiary hearing may be necessary, during which the court may inquire into the extent to which a permanent injury was established in the prior case, as distinguished from a condition for which maximum cure has not yet been attained, and the extent to which the prior award included damages that are the substantial equivalent of maintenance and cure. If the trial court concludes on remand that a condition of maximum cure was established in the prior case, through deposition testimony, medical records, and so on, then the present suit is barred because of an inability to show an entitlement to maintenance and cure during the period in issue. If maximum cure had not been attained at that time, then, unless it is shown that the earlier award included amounts that are the substantial equivalent of future maintenance and cure, the aggravation claim is not barred on res judicata, collateral estoppel, or double recovery grounds. See Pelotto, supra at 404. Lastly, we observe that the second and third points raised in Judge Kelly’s opinion were not argued by defendant. Defendant does not assert that plaintiff was obliged to proceed in federal court. And, it is clear from the record that plaintiff opposed the motions for summary disposition and that the notation "approved as to form and substance” was in error. Defendant has not argued that the notation constitutes a waiver precluding review of the merits. Affirmed in part, reversed in part, and re manded for proceedings consistent with this opinion. We do not retain jurisdiction. Norris, The Law of Seamen (1985), see text, infra. Only two federal circuit courts have addressed whether § 763a applies to claims for maintenance and cure. In Cooper v Diamond M Co, 799 F2d 176 (CA 5, 1986), the Fifth Circuit Court of Appeals reversed the district court’s ruling that the plaintiffs claim for maintenance and cure was barred by laches. Computing the claim’s accrual from the time of the plaintiffs incapacitation from her injury rather than from the time of the injury itself, the Court of Appeals stated, "Cooper was well within the three year statute of limitation embodied in § 763a.” Id. at 179. This holding has been variously understood as explicitly applying § 763a to claims for maintenance and cure, see Chacon-Gordon v M/V Eugenol ”C”, 1987 AMC 1886, 1887 (SD Fla, 1987), and not actually deciding the issue because the question of inexcusable delay, raised by a defense of laches, was not before it. Reed, supra at 337; also Prude v Western Seafood Co, 769 SW2d 663, 665 (Tex App, 1989). But see Armstrong v Trico Marine, Inc, 923 F2d 55, 58 (CA 5, 1991) (suits under general maritime law must be filed within three years from the date the cause of action accrues, citing § 763a). In McKinney v Waterman Steamship Corp, 925 F2d 1 (CA 1, 1991), the First Circuit Court of Appeals affirmed the district court’s decision in 739 F Supp 678 (D Mass, 1990), that the maintenance and cure claim in issue was subject to a three-year limitation. However, whereas the district court had looked to § 763a as its guide, the Court of Appeals’ reasoning, similar to that in Reed, was that the analogous state statute of limitations for contract actions to recover for personal injuries was also three years. The court stated: [W]e need not decide whether the district court properly selected the section 763a three-year limitations period as the relevant benchmark. [925 F2d 3.] In applying the doctrine of laches, we must look to the April 1988 date rather than the date of injury because plaintiff made a timely claim concerning the period from the injury to the settlement of the federal court case. It has long been recognized that serial claims are appropriate. The question is whether this subsequent claim is timely, and common sense dictates that the timeliness be judged with respect to the date of settlement of the prior claim, not the date of the original injury. Relying on Pelotto v L & N Towing Co, 604 F2d 396, 401 (CA 5, 1979), and Cooper v Diamond M Co, supra, Judge Caprathe would hold that a suit for maintenance and cure can be maintained for benefits during the three years before the filing of the suit, regardless of when the underlying injury or disability occurred, on the basis that "maintenance and cure is a cause of action that is of a continuous nature, and, thus, the plaintiff can initiate a maintenance and cure claim for benefits in a series of lawsuits until the plaintiff is cured or until he is deemed permanently disabled.” Post at 163. Presumably this would apply even to suits brought ten or fifteen years after an injury, notwithstanding that no prior claim had ever been brought, as long as maximum cure has not been reached and plaintiff only seeks recovery for the three years before the filing of the suit. However, Pelotto addressed a seaman’s right to bring serial suits for maintenance and cure after settling a prior suit. The question was whether the subsequent suit was barred by res judicata, not by the statute of limitations or laches. Cooper did involve a statute of limitations issue. The court held that because the plaintiff’s claim accrued in 1983, when she became "incapacitated to do a seaman’s work,” citing Vaughan v Atkinson, 369 US 527, 531; 82 S Ct 997; 8 L Ed 2d 88 (1962), and not when she slipped and fell in 1979, and the complaint was filed within three years of the 1983 date, the claim was not barred. The court did not address the question whether, if the claim had accrued in 1979, the plaintiff could maintain an action for benefits for the three years preceding the filing of the suit. Cooper and other cases addressing the statute of limitations issue, e.g., McKinney v Waterman Steamship Corp, supra, impliedly hold that a plaintiff cannot maintain an action for maintenance and cure benefits that became due during the three years preceding a suit commenced more than three years after the disability occurred; if a plaintiff could maintain such a suit, the date of accrual would be unimportant. In other words, the Cooper court could have simply held that because the plaintiff sought maintenance and cure beginning in 1983 and brought her suit in 1984, no limitations issue was presented. None of the statute of limitations cases that hold that a claim for maintenance and cure is barred go on to remand for consideration of benefits that became due during the three years before the filing of the suit. Vaughan v Atkinson, supra; Cortes v Baltimore Insularline, 287 US 367; 53 S Ct 173; 77 L Ed 368 (1932). Quoting 54 Stat 1693, art 1, ¶ 1.

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Neff, J. Defendant pleaded guilty of operating a motor vehicle while having an unlawful blood alcohol level (ubal), third offense, MCL 257.625(6) (d); MSA 9.2325(6)(d), and driving with a suspended license, MCL 257.904; MSA 9.2604, under the condition that he be allowed to bring the present appeal concerning the validity of his Breathalyzer test. Defendant appeals as of right and we vacate defendant’s ubal conviction only. Defendant correctly states the law in Michigan regarding the procedures for administering Breathalyzer tests. The purpose of the administrative rules with respect to administering Breathalyzer tests is to ensure the accuracy of those tests. People v Tipolt, 198 Mich App 44, 46; 497 NW2d 198 (1993). Failure to meet the foundational requirements will preclude the use of the test results. Id. When the rules regarding Breathalyzer tests have not been complied with, the accuracy of those tests is considered sufficiently questionable so as to preclude the test results from being admitted into evidence. Id. The mere fact that this evidence is precluded, however, does not require the dismissal of defendant’s case. People v Willis, 180 Mich App 31, 37-38; 446 NW2d 562 (1989). Unless the ordinance under which defendant is charged requires defendant’s blood alcohol content to be established, the prosecution against defendant may continue without the Breathalyzer evidence. Id. at 38. The administrative rule in question in this case requires that the defendant be observed by the operator for fifteen minutes before the Breathalyzer test is administered, in order to prevent the defendant from smoking, regurgitating, or placing anything in the defendant’s mouth, except for the mouthpiece used in the test. 1992 AACS, R 325.2655(1)(e). Defendant was videotaped for approximately thirty-five minutes before the test was administered. We have reviewed the videotape, and find that the operator of the test arrived at the police station where defendant was being held no more than eight minutes before the test was administered. The videotape also demonstrates that the operator did not continuously observe defendant for those eight minutes. Further, although the video camera was aimed at defendant’s location for the thirty-five minutes before the test, the view of defendant was often briefly obstructed as people moved across the room and in front of the video camera. Additionally, at 3:35 a.m., approximately five minutes before the first test, the view of defendant was obstructed for approximately three to five seconds when an officer stood at a desk next to defendant. We are unable to determine what defendant was doing during that time period. Further, throughout the thirty-five minutes before the test was administered, defendant’s hand was either on his face, or in or on his mouth. Although it appears that defendant put his fingers in his mouth, it is impossible to tell from the videotape whether defendant placed something else in his mouth at these times. As a result of the questions arising from a review of the videotape, we conclude that the administrative rule in question was not complied with, and that defendant’s ubal conviction must be vacated. Defendant’s ubal conviction is vacated and this case is remanded to the circuit court for further proceedings. We do not retain jurisdiction. MacKenzie, P.J., concurred.

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MacKenzie, P.J. Plaintiff, who was temporarily laid off by and then terminated from employment with defendant, brought this suit alleging that her discharge was in violation of the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. She appeals as of right from the circuit court’s grant of summary disposition for defendant pursuant to MCR 2.116(0(10). We affirm. Plaintiff has rheumatoid arthritis that resulted in her having had several surgeries and having taken medical leaves. Her theory was that defendant fired her to avoid additional insurance and medical costs. Defendant responded that plaintiff was laid off and then terminated because of a cutback in its labor force. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). In order to establish a prima facie case of handicap discrimination, a plaintiff must establish: (1) the plaintiff is "handicapped” as defined in the act; (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job; (3) the plaintiff has been discriminated against in one of the ways set forth in § 202 of the hcra, MCL 37.1202; MSA 3.550(202). Doman v Grosse Pointe Farms, 170 Mich App 536, 541; 428 NW2d 708 (1988). In this case, the relevant section is § 202(1)(b), which prohibits the discharge of an employee because of a handicap. Once a plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to show legitimate, nondiscriminatory reasons for its action. Crittenden v Chrysler Corp, 178 Mich App 324, 331; 443 NW2d 412 (1989). If the employer rebuts the plaintiffs prima facie case, the burden shifts back to the plaintiff, who then has to show that the employer’s reasons constituted a pretext for discrimination. Id. See also Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982); McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). In this case, plaintiff alleged that she was handicapped because of her rheumatoid arthritis and surgical joint replacements, that her handicap was unrelated to her ability to perform her job duties, and that she was discharged because defendant knew she would need further surgeries. The trial court assumed, for purposes of the motion for summary disposition under MCR 2.116(0(10), that these allegations were sufficient for plaintiff to meet her burden of establishing a prima facie case of handicap discrimination. The burden of going forward then shifted to defendant to show legitimate, nondiscriminatory reasons for plaintiffs layoff and subsequent termination. Clark, supra at 826. Defendant rebutted plaintiffs allegations by statistical evidence that it had reduced its workforce from 2,000 employees in 1978 to 750 at the time of the motion for summary disposition. Between 1981 and 1991, the year in which plaintiff was terminated, factory clerk positions (plaintiffs job) were reduced from sixteen to three. The affidavit of defendant’s director of human resources further stated that plaintiffs position was one of those consolidated or absorbed by other positions because of computerization and technological changes and that plaintiff was not qualified for any positions for which defendant had openings. This evidence was sufficient to meet defendant’s burden of producing evidence that a valid purpose existed regarding why plaintiff was terminated. The burden then shifted back to plaintiff to show that defendant’s business reasons for her termination were merely a pretext. Plaintiff’s allegations that because the company knew she may have required additional surgeries in the future and more time off for medical leave were insufficient to rebut the evidence presented by defendant. Both plaintiff’s immediate supervisor and the director of human resources stated that neither plaintiff’s medical condition nor her insurance costs played a part in the decision to terminate her. We agree with the trial court’s ultimate decision that plaintiff failed to present material facts indicating that the business reasons offered by defendant for her termination were merely a pretext. Additionally, we agree with the trial court that summary disposition was appropriate regarding plaintiff’s other allegations of discrimination pertaining to her position and other openings within the company. Because mere speculation and inferences will not sustain an argument of intentional discrimination, Clark, supra at 826, plaintiff has not presented any material issue of fact to show that the business reasons proffered by defendant were merely a pretext. After our de novo review of the issues raised by plaintiff on appeal, we find summary disposition was properly granted. Wieringa v Blue Care Network, 207 Mich App 143, 145; 523 NW2d 872 (1994). Affirmed. J. W. Fitzgerald, J., concurred.

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Per Curiam. This is plaintiffs second appeal in this case. In the prior appeal, this Court affirmed a final order of summary disposition based on the statute of limitations. Avery v Demetropoulos, unpublished opinion per curiam of the Court of Appeals, decided July 29, 1992 (Docket No. 129680). After the appeal, the trial court awarded costs and attorney fees of $5,588.04 to defendant because plaintiff filed a frivolous claim within the meaning of MCL 600.2591(3); MSA 27A.2591(3). Plaintiff appeals as of right from that decision. We affirm. Preliminarily, we reject defendant’s argument that this appeal should be dismissed. MCR 7.212(A)(4) and (I). We note that we could simply strike plaintiff’s brief for failure to comply with MCR 7.212(C), especially the failure to include a statement of questions involved. MCR 7.212(C)(4). However, in the interests of judicial economy we have reviewed the matter, limiting our review to the specific questions gleaned from or presented by plaintiff’s arguments. The trial court had jurisdiction to consider defendant’s motion for taxation of costs and attorney fees after the prior appeal was decided by this Court. Cf. Wilson v General Motors Corp, 183 Mich App 21, 41; 454 NW2d 405 (1990); Vallance v Brewbaker, 161 Mich App 642, 648; 411 NW2d 808 (1987). That this Court’s prior opinion was silent regarding the question of remand did not deprive the trial court of jurisdiction to consider defendant’s motion. Next, MCR 2.504(B)(3) does not require that a trial court address the issue of costs in a final order disposing of the claims in a case. The purpose of MCR 2.504(B)(3) is to classify those dismissals entered by a court that are silent regarding their effect. See 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.504, Authors’ Comment, p 59. This rule has been used to bar lawsuits involving the same matters and parties as those in prior lawsuits under principles of res judicata. Makowski v Towles, 195 Mich App 106; 489 NW2d 133 (1992). However, the court rule is not intended to dispose of the issue of costs related to a claim. The flaw in plaintiff’s argument is his failure to recognize that there can be more than one final judgment or order in an action. An order to allow attorney fees after entry of an order disposing of the meritorious question is one of the specific circumstances where separate final orders are recognized. Gherardini v Ford Motor Co, 394 Mich 430; 231 NW2d 643 (1975). Viewed in this context, MCR 2.504(B)(3) did not require that the trial court decide in the order of summary disposition whether costs should be awarded. Further, plaintiffs reliance on MCR 2.625(F) to support his claim that defendant waived the issue of costs is misplaced. Because the issue of costs was decided under MCL 600.2591; MSA 27A.2591 and required a judicial determination, MCR 2.625(F) did not apply. The appropriate standard to apply to the statute is whether the motion for costs was filed within a reasonable time after the prevailing party was determined. See Giannetti Bros Construction Co, Inc v Pontiac, 152 Mich App 648; 394 NW2d 59 (1986) (discussing a similar issue with regard to mediation costs). Plaintiff has not shown any procedural defects that precluded the trial court from granting defendant’s motion for taxation of costs and attorney fees. Finally, the trial court did not clearly err in finding that plaintiff’s claim was frivolous within the meaning of MCL 600.2591(3); MSA 27A.259K3). DeWald v. Isola, 180 Mich App 129; 446 NW2d 620 (1989). See also Louya v William Beaumont Hosp, 190 Mich App 151; 475 NW2d 434 (1991). Affirmed.

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Per Curiam. Plaintiff, Auto-Owners Insurance Company, appeals as of right from an order by Genesee Circuit Judge Valdemar L. Washington denying its motion for summary disposition and declaring that defendant Clyde E. Anderson was entitled to coverage by plaintiff for liability arising out of the claims of estates of defendants John M. Johnson and Bruno B. Valdez. We reverse. Plaintiff claims that the trial court erred in determining that it could not rescind and declare void ab initio a no-fault automobile insurance policy that was purchased by defendant Anderson. We agree. In January 1991, defendant Anderson received a letter from his no-fault insurer, Aetna Casualty & Surety Company, informing him that Aetna would no longer be writing policies through Diversified Insurance Services, which was his insurance agency. Anderson was advised to contact another Aetna representative or to obtain insurance through another company before his policy expired at midnight on February 28, 1991. Anderson, however, failed to obtain another insurance policy, and the Aetna policy lapsed. On March 1, 1991, at approximately 2:30 a.m., Anderson was involved in an automobile accident in which his vehicle struck another vehicle, killing John Johnson and Bruno Valdez, who were occupants of the second vehicle. Later that day, Anderson went to Diversified and applied for insurance coverage. As part of his signed application, Anderson indicated that he had not been involved in any accident or been convicted or paid a fine for any moving violation in the last three years. Anderson’s application was accepted by plaintiff, and a policy was issued stating that coverage was effective as of 12:01 a.m. on March 1, 1991. Subsequently, Janet Johnson, as the personal representative of the estate of John Johnson, and Sue Quintanilla, as the personal representative of the estate of Bruno Valdez, commenced wrongful death actions against Anderson. On June 5, 1991, plaintiff brought this declaratory judgment action, seeking a declaration that it was entitled to rescind and declare void ab initio the insurance policy issued to Anderson in light of his material misrepresentation that he had not been involved in an automobile accident within the last three years. Plaintiff moved for summary disposition under MCR 2.116(0(10). This motion was denied by an order entered on February 25, 1992. A motion for summary disposition pursuant to MCR 2.116(0(10) tests the factual basis underlying a claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). In ruling with regard to such a motion, the trial court must consider not only the pleadings, but also any affidavits, depositions, admissions, or other documentary evidence submitted by the parties. Id.; McClusky v Womack, 188 Mich App 465, 469; 470 NW2d 443 (1991). The court must give the benefit of any reasonable doubt to the opposing party and may grant the motion only if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Radtke, supra. Michigan courts routinely have held that an automobile insurer may rescind an automobile insurance policy and declare the policy void ab initio where it was procured through the insured’s intentional material misrepresentation. Farmers Ins Exchange v Anderson, 206 Mich App 214, 218; 520 NW2d 686 (1994); Katinsky v Auto Club Ins Ass'n, 201 Mich App 167, 170; 505 NW2d 895 (1993); Auto-Owners Ins Co v Comm’r of Ins, 141 Mich App 776, 779-780; 369 NW2d 896 (1985). However, this Court also has held that rescission is not available where innocent third parties are involved. Katinsky, supra; Ohio Farmers Ins Co v Michigan Mutual Ins Co, 179 Mich App 355, 364-365; 445 NW2d 228 (1989); Darnell v Auto-Owners Ins Co, 142 Mich App 1, 9; 369 NW2d 243 (1985). We have stated clearly that basic public policy considerations require that, once an innocent third party is injured in an accident in which coverage is in effect with respect to the automobile, an insurer will be estopped from asserting rescission. Ohio Farmers, supra at 364-365. In the instant case, however, coverage was not in effect with respect to defendant’s automobile at the time the innocent third parties were injured. We believe that a distinction exists between a material misrepresentation by an insured regarding a loss that already has occurred in order to purchase insurance coverage for that loss, and a material misrepresentation regarding some other fact that might have led the insurer not to issue a policy if it had been known. We fail to see any reason in law or policy for plaintiff to be the source of recovery in this case where its policy came into effect after the accident already had occurred. Unlike previous cases before this Court in which the automobile insurance policy existed at the actual time of the loss, the loss in this case occurred before the time the insurance policy came into effect with respect to the automobile. We conclude that the trial court erred in denying plaintiff’s motion for summary disposition. In light of this result, this Court will not address plaintiff’s other claim on appeal. Reversed.

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Per Curiam. Respondent appeals by leave granted the order of the trial court that modified a “no contact” provision of a personal protection order (ppo) and allowed respondent parenting time with his minor children. Respondent also appeals as of right the order of the trial court that found respondent in criminal contempt for violating the ppo. Respondent was sentenced to thirty days’ jail time. The appeals were consolidated. We affirm. Respondent argues that the trial court erred in entering a ppo prohibiting respondent from contacting his children. Respondent also argues that the trial court had no statutory authority to modify the PPO to include parenting time. Essentially, respondent argues that these custody and parenting time determinations can be made only in a child custody proceeding. In an effort to support his argument, respondent cites the Child Custody Act, MCL 722.21 et seq. Respondent argues that this act shows the Legislature’s intent to have courts examine the best interests of the child factors before making any decision regarding custody or parenting time. Respondent argues that, in this case, the trial court circumvented this requirement by deciding the issue in the ppo proceeding. Respondent is correct that MCL 722.23 enumerates several factors for a court to use to determine the best interests of the children involved in a custody dispute. Nonetheless, we do not believe that these factors were required to be applied in the instant case. The trial court was not making a custody determination. Instead, the trial court was simply issuing an emergency order, which was essentially an award of temporary custody of the children to petitioner, while granting respondent parenting time until the divorce proceeding was initiated so that the children might be protected from physical violence or emotional violence or both inflicted on them by respondent. Moreover, the trial court had statutory authority to restrict respondent’s contact with his children. MCL 600.2950, the statute pertaining to personal protection orders, allows a court to restrain an individual from doing various acts. MCL 600.2950(1)0) is directly applicable to the instant case and provided the trial court with authority to issue the ppo prohibiting respondent’s contact with the children. This “catchall” provision clearly provides the trial court with authority to restrain respondent from any other action that “interferes with personal liberty” or might cause “a reasonable apprehension of violence.” Id. This statutory provision allows the trial court to restrain respondent from “[a]ny other specific act or conduct. . . that causes a reasonable apprehension of violence.” Id. There is no question that it would be reasonable for petitioner to fear that respondent might become violent with petitioner if she were forced to permit respondent to visit the children or exchange the children for parenting time. Additionally, this interpretation is entirely consistent with the remainder of the statute, which makes it clear that the Legislature recognized that access to the children may need to be restrained to protect the safety of a parent. See MCL 600.2950(l)(d), (f), and (h). Respondent argues that this cannot provide an adequate statutory basis for the trial court to restrain his contact with his children because petitioner did not allege that respondent was violent toward the children. We disagree. First, while it is true that petitioner did not allege that respondent was physically violent toward his children, petitioner did set forth in detail that on several occasions respondent was physically violent toward petitioner in front of the children. Second, it is clear from petitioner’s statement that respondent was becoming increasingly more violent. Therefore, it is entirely possible that respondent’s behavior might have eventually escalated and involved the children. This is particularly true where, as here, petitioner sought the PPO to protect her children so that she could leave respondent and file for divorce. Indeed, a ppo is issued on an emergency basis and when the trial court has only limited information. Thus, we agree with the trial court’s approach of erring on the side of caution when serious allegations of abuse have been made. Respondent also argues that allowing a trial court to issue orders regarding custody and parenting time in a ppo proceeding causes an “administrative nightmare.” We disagree. First, the ppo proceeding and the subsequent divorce proceeding were both assigned to the same judge. The “one family, one judge” approach allows the judge to be intimately familiar with all the proceedings involving the parties. See MCR 3.703(D)(1). Second, the trial court can take precautionary measures to prevent any potential confusion by issuing duplicate orders. In other words, all orders entered in the PPO proceeding can be placed in the file for the divorce proceeding. This same process can be repeated for orders entered in the divorce proceeding. This further eliminates the possibility of confusion. Respondent also argues that allowing the entry of custody and parenting time orders in a PPO proceeding subjects respondent to serious sanctions for violation of a PPO if he should commit any “minor infractions” of a parenting time order. Again, we disagree with respondent’s argument. The trial court in this case was mindful of this fact and specifically stated that it would not subject respondent to sanctions for violation of a PPO where respondent simply committed a “minor infraction” of a parenting time order. Next, respondent argues that his conviction of criminal contempt must be reversed because he was denied the right to a jury trial. We review constitutional questions de novo. People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999). Here, respondent’s argument fails. Contempt proceedings are governed by MCR 3.708. Further, MCR 3.708(H)(1) specifically explains that a respondent in a contempt proceeding is not entitled to a jury trial. Respondent also argues that the trial court failed to make the appropriate factual findings. We review the trial court’s factual findings for clear error. Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 98; 535 NW2d 529 (1995). Respondent is correct that the trial court is required to make factual findings. MCR 3.708(H)(4) provides: “At the conclusion of the hearing, the court must find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment. The court must state its findings and conclusions on the record or in a written opinion made a part of the record.” In this case, the trial court issued an opinion and order finding respondent in contempt of court. However, the trial court did not state its findings of fact. Instead, the trial court simply adopted the proposed findings of fact that had been submitted by petitioner. Nevertheless, we find that the trial court complied with the court rule. See Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165; 530 NW2d 772 (1995). Next, respondent argues that there was insufficient evidence to support his conviction of criminal contempt. We disagree. A trial court’s findings in a contempt proceeding must be affirmed on appeal if there is competent evidence to support them. Cross Co v UAW Local No 155, 377 Mich 202, 218; 139 NW2d 694 (1966); Pontiac v Grimaldi, 153 Mich App 212, 215; 395 NW2d 47 (1986). However, the issuance of an order of contempt rests in the sound discretion of the trial court and is reviewed only for an abuse of discretion. Mason v Siegel, 301 Mich 482, 484; 3 NW2d 851 (1942); People v Ahumada, 222 Mich App 612, 617; 564 NW2d 188 (1997). In this case, the ppo ordered respondent to refrain from taking several specifically enumerated actions, including “sending mail/other communications to the petitioner.” We agree with the trial court’s conclusion that respondent violated the ppo by disregarding this prohibition. Respondent, after he became aware that petitioner was having an affair, traveled to New York to confront the paramour. Respondent wrote the words “bitch,” “cunt, and whore” on a $1 and gave it to the paramour. Respondent denied that he told the paramour to give the $1 bill to petitioner. The paramour testified that respondent told him, “The next time you talk to Lisa, tell her I said this.” He told petitioner about the incident. We find that respondent’s actions violated the prohibition against sending communications to petitioner. We acknowledge that the testimony on this point was contradictory. However, an appellate court may not weigh the evidence or the credibility of witnesses. See Cross Co, supra, 217. Thus, respondent violated the ppo by sending communications to petitioner through her paramour . Next, respondent argues that the stalking statute, MCL 750.41lh, is unconstitutional. Essentially, respondent argues that the statute is unconstitutional because it does not provide an individual with notice of what conduct is prohibited. Respondent also argues that the statute provides the factfinder with too much discretion to determine whether a crime has been committed. We review the constitutionality of a statute de novo. In re Gosnell, 234 Mich App 326, 333; 594 NW2d 90 (1999). However, we reject respondent’s arguments because we addressed and rejected these precise arguments and found the statute constitutional in People v White, 212 Mich App 298; 536 NW2d 876 (1995). See also Staley v Jones, 239 F3d 769 (CA 6, 2001); People v Coones, 216 Mich App 721; 550 NW2d 600 (1996); People v Ballantyne, 212 Mich App 628; 538 NW2d 106 (1995). Next, respondent argues that he was denied the right of allocution before he was sentenced for the contempt offense. We review the sentencing transcript de novo to determine if respondent was denied his right of allocution. See, generally, People v Lowe, 172 Mich App 347, 349-351; 431 NW2d 257 (1988). In support of his argument, respondent cites MCR 6.425(D)(2)(c), which requires the trial court to give a defendant an opportunity to speak before the defendant is sentenced. However, respondent fails to recognize that he was not a defendant in a criminal trial. Instead, respondent was accused of violating a PPO and was a participant in a contempt proceeding. MCR 3.708 specifically governs the procedures to be followed in a contempt proceeding and provides in part: (a) If the respondent pleads or is found guilty of criminal contempt, the court shall impose a sentence of incarceration for no more than 93 days and may impose a fine of not more than $500.00. (b) If the respondent pleads or is found guilty of civil contempt, the court shall impose a fine or imprisonment as specified in MCL 600.1715 and 600.1721. [MCR 3.708(H)(5).] In other words, the applicable court rule makes no mention of affording a respondent in a contempt proceeding the right of allocution. We find this noteworthy given the fact that the court rule goes to great lengths to specify that a respondent in a contempt proceeding is not entitled to a jury trial, has the right to be present at the hearing, has the right to cross-examine witnesses, and has the right to present evidence, and that the rales of evidence are applicable and there must be proof beyond a reasonable doubt to find the respondent guilty. MCR 3.708(H). Thus, we reject respondent’s argument. Finally, respondent argues that the trial court sentenced respondent on the basis of a sentencing policy and deprived respondent of an individualized sentence. We disagree. At sentencing, the trial court stated: “All right. Let me tell you what I’m going to do. In these cases, the Court has a policy of a 30-day jail time whenever you violate a personal protection order. And I’m not going to change it for this case. I’m going to apply it.” Respondent relies solely on the trial court’s statement to urge that he is entitled to resentencing. We disagree with respondent. In accordance with MCR 3.708(H)(5)(a), respondent could receive a maximum sentence of ninety-three days’ jail time and a fine of not more than $500. Here, respondent received thirty days’ jail time. Respondent makes no argument that his sentence was not appropriate. Moreover, we disagree with respondent that the trial court’s statement is evidence that respondent received the sentence of thirty days’ jail time because the trial court sentenced every respondent to that amount of jail time, regardless of the respondent’s history or the cir cumstances surrounding the contempt finding. The trial court was simply explaining that, in a typical contempt of court case, it believed that a thirty-day sentence was appropriate. Therefore, the logical inference is that the trial court believed this was the typical case. Indeed, there was no evidence that the violations of the PPO were particularly violent, which would warrant a jail sentence more in line with the maximum possible sentence. Furthermore, as petitioner points out, the trial court made every effort to be accommodating to respondent. Specifically, the trial court agreed to allow respondent to serve his sentence in fifteen-day increments. Thus, respondent is not entitled to resentencing. Affirmed. We note that the trial court found that respondent violated the ppo in several other respects. However, because we have found that respondent violated the ppo by using the paramour to send a communication to petitioner, there was competent evidence to find respondent in contempt of court. Therefore, it is unnecessary to discuss those additional reasons for finding respondent in contempt of court.

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Smolensk, J. Petitioner appeals by delayed leave granted from the circuit court order denying its motion in limine. We reverse and remand for further proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND Petitioner charged respondent with second-degree criminal sexual conduct (esc n), MCL 750.520c(l)(a), alleging that respondent had engaged in sexual contact with a person less than thirteen years of age. The incident that formed the basis of this charge occurred when respondent was a minor. Therefore, petitioner brought the instant charge in the family division of the circuit court, as part of a juvenile proceeding. Before trial, petitioner filed a motion in limine requesting that the trial court bar respondent from questioning the jury during voir dire about the Sex Offenders Registration Act, MCL 28.721 et seq. Petitioner conceded that registration under the act is not considered a penalty, such as a traditional sentence of incarceration. However, petitioner argued that registration was a consequence of an offender’s conviction, and that the consequences of an offender’s conviction are generally not revealed to a jury. Petitioner also argued that discussion of the act would cause unfair prejudice because it would likely influence the jury to decide the case on the basis of sympathy for the young respondent, rather than deciding the case on the basis of the facts tending to prove respondent’s guilt or innocence. Respondent did not argue that registration under the act was relevant to his guilt or innocence. Rather, respondent argued that members of the jury pool might have strongly held opinions regarding the statutory requirement that sex offenders register with the state, and that questioning during voir dire was necessary to determine possible bias. The circuit court denied petitioner’s motion to exclude discussion of the act, ruling that registration was not considered a punishment and was not part of its disposition or sentence. Instead, the circuit court reasoned that the Sex Offenders Registration Act merely imposed requirements that the court was constrained to follow. Therefore, the court concluded that respondent was entitled to question the jury regarding its opinions on the subject of mandatory registration for sex offenders. We granted petitioner’s delayed application for leave to appeal from the circuit court’s decision. In addition, we granted petitioner’s motion for a stay pending the conclusion of this appeal. “The scope of voir dire examination of prospective jurors is within the discretion of the trial court and will not be dis turbed on appeal absent an abuse of discretion.” People v Bailey, 169 Mich App 492, 500; 426 NW2d 755 (1988). We conclude that the circuit court abused its discretion in ruling that respondent could inform potential jurors regarding the Sex Offenders Registration Act. Therefore, we reverse and remand for trial. n. INFORMING JURIES ABOUT THE CONSEQUENCES OF A CONVICTION In People v Goad, 421 Mich 20, 25-26; 364 NW2d 584 (1984), citing People v Szczytko, 390 Mich 278, 285; 212 NW2d 211 (1973), our Supreme Court explained the general rule that the consequences of a conviction may not be discussed in the jury’s presence: The rule in Michigan has always been that neither the court nor counsel should address themselves to the question of the disposition of a defendant after the verdict. Indeed, it is proper for the court to instruct the jury that they are not to speculate upon such matters, and that they are to confine their deliberations to the issue of guilt or innocence. Under this general rule, references to the disposition of the accused after the verdict are proscribed throughout the entire trial process, including voir dire, arguments of counsel, and jury instructions. Bailey, supra at 500-501. It is clear that this rule is intended to prevent a jury from deciding a case on the basis of facts unrelated to the defendant’s guilt or innocence. In Goad, supra at 27, this Court quoted the following passage from People v Warner, 289 Mich 516; 286 NW 811 (1939), as an illustration of this principle: “The jurors should not have concerned themselves with the punishment, and ought to have been plainly told that they ought not to take that into consideration. Their function ended in deducing the truth from the evidence adduced and expressing it in their verdict. Anything said by the court calculated to draw their attention from the performance thereof, and to induce them to rest their conclusion upon ulterior considerations necessarily was misleading and prejudicial.” State v Kernan, 154 Iowa 672, 677; 135 NW 362; 40 LRA(NS) 239 (1912). Respondent does not quarrel with this general rule. Instead, respondent argues that the rule should not apply in the present case because registration under MCL 28.721 et seq. is not considered a penalty or punishment, and is not part of the trial court’s disposition. We agree that registration does not constitute a penalty, such as a sentence of incarceration. Nevertheless, the same policy considerations that weigh against informing a jury of a possible disposition or sentence weigh equally against informing the jury of the requirement that a convicted sex offender register with the state. m. SEX OFFENDERS REGISTRATION ACT The Sex Offenders Registration Act requires the registration of individuals convicted of certain listed offenses, including CSC II. MCL 28.723(l)(a), 28.722(d)(ix). An individual convicted of a listed offense after October 1, 1995, must register before sentencing, entry of the order of disposition, or assignment to youthful trainee status. MCL 28.724(5). Such an individual must provide notice to law enforcement if he changes residence, domicile, or place of work or education. MCL 28.725(l)(a). For an individual convicted of esc II, these requirements apply for life. MCL 28.725(7)(b). The Department of State Police maintains a computerized database of registrations that is available to local law enforcement and the public, including access through the Internet. MCL 28.728. The public database excludes individuals who were tried as juveniles. MCL 28.728(2). However, that exclusion does not apply to dispositions of first-degree and second-degree criminal sexual conduct, once the registered individual turns eighteen years old. MCL 28.728(2). This Court has previously held that the requirements of the Sex Offenders Registration Act do not constitute punishment. In re Ayres, 239 Mich App 8, 14-21; 608 NW2d 132 (1999) (act does not violate constitutional prohibition against cruel and unusual punishment); People v Pennington, 240 Mich App 188, 197; 610 NW2d 608 (2000) (act does not violate constitutional prohibition against ex post facto laws). Nevertheless, the rationale for precluding discussion of a verdict’s consequences applies with equal force to discussion of the statutory requirement that sex offenders register with the state. A jury is barred from considering punishment because the information may distract the jurors from deducing the truth from the evidence and may cause them to base their verdict on ulterior considerations. Goad, supra at 27. Regardless of whether the requirements of the Sex Offenders Registration Act are deemed punitive, regis tration is a consequence of a guilty verdict that is not material to determining guilt or innocence. In the present case, respondent’s counsel wishes to inform the potential jurors that, if found guilty, respondent would be required to register as a sex offender for the rest of his life and would be listed on a computer database accessible to the public, after he reaches age eighteen. Providing this information may well cause the jurors to sympathize with the young respondent and to base their verdict on “ulterior considerations” such as sympathy, rather than on the evidence. Respondent argued below, and the circuit court agreed, that inquiry about the potential jurors’ knowledge of the Sex Offenders Registration Act was appropriate to determine whether any of the potential jurors was prejudiced by the existence of the act or had a bias toward conviction or acquittal, based on knowledge of the act. We conclude that respondent should not be allowed to discuss the act under the guise of trying to uncover bias during jury selection. The general rule proscribing reference to the consequences of a verdict applies to voir dire. Bailey, supra at 500-501. If we allowed attorneys to inquire about potential jurors’ views concerning the consequences of a guilty verdict in order to uncover bias, that exception would swallow the general rule, and parties could avoid the general prohibition in every jury trial. The wide discretion afforded a trial court with respect to voir dire should not include allowing the parties to disclose information concerning the consequences of a guilty verdict. Reversed and remanded for trial. We lift the stay of proceedings previously granted by this Court. We do not retain jurisdiction. People v Spears, unpublished order of the Court of Appeals, entered April 3, 2001 (Docket No. 232922). People v Spears, unpublished order of the Court of Appeals, entered May 18, 2001 (Docket No. 232922). For the purposes of the act, an order of disposition entered in a juvenile proceeding counts as a conviction. MCL 28.722(a)(iii). Therefore, the Sex Offenders Registration Act applies in the present case, despite respondent’s status as a juvenile. In fact, respondent impliedly recognizes this fact in his appeal brief, when he states: “The belief of a potential juror that an accused sex offenders [sic] should be required to register, regardless of the fact that they have not been convicted of an offense, could be a deciding factor whether or not a juror voted to convict.”

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Murphy, J. Defendant appeals by leave granted his misdemeanor conviction, following a district court jury trial, of using indecent and vulgar language. MCL 750.337. The district court imposed a sentence of four days’ community service, plus fines and costs of $75 or three days in jail. Defendant’s conviction was affirmed on appeal to the circuit court. Defendant argues, as he did below, that MCL 750.337 is unconstitutional. We reverse defendant’s conviction because MCL 750.337 is unconstitutionally vague. I. BASIC FACTS AND PROCEDURAL HISTORY Defendant’s conviction arose out of events that occurred on the Rifle River in Arenac County on August 15, 1998. Witness Michael Smith was canoeing down the Rifle River with his wife and two children approximately forty yards behind defendant’s party, which consisted of five canoes. Smith testified that he saw defendant fall out of his canoe and into the river, at which point defendant loudly uttered a stream of profanities, while slapping the water and throwing his hands in the air. Kenneth Socia, a road patrol deputy for the Arenac County Sheriff’s Department who was on duty at the Rifle River that day, testified that he heard a “loud commotion” and “vulgar language” coming from approximately one-quarter mile up the river. Socia looked up and saw defendant chasing a group of canoes, splashing water at them with his paddle, and repeatedly swearing at them. Socia and Smith both testified that the river was crowded with families and children, and that defendant would have been able to see Smith’s two children, who were under five years old. Socia issued defendant a citation for violating MCL 750.337. MCL 750.337 provides: Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor. Before trial in the district court, defendant moved to dismiss the charge on the grounds that the statute was unconstitutionally vague and overbroad, and was also unconstitutional as applied to this case. The district court denied the motion, and the case went to the jury. Defendant was convicted, and he appealed to the circuit court, alleging the same constitutional infirmities in the statute. Without addressing the over-breadth challenge, the circuit court issued an oral opinion from the bench holding that the statute was neither unconstitutionally vague nor unconstitutional as applied to defendant. We granted defendant’s application for leave to appeal. n. DEFENDANT’S ARGUMENTS ON APPEAL Defendant argues that his conviction must be reversed because MCL 750.337 is facially unconstitutional on both overbreadth and vagueness grounds. Defendant further argues that his conviction must be reversed because MCL 750.337 is unconstitutional as applied to the circumstances of this case. Finally, defendant argues that his conviction must be reversed because the district court severed the portion of MCL 750.337 concerning “the presence or hearing of any woman,” thereby violating the Legislature’s intent in enacting the statute. m. ANALYSIS We find it unnecessary to address defendant’s over-breadth arguments, or to undertake an extensive First Amendment analysis, because we hold that MCL 750.337 is unconstitutionally vague. MCL 750.337 was enacted, in its present form, in 1931, with its legislative origins dating back to an earlier version enacted in 1897. See historical notes to MCL 750.337. The earlier version of the statute contained the same language as the present version, except that it provided that it applied to language used within the limits of any township, village, or city in the state of Michigan. 1897 PA 219. Throughout the one hundred plus years of its existence, there have been no published Michigan cases addressing the statute. Whether a statute is constitutional is a question of law that this Court reviews de novo. People v Beam, 244 Mich App 103, 105; 624 NW2d 764 (2000). This includes constitutional challenges based on vagueness. Id. In considering defendant’s challenge to the constitutionality of MCL 750.337, this Court adheres to the well-established rule that a statute is presumed to be constitutional and is so construed unless its unconstitutionality is clearly apparent. People v Noble, 238 Mich App 647, 651; 608 NW2d 123 (1999). The fact that a statute may appear undesirable, unfair, unjust, or inhumane does not of itself render a statute unconstitutional and empower a court to override the Legislature. Doe v Dep’t of Social Services, 439 Mich 650, 681; 487 NW2d 166 (1992). The Legislature, not the courts, should address arguments that a statute is unwise or results in bad policy. People v Kirby, 440 Mich 485, 493-494; 487 NW2d 404 (1992). The party challenging the constitutionality of a statute bears the burden of proving its invalidity. People v Gregg, 206 Mich App 208, 210; 520 NW2d 690 (1994). We will keep these general principles in mind in analyzing the issue presented and in reaching our conclusion. In People v Lino, 447 Mich 567, 575, n 2; 527 NW2d 434 (1994), our Supreme Court noted that a constitutional challenge based on vagueness “is brought under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.” The Lino Court, explaining the vagueness doctrine, stated that “[i]n order to pass constitutional muster, a penal statute must define the criminal offense ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” Id. at 575, quoting Kolender v Lawson, 461 US 352, 357; 103 S Ct 1855; 75 L Ed 2d 903 (1983). When making a vagueness determination, a court must also take into consideration any judicial constructions of the statute. Lino, supra at 575. As noted above, we are unaware of any published Michigan opinions construing MCL 750.337. “[T]here are at least three ways a penal statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms.” Lino, supra at 575-576, citing People v Howell, 396 Mich 16, 20-21, n 4; 238 NW2d 148 (1976). The void-for-vagueness doctrine does not necessarily implicate the First Amendment of the United States Constitution. See Lino, supra at 575. The explanation of the void-for-vagueness doctrine enunciated by the United States Supreme Court in Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972), clearly points out the reasons for the doctrine: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” [Alterations and omission in original.] Here, it would be difficult to conceive of a statute that would be more vague than MCL 750.337. There is no restrictive language whatsoever contained in the statute that would limit or guide a prosecution for indecent, immoral, obscene, vulgar, or insulting language. Allowing a prosecution where one utters “insulting” language could possibly subject a vast percentage of the populace to a misdemeanor conviction. MCL 750.337 fails to provide fair notice of what conduct is prohibited, and it encourages arbitrary and discriminatory enforcement. In Plymouth Charter Twp v Hancock, 236 Mich App 197, 201-202; 600 NW2d 380 (1999), relied on by the prosecution, this Court held that the township board’s inclusion of the word “unreasonably” gave fair notice of prohibited conduct by providing a “reasonable person” standard and also served to prevent abuse of enforcement discretion. MCL 750.337 contains no similar legislative guidance. Even if the statute were judicially construed to apply only to speech that a reasonable person should know is indecent, immoral, or vulgar when used in the presence of a child, as the prosecutor urges, in our opinion, it would remain vague. This construction would require every person who speaks audibly where children are present to guess what a law enforcement officer might consider too indecent, immoral, or vulgar for a child’s ears. Children aside, it is far from obvious what the reasonable adult considers to be indecent, immoral, vulgar, or insulting. As a result, a judicially imposed “reasonable person” limitation would not, in our opinion, cure the vagueness of the statute. Finally, we would observe that the First Amendment does not protect obscene speech, Sable Communications of California, Inc v FCC, 492 US 115, 124; 109 S Ct 2829; 106 L Ed 2d 93 (1989), and the Legislature, if so inclined, could enact a properly drawn statute to protect minors from such exposure. However, MCL 750.337, as currently drafted, impinges on First Amendment freedoms. In Reno v American Civil Liberties Union, 521 US 844, 874; 117 S Ct 2329; 138 L Ed 2d 874 (1997), the United States Supreme Court, addressing undefined statutory provisions prohibiting patently offensive and indecent Internet transmissions to those under eighteen years, stated that “[g]iven the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection.” Here, we find it unquestionable that MCL 750.337, as drafted, reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights. IV. CONCLUSION MCL 750.337 is an unconstitutional enactment in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution because the statute is facially vague. Therefore, because defendant’s conviction was based on the unconstitutional statute, we reverse the conviction. Reversed. The circuit court stated that it was addressing the “vagueness or over-breadth question,” but the analysis that followed addressed only the vagueness claim. In Plymouth Charter Twp, supra at 198, a constitutional challenge was made to a township ordinance that provided as follows: It shall be unlawful for a person to disturb the public peace and quiet by shouting, whistling, loud, boisterous, or vulgar conduct, the playing of musical instruments, phonographs, radios, televisions, tapeplayers or any other means of amplification at any time or place so as to unreasonably annoy or disturb the quiet, comfort and repose of persons in the vicinity. The district court in this case made a specific finding that the language used by defendant did not constitute obscenity as defined in Miller v California, 413 US 15, 24; 93 S Ct 2607; 37 L Ed 2d 419 (1973). Therefore, the jury was not instructed to decide whether defendant’s words constituted “obscene” speech. The prosecutor does not challenge that ruling.

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Per Curiam. The prosecutor appeals by leave granted from an order granting defendant’s request for an instruction that required the prosecution to prove, beyond a reasonable doubt, the defendant’s knowledge of the quantity of the controlled substance she was charged with possessing with intent to deliver. We reverse. Defendant was charged with various drug-and firearm-related offenses. Following the completion of proofs and closing arguments, defendant requested an instruction with respect to the charge of possession with intent to deliver 50 grams or more, but less than 225 grams, of a mixture containing cocaine. MCL 333.7401(2)(a)(iii). Specifically, defendant argued that the prosecutor had to prove defendant’s knowledge of the amount of the mixture as an element of the offense pursuant to People v Mass, 464 Mich 615; 628 NW2d 540 (2001), and the instructions to the jury should reflect this requirement. In response, the prosecutor argued that the Mass Court held that the knowledge of amount requirement applied only to conspiracy charges. The trial court granted defendant’s request for the instruction regarding knowledge of quantity on the basis of its interpretation of Mass. We granted the prosecutor’s application for leave to appeal and stayed the trial pending resolution of this appeal. The prosecutor alleges that the trial court erred in granting defendant’s instruction request. We agree. The court must instruct the jury to allow the jury to correctly and intelligently decide the case. People v Crawford, 232 Mich App 608, 619; 591 NW2d 669 (1998). The instructions must include all the elements of the charged offense and must not exclude material issues, defenses, and theories that are supported by the evidence. Id. We review claims of instructional error and questions of statutory interpretation de novo. People v Bartlett, 231 Mich App 139, 143; 585 NW2d 341 (1998). Defendant’s argument was raised as early as 1984 and rejected by this Court. In People v Cortez, 131 Mich App 316, 321-322; 346 NW2d 540 (1984), the three defendants, tried in two separate trials, were convicted of possession with intent to deliver 650 or more grams of a mixture containing cocaine. On appeal, the defendants alleged that there was insufficient evidence to support the convictions because evidence of knowledge of the weight of the mixture had not been presented. This Court rejected that argument and held that there was no authority to indicate that knowledge of the weight of the . mixture was an essential element of the offense. Id. at 331. Furthermore, in People v Hamp, 170 Mich App 24, 34; 428 NW2d 16 (1988), vacated in part on other grounds 437 Mich 865 (1990), the defendant argued that knowledge of the quantity of the controlled substance possessed was an element of the crime of possession with intent to deliver. This Court rejected the defendant’s challenge: Defendant was convicted of possession of cocaine with intent to deliver 225 grains or more but less than 650 grams. The crime of possession of cocaine with intent to deliver in any mixture of 225 grams or more but less than 650 grams requires the showing of four elements: (1) the substance was cocaine; (2) the drug was in a mixture which weighed more than 225 grams but less than 650 grams; (3) defendant was not authorized by law to possess the substance; and (4) defendant knowingly possessed the cocaine with the intent to deliver. People v Acosta, 153 Mich App 504, 511-512; 396 NW2d 463 (1986), lv den 428 Mich 965 (1987); CJI 12:2:00. Contrary to defendant’s assertion, knowledge of the quantity of the controlled substance is not an essential element of this offense. At this time, this Court refuses to require that that element be shown. [170 Mich App 34-35.] Lastly, in People v Northrop, 213 Mich App 494, 495; 541 NW2d 275 (1995), the defendant was convicted of possession of 50 to 225 grams of cocaine, MCL 333.7403(2)(a)(iii). The defendant acknowledged that the prosecution was not required to prove knowledge by the defendant of the quantity of the drag involved, but challenged the constitutionality of the drag statutes when penalties were imposed on the basis of quantity. Northrop, supra at 498. This Court rejected the constitutional challenge and adhered to the principle that knowledge was not an essential element for purposes of delivery, possession with intent to deliver, or possession of a controlled substance. Id. This Court noted that the harsh mandatory minimum sentences were designed to remove drag dealers from society for long and definite periods. Id. In Mass, supra, the defendant was convicted, as an aider and abettor, of delivery of 225 grams or more, but less than 650 grams, of a mixture containing cocaine, MCL 333.7401(2)(a)(ii), and conspiracy to commit that offense, MCL 750.157a. The defendant challenged his delivery conviction by alleging that knowledge of the amount of a controlled substance was an element of the delivery charge. The Supreme Court rejected the defendant’s challenge, stating: Having determined that quantity is an element of the delivery offense, we turn to the question whether knowledge of the amount is an element of a delivery offense. The Court of Appeals held that knowledge of the amount of cocaine involved is not an element of a charge of delivery of cocaine, citing People v Cortez, 131 Mich App 316, 331; 346 NW2d 540 (1984), and People v Northrop, 213 Mich App 494, 498; 541 NW2d 275 (1995). It is also the case that this Court stated as follows in People v Quinn, 440 Mich 178, 189; 487 NW2d 194 (1992): “[A] defendant need not know the quantity of narcotics to be found guilty of possession of a controlled substance under MCL 333.7401; MSA 14.15(7401).” We hold, consistent with the text of the statute, the Court of Appeals holdings, and our prior statement in Quinn, that knowledge of the amount of a controlled substance is not an element of a delivery charge. This holding is, of course, consistent with the fact that delivery of a controlled substance is a general intent crime. People v Maleski, 220 Mich App 518, 522; 560 NW2d 71 (1996). [Mass, supra at 626-627.] While the Mass Court addressed the charge of delivery of a controlled substance, it cited with approval the Cortez decision that expressly held that knowledge of quantity was not an element of possession with intent to deliver. Accordingly, this Court’s hold ings that knowledge of quantity is not an element of possession with intent to deliver remain good law. Accordingly, the trial court erred in granting defendant’s request for a knowledge of quantity instruction. Reversed. Although we note that because the charge in Northrop was merely possession, it could be argued that the statement regarding possession with intent to deliver is dicta. proof of agreement requirement and avoids a challenge to the unanimity of a jury verdict. Defendant alleges that knowledge of quantity is required because of the distinction between specific and general intent crimes. However, the statement and citation of Maleski, supra, is dicta. We note that the Mass Court held that knowledge of quantity was an element for purposes of the conspiracy statute. However, the conspiracy statute requires proof of an agreement and there are four separate delivery offenses, contingent upon the amount of contraband involved. Mass, supra at 629-634. The requirement of proof of the knowledge of the amount is consistent with the

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Ryan, J. The broad issue in this case is whether the Wayne County Concealed Weapon Licensing Board is an "agency” within the meaning of the Michigan Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., so that the board is required to comply with the provisions of the act. Resolution of this broad issue requires the Court to decide two specific questions. First, does the Michigan Administrative Procedures Act apply only to "state * * * board[s]”, or does it apply additionally to non-state boards which are created by statute. Second, if the Michigan Administrative Procedures Act applies only to "state * * * boards”, is the Wayne County Concealed Weapon Licensing Board a "state * * * board” within the meaning of the act. We hold that the Michigan Administrative Procedures Act applies only to an "agency” and that the statutory definition of "agency” requires that the "department, bureau, division, section, board, commission, trustee, authority or officer” be a "state” unit or position. Additionally, we hold that the Wayne County Concealed Weapon Licensing Board is not a "state * * * board” within the meaning of the Michigan Administrative Procedures Act and consequently is not an "agency” subject to the provisions of the act. Therefore, we reverse the decision of the Court of Appeals and remand to that Court for consideration of questions left unanswered by their opinion. Hanselman v Killeen, 112 Mich App 275; 316 NW2d 237 (1982). I The plaintiff, John Hanselman, applied for a concealed weapon license from the Wayne County Concealed Weapon Licensing Board in 1973. The plaintiff requested the license because his work for a talent agency required him to make nightly collections of cash and checks from various bars and then to hold the cash and checks until the next regular business day when he deposited the collections with his employer. The board issued a concealed weapon license to the plaintiff, but restricted it to use in the plaintiff’s business or to use in travel to and from his home and bank. On Monday, May 28, 1979, Memorial Day, the plaintiff was driving with his wife near Lapeer, Michigan, when he was stopped by state trooper Mark Calcatera. Officer Calcatera, who earlier had been flagged down by a motorist who reported that the plaintiff’s car was weaving and running off the road, asked to see the plaintiff’s driver’s license. When the plaintiff produced his driver’s license, he also produced his concealed weapon license which was attached to the driver’s license. In response to Officer Calcatera’s questions, the plaintiff indicated that he was carrying the weapon. After removing a gun from the plaintiff’s boot and questioning him further, Officer Calcatera took the plaintiff to the police station where he "interviewed” the plaintiff and made a report. The plaintiff was released following this brief detention. The Lapeer County prosecutor elected not to charge the plaintiff with a concealed weapon license violation. Instead, he instructed the state police to forward a copy of Officer Calcatera’s report to the Wayne County prosecutor, a member of the board. Officer Calcatera’s report stated that the plaintiff was advised of his Miranda rights and that, after waiving his Miranda rights, the plaintiff indicated that "he knew he was in violation of his permit, however, [he] didn’t feel anything would happen to him, due to the fact that he had the permit and has carried the gun for a long time”. Additionally, the Lapeer County prosecutor wrote to the Wayne County prosecutor indicating that, while he would not pursue a criminal proceeding against the plaintiff, "[p]erhaps the board should review Mr. Hanselman’s suitability for a concealed weapon permit, in view of his apparent disregard for the limitations in his permit”. Based solely upon Officer Calcatera’s report and the La-peer County prosecutor’s letter, the board revoked the plaintiff’s concealed weapon license at their July 10, 1979 meeting. The plaintiff, who had been present at the July 10 meeting of the board and had sought to present his side of the Memorial Day incident, appealed the board’s decision to the Wayne Circuit Court seeking an order to show cause why a preliminary injunction should not enter requiring the board to issue a concealed weapon license to the plaintiff. The plaintiff based this request upon a claim that the hearing provided by the board violated the APA, MCL 24.201 et seq.; MSA 3.560(101) et seq. Specifically, he requested a "hearing which complies with minimum due process standards, to wit: "i. The opportunity to defend by confronting and cross-examining adverse witnesses; "ii. The opportunity for plaintiff to present his own arguments and evidence orally; "iii. A written record of the proceedings; "iv. A written decision based solely upon the legal rules and evidence adduced at the hearing, stating the reasons for this decision, and indicating the evidence relied upon; "v. That plaintiff receive timely and adequate notice of said hearing; and "vi. That plaintiff have the right to appear with counsel.” The circuit court entered a temporary injunction which required the board to issue a concealed weapon license and enjoined the board from revoking the plaintiffs concealed weapon license until it had given the plaintiff a "full hearing”. The board conducted hearings on September 21, 1979 and October 9, 1979. The plaintiff was given adequate and timely notice of both hearings. He was allowed to present evidence, to cross-examine adverse witness, and to be represented by counsel. A written transcript of the proceedings was made. On the first day of the hearing, the plaintiff and his employer testified. The plaintiff testified that he had made collections in the amount of $7,000 over the Memorial Day weekend, that he was required to keep the money on his person, that he had gone to Lapeer County to see a horse show but was still carrying the money in connection with his job, and that he never told Officer Calcatera that he was not in the course of his business or that he knew that he was acting in violation of his concealed weapon license. The plaintiffs employer testified that, in fact, the plaintiff was required to keep the collected money on his person until he delivered it to him on the next regular business day, that the office was closed from Friday night until Tuesday morning due to the Memorial Day holiday, and that the plaintiff deposited about $6,500 on the Tuesday after Memorial Day. On the second day of the hearing, Officer Calcatera and the plaintiffs wife testified. Officer Calcatera indi cated that he stopped the plaintiff because a citizen reported his erratic driving, that the plaintiff admitted that he was in violation of his concealed weapon permit, that the plaintiff never mentioned anything about carrying money in connection with his job, that the officer did not observe the plaintiff to be carrying any large amount of money when he patted him down, and that he had discussed the earlier day’s testimony with the board prior to his testimony. The plaintiff’s wife stated that her husband was carrying a large sum of money at the time that Officer Calcatera stopped him, that he never stated that he knew that he was in violation of his concealed weapon permit while she was present, that she heard him say that he was carrying a large sum of money, and that Officer Calcatera was wrong in stating anything to the contrary. Following the September 21 and October 9 hearings, the board again revoked the plaintiff’s concealed weapon license. On October 18, 1979, the board notified the plaintiff of its decision to again revoke his concealed weapon license. There is no written explanation of the board’s decision in the record. However, it appears that the board relied upon MCL 28.426(5); MSA 28.93(5), which requires a concealed weapon licensing board to revoke a license when the gun is "carried contrary to the authorization”. The plaintiff again appealed the board’s decision to the Wayne Circuit Court. There, the plaintiff made three claims. First, he asserted that the board had failed or refused to comply with the temporary injunction order to provide a full, fair, and impartial hearing. Second, he claimed that the board violated the APA, the Due Process Clause of the United States Constitution, and the Due Process Clause of the Michigan Constitution. Finally, the plaintiff claimed that the board committed a substantial and material error of law in finding that the plaintiff was not "at work” on Memorial Day. The circuit court again issued a show-cause order. However, on November 16, 1979, the circuit court denied the plaintiff’s requested relief. First, it found that the board was not subject to the APA. Additionally, even if the board was subject to the APA, a "rule of fairness” would require that the plaintiff demonstrate some harm resulting from the board’s violation of the APA provisions. The record, according to the circuit court, did not demonstrate that the plaintiff suffered any harm from the alleged violations. Second, the circuit court held that the board had acted within the scope of its authority. Third, the circuit court held that the record substantiated the board’s finding that the plaintiff was not "at work” or in the course of his business on Memorial Day when he was stopped. The circuit court did not specifically discuss the plaintiff’s objection that the board violated the temporary restraining order or that the hearing violated the Due Process Clauses of the federal and state constitutions. However, in denying the plaintiff’s request, it presumably found them unsupported by the record. The plaintiff then appealed to the Court of Appeals, stating the same three questions: first, the plaintiff claimed that the circuit court had erred in finding that the board was not an "agency” subject to the provisions of the APA; second, the plaintiff claimed that the hearing provided by the board violated the APA and the Due Process Clauses of the federal and state constitutions; and, third, he claimed that the board had committed a substantial and material error of law in finding that the plaintiff was not "at work” or in the course of his employment on Memorial Day when he was stopped. The Court of Appeals focused on the plaintiff’s first claim and found that the board was indeed an "agency” subject to the provisions of the APA since it was a "state * * * board”. Additionally, the Court of Appeals found that the board had not complied with two provisions of the APA. Therefore, the Court of Appeals reversed the decision of the circuit court and remanded the case to the Wayne Circuit Court (excluding the original circuit judge) for appointment of a temporary concealed weapon license board to hear the plaintiff’s case and determine, in accordance with the APA, whether the plaintiff violated the restrictions on his concealed weapon license. While the Court of Appeals did not find it necessary to discuss whether the hearing violated the due process requirements of the state or federal constitution, it did note that, absent a showing of prejudice, Officer Calcatera’s testimony should not be permanently disqualified because of his contact with the board. Additionally, while the Court of Appeals did not find that the board erred in finding that the plaintiff was not "at work” or in the course of his employment on Memorial Day when he was stopped, it did state that "business” is a broad term and "an employee carrying a weapon to protect cash to be delivered to his employer is surely on 'business’ ” unless the license makes clear that such conduct is prohibited. The board applied to this Court, and we granted leave to appeal. 417 Mich 1039 (1983). II The general issue in this case is whether the board is an "agency” within the meaning of the APA and therefore required to comply with the procedural requirements of the APA. Resolution of this issue requires that we decide two specific points argued by the parties. First, does the statutory definition of "agency” apply only to a state "board * * * created by * * * statute” or does it apply to any "board * * * created by * * * statute?” Second, if the "agency” definition requires that the board be a "state * * * board”, does the board meet that requirement? The issues shall be addressed separately. A The parties agree that the APA provisions apply only to an "agency”. They also agree that the APA defines an "agency” in MCL 24.203(2); MSA 3.560(103X2): "(2) 'Agency’ means a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action. It does not include an agency in the legislative or judicial branches of state government, the governor, an agency having direct governing control over an institution of higher education, or the state civil service commission.” However, the parties do not agree on whether a "board * * * created by * * * statute” must be a "state * * * board” to be an "agency” within the meaning of the APA. The plaintiff claims that the statutory definition encompasses the board since it is a "board * * * created by * * * statute”. According to the plaintiff’s understanding, the word "state” modifies only the word "department” and does not modify all the units and positions which follow. Therefore, an. "agency” is a "state department” or a "bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action”. The defendant disagrees with this interpretation and asserts that the word "state” modifies all the subsequent units or positions. Therefore, as applied to the board, it must be both "created by * * * statute” and a "state * * * board” in order to be an "agency” subject to the provisions of the APA. The Court of Appeals agreed with the board that an "agency” under the APA must be a "state” unit or position "created by the constitution, statute, or agency action”. Therefore, as applied to this case, the Court of Appeals held that the board was an "agency” only to the extent that it was a "state * * * board” and "created by * * * statute”. We agree with the Court of Appeals and the board that the plaintiffs interpretation of MCL 24.203(2); MSA 3.560(103)(2) is untenable. Properly interpreted, the statutory definition of an "agency” has two components. The first component of an "agency” is that it is a "state department, bureau, division, section, board, commission, trustee, authority or officer”. Contrary to the plaintiffs assertion, the word "state” modifies each and every one of the subsequent units or persons and does not merely modify the word "department”. This interpretation is supported by three facts. First, the title of the APA states that it is "[a]n act to provide for the effect, processing, promulgation, publication, and inspection of state agency rules, determinations and other matters; * * * to provide for state agency administrative procedures and contested cases and appeals from contested cases * * *; to provide for declaratory judgments as to rules; and .to repeal certain acts and parts of acts.” (Emphasis added.) Second, the APA’s predecessor act was interpreted by the Court of Appeals in Detroit v General Foods Corp, 39 Mich App 180, 186; 197 NW2d 315 (1972), and in Righter v Adrian Civil Service Comm, 1 Mich App 468, 473; 136 NW2d 718 (1965), lv den 377 Mich 696 (1966). Like the present statute, the predecessor statute used the word "state” followed by a sequential list of units or persons: " 'Agency’ means any state board, commission, de partment, bureau or officer, authorized by law to make rules or to adjudicate contested cases, except the workmen’s compensation commission, the employment security commission, the department of revenue, the public service commission and those in the legislative and judicial branches.” MCL 24.101(1); MSA 3.560(21.1)(1). Repealed and replaced by 1969 PA 306, MCL 24.203; MSA 3.560(103) and MCL 24.207; MSA 3.560(107), effective July 1, 1970. In both cases, the Court of Appeals found that "agency” meant a "state agency”, i.e., a "state board”, "state commission”, "state department”, "state bureau”, or "state officer”. Therefore, since the Legislature is presumed to legislate in conformity with prior judicial decisions, the Legislature’s adoption of the same agency definition structure is presumed to be with knowledge that it had been held to apply only to "state” agencies in Righter, supra. Jeruzal v Wayne County Drain Comm’r, 350 Mich 527; 87 NW2d 122 (1957). Moreover, in the decade since the General Foods Corp decision, the Legislature has not changed the structure of the "agency” definition or in any way indicated its disapproval of the judicial interpretation. Therefore, the Legislature’s adoption of the same structure for the 1969 Act as was used in the earlier act and the Legislature’s inactivity since that time indicate that, absent contrary indications, the Legislature is satisfied with the judicial interpretation. Magreta v Ambassador Steel Co (On Rehearing), 380 Mich 513; 158 NW2d 473 (1968). Finally, simple logic indicates that there would be no reason for the Legislature to make "state departments” subject to the provisions of the APA without any other condition while it made "state divisions”, "state sections”, "state boards”, "state commissions”, etc., subject to the APA provisions only if they met other conditions. Therefore, the first aspect of an "agency” is that it is a "state” unit or person. In addition to this "state” component, MCL 24.203(2); MSA 3.560(103)(2) states a second component of the "agency” definition. That is, an "agency” must be "created by the constitution, statute, or agency action”. This component is self-explanatory. If the two components stated above are met, the entity is an "agency”. However, not all agencies are required to comply with the mandates of the APA. The final sentence of MCL 24.203(2); MSA 3.560(103)(2) exempts certain agencies from the provisions of the APA: "It does not include an agency in the legislative or judicial branches of state government, the governor, an agency having direct governing control over an institution of higher education, or the state civil service commission.” Therefore, the proper interpretation of MCL 24.203(2); MSA 3.560(103)(2), requires the presence of two characteristics for an "agency”, i.e., it must be a "state” unit or position and it must be "created by the constitution, statute, or agency action”. If these two requirements are met and it is not specifically exempted by the final sentence of MCL 24.203(2); MSA 3.560(103)(2), an "agency” is subject to the provisions of the APA. B Stating the elements of the statutory definition of an "agency” does not end our inquiry or decide this case. We must now apply that definition to determine whether the board is an "agency” within the meaning of the APA. In applying the "agency” definition to the board, there is no dispute that the board is "created by * * * statute” and that it is not specifically exempted from the APA. MCL 28.426(1); MSA 28.93(1) authorizes concealed weapon licensing boards such as the defendant: "The prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute boards exclusively authorized to issue a license to an applicant residing within their respective counties, to carry a pistol concealed on the person and to carry a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the applicant.” Moreover, the board is not an "agency of the legislative or judicial branches of state government, the governor, an agency having direct control over an institution of higher education, or the state civil service commission”. However, the parties vigorously debate whether the board is a "state * * * board” or a non-state board. If the board is a "state * * * board”, it is an "agency” within the meaning of the APA. However, if it is not a "state * * * board”, it is not an "agency” subject to the provisions of the APA. 1 The APA provides no explicit guidance concerning whether the board is a "state * * * board”. It makes no statements on the scope of the phrase "state * * * board” and it does not define the word "state”. Therefore, we must assume that the word "state”, as used in the APA, has its general, commonly understood meaning. In determining whether the board is a "state * * * board” within the commonly understood meaning of the word, we are not without guidance. In Advisory Opinion re Constitutionality of PA 1966, No 346, 380 Mich 554, 571; 158 NW2d 416 (1968), this Court was required to determine whether the "state” housing development authority was an instrumentality of state government. To do so, the Court outlined three inquiries relevant to determining "state” status: "We must * * * look behind the name to the thing named. We must examine its character, its relations, and its functions to determine, indeed, whether it is an agency or instrumentality of State government.” While that opinion is not "on point” with this one, we believe that the analysis presented there to determine "state” status is appropriate in this case for determining whether the board is a "state * * * board”. Therefore, we shall separately discuss the "characteristics]” of the board, the "relations[hip]” between the board and the state, and the "functions” performed by the board. Such analysis will provide a broad-based composite picture of the board, thereby enabling this Court to determine whether it is a "state * * * board” or a non-state board. a The first portion of the analysis requires consideration of the characteristics with which the Legis lature endowed the board through the concealed weapon licensing statute. In his argument, the plaintiff highlighted several characteristics possessed by the board which he believed indicated that the board was a "state * * * board”. First, the plaintiff noted that the board is created by state statute pursuant to the Legislature’s exercise of its police powers and that the board garners none of its authority from local statutes or ordinances. Indeed, the Legislature made the concealed weapon licensing board the exclusive dispenser of concealed weapon licenses, thereby prohibiting a local statute or ordinance creating or authorizing local concealed weapon licensing boards. See MCL 28.426; MSA 28.93. Second, by law, one member of every concealed weapon licensing board is the director of the Department of State Police or his deputy. As such, a state official participates in every action of a concealed weapon licensing board. See MCL 28.426; MSA 28.93. Third, the board may grant concealed weapon licenses only to applicants possessing certain mandatory attributes. For example, the concealed weapon licensing board may not grant a license unless the applicant is at least 18 years of age, is a citizen of the United States, has been a resident of the State of Michigan for at least six months, has not been convicted of or confined for a felony in the preceding eight years, and has not been adjudged insane (unless subsequently adjudged to have recovered his sanity). Finally, the state police are responsible for providing forms upon which the fingerprints are recorded and for checking the fingerprints of all applicants for concealed weapon licenses. The Court of Appeals adopted the plaintiff’s argument that the board possessed these state-like characteristics and held that the board was a "state * * * board”. In explaining its holding, the Court of Appeals restated the plaintiffs assertions: "County licensing boards are not created under county governmental authority and are not subject to county control. The statute creating the licensing boards indicates substantial state involvement: (1) Each board must adhere to a comprehensive scheme of state-imposed rules; (2) a representative of the director of the Department of State Police is a member of each board; and (3) the state police check the fingerprints of applicants and provide license forms. Hanselman, supra, p 280. The board asserts that the Court of Appeals misconceived the character of the board by focusing only upon selected state-like characteristics and not considering those characteristics in the light of their counterpart local, non-state-like characteristics. Specifically, the board claims that the Court of Appeals erred in finding no local control and in finding "substantial state involvement” because of the state-imposed rules and the role of the state police in the workings of the concealed weapon licensing boards. We agree. In evaluating the characteristics of the board to determine whether it is a "state * * * board” or a non-state board, it is essential to avoid selective consideration of the board’s characteristics. While the plaintiff and the Court of Appeals are clearly correct in saying that the board possesses the characteristics enumerated in the Court’s holding, they are in error in not weighing the importance of these characteristics. Stated differently, "state” status in this case is not dependent upon the presence of a particular characteristic or a select group of characteristics. Rather, "state” status is determined by a review of all relevant characteris tics which, when considered together, indicate the overall character of the board. As will be demonstrated, the board possesses many non-state-like characteristics in addition to the state-like characteristics identified by the plaintiff and the Court of Appeals. When considered together, the board possesses considerably more non-state-like characteristics than state-like characteristics and its composite character is not that of a "state * * * board”. The first characteristic identified by the plaintiff and the Court of Appeals is that the board was created by a state statute. Initially, one is hesitant to consider this a "characteristic” of the board. However, even if it is a characteristic, it is not one which is indicative of "state” status. To so hold would be to confer on all governmental action, local and state, "state” status. For, as this Court has repeatedly stated, local governments have no inherent powers and possess only those limited powers which are expressly conferred upon them by the state constitution or state statutes or which are necessarily implied therefrom. Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972); Mason County Civic Research Council v Mason County, 343 Mich 313; 72 NW2d 292 (1955). Therefore, all action authorizing any board ultimately garners its justification from an exercise of state power. Consequently, the fact that the board was authorized by a statute does not constitute a characteristic determinative of whether the board is a "state * * * board”. The second characteristic noted by the plaintiff and the Court of Appeals is that the director of the Department of State Police, or his deputy, is a member of every concealed weapon licensing board. Since the director is an official of a state department, the plaintiff and the Court of Appeals concluded that such a characteristic demonstrates that the board is a "state * * * board”. However, such an interpretation ignores the character of the other members of every concealed weapon licensing board. Just as every concealed weapon licensing board by law has one state official, every concealed weapon licensing board by law has two local officials. As the statute requires, the county sheriff (or his deputy) and the county prosecutor (or his deputy) are members of the board along with the director of the Department of State Police. The county prosecutor and the sheriff are clearly local officials elected locally and paid by the local government. Therefore, the fact that a single state official is a member of the board is not controlling in determining the status of the board as a "state * * * board”. Indeed, the fact that a majority of the members of the board indicates that it is not a "state * * * board”. This understanding is further bolstered by the fact that the board acts only by a vote of the majority. Therefore, the state official cannot control the board, but the local officials can, by voting together or not voting with the state official, control the actions of the board. The third characteristic presented by the plaintiff and the Court of Appeals is that the statute authorizing concealed weapon licensing boards mandates that certain attributes must be possessed by all successful applicants for a concealed weapon license. From this fact, the plaintiff claimed, and the Court of Appeals found, "substantial state involvement”. However, a closer review of the state-imposed requirements indicates that they are all very general in nature. For example, a successful applicant must be 18 years of age or older, a United States citizen, a resident of Michi gan for at least six months, and not a recent felon or insane. These very general requirements do not provide any substantial guidance to a concealed weapon board attempting to ascertain whether, as MCL 28.426(1); MSA 28.93(1) requires, "the applicant has good reason to fear injury to his or her person or property, or has other proper reasons, and is á suitable person to be licensed” since not everyone who is 18 years or older, a citizen of the United States, a resident of Michigan for at least 6 months, and not a recent felon or insane is entitled to a concealed weapon license. Each concealed weapon licensing board must determine "proper reason” and "suitability” based upon consideration of local needs and an exercise of its discretion. As the Court of Appeals recognized in Bay County Concealed Weapons Licensing Board v Gasta, 96 Mich App 784, 789-791; 293 NW2d 707 (1980), the Legislature intends the concealed weapon licensing boards to apply local and discretionary standards in deciding whether to grant an applicant a concealed weapon license: "The licensing board is comprised of one representative each from the County Prosecutor’s Office, the State Police, and the County Sheriffs Department. By creating a board composed of law enforcement officials and giving it the exclusive authority to issue, deny and revoke permits for concealed weapons, the Legislature has insured that an individual’s perceived need to carry a concealed weapon will be evaluated in light of the experience and knowledge of community needs possessed by these local officials. The potential danger which a concealed weapon poses to the unsuspecting public justifies that licensing procedures be entrusted to a board comprised of law enforcement officials. "In view of the inherent potential danger which accompanies the issuance of a permit to carry a con cealed weapon, the licensing board as composed reflects the Legislature’s intent that power to issue and revoke such [concealed weapon] licenses is properly placed with those professionals most able to assess community needs and problems in this area.” Therefore, rather than creating a "comprehensive scheme of state-imposed rules” as asserted by the plaintiff and the Court of Appeals, the conditions stated in the statute do no more than indicate the minimal qualifications which a person must possess to receive a concealed weapon license and which a local concealed weapon licensing board would probably require even absent an explicit statement in the concealed weapon licensing statute. They do not assist the concealed weapon licensing boards in determining who among those possessing the minimal qualifications stated in the state statute should receive a concealed weapon license due to necessity and suitability. That decision is left in the hands of the concealed weapon licensing board to be resolved according to its discretion. Therefore, the articulation in the statute of a few general minimal attributes to be possessed by all applicants does not constitute a "comprehensive scheme of state-imposed rules” requiring a finding that the board is a "state * * * board”. Rather, the absence of more specific guidance than "proper reasons” and "suitable person” indicates that the board is not a "state * * * board”. The final characteristic raised by the plaintiff and the Court of Appeals is that the fingerprints of each applicant are taken on forms provided by the state police and are checked by the state police. From this characteristic, the plaintiff and the Court of Appeals found "substantial state involvement”. However, rather than indicating that the board possesses “state” status, the statutory provision that the state police check the fingerprints of each applicant manifests nothing more than the common sense of the Legislature since the state police are the central repository for fingerprint information collected throughout the state. Therefore, it is logical that they should be consulted to determine whether the applicant has a criminal record. This interpretation, that state police review of all applicants’ fingerprints as a commonsense provision and not as an indication of the "state” status of the concealed weapon licensing boards, is further bolstered by the other “fingerprint provisions” of the concealed weapon licensing statute. For example, local law enforcement officials take the fingerprints in duplicate. One set is forwarded to the state police and the other is forwarded to the Federal Bureau of Investigation for comparison with fingerprints in the national repository of fingerprint records. Consequently, the point is to assure that an applicant is not able to obtain a concealed weapon license following criminal activity merely by moving across a county or a state line, rather than to indicate “state” status of the concealed weapon licensing boards through "substantial state involvement”. Therefore, the fact that the state police check each applicant’s fingerprints and provide the forms upon which the fingerprints are placed indicates nothing more than a rational system to assure a thorough review against state and national fingerprint records. It does not indicate that the board is a "state * * * board”. In addition to rejecting the plaintiffs asserted state-like characteristics, we note that the board also possesses several characteristics indicating that it is not a “state * * * board”. For example, the concealed weapon licensing boards have only limited local jurisdiction and can only grant a license to a person living within their jurisdiction. Therefore, while the concealed weapon license is honored throughout the state, the concealed weapon licensing boards’ licensing authority is limited to a local jurisdiction. Obviously, this is not a characteristic indicative of a "state. * * * board”. Additionally, the 83 concealed weapon licensing boards are entirely independent of one another. As such, they are not delineated subunits in a state system divided locally for administrative convenience. Again, such complete independence from one’s peer concealed weapon licensing boards is not a characteristic indicative of a "state * * * board”. Finally, the fee paid by the concealed weapon license applicant is paid to the local county clerk, a local elected official. Thereafter, 80% of the fee is retained by the local unit of government and only 20% is forwarded to the state. As with the other characteristics described above, this is not indicative of a "state * * * board”. Therefore, the characteristics of the board, when considered in their totality, are not those of a "state * * * board”. Rather than being indicative of a "state * * * board”, the characteristics of the board provide strong evidence that the board is not a "state * * * board”. Therefore, the first section of the analysis for determining whether the board is a "state * * * board” demonstrates that the board possesses many more non-state-like characteristics than it possesses state-like characteristics. b The second portion of the "state” status analysis requires the Court to consider the relationship between the board and the state. Obviously, we also consider the relationship between the board and the local units of government as the other side of this inquiry. As with the characteristics of the board, the plaintiff identifies several points of interaction between the board and the state from which the Court of Appeals found "substantial state involvement”. As with the plaintiffs presentation of state-like characteristics, the Court of Appeals adopted the plaintiffs argument that there was a significant relationship between the board and the state. The plaintiff first noted that the board is created by statute as indicative of a relationship between the board and the state. However, as demonstrated above in the characteristics analysis, the source of the authorization does not manifest any relationship between the state and the board since all boards ultimately are authorized through a grant of "state” power. The plaintiffs second asserted indication of a relationship between the board and the state is the board’s utilization of the state police to provide fingerprint forms and to check applicants’ fingerprints. Again, as indicated above in the characteristics analysis, we believe that this arrangement manifests only a common-sense approach to fingerprint checks. As such, it does not indicate a meaningful relationship between the board and the state. A third relationship identified by the plaintiff is the fact that the director of the Department of State Police sits as a member , of the concealed weapon licensing boards. Unlike the first two claims, the presence of a state official on the board does indicate a relationship between the board and an agency of state government. However, the relationship is not as significant as claimed by the plaintiff since the director of the Department of State Police does not sit solely as a representative of the state. Rather, as noted by the Court of Appeals in Gasta, supra, p 791, he is a member of the board because he is a law enforcement professional "able to assess community needs and problems in this area”. Therefore, the presence of a state police official is not indicative of a meaningful relationship between the board and the state. Rather, it is indicative of the Legislature’s intent to place concealed weapon licensing decisions in the hands of law enforcement professionals from both state and local government who would consider local factors. The plaintiff’s final point allegedly demonstrating that there is a relationship between the board and the state is that the board is one of 83 concealed weapon licensing boards throughout the state. While this fact may be indicative of the "state” function served by the board, see below, it is not relevant to the relationship between the board and the state. Nothing in the fact that concealed weapon licensing boards are systematically established throughout the state shows any present relationship between the board and the state. Consequently, we do not find that the points made by the plaintiff show a material relationship between the board and the state. Additionally, as in the relationship analysis, there are several relevant facts demonstrating the absence of a meaningful relationship between the board and the state. For example, there is no state agency or statewide authority responsible for monitoring the 83 concealed weapon licensing boards and no state agency or authority through which appeals must be taken, as with other state boards. Second, with the exception of the licensing of gas-ejecting devices, there is no official mechanism promulgating rules binding upon all concealed weapon licensing boards. See MCL 28.426a; MSA 28.94. Third, two of the three concealed weapon licensing board members are not subject to control or appointment by the state. The county prosecutor and the county sheriff are locally elected officials performing constitutionally designated tasks. As such, they are not subject to direct control or replacement by the state. Fourth, the "clerk” of the concealed weapon licensing boards is the county clerk, another locally elected official. Finally, each member of the concealed weapon licensing boards is free to appoint a deputy to sit on the concealed weapon licensing board in his stead without clearing that decision with any state agency or authority. This is clearly consistent with local autonomy rather than a meaningful relationship with the state. Therefore, the factors asserted by the plaintiff and the Court of Appeals to support their conclusion that there is a meaningful relationship between the board and the state is not supported by the facts they note. Moreover, several factors, not noted by either the plaintiff or the Court of Appeals, demonstrate the absence of a meaningful relationship between the board and the state, and indicate instead the presence of an overwhelming relationship between the board and local government. Therefore, the second portion of the analysis demonstrates that there is no meaningful relationship between the board and the state. c The final portion of the "state” status analysis requires that we consider the "function” of the board to determine whether it functions as a "state * * * board”. The plaintiff asserts that the board functions as a cog in a comprehensive statewide system to regulate the licensing of concealed weapons. In support of these assertions, the plaintiff notes that the purpose section of the concealed weapon licensing statute states that it is "to regulate and license the selling, purchasing, possessing, and carrying of certain firearms and gas ejecting devices” throughout the state. While an individual concealed weapon licensing board may have only limited local jurisdiction, the concealed weapon licensing boards work together as a comprehensive network for the purpose of statewide control of concealed weapons. There is no denying the fact that the concealed weapon licensing boards exist in every county in the state or that they exist to regulate concealed weapon licensing throughout the state. However, that does not amount to a "state” function. Rather, it is apparent that the Legislature has chosen to provide a uniform local mechanism for accomplishing its purpose. As the Court of Appeals noted in Gasta, supra, the concealed weapon licensing boards do not "function” as state boards. Rather, they "function” locally, with a majority of the concealed weapon licensing board members being local officials who exercise their discretion according to local considerations. Such are obviously not manifestations of a "state function”. Therefore, this analysis does not demonstrate that the concealed weapon licensing boards perform a state "function”. d Therefore, we conclude that the board is not a "state * * * board” subject to the provisions of the APA. Its characteristics, its relationship to the state, and its function all indicate that it is not a "state * * * board”. It is not, therefore, an "agency” subject to the provisions of the APA and cannot have violated the provisions of the APA. The Court of Appeals was in error in reversing the circuit court decision on those grounds. 2 Our conclusion that the board is not a "state * * * board”, upon the basis of its characteristics, its relationship to the state, and its function, is supported by the legislative history of the concealed weapon licensing statute. That legislative history indicates that the Legislature did not intend the board to be subject to the requirements of the APA. If the Legislature did not intend the board to be subject to the provisions of the APA, it certainly did not intend to create an entity meeting the "agency” definition of the APA. The Legislature’s intent is demonstrated by the following facts. First, the concealed weapon licensing statute contains its own procedural requirements by which the concealed weapon licensing boards are to revoke a concealed weapon license. These procedures are clearly stated in MCL 28.428; MSA 28.96: "The licensing board * * * may revoke any license issued by it upon receiving a certificate of any magistrate showing that such licensee has been convicted of violating any of the provisions of this act, or has been convicted of a felony. Such license may also be revoked whenever in the judgment of said board the reason for granting such license shall have ceased to exist, or whenever said board shall for any reasonable cause determine said licensee to be an unfit person to carry a pistol concealed upon his person. No such license shall be revoked except upon written complaint and then only after a hearing by said board, of which at least 7 days’ notice shall be given to the licensee either by personal service or by registered mail to his last known address. The clerk of said licensing board is hereby authorized to administer an oath to any person testifying before such board at any such hearing.” In stating the procedural requirements applicable to a concealed weapon licensing board’s revocation of a concealed weapon license, the Legislature chose language and requirements which do not parallel the language and requirements of the APA. In part, this is due to the fact that the language of MCL 28.428; MSA 28.96 predates the APA. However, the concealed weapon licensing statute, which was enacted in 1927 (1927 PA 372), has not been amended regarding the procedure for revoking concealed weapon licenses during the past 57 years. It has remained unaltered despite the passage of two administrative procedures acts applicable to state agencies in 1952 and 1969 which contained different procedural requirements, despite substantial amendment of other sections of the concealed weapon licensing statute in 1929 and continuing as recently as 1982, and despite the increasingly broad scope of administrative procedural requirements. Therefore, it must be assumed that the Legislature’s retention of explicit revocation procedures for concealed weapon licensing boards indicates that it does not consider the board to be subject to the provisions of the APA. If it is not subject to those provisions, it can only be because it is not a "state * * * board” within the meaning of the APA. Second, after the passage of the concealed weapon licensing statute with its own internal procedural requirements, the Legislature passed the APA in 1969. 1969 PA 306. The APA was made applicable to "state * * * boards”, but the Legislature made no reference to the concealed weapon licensing boards, which were subject to a different set of procedural requirements under MCL 28.428; MSA 28.96. This is consistent and logical if the Legislature did not perceive any conflict between the APA and the concealed weapon licensing statute because the concealed weapon licensing boards were not seen as "state * * * boards” subject to the provisions of the APA. Any other interpretation would necessarily be based upon an assumption that the Legislature knowingly created an implicit conflict or that it was unaware of the concealed weapon licensing statute’s revocation procedures. We see no reason to engage in such assumptions since the legislative action is adequately explained if the Legislature did not believe that the concealed weápon licensing boards were "state * * * boardfs]” subject to the provisions of the APA. Third, the Legislature twice amended the concealed weapon licensing statute in 1980. In the first amendment, 1980 PA 339, the Legislature required that the supervisor, commissioner, chief of police, or marshal approve each applicant. If such approval was not given, the supervisor, commissioner, chief of police, or marshal was required to give written notice to the applicant, and the concealed weapon licensing board was required to provide a hearing to review the refusal to approve the applicant. In requiring a hearing before the concealed weapon licensing board, the Legislature did not mention the APA or any of its provisions. However, in the second amendment, 1980 PA 345, the Legislature provided that the concealed weapon licensing boards were to issue licenses for gas-ejecting devices according to rules promulgated by the director of the Department of State Police pursuant to the APA. Both amendments were passed on the same day and yet only one mentions the APA. The logical inference to be drawn from these two amendments is that the APA is not generally applicable to the concealed weapon licensing boards. As above, if the APA is not applicable to the concealed weapon licensing boards, it is because the Legislature does not consider them "state * * * boards”. Finally, it is noteworthy that the 83 concealed weapon licensing boards have been required to comply with the provisions of MCL 28.428; MSA 28.96 for the past half-century but have not been previously required to comply with the provisions of the APA. Yet, the Legislature has seen no need to correct the perception that the concealed weapon licensing boards were not subject to the provisions of the APA passed in 1952 or 1969. At a minimum, the Legislature appears to have acquiesced in this interpretation which holds the concealed weapon licensing boards are not state agencies. Therefore, the legislative history of the concealed weapon licensing statute indicates that the Legislature does not intend that the concealed weapon licensing boards be subject to the provisions of the APA. This legislative history is consistent with the Court’s conclusions that the board is not a "state * * * board” subject to the provisions of the APA. Ill The judgment of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for consideration of the plaintiffs remaining due process claims. We do not retain jurisdiction. Williams, C.J., and Kavanagh, Levin, Brick-ley, Cavanagh, and Boyle, JJ., concurred with Ryan, J. MCL 28.426(1); MSA 28.93(1) provides that the "prosecuting attorney, the sheriff, and the director of the department of state police, or their respective authorized deputies, shall constitute boards exclusively authorized to issue a license to an applicant residing within their respective counties, to carry a pistol concealed on the person”. MCL 28.426(5); MSA 28.93(5) provides: "The application for a license shall state the reason or reasons for the necessity or desirability of carrying a pistol concealed on the person or a pistol, whether concealed or otherwise, in a vehicle operated or occupied by the person applying for the license, and the license if issued, shall be restricted to the reason or reasons satisfactory to the board, which restriction or restrictions shall appear on the face of the license in a conspicuous place. The license shall be an authorization to carry a pistol in compliance with this section only to the extent contained in the face of the license and the license shall be revoked by the board if the pistol is carried contrary to the authorization.” (Emphasis added.) The plaintiff raised two specific objections based upon the requirements of the APA. First, the plaintiff asserted that the board’s final decision was deficient because it did not include findings of fact or a statement of underlying facts as required by MCL 24.285; MSA 3.560(185). Second, the plaintiff asserted that the board’s hearing was tainted because the board members had discussed the case with Officer Calcatera before he gave his testimony. The plaintiff claimed this to be in violation of MCL 24.282; MSA 3.560(182) which states: "Unless required for disposition of an ex parte matter authorized by law, a member or employee of an agency assigned to make a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except on notice and opportunity for all parties to participate”. In partial dissent, Judge F. X. O’Brien "would simply reverse the circuit court and reinstate plaintiffs license for the balance of its term”. Hanselman, supra, p 285. The plaintiff has not participated in this case in this Court. Therefore, we have relied upon his Court of Appeals pleading in ascertaining his argument and position. MCL 24.101(1); MSA 3.560(21.1X1), repealed and replaced by 1969 PA 306, MCL 24.203; MSA 3.560(103) and MCL 24.207; MSA 3.560(107), effective July 1,1970. A similar approach has been adopted by other courts. See, e.g., Green v Cowlitz County Civil Service Comm, 19 Wash App 210; 577 P2d 141 (1978), Westchester County v Rent Guidelines Bd, 71 AD2d 655; 419 NYS2d 6 (1979), and Riggins v Housing Authority, 87 Wash 2d 97; 549 P2d 480 (1976). See, e.g., Workers’ Compensation Appeal Board, MCL 418.251 et seq.; MSA 17.237(251) et seq.; State Tenure Commission, MCL 38.121; MSA 15.2021, MCL 38.131; MSA 15.2031; Liquor Control Commission, MCL 436.20; MSA 18.991.

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Markey, J. Defendant Scott Rutledge appeals by leave granted the circuit court’s order affirming the district court’s denial of defendant’s motion to dismiss charges of illegally possessing and consuming alcohol against nineteen-year-old defendant who after drinking alcohol legally in Canada returned to Michigan as a passenger in a vehicle and was charged with consuming and possessing alcohol in violation of MCL 436.1703(1). We reverse. On July 30, 2000, defendant was arrested as a minor illegally possessing and consuming alcohol in violation of MCL 436.1703(1). Defendant was a passenger in a vehicle that was stopped for speeding. After the driver of the vehicle was given a Breathalyzer test that indicated the driver had consumed alcohol, the police officers tested defendant, who also tested positive for alcohol consumption. In the district court, defendant moved to dismiss the charges, arguing that MCL 436.1703(1) was unconstitutionally vague and overbroad. For proposes of the motion, the court found that defendant drank legally in Canada, but determined that defendant violated the statute because he possessed alcohol in Michigan by having it in his body. After the motion to dismiss was denied, defendant conditionally pleaded guilty, subject to this appeal. On appeal to the circuit court, the court affirmed the district court, finding that defendant violated the statute because he “consumed alcoholic liquor in his body.” The circuit court also “suppose[d]” that defendant possessed alcohol by having it in his body in Michigan. Thereafter, this Court granted leave to appeal. In this case, we are asked to decide whether MCL 436.1703(1), the “minor in possession” statute, makes it a crime for a minor to have alcohol in his body when the alcohol was legally obtained and ingested in another jurisdiction. We conclude that it does not. MCL 436.1703(1) provides in relevant part: “A minor shall not purchase or attempt to purchase alcoholic liquor, consume or attempt to consume alcoholic liquor, or possess or attempt to possess alcoholic liquor, except as provided in this section.” Generally, a state has jurisdiction only over offenses committed within the state’s physical borders. People v Blume, 443 Mich 476, 480; 505 NW2d 843 (1993), quoting People v Devine, 185 Mich 50, 52-53; 151 NW 646 (1915). It is a well-established rule that a sovereign state can exercise jurisdiction to punish a criminal offense only when the offense is committed in whole or in part in that sovereign state. No matter how closely an act is connected with the state, if all the criminal elements are done entirely outside a state’s boundaries, it cannot be punished by that state. [People v Kirby, 42 Mich App 97, 99; 201 NW2d 355 (1972) (citations omitted).] The exception to this general rule is “ ‘limited to those acts that are intended to have, and that actually do have, a detrimental effect within the state.’ ” Blume, supra at 480, quoting Strassheim v Daily, 221 US 280, 285; 31 S Ct 558; 55 L Ed 735 (1911). This Court need not determine whether the exception applies in this matter because the prosecutor asserts that defendant violated the statute not by possessing and ingesting alcohol in Canada, but by possessing and consuming the alcohol within his body after returning to Michigan. Defendant, on the other hand, urges this Court to construe the terms “consume” and “possess” as used in MCL 436.1703(1) to mean actual ingestion and possession of undigested alcoholic liquor. A statute is presumed to be constitutional and is so construed unless its unconstitutionality is readily apparent. People v Noble, 238 Mich App 647, 651; 608 NW2d 123 (1999). Before addressing the constitutionality of the statute, this Court “must examine alternative, nonconstitutional grounds that might obviate the necessity of deciding the constitutional questions.” VandenBerg v VandenBerg, 231 Mich App 497, 499; 586 NW2d 570 (1998). Although the constitutional issue is the only issue raised on appeal, this case can be decided solely on the basis of statutory construction. Whether conduct falls within the statutory scope of a criminal statute is a question of law that is reviewed de novo on appeal. Noble, supra at 658. This Court has discretion to grant different or further relief as the case requires. MCR 7.216(7). “Criminal statutes must be strictly construed, with each word interpreted according to its ordinary usage and common meaning.” Noble, supra at 659. Here, there is no allegation that defendant purchased alcoholic liquor in Michigan. Therefore, the case turns on the meaning of the terms “consume” and “possess.” Statutory construction begins by examining the plain language of the statute to discern and give effect to the Legislature’s intent. People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999). If the language is unambiguous, no further construction is required or permitted, and the statute must be enforced as written. Id. at 330. This Court may look outside the statute to ascertain the Legislature’s intent only where the language is ambiguous. Id. We conclude that the terms “consume” and “possess” are ambiguous as used in the “minor in possession” statute because they can be interpreted in more than one manner. Specifically, they can be construed narrowly to mean only physical control and ingestion, as defendant urges, or very broadly to mean metabolism and containment in the body, as proposed by the prosecutor. A provision is considered ambiguous when it is susceptible to more than one reasonable interpretation. Frame v Nehls, 452 Mich 171, 176; 550 NW2d 739 (1996). To determine the meaning of the terms, this Court should look to “[t]he fair and natural import of the terms employed, in view of the subject matter of the law . . . .” Morey, supra at 330. Neither “possess” nor “consume” is defined by the Michigan Liquor Control Code. We are unable to find any statutory definition of either term or any judicial definition of the term “consume.” The term “possession,” although not “possess,” has been judicially defined as encompassing both actual and constructive possession. People v Hill, 433 Mich 464, 470; 446 NW2d 140 (1989). A “person has constructive possession if there is proximity to the article together with indicia of control.” Id. The Hill case did not define actual possession. This Court may also examine dictionaiy definitions if the statute does not expressly define its terms. People v Gregg, 206 Mich App 208, 211-212; 520 NW2d 690 (1994). Black’s Law Dictionary (6th ed), p 1162, defines “possess” as: “[t]o occupy in person; to have in one’s actual and physical control; to have the exclusive detention and control of; to have and hold as property; to have a just right to; to be master of; to own or be entitled to.” Black’s Law Dictionary does not define “consume.” Random House Webster’s College Dictionary (1997), p 1017, defines “possess,” in part, as: “to have as belonging to one; have as property; own; ... to occupy or control . . . .” Random House defines “consume” as: “to destroy or expend by use; use up[;] ... to eat or drink up; devour.” Id. at 84. Moreover, to determine the meaning of the terms, this Court may look to the commonly accepted meaning of the words. Morey, supra at 330. “ ‘[T]he meaning of statutory language, plain or not, depends on context.’ ” People v Vasquez, 465 Mich 83, 89; 631 NW2d 711 (2001), quoting King v St Vincent’s Hosp, 502 US 215, 221; 112 S Ct 570; 116 L Ed 2d 578 (1991). Consistent with the dictionary definitions listed above, the commonly accepted meaning of “consume” as it relates to a beverage means to drink or physically ingest the beverage. For example, a per son would not say that he is still consuming milk an hour after having it at breakfast because the milk is still digesting in his body. Similarly, a person does not “possess” a beverage once it has been ingested and is digesting. One no longer has control over the beverage as it is digesting. Our conclusion is supported by applicable, albeit nonprecedential, case law from another jurisdiction. In State v Hornaday, 105 Wash 2d 120, 125-129; 713 P2d 71 (1986), the Washington court examined the meaning of the terms “consume” and “possession” in a minor in possession statute. The court determined that “possession” implied control over the substance and that once alcohol was within a person’s body, the person lost the power to control the alcohol. Id. at 125-126. The court also determined that “consume” is a present-tense term meaning to drink liquor. Consequently, it was improper to interpret “consume” as an ongoing process. Id. at 127-129. As further support for its conclusion, the court pointed to situations like the case at bar—a minor journeys to another jurisdiction where he can drink alcoholic beverages legally, yet upon return face prosecution simply for having the alcohol in his blood. Id. at 129. The court concluded that the “Legislature could not have intended such a result in those instances.” Id. 250 Mich App 1 Opinion of the Court [Feb The definition of “alcoholic liquor,” a defined term in the Michigan Liquor Control Code, also supports our conclusion. “Alcoholic liquor” means: [A]ny spirituous, vinous, malt, or fermented liquor, liquids and compounds, whether or not medicated, proprietary, patented, and by whatever name called, containing V2 of 1% or more of alcohol by volume which are fit for use for beverage purposes as defined and classified by the commission according to alcoholic content as belonging to 1 of the varieties defined in this chapter. [MCL 436.1105(2) (emphasis added).] In order for defendant’s conduct to violate the minor in possession statute, he had to consume or possess alcoholic liquor. MCL 436.1703(1). Defendant argues, and we agree, that once a person has ingested liquor, it is no longer “fit for use for beverage purposes” in accordance with MCL 436.1105(2). Therefore, as defendant sat as a passenger in the vehicle in Michigan, he did not consume or possess “alcoholic liquor.” We find further support for our determination from the language of the statute prohibiting persons from operating vehicles while under the influence of intoxicating liquor or controlled substances. MCL 257.625. The subsection of that statute pertaining to minors prohibits persons under the age of twenty-one from operating a vehicle if that person has any bodily alcohol content. MCL 257.625(6). “Any bodily alcohol content” is defined, in part, as: “Any presence of alcohol within a person’s body resulting from the consumption of intoxicating liquor, other than consumption of intoxicating liquor as part of a generally recognized religious service or ceremony.” MCL 257.625(6)(b). This statute demonstrates that the Legislature, when it wanted to do so, criminalized the mere presence of alcohol in a minor’s body as a result of the consumption of alcohol. This statute does not criminalize the consumption itself. In addition, the Legislature created an exception to the crime when the presence of alcohol in a minor’s body resulted from consumption of alcohol for religious ceremonies. “[W]hen this Court construes two statutes that arguably relate to the same subject or share a common purpose, the statutes are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates.” People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). In support of her very broad interpretation of the statute, the prosecutor argues that “consumption” goes beyond the single act of putting a substance in one’s mouth. The prosecutor asserts that the term “consumption” is defined by other courts as “the using up of everything.” The prosecutor cites Moore v Pleasant Hasler Constr Co, 50 Ariz 317, 329; 72 P2d 573 (1937), and Revzan v Nudelman, 370 Ill 180, 184; 18 NE2d 219 (1938). Both cases were tax cases that concerned who should pay the taxes on retail goods. Moore, supra at 319; Revzan, supra at 181-183. Although the prosecutor cites an apt definition of consumption in the context of a tax case, the cited definition of “consumption” does not comport with how the term is usually and reasonably used when referring to beverages. See Vasquez, supra at 89. We also note that the term “consumption” is not used in MCL 436.1703. The prosecutor also argues that the ultimate state of possession is to have the alcohol beverage within the body, and a properly administered Breathalyzer test indicates whether alcohol is present within a person’s body. As support for this argument, the prosecutor cites MCL 436.1703(5), which states in part: “The results of a preliminary chemical breath analysis or other acceptable blood alcohol test are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor.” The prosecutor argues that this language indicates that the Legislature did not intend to limit the definition of possession to the mere act of physically holding or having within one’s control a container of alcohol. The prosecutor argues that if that were the intent, the results of a breath test would be completely irrelevant with respect to possession, and the Legislature would have limited the breath test results for use as evidence of consumption only. We disagree with this assertion; however, we do not dispute that a Breathalyzer test is admissible evidence regarding whether a minor defendant committed the crime of “minor in possession.” In most cases, in order to have alcohol in his body, a minor illegally purchased, possessed, or consumed alcohol within Michigan. Therefore, use of the breath test as evidence to determine whether the statute was violated is both appropriate and permitted by statute. MCL 436.1703(5). The distinction this Court is making is that a positive Breathalyzer test for alcohol is not a violation per se of the minor in possession statute, though it is for the statute prohibiting a minor from driving under the influence of alcohol. MCL 257.625(6). In this case, and in cases like this one, the crucial distinction is that the alcohol was legally purchased, possessed, and consumed in Canada. Therefore, the statute was not violated. We acknowledge that this interpretation may somewhat hinder police officers, particularly in areas of Michigan near Canadian borders, attempting to enforce the “minor in possession” statute. Because, however, the statute makes specific conduct criminal, it must be strictly construed. Noble, supra at 659. We conclude that minors who legally ingest alcohol in a jurisdiction outside Michigan and then return to Michigan (e.g., as passengers in a vehicle) with the alcohol in their bodies have not violated the minor in possession statute. If the Legislature intended to criminalize this conduct, it could easily have done so or can amend the statute to include it. People v Babcock, 244 Mich App 64, 78; 624 NW2d 479 (2000). In light of our disposition above, we need not reach defendant’s constitutional claim that the statute is vague and overbroad. We reverse. Griffin, P.J., concurred. It appears that the prosecutor does not dispute that defendant purchased and drank the alcohol in Canada. In her appellate brief, the prosecutor states that she “concurs with the basic information set forth in the Appellant’s Statement of Facts.” According to defendant-appellant’s statement of facts, which has been adopted by the prosecutor, it is unequivocally stated that “[ajppellant did not consume alcoholic beverages in the State of Michigan.” Because the prosecutor has not raised an issue of fact and has not requested a remand, we conclude that a remand is unnecessary. MCL 436.1101 et seq. It appears that Homaday was superseded by statute as stated in State v Preston, 66 Wash App 494, 497-498; 832 P2d 513 (1992), aff'd 22 Wash 2d 553; 859 P2d 1220 (1993). A later Washington State case upheld these definitions, specifically concerning “consume.” State v Preston, supra at 498, stated that the Homaday opinion “illustrates the absurdity of defining the word ‘consume’ so as to encompass the metabolization of alcohol in the body.”

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Gage, P.J. This case joins the legion of published opinions that interpret Michigan’s no-fault act because it involves yet another novel factual wrinkle to which neither this Court nor the Michigan Supreme Court previously has applied the law. This Court granted defendant’s delayed application for leave to appeal to resolve the primary question in whom should rest legal title to modified living quarters that defendant intends to prepare to accommodate plaintiff’s medical condition. Defendant challenges the trial court’s partial summary disposition order that awarded plaintiff title to the specialized accommodations and the court’s award of no-fault penalty interest to plaintiff. Plaintiff cross appeals the trial court’s determination of the amount of uncoordinated personal protection insurance (pip) benefits owed by the defendant. We affirm. i Plaintiff is a retired employee of the United States Post Office. In June 1996, plaintiff was involved in a motor vehicle accident that caused him very serious injuries, including quadriplegia. At the time of the accident, defendant was plaintiff’s insurer under the no-fault act, MCL 500.3101 et seq. On June 9, 1997, plaintiff filed the instant suit, alleging that defendant unreasonably refused to pay plaintiff all pip benefits that it owed him. At the time of his accident, plaintiff owned a split-level house near Greenville, Michigan. Plaintiff, however, did not return to his house after the accident, because of his restriction to a wheelchair and limited ability to control his upper extremities. Plaintiff spent months recovering in hospitals in Grand Rapids after the accident, then entered a long-term care program in which he spent approximately one year. At the time of trial, he resided in a Grand Rapids area apartment. Plaintiff expressed to defendant his desire to return to his house. On June 1, 1998, the parties stipulated that defendant would evaluate plaintiff’s housing needs and “submit a proposal to the Plaintiff for his review and approval providing for either the modification of his existing residence in Greenville, Michigan, or the purchase or construction or [sic] an appropriate . . . residence in Greenville area.” A home remodeling company estimated that to renovate plaintiff’s house to accommodate his medical conditions would cost approximately $178,000. In light of this estimate, defendant declined to renovate plaintiff’s house, instead suggesting that it would rather purchase and renovate a ranch-style house. On January 7, 1999, plaintiff filed a motion for partial summary disposition pursuant to MCR 2.116(C)(9) (no valid defense) and (10) (no issue of material fact), seeking resolution of a dispute regarding whether plaintiff or defendant should retain title of whatever house defendant prepared for plaintiff’s use. Plaintiff also sought summary disposition with respect to defendant’s reimbursement of certain of plaintiff’s medical expenses that Blue Cross & Blue Shield of Michigan (bcbsm), plaintiff’s health insurer, partially had paid. Regarding the house, plaintiff claimed that the no-fault act obligated defendant to provide him reasonable accommodation for his medical conditions and that to permit defendant to retain title to a house that defendant purchased and renovated would constitute a windfall for defendant because defendant eventually could sell the house, thus profiting from plaintiff’s catastrophic injury. Concerning medical expenses, specifically those plaintiff incurred between July 1996 and early 1997 at Mary Free Bed Hospital (mfbh), plaintiff argued that his policy with defendant required that defendant pay him uncoordinated medical benefits, specifically the full amounts charged for services by mfbh, $163,266.28, not the lesser amounts that bcbsm negotiated as payments in full, $ 84,099.89. Defendant responded by filing its own motion for summary disposition pursuant to MCR 2.116(C)(10). Regarding housing, defendant contended that as a matter of law, pursuant to MCL 500.3107 and the public policy underlying the no-fault act to minimize expenses, plaintiff was entitled to only a life estate interest in any house that defendant purchased and renovated to accommodate his medical needs. With respect to medical expenses, defendant acknowledged plaintiff’s entitlement to its payment of uncoordinated medical expenses, but asserted that its payment obligation was limited to the amounts that BCBSM had paid in satisfaction of plaintiff’s health providers’ charges. At the conclusion of the January 14, 1999, hearing regarding the motions, the trial court explained as follows its view regarding the property ownership issue: As far as the life estate is concerned, I can see a lot of practical problems which would make in this case, having a life estate an unreasonable situation for [plaintiff] to deal with. The maintenance problems, the question of whether it’s a question of maintenance, improvement, or repair, it’s going to be there for every thing. He has a house there. It benefits the people for having a claim of ownership so I think he’s entitled to have a residence that is modified to fit his circumstances in which he has the ownership because he currently has an ownership in a residence. I don’t think he’s entitled to have two residences so if there’s a new house purchased or another house built, he should have the fee title in that but he will give up his title in his existing home for it. I think his circumstances are distinguishable from the Kitchen [v State Farm Ins Co, 202 Mich App 55; 507 NW2d 781 (1993)] case, partly from his age, partly from the fact that no other family members are living there. In fact, he currently owns a house and knows the benefits of ownership and I can see somebody who has had that, would not want to lose that right. In addition, I think it would be unreasonable to deal with all the repairs, improvements, and maintenance problems that could occur after this is resolved [if defendant maintained title to the property]. The court also concluded that defendant should pay plaintiff uncoordinated benefits limited to the reasonable amounts that bcbsm paid plaintiff’s health care providers and that defendant should pay some amount of statutory and penalty interest on these amounts. On May 24, 1999, plaintiff moved for a determination regarding the amounts of interest that defendant owed. Defendant had paid plaintiff uncoordinated benefits amounting to $84,099.89 on January 28, 1999, but had not yet made any payments of interest. On June 3, 1999, the trial court ordered that pursuant to MCL 600.6013(5) defendant owed plaintiff $17,462.18 in prejudgment interest and that pursuant to MCL 500.3142(3) defendant had to pay plaintiff $14,801.57 in penalty interest accruing from August 17, 1997. n Defendant contends that to best serve the no-fault act goals of providing plaintiff’s necessary accommodations and containing no-fault insurance costs, the trial court’s grant of summary disposition should have ordered that plaintiff possess only a life estate in any house that defendant purchases and remodels. According to defendant, “payment for the purchase or construction of a home for the benefit of the insured in which legal title to the home is held by the insured is not payment of any ‘expense’ ” under MCL 500.3107, but the creation of an asset for the insured. This Court reviews de novo a trial court’s grant of summary disposition. Old Kent Bank v Sobczak, 243 Mich App 57, 61; 620 NW2d 663 (2000). Plaintiff requested summary disposition pursuant to MCR 2.116(C)(9) and (10), but the trial court did not express under what subrule it deemed summary disposition appropriate. Because the material facts in this case are undisputed, and because the trial court’s order granting partial summary disposition interpreted as a matter of law whether MCL 500.3107(1)(a) permitted plaintiff to obtain title to the house defendant intends to refurbish for him, the trial court apparently granted summary disposition pursuant to MCR 2.116(C)(10). Bingham Twp v RLTD R Co, 463 Mich 634, 641; 624 NW2d 725 (2001). A The no-fault act governs the relationship between the parties. The overall goal of the no-fault insurance system is to provide accident victims with assured, adequate, and prompt reparations at the lowest cost to both the individuals and the no-fault system. Celina Mut Ins Co v Lake States Ins Co, 452 Mich 84, 89; 549 NW2d 834 (1996). The provision of the no-fault act at issue, MCL 500.3107(1), states in relevant part as follows: [PJersonal protection insurance benefits are payable for the following: (a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation. To be reimbursed for an “allowable expense” under MCL 500.3107(l)(a), a plaintiff bears the burden of proving that (1) the charge for the service was reasonable, (2) the expense was reasonably necessary and (3) the expense was incurred. Spect Imaging, Inc v Allstate Ins Co, 246 Mich App 568, 574; 633 NW2d 461 (2001). The no-fault act does not address with specificity to what extent an insurer must supply an insured accommodations in the form of housing. The language of the act focuses on reasonableness, requiring that the insurer pay for “all reasonable charges incurred for reasonably necessary . . . accommodations.” MCL 500.3107(l)(a) (emphasis added). Neither party disputes that the cost involved in defendant’s purchase and renovation of a house to suit plaintiff’s postaccident needs constitutes a reasonable charge for accommodations reasonably necessary to provide for plaintiff’s care and recovery. Accordingly, MCL 500.3107(l)(a) plainly requires that defendant shoulder the involved expenses pursuant to its contract with plaintiff. See Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499, 510-512; 370 NW2d 619 (1985), in which this Court noted, in a case involving the no-fault insured’s apartment rental expenses, that “[a]s long as housing larger and better equipped is required for the injured person than would be allowed if he were not injured, the full cost is an ‘allowable expense’ ” under MCL 500.3107(1)(a). The limited question in this case concerns whether defendant’s provision of title in plaintiff’s name likewise qualifies as a reasonable charge reasonably necessary for plaintiff’s care. We find that in this case, for several reasons, having title of the furnished house be in plaintiff’s name constitutes a reasonable charge reasonably necessary for plaintiff’s care. We first note defendant’s refusal to consider plaintiff’s strong and expressed desire to remain in and maintain ownership of the house that he currently owns, as he did before his accident. Had defendant entertained plaintiff’s wish that it remodel the house that he currently owns, plaintiff clearly would have retained title to his remodeled home. We further observe that to remain the owner of whatever altered accommodations defendant provides, plaintiff has averred his willingness to give up ownership in his current split-level house and contribute the amount of his equity toward defendant’s presumably less costly alternative suggestion to purchase and renovate an existing ranch house. Plaintiff’s agreement to defendant’s alternative proposal and to contribute his existing equity of approximately $20,000 assists defendant in achieving the objectives of the no-fault act, to provide required benefits at the lowest cost to the system. Celina Mut, swpra at 89. Under these circumstances, were defendant likewise permitted to retain legal title to the renovated ranch house while granting plaintiff only a life estate interest, we could characterize the outcome of this case only as manifestly unreasonable. Defendant’s possession of legal title to the renovated house would entitle it to sell the property when plaintiff died, likely enabling defendant at least to recoup its investment in the house or earn a profit. Thus, if defendant retained ownership of and sold the property, defendant would receive a windfall by being reimbursed for, and effectively avoiding, its statutory and contractual obligation to compensate plaintiff for his reasonably necessary reasonable medical expenses. We reiterate that we find unreasonable under MCL 500.3107(l)(a) defendant’s refusal to renovate plaintiff’s existing house and its refusal at the same time to deny plaintiff an ownership interest in the cheaper-to-renovate ranch house, at least in this case in which plaintiff remains willing to contribute to defendant the equity existing in his current house. Under the undisputed and unique circumstances of this case, we conclude that defendant’s conveyance of title to the renovated ranch house to plaintiff, in exchange for plaintiff’s contribution of his existing equity in his house to defendant, as a matter of law qualifies as a “reasonable charge[] incurred for reasonably necessary . . . accommodations for an injured person’s care, recovery, or rehabilitation.” MCL 500.3107(l)(a). See also Nasser v Auto Club Ins Ass’n, 435 Mich 33, 55; 457 NW2d 637 (1990) (noting that while the question whether expenses are reasonable and reasonably nec essary is generally one of fact for the jury, if it could be said with certainty that an expense was both reasonable and necessary, the court could make this decision as a matter of law). B Both before the trial court and on appeal, the parties have disputed the significance of this Court’s opinion in Kitchen, supra, with respect to this case, which matter we now briefly address. In Kitchen, a motor vehicle accident rendered the plaintiffs’ six-year-old child, Elisha, a quadriplegic. In light of a doctor’s determination that Elisha required special long-term housing accommodations, her parents and the defendant, their no-fault insurer, stipulated that the defendant would pay $17,332 toward purchasing four lots to be used as the site of a suitable new house and $239,782.41 toward the construction of the house, while the parents would contribute $68,561.41 for the construction of the new house. The trial court subsequently determined that legal title to the new house would be held by an independent neutral corporate trustee that would hold the property in trust for Elisha during her lifetime. Id. at 57. The trial court further ordered that (1) despite their intention to reside in the new house with Elisha, the parents did not have to contribute the existing equity in their present house toward the purchase of the new house, (2) the parents and the defendant would pay insurance and property taxes on the new house pro rata according to the proportions of their contributions toward the purchase of the house, (3) the parents would pay for all utilities and maintenance charges while they resided in the new house, after which such costs would become the defendant’s obligation, and (4) in the event that Elisha ever failed to reside in the new house for 180 consecutive days, the house could be sold and the net proceeds of the sale divided between the parents and the defendant proportionate to their respective contributions toward the purchase of the house. Id. at 57-58. The parents on appeal argued that Elisha should possess title to the new house because the house constituted a reasonable accommodation under MCL 500.3107(l)(a) for which the defendant was responsible. Kitchen, supra at 58. This Court disagreed, explaining as follows: It is undisputed that the new house will provide reasonable and proper accommodations to Elisha, as required by MCL 500.3107(l)(a) . . . , and in addition will house the Kitchen family. As defendant notes, however, no one has ever suggested that it is necessary for Elisha’s care that she hold legal title to the home in which she lives. We agree with defendant that as long as it satisfies its statutory obligation to pay for all reasonable charges incurred for those products, services, and accommodations reasonably necessary to meet Elisha’s needs, defendant should be allowed to choose the least expensive adequate means of providing those items. This is completely consistent with the goal of the no-fault insurance system, xohich is to provide victims of motor vehicle accidents assured, adequate, and prompt reparation for certain economic losses at the lowest cost to both the individual and the no-fault insurance system.... Ordering that Elisha have a life estate in a home that provides her with the necessary accommodations to meet her reasonable needs satisfies the requirements of MCL 500.3107(l)(a) .... Declining to award Elisha unencumbered legal title to a home in which defendant has a quarter-million-dollar investment simultaneously operates as a cost-containment measure that benefits the no-fault insurance system. Because both Elisha’s needs and the goals of the no-fault act are met by holding the property in trust for Elisha during her lifetime, we find no error in the trial court’s order. [Id. at 58-59 (emphasis added).] Defendant suggests that by analogy, plaintiff should only receive a life estate interest in whatever house it renovates for him. We observe, however, that this Court in Kitchen did not proclaim that in every case in which an insurer builds or renovates a house for an injured insured the insured is entitled to only a life estate while the insurer retains legal title to the property. Significant differences exist between Kitchen and the instant case. Unlike this case, in Kitchen the injured insured party was a minor child and the minor’s parents did not give up their equity in their existing house. Id. at 57. Furthermore, it appears that the trial court in Kitchen ordered that an independent corporate trustee hold legal title to the newly constructed house because of the minor’s age and because the minor’s parents and the insurer disputed the extent of their respective ownership interests in the property. Moreover, in regard to defendant’s contention that pursuant to Kitchen it is entitled to choose the least expensive adequate means of providing plaintiff suitable housing, we emphasize that defendant already has been afforded this option—defendant declined to renovate plaintiff’s existing house in favor of the more cost-effective renovation of a ranch house. Accordingly, we conclude that the trial court properly resolved the house ownership issue. m Defendant next argues that the trial court incorrectly awarded plaintiff penalty interest pursuant to MCL 500.3142(2), which provides in relevant part as follows: Personal protection insurance benefits are overdue if not paid within 30 days after an insurer receives reasonable proof of the fact and of the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Any part of the remainder of the claim that is later supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. [Emphasis added.] Penalty interest must be assessed against a no-fault insurer if the insurer refused to pay benefits and is later determined to be liable, irrespective of the insurer’s good faith in not promptly paying the benefits. Davis v Citizens Ins Co of America, 195 Mich App 323, 328; 489 NW2d 214 (1992). No-fault penalty interest is intended to penalize an insurer that is dilatory in paying a claim. Attard v Citizens Ins Co of America, 237 Mich App 311, 319; 602 NW2d 633 (1999). This Court reviews for clear error a trial court’s finding whether a communication qualifies as reasonable proof of the fact or amount of a claim. Sharp, supra at 516-517. The pip benefits that formed the basis of the trial court’s award of penalty interest stemmed from medical services that plaintiff received while at mfbh. The billing documents within the record indicate that plaintiff received services at mfbh from July 1996 through late November 1996. The trial court determined that interest under MCL 500.3142(2) began to accrue on August 17, 1997. On July 17, 1997, plaintiff mailed defendant a letter and a statement he had received from mfbh. Although the lower court record does not contain a copy of the statement, defense counsel acknowledged at the June 3, 1999, hearing concerning the interest issue that the mfbh statement accompanying plaintiff’s July 17, 1997, letter reflected that bcbsm had paid approximately $117,000 charged by mfbh, leaving an outstanding balance of $6,736.25. At the interest hearing, plaintiff’s counsel explained that his July 17 letter requested that defendant pay only $6,736.25 because plaintiff then did not know that defendant’s policy with plaintiff provided for uncoordinated benefits. Defendant asserts that it had no obligation to pay for any medical services charged by mfbh until plaintiff provided defendant specific proof of the exact and correct amounts that defendant was obligated to pay. Defendant suggests that no such specific proof arrived until plaintiff mailed it a November 2, 1998, letter and over twenty pages of BCBSM explanation of benefits forms, indicating that bcbsm had paid mfbh approximately sixty percent of $147,000. Defendant does not dispute its awareness of the fact of plaintiff’s loss, specifically that from July through November 1996 plaintiff incurred various medical expenses at mfbh. Furthermore, it appears undisputed that plaintiff’s July 17, 1997, letter reflected that the mfbh bill for the services it provided totaled approximately $124,000, roughly $117,000 paid by bcbsm and $6,736.25 to be paid by defendant. Defendant, the author of its policy with plaintiff, presumably was aware at the time it received plaintiff’s July 17 letter that it had to pay plaintiff uncoordinated benefits, duplicating those paid by BCBSM, and has not challenged during this litigation its obligation to pay uncoordinated benefits. Under these circumstances, we cannot conclude that the trial court clearly erred in finding that plaintiff’s July 17, 1997, letter and the accompanying statement from mfbh constituted “reasonable proof of the fact and of the amount of loss sustained” as contemplated by MCL 500.3142(2). See Sharp, supra at 516-517. We reject defendant’s suggestion that it need not have paid plaintiff any benefits until plaintiff requested the exact amount of money that defendant owed. The statute requires only reasonable proof of the amount of loss, not exact proof. MCL 500.3142(2). Once plaintiff armed defendant with the information from mfbh containing a total amount billed and an amount paid by BCBSM, defendant, if it had desired to challenge or investigate the amount purportedly paid by bcbsm, could have and should have conducted some investigation of its own during the thirty-day legislative grace period to establish a lesser amount of uncoordinated benefits owed. Our adoption of defendant’s proposed interpretation of MCL 500.3142(2) would contravene the purpose of the no-fault act to provide accident victims with assured, adequate, and prompt reparations by permitting an insurer to ignore definite but inexact claims. See Celina Mut Ins, supra at 89. Accordingly, we affirm the trial court’s imposition of no-fault penalty interest. IV We lastly address plaintiff’s argument on cross appeal that the trial court incorrectly calculated the amount of uncoordinated medical benefits that defendant had to pay by ignoring the full amounts mfbh charged for plaintiffs medical services and instead limiting defendant’s liability to the lesser amounts that mfbh accepted as payment in full for these services from BCBSM. In Bombalski v Auto Club Ins Ass’n, 247 Mich App 536; 637 NW2d 251 (2001), this Court recently decided the exact issue that plaintiff raises. As in this case, the plaintiff in Bombalski was eligible to receive uncoordinated payments of his medical benefits by his no-fault insurer. The defendant no-fault insurer acknowledged the plaintiff’s entitlement to uncoordinated pip benefits for his medical expenses in addition to the medical care coverage he had received from BCBSM, his health insurer, but suggested that the amount that plaintiff could receive in uncoordinated benefits was limited to the amounts that his health care providers had accepted from bcbsm as payment in full for the health care services they provided. Id. at 539. This Court held that under MCL 500.3107(l)(a) the plaintiff could recover no-fault benefits only to the extent that he had incurred charges for reasonably necessary services: This Court in Shanafelt [v Allstate Ins Co, 217 Mich App 625, 636-638; 552 NW2d 671 (1996)], addressed the defendant’s arguments that certain medical expenses were never incurred as contemplated by subsection 3107(l)(a). The Court noted that Random House Webster’s College Dictionary (1995) defined “incur” as “ ‘to become liable for.’ ” Shanafelt, supra at 638. See also Black’s Law Dictionary (7th ed), p 771, which similarly defines “incur” as “[t]o suffer or bring on oneself (a liability or expense).” The Court rejected the defendant’s suggestion that the plaintiff never incurred medical expenses because the plaintiff’s health insurer directly paid her medical bills. Shanafelt, supra at 636-637. After quoting the dictionary definition of incur . . . the Court reasoned that “[ojbviously, plaintiff became liable for her medical expenses when she accepted medical treatment.” Id. at 638. Plaintiff submits that he likewise became liable for the amounts charged by his health care providers when he accepted their services and that consequently he incurred the full amounts charged. Plaintiff’s claim does not persuade us, however, because plaintiff overlooks the significance of “liable,” which means “[Responsible or answerable in law; legally obligated.” Black’s Law Dictionary, supra at 927. The satisfaction of plaintiff’s medical bills by bcbsm through payment of less than the amounts charged by the providers relieved plaintiff of any responsibility or legal obligation to pay the providers further amounts exceeding those proffered by bcbsm and accepted by plaintiff’s health care providers. Because plaintiff bears no liability for the full medical service amounts initially charged by his health care providers, he has not incurred these full charges. [Bombalski, supra at 542-543 (emphasis in original).] In this case, plaintiff seems to acknowledge that he owes no outstanding amounts to mfbh for the services it provided and that, pursuant to its contractual agreement with bcbsm, mfbh accepted the reimbursement amounts that bcbsm offered as payment in full for the services that mfbh provided. Consequently, plaintiff did not incur the full amounts billed by mfbh and is not entitled to a further recovery from defendant of the difference between the full amounts that mfbh billed for its services and the lesser amounts that mfbh accepted from BCBSM as payment in full. Bombalski, supra at 543. We conclude that the trial court properly calculated the amount of uncoordinated no-fault benefits to which plaintiff was entitled. Affirmed. Bcbsm apparently paid many of plaintiffs medical bills despite that its policy with plaintiff provided that his no-fault carrier had primary responsibility for automobile-related injuries. We note that the record contains no indication whatsoever exactly how much money defendant might save by pursuing its proposed course of action. At the time of the oral arguments in this case, defendant apparently had not yet purchased or begun altering an appropriate house. We do not disagree with the trial court’s suggestion that were plaintiff unwilling to sell his current house and contribute his equity toward the purchase and renovation of a ranch house, it might be unreasonable to demand that defendant provide plaintiff legal title to the alternate living space. We note briefly our rejection of defendant’s further characterizations of the trial court’s ruling as unfair. Defendant views as unfair the fact that the “trial court’s ruling ... will result in all manner of anomalous and arbitrary results all based on the fortuity of the amount of equity that a given insured would have in his or her home.” We fail to comprehend, however, what arbitrary results defendant imagines. An insurer’s payment of different amounts in each case for an insured’s reasonably necessary alternate accommodations according to the amount of the insured’s existing equity does not appear arbitrary but measured by a specific, easily ascertainable amount, namely, the insured’s existing equity. To the extent that defendant suggests that adhering to the trial court’s logic will require insurers “to purchase or construct a home for the benefit of” “those insureds who do not own homes at the time of their motor vehicle accidents,” we find it plain that our affirmance of the trial court’s decision would not necessarily signify that under MCL 500.3107(l)(a) an insurer would be required to build or purchase and renovate a house and give title to the insured whenever any insured required special long-term accommodations because of a motor vehicle accident. In different cases involving insureds who had not owned a house before the accident or who did own a house before the accident but did not wish to give up ownership of their existing house, different results plainly would obtain according to what constituted reasonable charges in those cases. We repeat that in this case the parties do not dispute that defendant’s preparation of a house to accommodate plaintiff’s postaccident medical conditions constitutes an appropriate, reasonably necessary expense under MCL 500.3107(lXa), and defendant does not appear to challenge the reasonableness of plaintiff’s desire to retain ownership of a house. In light of our conclusion, we need not address plaintiff’s argument on cross appeal that “[i]n the event that this Court should overturn the Trial Court’s decision with regard to legal title of a new home, it is essential that Plaintiff’s right to a reasonably necessary renovation at his original home ... be determined as an allowable expense under the No-Fault Act.” Plaintiffs November 2 letter stated that “even though Mary Free Bed may show that Blue Cross/Blue Shield paid $147,000, in actuality they only paid about 60% of that.” Plaintiff sent two other letters mentioning the mfbh charges. On October 22, 1997, plaintiff mailed defendant a letter expressing his understanding that his policy with defendant entitled him to receive uncoordinated no-fault benefits. Plaintiff indicated that he would “begin conducting an audit of all medical expenses incurred . . . since [the] accident,” which he believed that defendant likewise would accomplish, but that his “limited records show that Blue Cross paid at least $117,000 to Mary Free Bed (see attached statement) and I suspect that Blue Cross has probably paid in total twice that amount.” On May 7, 1998, plaintiff mailed defendant another letter reiterating his understanding that defendant would pay him uncoordinated medical benefits. This letter stated that according to mfbh billing records, bcbsm had paid $144,994.61 ($27,508.34 for services plaintiff received from July 5 through July 24, 1996, and $117,486.27 for services plaintiff received from July 26 through November 6, 1996).

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Per Curiam. In this action based on a grievance filed protesting defendants’ termination of plaintiff Gordon Best’s employment, plaintiffs appeal as of right from an order of the circuit court vacating the arbitrator’s award reinstating Best. We reverse and remand. The underlying facts are not in dispute. Best was employed by the Manistee County Sheriff as a corrections officer and was assigned to work at the Manistee County Jail. Defendant Edward A. Haik, the Manistee County Sheriff, fired Best on June 4, 1998, for three alleged violations of department rules and regulations. The terms and conditions of Best’s employment were governed by a collective bargaining agreement (hereinafter the agreement) between defendants and plaintiff Police Officers Association of Michigan (poam), of which Best is a member. On Best’s behalf, poam sought reinstatement of Best through the three-step grievance procedure set forth in the agreement. Not satisfied with the outcomes of the first two steps, on April 8, 1999, poam submitted the matter to arbitration, which is the third and final step of the grievance procedure. The arbitrator concluded that Best had violated department rules and regulations in the ways alleged. However, while concluding that Best’s conduct “constituted just cause for severe disciplinary action,” the arbitrator concluded that “persuasive mitigating factors” warranted a reduction in the penalty from termination to a long-term suspension. The arbitrator ordered that Best be reinstated without back pay or benefits and with his seniority intact. Best was not reinstated, and on January 3, 2000, plaintiffs filed their complaint to enforce the arbitration award. Defendants filed a countercomplaint, seeking to vacate the arbitration award, followed by a motion for summary disposition. The court rejected plaintiffs’ action and reversed the arbitrator’s award, reasoning as follows: This Court is of the opinion that the arbitrator in this case clearly exceeded his authority and supplied his own brand of “industrial justice” in the arbitration award below. The arbitrator found that grievant Best had violated the policy provisions alleged by the sheriff to the extent that the security of the jail was jeopardized, including the safety of inmates and sheriffs employees as well as the public. Further, the arbitrator found that such violations constituted “just cause” for severe disciplinary actions. Consequently, the sheriff had “just cause” to discharge grievant Best. By reducing the disciplinary action, the arbitrator exceeded his authority in contravention of section 5.4(B) of the collective bargaining agreement and substituted his own view for the discretion reserved to the sheriff under section 9.1(G) of the collective bargaining agreement. “[W]hen considering the enforcement of an arbitration award, [this Court’s] review is narrowly circumscribed.” Lenawee Co Sheriff v Police Officers Labor Council, 239 Mich App 111, 117; 607 NW2d 742 (1999). The necessary inquiry for this Court’s determination is whether the award was beyond the contractual authority of the arbitrator. Labor arbitration is a product of contract and an arbitrator’s authority to resolve a dispute arising out of the appropriate interpretation of a collective bargaining agreement is derived exclusively from the contractual agreement of the parties. It is well settled that judicial review of an arbitrator’s decision is limited. A court may not review an arbitrator’s factual findings or decision on the merits. Rather, a court may only decide whether the arbitrator’s award “draws its essence” from the contract. If the arbitrator in granting the award did not disregard the terms of his employment and the scope of his authority as expressly circumscribed in the contract, judicial review effectively ceases. [Lincoln Park v Lincoln Park Police Officers Ass’n, 176 Mich App 1, 4; 438 NW2d 875 (1989) (citation omitted).] “[W]hile the powers of an arbitrator are not unlimited, his awards should be upheld so long as he does not disregard or modify plain and unambiguous provisions of a collective bargaining agreement.” General Telephone Co of Ohio v Communications Workers of America, AFL-CIO, 648 F2d 452, 457 (CA 6, 1981). In Monroe Co Sheriff v Fraternal Order of Police, Lodge 113, 136 Mich App 709, 718-719; 357 NW2d 744 (1984), this Court stated: Federal courts have taken the view that an arbitrator to whom a claim of discharge without just cause is submitted may, in the absence of language in the collective-bargaining agreement clearly and unambiguously to the contrary, determine that, while the employee is guilty of some infraction, the infraction did not amount to just cause for discharge and impose some less severe penalty. An arbitrator’s imposition of a less severe penalty is without authority and contrary to the terms of the collective-bargaining agreement where the agreement clearly reserves to the employer, without being subject to review by an arbitrator, the power to discharge for the infraction found by the arbitrator to have been committed. We adopt this approach as our own. [Citations omitted.] There is no language in the agreement at hand that “clearly and unambiguously” states that the arbitrator cannot determine that while Best was guilty of some infractions, the infractions did not constitute just cause for discharge. Accordingly, defendants’ reliance on Lenawee is misplaced. In Lenawee, the Court’s conclusion that the arbitrator in that case had acted beyond his granted authority was based in part on “an express provision of the collecting bargaining agreement that mandates discharge” under the circumstances of that case. Lenawee, supra at 120. In the case at hand, there is no specific provision in the agreement mandating that an employee be discharged if the arbitrator finds that the employee committed the alleged violations of the agreement. Further, while § 9.1(F) of the agreement reserves to the sheriff “the right to make reasonable rules and regulations,” there is nothing in the language of the rules cited by the arbitrator as having been violated that mandates discharge under these circumstances. Section 9.1(G) of the agreement reads in pertinent part: [Poam] recognizes the Employer as the proper party to perform the usual and historical functions of management and that it must have the maximum freedom to manage consistent with the terms and provisions of this Agreement and . . . that some of these usual and historical functions are: * * * G. To direct generally the work of the employees, subject to the terms and conditions of this Agreement, including the right to hire, to discharge, to demote, to suspend or otherwise discipline employees for just cause .... This language acknowledges that discipline can take many forms, including discharge, demotion, and suspension. In context, the just cause requirement set forth relates to all the potential forms of discipline. Thus, there is not just one “just cause” analysis that the arbitrator is empowered to make. Rather, an arbitrator is given the authority to determine if the violations amount to “just cause for discharge,” or “just cause for demotion,” or “just cause for suspension,” or “just cause for any other form of discipline.” In other words, the agreement gives the arbitrator the authority to determine if there exists a “just cause for discipline” and, if so, the level of discipline appropriate. Further, because “just cause for discipline” is not defined, the arbitrator is not bound to consider only the violations themselves. See Bloomington v Local 2828 of the American Federation of State, Co & Municipal Employees, 290 NW2d 598, 602 (Minn, 1980) (“By failing to specifically define what acts constitute just cause for discharge, . . . the parties left the decision to the arbitrator.”). Logically flowing from the authority to give meaning to the phrase “just cause for discipline” is the authority to consider, when fashioning a remedy, all circumstances that may be probative of a party’s intent and the likelihood that the wrongful behavior would be repeated. We hold this includes the ability to consider any mitigating factors. Thus, the arbitrator was free under the agreement to conclude that while Best’s misconduct served as just cause for discipline, it did not amount to just cause for discharge. The arbitrator was also empowered to fashion an appropriate level of discipline for the violations found. Id. at 603 (observing that “the power to fashion a remedy is a necessary part of the arbitrator’s jurisdiction unless withdrawn from him by specific contractual language between the parties or by a written submission of issues which precludes the fashioning of a remedy”). The trial court equated a finding of “just cause for discipline” with a finding of “just cause for discharge.” The interpretation of the agreement was not within the proper scope of the court’s review. See United Steel Workers of America v Enterprise Wheel & Car Corp, 363 US 593, 599; 80 S Ct 1358; 4 L Ed 2d 1424 (1960) (observing that “[i]t is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his”). We also reject defendants’ public policy argument. Michigan has recognized a limited public policy exception to the general rule of judicial deference to arbitrator’s awards. Gogebic Medical Care Facility v AFSCME Local 992, AFL-CIO, 209 Mich App 693, 697; 531 NW2d 728 (1995). This exception “is limited to situations where the contract as inteipreted would violate ‘some explicit public policy’ that is ‘well defined and dominant, and is to be ascertained “by reference to the laws and legal precedent and not from general considerations of supposed public interest.” ’ ” United Paperworkers Int’l Union, AFL-CIO v Misco, Inc, 484 US 29, 43; 108 S Ct 364; 98 L Ed 2d 286 (1987), quoting WR Grace & Co v Rubber Workers, 461 US 757, 766; 103 S Ct 2177; 76 L Ed 2d 298 (1983), quoting Muschany v United States, 324 US 49, 66; 65 S Ct 442; 89 L Ed 744 (1945). We conclude that the arbitrator’s decision in the case before us does not violate an explicit public policy. Defendants could have reserved the sheriff’s statutory authority under MCL 51.70, but they did not clearly do so in the agreement. Monroe, supra at 718. Further, while maintaining safety at a county jail is clearly an important public policy, we conclude that Best’s behavior was not so egregious that reinstatement to his job would undermine this public policy. See Lincoln Park, supra at 7-8. Reversed and remanded for entry of an order enforcing the arbitrator’s award. We do not retain jurisdiction. Poam is a labor union organized under the provisions of the public employees relations act, MCL 423.201 et seq. Section 5.4(B) of the agreement, cited by the court as support for its decision, reads: “The arbitrator shall have no authority to add to, subtract from, modify, change, alter or amend the terms and conditions of the agreement or substitute his discretion for the Employer’s discretion when such discretion is reserved in the collective bargaining agreement.”

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Fitzgerald, J. Plaintiffs, Patricia E. Boyle and Pat Boyle Chevrolet, Inc., appeal as of right a circuit court order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7). We reverse and remand. Plaintiff Patricia Boyle applied to buy an existing Chevrolet dealership. Defendants required that she have sufficient operating capital to fund the dealership and set the capitalization figure at $350,000. Plaintiffs raised the money and took over an existing dealership in September 1988. In 1991, plaintiffs experienced financial difficulties and agreed to sell the dealership to Frank Lopez. A proposed agreement was submitted to defendants for their approval. Defendants represented to plaintiffs that “the rent factor in the agreement with Lopez was not in accordance with its accepted rent factor formula.” In reliance on defendants’ representation, plaintiffs did not complete the transaction with Lopez. Plaintiffs’ dealership went out of business in September 1992 “in the wake of financial problems.” In September 1993, plaintiffs learned that defendants had told the former owner of the dealership that “it was easier for General Motors to let Pat Boyle buy a dealership and watch her fail than it would have been to prevent her from buying a dealership.” In September 1995, plaintiffs learned that the dealership was woefully undercapitalized and doomed to fail. Sometime later that year, plaintiffs also learned from a General Motors employee that the rent factor in the proposed sales agreement with Lopez was within the company’s formula. Plaintiffs filed this action in August 1999 asserting two counts of fraud. First, that by setting the capitalization requirement at $350,000, defendants were representing that $350,000 was sufficient to “properly start and effectively operate” the dealership, that the representation was false at the time it was made, arid that plaintiffs relied on the misrepresentation. Plaintiffs assert that this misrepresentation was discovered in 1995. Second, that defendants falsely represented that the rent factor in the proposed agreement with Lopez “did not conform with the acceptable formula for rent factors.” Plaintiffs assert that this misrepresentation was also discovered in 1995. Defendants filed a motion for summaiy disposition, asserting that plaintiffs’ claims were barred by the statute of limitations. Relying on Thatcher v Detroit Trust Co, 288 Mich 410; 285 NW 2 (1939), defendants argued that the discovery rule does not apply to a fraud action unless the defendant conceals the cause of action. Plaintiffs, citing Fagerberg v LeBlanc, 164 Mich App 349; 416 NW2d 438 (1987), responded that the discovery rale applies to a fraud action and that Thatcher was no longer good law. The trial court found that it was bound by the Thatcher decision under the rule of stare decisis and granted defendants’ motion for summary disposition. The pivotal issue presented is whether the limitation period for plaintiffs’ fraud action began running when the alleged fraud occurred or, under the common-law discovery rule, when plaintiffs discovered it. Questions regarding statutes of limitation are reviewed de novo. Ins Comm’r v Aageson Thibo Agency, 226 Mich App 336, 340-341; 573 NW2d 637 (1997). A fraud claim must be brought within six years from the time the claim accrues. MCL 600.5813; Kwasny v Driessen, 42 Mich App 442, 445-446; 202 NW2d 443 (1972). A claim accrues when the “wrong” is done, MCL 600.5827, which has been interpreted to mean the time when the plaintiff was harmed rather than the time when the defendant acted. Stephens v Dixon, 449 Mich 531, 534-535; 536 NW2d 755 (1995). The alleged wrongs in this case occurred in 1988 and 1991. Plaintiffs assert that the misrepresentations were discovered in 1995 when one of defendants’ employees “made revealing statements.” It is undisputed that plaintiffs did not file this action until 1999, more than two years after plaintiffs discovered the misrepresentations and more than six years after the alleged wrongs. However, the common-law discoveiy rule provides that, in certain circumstances, the limitation period does not begin to run until the plaintiff discovers, or should have “by the exercise of reasonable care” discovered, the cause of action. Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963). “Under limited circumstances, this Court has determined that the discovery rule governs the date certain claims accrue, despite identical statutory language.” Chase v Sabin, 445 Mich 190, 195; 516 NW2d 60 (1994). The discovery rule, apparently adopted in Michigan in 1963, Johnson, supra at 379, has been applied by our Supreme Court to a variety of actions, including medical malpractice, products liability, and negligent misrepresentation. Stephens, supra at 537; Chase, supra at 196-197. The purpose of the statute of limitations is to provide a plaintiff “a reasonable opportunity to commence suit” and the discovery rule serves to avoid extinguishing the claim “before the plaintiff is aware of the possible cause of action . . . Id. at 195-196. The discoveiy rule is not available to claims of “ordinary negligence.” Stephens, supra at 537. The discovery rule is applied in “appropriate instances” and only where there is objective and verifiable evidence so that there is “some indicia of assurance of rehable fact finding.” Lemmerman v Fealk, 449 Mich 56, 66, 74; 534 NW2d 695 (1995). Defendants argue that our Supreme Court has rejected application of the discovery rule to fraud cases. In both Thatcher, supra, and Ramsey v Child, Hulswit & Co, 198 Mich 658, 667; 165 NW 936 (1917), the Court concluded that the statute of limitations did not begin to run when the plaintiff discovered his claim. This statute applies both at law and in equity. It will be observed that the legislature did not see fit to adopt the equitable rule to the full extent of allowing the six-year limitation period to be considered as beginning at the date of discovery of the cause of action, but chose rather to allow a period of two years from [the] date of such discovery within which to bring suit, as a special right, when by the strict terms of the general rule the action would be barred before the expiration of such two-year period. Under the two sections above quoted, a plaintiff now has, in any case, the full period of six years from the date of the fraudulent act, or other act creating his cause of action, within which to institute suit, and moreover, where the defendant has fraudulently concealed from him his cause of action, he has, under any circumstances, not less than the full period of two years from [the] date of discovery in which to bring his action. [Ramsey, supra at 667.] Since that time, it does not appear that our Supreme Court has applied the discovery rule to a fraud action. However, a panel of this Court in Fager berg, supra at 353-354, concluded that the discovery rule applies in actions for fraud or misrepresentation. In actions for fraud or misrepresentation the applicable limitation period is six years. MCL 600.5813; MSA 27A.5813; Kwasny v Driessen, 42 Mich App 442, 445-446; 202 NW2d 443 (1972). In a tort action, the period of limitations “runs from the date the tort was committed, not the date the actor put his or her force wrongfully into motion.” Williams v Polgar, 391 Mich 6, 23; 215 NW2d 149 (1974). The period of limitations does not begin running until the date when plaintiff knew or should have known of the misrepresentation. Unfortunately, the Fagerberg panel did not discuss the apparent conflict between its application of the discovery doctrine and the previous Supreme Court decisions in Thatcher and Ramsey. While it is true that our Supreme Court declined to apply the discovery rule in Thatcher and Ramsey, it is also true that Thatcher predated the adoption of the discovery rule in Michigan. See Johnson, supra at 378-379. Moreover, in a case involving negligent misrepresentation by an abstract company, our Supreme Court in Williams v Polgar, 391 Mich 6, 25, n 18; 215 NW2d 149 (1974), quoted with approval a case involving fraud, Hillock v Idaho Title & Trust Co, 22 Idaho 440, 449; 126 P 612 (1912), that had been quoted with approval in the Court of Appeals opinion in Williams, 43 Mich App 95, 98; 204 NW2d 57 (1972): “ ‘ “If the statute runs in favor of the abstractor from the delivery of the abstract, the company would be released long before the falsity of the abstract could reasonably be discovered by the purchaser. This would not be justice, and ought not to be the law.” ’ ” The Supreme Court’s approval of Hillock supports the argument that there is no bar to the use of the discov ery rule in fraud actions. Further, the Fagerberg panel was aware of and quoted the Supreme Court’s decision in Williams in concluding that the discovery rule applies. Thus, we conclude that Fagerberg is good law and, therefore, we reverse the decision of the trial court. Reversed and remanded. Jurisdiction is not retained. Whether plaintiffs’ claims are actually timely under the discovery rule is an issue not raised by the parties and not decided by the trial court, so it need not be resolved here. Lowman v Karp, 190 Mich App 448, 454; 476 NW2d 428 (1991) (this Court’s review is limited to issues actually decided by the trial court).

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Per Curiam. The issue before us today is whether, in an action in a circuit court seeking damages for personal injury, the circuit court has jurisdiction to decide whether the defendant is the plaintiff’s employer and thus able to invoke the exclusive remedy provision of the Worker’s Dis ability Compensation Act. MCL 418.131; MSA 17.237(131). We hold that the circuit court has jurisdiction to make this determination. I On May 10, 1976, while an employee of Bathey Manufacturing Company, the plaintiff was seriously injured in an industrial accident. In 1978, he filed a complaint in the Wayne Circuit Court, alleging that the accident had occurred as a result of the wrongful conduct of two defendants whose relationship to this case we need not consider here. An amended complaint added Armco Steel Corporation as a defendant. The plaintiff alleged that Armco had "assumed control of the safety program and other operations” at Bathey, and that Armco "operated some functions [of Bathey] and its manufacturing plant for profit at the direction and control of agents and employees of Armco”. Armco responded with a motion for accelerated judgment in which it stated that it was the plaintiff’s employer and that the plaintiff’s exclusive remedy against it was to seek workers’ disability compensation benefits. MCL 418.131; MSA 17.237(131). Armco later filed an amended motion for accelerated judgment in which it stated that Bathey was its wholly owned subsidiary. In the amended motion, Armco recited that the plaintiff thought Bathey to be the employer while Armco thought itself to be the employer. Asserting that there was therefore an issue of fact concerning the identity of the plaintiff’s employer, Armco stated that the Bureau of Workers’ Disability Compensation had exclusive jurisdiction to decide the ques tion. Armco relied on MCL 418.841; MSA 17.237(841), which reads: "Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau. The director shall be deemed to be an interested party in all workmen’s compensation cases in questions of law.” The Wayne Circuit Court denied the motion for accelerated judgment, as well as a motion for rehearing. Armco then applied to the Court of Appeals, seeking leave to appeal. In lieu of granting leave to appeal, the Court of Appeals issued a peremptory order that had the effect of granting the relief sought by Armco: "In this cause an application for leave to appeal is filed by defendant-appellant Armco, Inc., and an answer in opposition thereto having been filed, and due consideration thereof having been had by the Court, "It is ordered that plaintiff shall, within 20 days from the certification of this order, file with the Workmen’s Compensation Bureau an application for a hearing on the question in controversy. If such application is timely filed, the circuit court shall hold the instant action in abeyance pending the decision of the bureau. If the bureau determines the issue of Armco, Inc.’s, liability adversely to the plaintiff, or if plaintiff fails to apply for a bureau determination within 20 days, the circuit court shall grant accelerated judgment for defendant Armco. If the bureau finds for the plaintiff on the issue raised, this action may proceed. We retain no jurisdiction.” The plaintiff now asks this Court to grant leave to appeal the order of the Court of Appeals. In lieu of granting leave to appeal, we today reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings. II The Court of Appeals has ordered the plaintiff to file in the Bureau of Workers’ Disability Compensation an application for hearing on the issue of who is his employer. The Court of Appeals directed that if this application is timely filed the circuit court shall hold the plaintiff’s civil suit in abeyance pending the bureau’s decision. This is a procedure that the Court of Appeals has ordered in a number of other cases, each time relying on this Court’s opinion in Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976), or the Court of Appeals opinion in this plaintiff’s suit against Bathey, Sewell v Bathey Mfg Co, 103 Mich App 732; 303 NW2d 876 (1981). In Szydlowski, supra, pp 357-358, this Court agreed with the trial court that the bureau should decide a claim that GM had breached a statutory duty to provide medical services:_ "Plaintiff filed a wrongful death action in circuit court on February 4, 1972. She claimed that her husband was a GM employee and had received certain injuries during the course of his employment. GM treated the injuries and the death was attributed to the improper administration of medicine and drugs 'by non-physician personnel of General Motors Corporation’. This was said to violate General Motors’ statutorily imposed warranty that employees 'would receive "reasonable medical, surgical and hospital services” ’. "The circuit court granted a motion for summary judgment saying that 'Plaintiff’s exclusive right is the Workmen’s Compensation Act’. In reversing, the Court of Appeals held " 'that the circuit court does have subject matter jurisdiction, concurrent with the workmen’s compensation bureau, to determine whether the exclusive remedy provision, MCL 418.131; MSA 17.237(131), forces Szydlowski to return to that forum to seek relief. We hold further that Szydlowski’s complaint has stated a cause of action sufficient to avoid summary judgment under GCR 1963, 117.2(1).’ 59 Mich App 180, 186; 229 NW2d 365 (1975). "This is a clearly erroneous conclusion. In Solakis v Roberts, 395 Mich 13, 20; 233 NW2d 1 (1975), we said that when 'an employee’s injury is within the scope of the act, workmen’s compensation benefits are the exclusive remedy against the employer. MCL 418.131; MSA 17.237(131).’ MCL 418.841; MSA 17.237(841) provides that 'all questions arising under this act shall be determined by the bureau’. "The circuit court complaint said plaintiff’s husband was a GM employee who received injuries in the course of his employment. Defendant was said to have a statutory duty to provide medical service. This claim is based upon a section of the compensation act. MCL 418.315; MSA 17.237(315). The complaint concerned matters for the Workmen’s Compensation Bureau, not for the circuit court.” In discussing the present plaintiffs suit against Bathey, the Court of Appeals cited Szydlowski in its discussion of this general principle: "It is also beyond peradventure that the question whether the act applies to a particular injury, i.e., whether an injury arose out of and in the course of a worker’s employment (and thus is compensable under the act), is a question to be resolved in the first instance exclusively by the Bureau of Workmen’s Compensation. Szydlowski v General Motors Corp, 397 Mich 356, 358-359; 245 NW2d 26 (1976), St Paul Fire & Marine Ins Co v Littky, 60 Mich App 375, 377-378; 230 NW2d 440 (1975), MCL 418.841; MSA 17.237(841).” Sewell, supra, p 737. Taken alone, those general statements suggest that the bureau’s jurisdiction takes precedence over that of the circuit court whenever there is an issue concerning the applicability of the Worker’s Disability Compensation Act. The rule is not so broad, however. Properly stated, the Szydlowski principle is that the bureau has exclusive jurisdiction to decide whether injuries suffered by an employee were in the course of employment. The courts, however, retain the power to decide the more fundamental issue whether the plaintiff is an employee (or fellow employee) of the defendant. This distinction was noted in Northern v Fedrigo, 115 Mich App 239, 241; 320 NW2d 230 (1982), and is clearly illustrated by Nichol v Billot, 406 Mich 284; 279 NW2d 761 (1979), in which this Court discussed at some length how the court (judge and jury) is to go about determining whether a plaintiff is a fellow employee of the defendant. When Ni-chol was in the Court of Appeals, Judge Brennan, dissenting, explained this principle. Nichol v Bil- lot, 80 Mich App 263, 272, fn 1; 263 NW2d 345 (1977): "The circuit court can decide whether its jurisdiction extends to this case. To do so, the court must determine whether defendant was plaintiffs co-employee under the WDCA. I would distinguish one recent decision of the Michigan Supreme Court. Szydlowski v General Motors Corp, 397 Mich 356; 245 NW2d 26 (1976). In Szydlowski, where plaintiff filed a claim for workmen’s compensation with the bureau which was dismissed twice for no progress and then filed a wrongful death action in circuit court trying to recover compensation under a mandatory statutory medical service provision of the WDCA, the Court denied the circuit court the jurisdiction to hear the case. "I would distinguish that case as dealing with a claim involving the grant of workmen’s compensation benefits under circumstances which would have completely usurped the primary function of the Workmen’s Compensation Bureau had the Court allowed the circuit court concurrent jurisdiction. Plaintiff based her entire suit on the mandatory WDCA warranty insuring 'reasonable medical, surgical and hospital services’. Given the way she framed her action, the trial court could not have given judgment without directly passing upon a recovery provision of the act. Certainly, such action would serve to replace the exclusive function the act reserved to the Workmen’s Compensation Bureau. "In the case before us now, plaintiff does not seek to substitute the trial court for the bureau. The action alone seeks determination of the trial court’s rightful jurisdiction — that is, whether plaintiffs action violates the statutory jurisdiction of the WDCA. This question the court must answer. The court must have jurisdiction to decide the matter of its own jurisdiction. Its resolution of jurisdictional facts is appropriate to the singular purpose of resolving the jurisdictional problem. "Further, Szydlowski involved the question whether injuries arose out of and during the course of employment and whether those injuries were compensable under a provision of the act. No determination of employee or employer status and its implications arose for the court to consider there. "In short, we find the particular question addressed by the trial court properly raised and resolved there. The court must and the act intends to allow circuit court determination of legal questions involving legitimate matters of jurisdiction touching its own court. If the suit conflicts with the ability of the Workmen’s Compensation Bureau to award compensation, then the circuit court must deny the parties’ attempt to litigate there. However, the circumstances presented by this case and others involving statutory defenses under the act must be resolved by the trial court as to the jurisdictional implications under the act.” Yet another illustration of the court’s obligation to decide whether a plaintiff is an employee of a defendant is Farrell v Dearborn Mfg Co, 416 Mich 267; 330 NW2d 397 (1982). The circuit court properly denied Armco’s motion for accelerated judgment; it must decide in this case whether plaintiff was an employee of Armco. In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings. Williams, C.J., and Kavanagh, Ryan, Brick-ley, Cavanagh, and Boyle, JJ., concurred. The plaintiff also sued Bathey. See Sewell v Bathey Mfg Co, 103 Mich App 732; 303 NW2d 876 (1981), lv den 417 Mich 1044 (1983). We have been holding this case in abeyance pending our decision in Farrell v Dearborn Mfg Co, 416 Mich 267; 330 NW2d 397 (1982). Sewell v Clearing Machine Corp, 409 Mich 947 (1980). Houghtaling v Chapman, 119 Mich App 828; 327 NW2d 375 (1982) (whether injuries suffered after being given marijuana-laced brownies by a fellow employee were suffered in the course of employment); Johnson v Arby’s, Inc, 116 Mich App 425; 323 NW2d 427 (1982) (whether injuries suffered when assaulted by a fellow employee at company picnic were suffered in the course of employment); Buschbacher v Great Lakes Steel Corp, 114 Mich App 833; 319 NW2d 691 (1982) (whether a failure to inform the plaintiff of the results of a preemployment chest x-ray was an injury suffered in the course of employment); Dixon v Sype, 92 Mich App 144; 284 NW2d 514 (1979) (whether injuries suffered by a school bus attendant who was injured while riding a school bus that had finished transporting children and was returning to a parking ramp were suffered in the course of employment); Bednarski v General Motors Corp, 88 Mich App 482; 276 NW2d 624 (1979) (whether the failure by company doctors to detect lung cancer during physical and x-ray examinations was an injury suffered in the course of employment). MCL 418.101 et seq.; MSA 17.237(101) et seq. Several of the opinions cited in footnote 3 contain a statement that the bureau’s exclusive jurisdiction is inapplicable "where it is obvious that the cause of action is not based on the employer-employee relationship”. See, e.g., Houghtaling, supra, p 831. We are not disapproving that rule. Accelerated judgment was properly granted in plaintiffs companion case against Bathey. The plaintiff did not dispute that Bathey employed him; instead he argued that the nature of Bathey’s allegedly wrongful behavior rendered inapplicable the exclusive remedy provision of the Worker’s Disability Compensation Act. Sewell, supra.

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Hooker, J. Sophia Draggo made a lease of a parcel ■of land (25 acres) to one Sovereign, for one year, agreeing to plow, harrow, pulverize, float, and roll, and drill beet seed in. She was to be paid therefor the sum of $8 per acre, one-half of said sum on or before November 20th, and the other half on or before December 20th, of the same year. Previous to the making of the lease, Sovereign had negotiated with the defendant regarding a contract for raising beets, and was promised such a contract by defendant, provided-he should obtain 100 acres of land upon which to raise them. Later, he and the defendant made such a contract, which was "in writing. It reserved the title to the beets in the defendant, until reimbursed for seed and advances, and reserved to itself the right to enter, cultivate, and harvest the crop in case Sovereign should fail to properly cultivate and harvest it. The plaintiff did not perform her contract with Sovereign as to the work to be done by her, and by arrangement it was done by Sovereign, upon an agreement that he should be allowed to deduct its cost from the first payment of rent. This work amounted to $105. Sovereign had some 60 acres of beets, all told, upon which the defendants had, by or about July 4th, advanced him between $1,300 and $1,400, and declined to advance more money. Thereupon he notified the plaintiff that he was going to quit, and that she must look to the defendant for her rent. Between three to five acres of this land was not sown to beets. Sovereign, or plaintiff’s husband, or possibly both, informed the defendant that Sovereign had concluded to give up the crop, and plaintiff’s husband gave testimony tending to show that the plaintiff stated to the defendant that she would proceed to enforce her claim, if defendant did not adjust the matter, and that, after two interviews, it was agreed that she should not sue to obtain possession of the land, and that defendant would pay the rent agreed to be paid by Sovereign. This was an oral arrangement, if it was made. The defendant’s version of the matter is that its manager .sent men to care for the crop, under its contract with Sovereign; that in its conversation with plaintiff and her husband, who were concerned about the collection of the rent, it said no more than that it would carry out its contract with Sovereign, and would pay the rent from the proceeds of the crop, if enough were left after reimbursing the defendant for its advances. The court refused a request to direct a verdict for the defendant, and the plaintiff recovered a verdict and judgment. Error has been brought by defendant. Counsel for the defendant say that the court should have directed a verdict for the defendant on the ground that, if the promise was made as alleged, it was a promise to pay the debt of another, and void because not in writing, and furthermore that it was without consideration. Counsel for the plaintiff claim: (1) That there was a new and original promise based upon a forbearance to sue; (2) that the proof shows a novation. The claim that there was a novation is set at rest by the following testimony of the plaintiff herself: “ Q. You never had any settlement with Mr. Sovereign ? “A. No. “ Q. You testified in justice’s court that you never had liad a settlement and you had not released Mr. Sovereign under the lease that he made with you ? ‘ ‘ A. No, sir; he wasn’t released only for that piece of potatoes. “ Q. Only for the piece of potatoes ?” Her husband also testified: “ Q. You never released Sovereign from his lease, have -you ? “A. Yes, Mr. Sovereign told me he had thrown it up, and he told me to go 'to Mr. Bialy. “ Q. You say Sovereign told you he had thrown it up ? “ A. Yes, sir. A “ Q. Didn’t you testify in justice’s court that you never had released Sovereign ? “A. I never released him. ‘ ‘ Q. Did you never release him ? “ A. I never understood it that way. “ Q. That you never had any settlement with him ? ‘ ‘A. I never had any settlement with him myself, certainly; but he told meto go to the West Bay City Sugar Company, and they would take the beets off my hands for the rent of my land. “ Q. Didn’t you testify in justice’s court that Sovereign told you that the sugar company would not advance him any more money, and that the sugar company was going to take charge of the beets, and that you would have to look to them for your pay ? “A. Yes, sir. “ Q. That is what Sovereign told you when he gave up the land as you say, or abandoned it ? “A. Yes, sir. “ Q. So that you knew at that time, before you saw Bialy at all, that they were going to take charge of the beets ? “A. No, sir; I couldn’t say as I knew it. Mr. Sovereign told me to go to the West Bay’ City Sugar Company. “ Q. Sovereign told you that they were going to take charge of the beets ? ‘ ‘A. He told me to go there, that they would take charge of the beets. “ Q. Didn’t Sovereign tell you that they would not advance him any more money, that they were going to take charge of the beets, and that you would have to look to them for your money ? “A.. Something in that way; yes, sir. “ Q. That was before you saw Bialy at all ? “A. Yes, that was the last conversation I had regarding the land with Mr. Sovereign.” The only other testimony which appears to have any significance upon this subject is that of Sovereign, who was called by defendant. He testified: “ Q. Did you tell Mr. Draggo that you were going to throw up this contract ? “A. I told him that the company would advance me no more money, that they were going to send a man up there to take charge, that I was going to quit, and he must look to them for his money. He said he would. He said he would hold his beets until he got it.” This is not inconsistent with the testimony of plaintiff and her husband that it was not their intention to. release him, though they would try to get the rent from the defendant, and to that end would hold the beets. In the other quóstion there was a disputed question of fact, viz., whether defendant promised to pay the rent due from Sovereign, and for which it was not liable up to that time. This was a question for the jury, whose finding would necessarily be conclusive. This was, however, if made, a promise to pay the debt of another, and void un der the statute of frauds, unless the circumstances show that it was a valid, new, and original promise. The cases of Waldo v. Simonson, 18 Mich. 345, and Stewart v. Jerome, 71 Mich. 201, cited in the brief of defendant’s counsel, seem to settle the rule as contended for- by them, being substantially like this case. See, also, Wierman v. Sugar Co., 142 Mich. 422. A verdict should have deen directed for the defendant. The judgment is reversed, and a new trial ordered. McAlvay, Grant, Blair, and Moore; JJ., concurred.

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Blair, J. The sole question presented for our consideration upon this writ is whether or not mandamus proceedings are “civil actions,” within the meaning of Act No. 309, Pub. Acts 1905, providing for changes of venue. In 19 Am. & Eng. Enc. Law (2d Ed.), at pages 719, 720, the rule is stated in the text as follows: “The cases are very numerous wherein it is said that mandamus is an action at law, or a civil action under the code. But there are cases which deny that it is either ap action at law, or a civil action under the code, and hold that mandamus is a special proceeding. Originally the proceeding was not in the nature of a civil suit between par ties to. settle private rights. But since the statute of Anne authorizing pleadings and proceedings by mandamus, and wherever a similar statute is in force, mandamus is regarded as in the nature of an action.” To the same effect see 1 Cyc. p. 733. In Kentucky v. Dennison, 34 How. (U. S.) 66, Chief Justice Taney, delivering the opinion of the court, says: e ‘ It is equally well settled that a mandamus in modern ■practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ. It undoubtedly came into use by virtue of the prerogative power of the English crown, and was subject to regulations and rules which have long since been disused. But the right to the writ and the power to issue it has ceased to depend upon any prerogative power, and it is now regarded as an ordinary process in cases to which it is applicable.” To the same effect, see Brown v. Crego, 29 Iowa, 321; State, ex rel. Green Bay, etc., R. Co. v. Jennings, 56 Wis. 113; Seymour Water Co. v. City of Seymour, 163 Ind. 120, 130; Hartman v. Greenhow, 102 U. S. 672; Crissey v. Morrill, 125 Fed. 878. McBride v. Common Council of Grand Rapids, 32 Mich. 364, upon which respondents strongly rely, is cited in note 2 on page 720, 19 Am. & Eng. Enc. Law, to the effect that mandamus was not a suit originally at common law. In that case, the question was whether the Constitution allowed mandamus to be used by the circuit courts generally or in all cases to which it was applicable, and it was held that it did not, and in the course of the majority opinion the writ was treated as a prerogative writ. After that decision, the Constitution was so amended as to confer authority upon the Supreme Court to prescribe by rule the general jurisdiction of the circuit courts over the writ. Pursuant to the amendment referred to, a rule was adopted which now stands as Circuit Court Rule 46 (134 Mich, xxxii). Supreme Court Bule 13 provides for a review of the proceedings in the Supreme Court by writ of certiorari. Under these rules and the statutes relating to mandamus proceedings, the practice has grown up which is stated by Mr. Justice Carpenter in Lewis v. Detroit Board of Education, 139 Mich. 306. That practice is widely variant from the original common-law theory of a prerogative writ, and is in harmony with the practice prevailing in the majority of the States in providing for an orderly trial of issues upon pleadings. While there are cases supporting the contention of appellants, we think the great weight of authority is to the contrary, and we therefore hold that mandamus proceedings are civil actions, within the meaning of Act No. 309 of the Public Acts of 1905. •This determination also disposes of the case of Frank T. Woodworth, relator, v. Maltby Cedar Company et al., respondents. The orders of the circuit judge are affirmed in both cases. Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.

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Ostrander, J. The bill in this case was filed to set aside a foreclosure sale, and the sheriff’s deed given pur-: suant thereto, of certain mortgaged premises. The answer of defendant sets out certain facts which it is claimed entitle him to affirmative relief. Defendant and Samuel O. Rundle, who was husband of complainant, made, September 13, 1898, an agreement, in writing, to the effect: “ That the said party of the first part agrees to sell to said second party at his place.of business, number 985 Fourth avenue, coal and wood in an amount not to exceed the sum of one thousand ($1,000) dollars. Said purchases herein provided for are to be made from time to time as said second party may require, but at no time shall the amount of said purchases exceed the sum of one thousand ($1000.00) dollars. “Said second party hereby agrees to pay to said first party for all coal and wood purchased by said, second party, under the terms of this agreement, on or before the 1st day of June, 1899. “ It is further understood and agreed, by and between the parties hereto, that the payment of all purchases of coal and wood herein provided for shall be secured by a mortgage bearing even date herewith, executed by Nancy E. Bundle to Walter J. Scully, and to be due and payable on Juñe 1, 1899.” On the same day complainant executed and delivered to defendant a mortgage, containing the condition: “To secure the repayment of the sum of one thousand dollars ($1,000.00), with interest at the rate of 7 per cent, per annum, payable after the maturity of the debt secured by this mortgage according to the conditions of a certain agreement in writing, bearing even date herewith, executed by Samuel O. Bundle to said party of the second part, to which these presents are collateral,” etc. The principal contention arises upon the claim of defendant that the mortgage, read in connection ..with the agreement, was a continuing security and evidenced a continuing suretyship for $1,000. Counsel for both parties present arguments upon the theory that the agreement is ambiguous, and counsel for defendant rely especially upon what is claimed to be the practical construction adopted by 'the parties. It appears that Mrs. Bundle kept the books for her husband until November of the same year, and was at all times acquainted with the condition of his business. She knew the application which defendant was making of moneys paid to him. On October 30, 1899, ■she took a bill of sale of all her husband’s stock in trade and thereafter continued the business. She testified that this came about because her husband was refused credit for a car load of coal by defendant, who said to her that, df she would take over and operate the business, he would extend credit to her. Thereafter all purchases, of coal were made in her name and upon her account, and, agreeably with defendant’s suggestion, she kept her books to show in a separate account the purchases made by herself. From September 13, 1898, to October 25, 1898, defendant sold Bundle coal to the amount of $1,057.39, and the last coal sold him was April 29, 1899. Sales to March 1, 1899, amounted to more than $6,000 and payments to more than $4,000, andón June 1, 1899, there was due on account, including certain six cars of coal, $1,898.06, and excluding six cars, $1,363.58. After June 1, 1899, and to October 23, 1899, there was paid on this $514.40; this, according to books kept by complainant, or by a clerk whose work she had opportunity to and did inspect. Gard v. Stevens, 12 Mich. 292, and Fogel v. Blitz, 128 Mich. 503, are not decisive, in complainant’s favor, of the question here. A contract must be so construed as to give effect to the intention of the parties, which must be ascertained from the language of the instrument and the facts and circumstances attending its execution. Mathews v. Phelps, 61 Mich. 327; Switzer v. Manufacturing Co., 59 Mich. 488. We think it clear that the undertaking of complainant was not, as she claims, that she should become surety for the first $1,000 sold her husband (and should be given credit for the first moneys paid to defendant by her husband, on account), but was an undertaking to secure $1,000 of credit to be extended from the date of the agreement to June 1, 1899. If, upon the face of the papers, the real undertaking is at all doubtful, the situation and conduct of the business, the thing sought to be accomplished, and the conduct of complainant, supply whatever is necessary to support such a conclusion. • As to the six cars of coal about which some question is made, the evidence sustains the finding that they were sold, regularly, to Mr. Bundle. The decree is affirmed, with costs. Grant, Blair, Montgomery, and Hooker, JJ., concurred.

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Hooker, J. Complainant’s husband, Joseph F. Dumas, and his brother Frank, purchased under contract, on June 16, 1902, a house and lot in Cadillac, for $800, one-half being paid down. Joseph F. contributed $350 and Frank $50 of this amount. They all resided in the house until November, 1902, when complainant and her husband separated, at which time Joseph assigned his interest to the complainant, who continued, to live in the house. On October 12, 1904, the defendant levied an attachment against Frank Dumas upon his interest in the premises, and in November, 1904, this bill was filed by the complainant to remove the cloud of such levy upon the title, claiming that she was the owner of the interests of both brothers at the time of the levy; The cause was heard, proof being taken in open court, and the court rendered a decree that — ■ “ It satisfactorily appears * * * that the material facts charged in the bill * * * are true, and that the said complainant is entitled to the relief prayed for as follows: That upon June 16, 1902, Joseph and Frank Dumas purchased the premises upon an executory contract, and that Joseph transferred his interest in the property to the complainant on November 29, 1902, and that the said Frank Dumas sold and transferred his interest in said contract to said Lottie Dumas on July 6, 1904; that therefore said Lottie Dumas is now the sole owner of' said executory contract, and is therefore entitled to a deed thereto upon the completion (i. e., performance) of its terms; that the attachment levy which was made October 15, 1904, * * * constitutes a cloud upon the complainant’s title; and that said levy be and the same hereby is canceled and removed, upon condition, however, that said complainant pay to said defendant, or deposit with the register in chancery for the use and benefit of the defendant, the sum of $95.65, being the amount of certain claims held by said defendant, the goods which were purchased by Frank J. Dumas prior to July 6„ 1904.” The complainant has appealed. The evidence shows that the contract for the premises was made as alleged, and signed by all of the parties, and recorded, that complainant has lived upon the premises since, and that Frank boarded with her upon the premises after her husband left until September, 1904. Assignments of both of the brothers’ interests in writing were introduced, Frank’s bearing date July 6, 1904. She paid $115 for the same in money, and turned a claim of' $35 against him upon it, if the testimony of Frank Dumas and herself and her father is to be believed. No testimony is offered on the part of the defense. The attachment was levied, while complainant was in the exclusive possession, Frank having left town some months before. Counsel for defendant urges in the brief, that all of the parties held out to the world, that Frank held his interest; in the property, at the time the levy was made, and that the’ learned circuit judge was satisfied that complainant had not purchased in good faith. We do not see how the circuit judge reached the result shown by his decree, except upon the theory that the defendant’s levy was made valid by his ignorance of the assignment. He expressly found that the interest of Frank was purchased and transferred on. July 6th, and does not indicate in the finding that it was fraudulent. It must follow that Frank had no interest subject to levy. It is our understanding that defendant’s ignorance of the transfer to the complainant of Frank’s interest would not make the levy valid, and we find nothing in the record which will support the proviso or condition imposed by the decree. The decree must be modified, and a decree entered here in favor of the complainant as prayed, with costs of both courts. Grant, Blair, Montgomery, and Ostrander, JJ., concurred.

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McAlvay, J. The county of Montmorency brought suit in assumpsit against Edward J. Putnam as principal, and the other defendants as sureties, on a county treasurer’s bond, to recover a balance not accounted for by Putnam as county treasurer. This case has been before this court and passed upon three times. 122 Mich. 581, 127 Mich. 36, 135 Mich. 111. A reference to these cases will disclose the controversy between these parties, and any further statement of facts at this time is unnecessary. The last trial had in the court below resulted in a verdict and judgment in favor of plaintiff for the sum of $1,236. Plaintiff moved the court to set aside the verdict, and to enter the judgment for $5,195.34, the full amount claimed, or to grant a new trial, for the reason that the verdict was contrary to the undisputed evidence in the case, and also for the reason that a verdict should have been instructed for plaintiff for the full amount claimed, as requested. This motion was denied. Errors are assigned upon the refusal to grant this motion and to give the requests referred to, and also upon the admission of certain testimony introduced by defendants upon the trial. The law governing the case has been settled by the former decisions above quoted. The principal questions now raised in the case are whether the court, notwithstanding the verdict, should have set it aside, and entered a judgment for the full amount claimed; in other words, ■should have instructed such a verdict for plaintiff, or should have set aside the verdict rendered, as against the evidence, and granted a new trial. From the record we are entitled to say that the total amount charged against defendant county treasurer, $68,991.33, was not disputed. Plaintiff admitted that the defendant was entitled to credit for the sum of $63,795.99. The difference between these charges of debit and credit, $5,195.34, with interest, is the amount plaintiff claims it should have recovered, from the undisputed evidence in the case. An examination of the record before us does not disclose any material difference, as far as the evidence is concerned, from the record before the court at the last time. 135 Mich. 111. In the decision of the case at that time Justice Carpenter, speaking for the court, said: “ The first trial resulted in a judgment for plaintiff for over $4,000. This judgment was reversed because defendants’ counsel was not permitted to argue to the jury that the settlements hereafter referred to between the parties to this suit afforded prima facie evidence of the true condition of the account. The second trial resulted in a verdict in favor of the plaintiff for $1,044. Plaintiff sued out a writ of error, and this court reversed the judg ment on the ground that, according to the weight of the testimony, plaintiff was entitled to a larger verdict. The case has been tried the third time, and resulted in a verdict for defendants of no cause of action. Plaintiff asks a reversal of that judgment on the ground that, under the undisputed testimony, it was entitled to a verdict, and, if not, that the verdict should be set aside as against the weight of the evidence.” The opinion then discusses the testimony at length and determines that the undisputed evidence in the case proves that defendant should be charged with receipts amounting to $68,991.33. Defendant Putnam’s testimony is also referred to more at length than in the former opinion, and it is stated: “ It appears from the uncontradicted testimony that defendant Putnam is justly chargeable with an item of $824 for the sale of lands at a private sale to one E. O. Avery, and that this money never came into his hands. He is responsible for this amount, because he sold these lands to Avery on credit, and Avery never paid for them. {It was this amount, with interest, which constituted the $1,044 for which the treasurer was held liable on the last trial. See 127 Mich. 36).” The court held that, under the undisputed testimony in the case, plaintiff was entitled to a verdict for this amount with interest. Following this decision, the case was sent back for a new trial, and, notwithstanding the charge of the court properly given under this decision, another jury rendered a verdict of no cause of action. This was promptly set aside on motion of plaintiff and a new trial granted. The result of that trial is now before us for consideration. The verdict was for the amount of the Avery purchase, and interest. As already stated, the evidence is the same as in the record last before the court. The situation is identical with that presented when this case was here the second time. 127 Mich. 36. The judgment set aside in that case was the amount of the sale to Avery, with interest. The question before the court was “whether the verdict was so clearly against the weight of the testimony as to call for a vacation of the verdict and the granting of a new trial.” Montgomery, C. J., speaking for this court, said: “ It also appears, practically beyond dispute, that certain funds coming into the hands of the treasurer from the auditor general were not charged upon the county clerk’s books to the treasurer. Now, as against these statements is the general denial of defendant Putnam that he has appropriated any moneys belonging to the county; his claim being that he kept the funds separate from his own, and that he has not appropriated any money. While we by no means hold that this testimony is not admissible for what it is worth, yet, in weighing the question as a question of fact, we are constrained to say that, to our minds, this testimony is in no way convincing.” The judgment was set aside as against the weight of evidence, and a new trial ordered. The difference between the amounts referred to by the learned Chief Justice, including other amounts equally undisputed, and the amounts credited to the treasurer in his settlements with the supervisors, from the record before us, is $6,875.89. It also appears that he had not credited himself -with $1,582.32, auditor general receipts credited in settlement. These items are taken from the records of the State and county offices. The testimony of defendant is the same as on the former trials'. After a careful examination of this testimony we repeat the statement of a former decision, already quoted: “ In weighing the question as a question of fact, we are constrained to say that, to our minds, this testimony is in no way convincing.” It appearing to us that this verdict was against the weight of evidence, the judgment based upon it must be set aside. The court was not in error in refusing to enter a judgment for the plaintiff for the full amount claimed non obstante veredicto, nor can this court do so for obvious reasons pointed out by Justice Carpenter when the case was last before us. We find no errors in the charge of the court, or in rulings upon the admission of testimony. The motion for a new trial should have been granted, for the reason above stated. The judgment is reversed, and a new trial ordered. Montgomery, Ostrander, Hooker, and Moore, JJ.y concurred.

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Carpenter, C. J. -Plaintiff brought this suit to obtain damages for seduction. She secured a verdict and judgment in the lower court. Defendant seeks a reversal of that judgment upon several grounds. 1. He contends that the court erred in denying his motion, made at the conclusion of - plaintiff’s case, to strike out all the testimony upon the ground that the declaration did not aver the plaintiff’s chastity. The declaration did aver that defendant seduced the plaintiff. This, as will hereafter appear in this opinion, 'was an averment that she was thereby drawn from the path of virtue. The declaration then- did in effect aver chastity and sufficiently averred it. The trial court did not therefore err in overruling this motion. 2. Defendant contends that the trial court erred in overruling his motion to strike out plaintiff’s testimony on the ground that she failed to show such “ promises, deceits, artifices, or influence that would overcome the scruples of a chaste woman.” Plaintiff, who was a girl only 17 years of age, testified: “ He told me * * * he liked me the best of any girl he ever knew. He told me he was worth between $20,000 and $30,000. He did not say it right out — say that he would marry me, or anything like that. He always. said I never would be sorry, and would never regret it, and he said I always could live with him and be happy. That is the way he worded it.” This testimony was sufficient to warrant the jury in deciding that defendant made such promises, deceits, arti fices, or influence as would overcome the scruples of a chaste woman. See Hallook v. Kinney, 91 Mich. 57. 3. The trial court prevented defendant from proving by the cross-examination of plaintiff, and by the introduction of other testimony, that plaintiff lacked chastity at the time of the alleged seduction, upon the ground that with his plea he had given no notice of his intention to offer such testimony. This testimony was admissible under the plea of the general issue, unless made inadmissible thereunder by subdivision b of Circuit Court Rule 7. That subdivision reads: “An affirmative defense, such as payment, release, satisfaction, discharge, license, fraud or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration, must be plainly set forth in a notice added to the defendant’s plea.” Plaintiff’s lack of chastity is not an affirmative defense, tinder the foregoing rule, unless it was “affirmative matter [which] seeks to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration. ” It is contended by plaintiff that testimony tending to prove plaintiff’s lack of chastity was “affirmative matter,” under the language above quoted, because the presumption of chastity made it the duty of defendant to introduce such testimony. It is true there is a presumption of plaintiff’s chastity. People v. Brewer, 27 Mich. 134. This presumption transferred from plaintiff to defendant the duty of first introducing testimony touching the issue of chastity, but it by no means follows that in introducing that testimony the latter was making an affirmative defense, within the meaning of Circuit Court Rule 7. If it is true that plaintiff’s declaration avers by implication that she was chaste at the time of the alleged seduction, and that she cannot recover if she was not — and I shall hereafter endeavor to prove that this is true — her suit necessarily puts her chastity in issue. The presumption of chastity "under consideration merely takes the place of evidence of chastity. It does not remove the issue of chastity from the case. Defendant, when offering testimony to disprove chastity, is merely denying an essential fact asserted "by plaintiff, and is not making an affirmative defense. Though the presumption of chastity compels the defendant, instead of the plaintiff, to first introduce testimony on the issue of chastity, the latter, when introducing it, is not bringing into the case “affirmative matter to avoid the legal effect of or defeat the cause of action set forth in plaintiff’s declaration,” within the meaning of Circuit Court Rule 7. He is merely offering testimony which tends to prove that plaintiff did not have, and never had, “ the cause of action set forth in her declaration.” The foregoing contention that, in introducing testimony tending to prove that plaintiff lacked chastity at the time of the alleged seduction, defendant is not making an affirmative defense, rests upon the assumption that plaintiff had no cause of action, unless she was chaste at the time of the alleged seduction. It is therefore essential that I prove that this assumption is well founded. At common law the seduction of a female gave her no right of action. Her right of action is statutory. It is given in this State by section 10418, 3 Comp. Laws, which reads: “ It shall not be necessary in any action on the case for •seduction hereafter to be brought, to allege in the declaration, or to prove on the trial, any loss of service in consequence of such seduction; but if the female seduced be a minor at the time of the seduction, the action may be brought by her father, mother, or guardian; and if such female be of full age, the action may be brought by her father, or any other relative who shall be authorized by her to bring the same.” . . We have held that this statute gives to the woman seduced a right of action which she may enforce in her own name. Watson v. Watson, 49 Mich. 540; Ryan v. Fralick, 50 Mich. 483. This right of action is described in the statute asan “action on the case for seduction.” The question arises What is meant by seduction for which the female has a right of action ? This court has been called upon several times to define seduction in enforcing section 11694, 3 Comp. Laws, which makes it a crime “to seduce and debauch any unmarried woman,” and we have uniformly held that the offense was not committed unless the woman seduced was chaste at the time of her seduction (see People v. Clark, 33 Mich. 116; People v. De Fore, 64 Mich. 699; People v. Gibbs, 70 Mich. 430; People v. Smith, 132 Mich. 58), saying at the same time that, “although the female may have previously left the path of virtue, * * * yet, if she has repented of that act and reformed, she may again be seduced.” People v. Clark, supra. On the other hand, in a suit brought by a parent for the seduction of his child, this court said, that the child’s lack of chasity ‘ ‘ would have weight in mitigation of damages, but would not be a complete answer to the action.” Stoudt v. Shepherd, 73 Mich. 589. It should be borne in mind, however, that in this latter case we were not called upon to define seduction. When a parent brings suit to recover compensation from one who has debauched his child, proof of seduction is not essential to the right of recovery. In those cases the plaintiff is entitled to recover if the illicit intercourse has resulted in legal injury. See Akerley v. Haines, 2 Caines (N. Y.), 292; McAulay v. Birkhead, 35 N. C. 28; Bigelow on Torts (4th Ed.), p. 167. Can we say that the word “seduction” has two distinct legal definitions in this State ? Can we say it has one meaning when a woman brings suit for damages under the statute last above quoted, and another and different meaning when her seducer is prosecuted under the criminal statute ? To answer this question in the affirmative would, in my judgment, be illogical and productive of unnecessary confusion. Seduction as a statutory cause of action is to be defined precisely as it has been defined in construing the criminal statute. Plaintiff was not seduced. therefore, if she was not chaste — remembering (see People v. Clark, supra) that her chastity; though once lost, may be regained by repentance and reformation — at the time of her seduction. The trial court, as will hereafter appear, defined seduction in accordance with these views, but he erred in excluding the testimony under consideration which tended to prove that plaintiff was not chaste at the time of her seduction. 4. Plaintiff testified that she had been told by third persons that defendant stated in his store “that I was a mother. He said that he could prove that he was not the cause though.” This testimony was admitted against the objection of defendant that the same was incompetent, irrelevant, and immaterial and hearsay. It was clearly hearsay, and should not have been admitted. 5. The trial court defined seduction to be: “The act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles, which are calculated to have, and do have, that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused. ” Defendant complains of this definition. It was correct. See People v. Gibbs, 70 Mich. 425; People v. Smith, 132 Mich. 58. Other complaints are made in defendant’s brief. Some of these complaints are answered by elementary principles of law, and they need no discussion. Some of these complaints relate to discretionary rulings of the trial judge, and there was no abuse of that discretion. Some of these complaints are based upon no exception, and they relate to rulings which we cannot review without exceptions. In support of other complaints the brief contains no argument. We illustrate these last complaints by quoting from defendant’s brief: ■ . ■ “Exceptions 52 to 61, inclusive, relate to the refusal of the court to give defendant’s request to charge, and we call the court’s attention to such requests. Record, pp.. 108-112. Exception 63 relates to such portions of the court’s charge as are found in defendant’s bill of exceptions. Record, pp. 138, 139.” We assume that it was not expected that we should consider such complaints. For the errors pointed out, the judgment is reversed, and a new trial granted. McAlvay, Grant, Blair, and Moore, JJ., concurred.

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Montgomery, J. This is a bill filed for specific performance. Saron Beardslee was in his lifetime the owner of a farm in Oakland county, through which ran a highway known as the Old Territorial Road. The complainant’s predecessor, the Detroit, Rochester, Romeo & Lake Orion Railway, contemplated the construction of an electric railway following the line of the highway, but, desiring to build on private right of way, sought a right of way from occupants extending three rods westerly from the center line of said highway. On the 13th of August, 1899, Saron Beardslee conveyed to complainant’s predecessor such a right of way across his farm. Later it was thought desirable to locate the track on the easterly side of the highway as it passed through Beardslee’s farm, and also to have a right of way four rods in width from the center of the highway. Negotiations were opened which culminated, on October 24, 1899, in an agreement signed by Mr. Beardslee, by which he agreed to the change in location, and agreed to convey the four-rod strip in consideration of a payment of $35 per acre for the additional rod, and subject to the same conditions as to crossings, fencing, etc., as were embodied in the deed of August 13th. It was provided that the deed was to be given when the company had laid its tracks. Authority was given to the company to proceed to build its road. Saron Beardslee died November 9, 1899. The railway having been completed, and complainant, having succeeded to the rights of the Detroit, Rochester, Romeo & Lake Orion Railway, files this bill against the legatees under his will and those claiming under them, to specifically perform the contract of October 24th. The court below granted complainant relief but on condition that certain grades and crossings be perfected, and gave no costs to either party. The defendants Dennis and Alice Smith and Elizabeth Axford appeal. The claims of appellants are best' stated in the language of the brief: It is the claim of the defendants that the complainant has no right to the relief prayed in its bill of complaint for the following reasons: First. That at the time of the alleged execution of the contract in question by Saron Beardslee, he, Saron Beards-lee, was not in a condition mentally to understand and comprehend the nature of the contract. Second. That John Winter and Oliver H. Lau fraudulently took advantage of the mental condition of Saron Beardslee at the time the contract is alleged to have been made, and fraudulently put or caused to have placed his name to the contract. Third. That there was laches on the part of the complainant in attempting to have this alleged contract enforced and in bringing this action. • Fourth. That the complainant never made any demand on the defendants for a deed, and never made any tender of the purchase price before this action was commenced; and never returned or offered to return the deed of August 13th, but retained possession of it, and still retains possession of it. .Fifth. That, if the contract is found to be a valid and binding contract in consequence of its execution by Saron Beardslee, there has been no such compliance with the terms thereof on the part of the complainant as to entitle it to a decree of specific performance. Sixth. That the contract is not mutual in its operations as between the parties to it, and specific performance cannot be enforced in favor of the complainant. There has been no such laches as to bar the complainant’s remedy. During all the time since the construction of the track soon after the contract was made complainant and its predecessor have been in,the actual occupancy of the strip to the knowledge of all parties concerned. The demand for a deed would evidently have been with out avail as the appellants have seen fit instead of disclaiming or demurring specially to contest complainant’s right to a deed and to follow the contest through two courts. The court below found a substantial compliance except in some minor details, and imposed such equitable conditions as compensated for any dereliction of complainant in that regard. The contention that there was no mutuality is answered by Welch v. Whelpley, 62 Mich. 15. See, also, Bigler v. Baker, 40 Neb. 325 (24 L. R. A. 255). The first two questions above stated are all which remain to be considered. The circuit judge, on defendants’ motion, impaneled a jury, which found that Saron Beards-lee was mentally competent when the contract was made. The circuit judge also reached the same conclusion,and also negatived in his finding the contention of defendants as to fraud. The defendants contend that the circuit judge, permitted the jury to consider testimony which was incompetent under section 10212 of the Compiled Laws, as amended by Act No. 30 of the Public Acts of 1903. The testimony referred to was that of the agents of the contracting company who negotiated with Beardslee for the contract. We think their testimony was incompetent under the statute cited. The verdict of the jury was, however, at most, only advisory. The circuit judge was not bound to order a jury in the first instance, nor to accept its finding when made. Maier v. Wayne Circuit Judge, 112 Mich. 491; Detroit National Bank v. Blodgett, 115 Mich. 172. The circuit judge having determined the case on its facts, and an appeal having been made from his decision, it is open to this court to decide the question of fact. We are satisfied that the circuit judge reached the correct conclusion. We reach this decision although the witnesses who express an opinion as to the mental competency of Beardslee testify that they do not believe that he was competent on the 24th of October.' We base our conclusion on the facts and circumstances surrounding the transaction and on the subsequent conduct of the interested parties. Saron Beardslee’s two sons-in-law were present on the day the negotiations were had, and assisted in staking out the proposed right of way strip. It would appear from their testimony that the chief controversy arose over a difference of $15 per acre between the asked and the offered price of the strip. Afterwards Saron Beardslee proceeded to his house, and a meeting was had with the agents of the company, the contract was signed in the presence of Saron Beardslee’s son, John Beardslee, who signed the contract as a witness. The company then went on, graded the road, and laid its track at an expense of nearly $14,000, with no protest or claim other than .that made by some of the defendants that the road was not being built according to the contract. No one asserted that there was no contract because Saron Beardslee was incompetent. The case in this feature closely resembles Burt v. Mason, 97 Mich. 127. As was said of similar conduct in that case, “ These acts are the most persuasive evidence of his competency.” The decree is affirmed, with costs. Grant, Ostrander, and Hooker, JJ., concurred.

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Marston, J. Error is so-clearly apparent in that portion of tbe charge of the court relating to the rights of the ■defendant Hotchkiss under the Toll mortgage that a new trial must be ordered. It was conceded that the mortgage to Toll was in his hands valid, and that his rights thereunder would have been fully protected. That being so his assignee was equally entitled to protection to that extent, and this for the reasons net forth in Kost v. Bender 25 Mich. 516. The other questions we do not consider it necessary to discuss. The judgment must be reversed with costs and a new trial ordered. G-raves, C. J. and Cooley, J. concurred. Campbell, J". did not sit in this case. Court. “Iam asked to charge you ‘that Mrs. Hotchkiss is entitled to all the rights of Alexander Toll, and plaintiffs cannot recover as to the goods covered by the chattel mortgage.’ By that, I suppose, you mean the Toll chattel mortgage?” Defendants Counsel. “Yes, your honor.” Court. “I will so instruct you, with this modification: If, at the time they were acquiring this right from Toll, they knew or had notice that those goods really belonged to the plaintiffs in this case, and knew it at the time, of course they acquired that right at tlieir risk, and they must abide by that. But if they acquired it without any such notice, then, of course, gentlemen of the jury, they would be relegated to all the rights of Toll. But this transaction being all one thing, it is for you to consider whether they could have acquired the Toll mortgage without notice. In other words, it is all one transaction, and you may determine, if you do determine as a matter of fact, as to whether they could have acquired the Toll mortgage without notice and yet have gone through the rest of the transaction with notice. It seems to me rather difficult. If you find they acquired the Toll mortgage without inquiring, without anything to put them upon inquiry, it seems to me you would find great difficulty in holding them liable at all. So that I simply instruct you that they would have all the rights under the Toll mortgage unless they had notice and knew at the time they acquired it, the true state of things, or had reason to know the true state of things between King & Co. and the plaintiffs in this case.”

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Cooley, JV The plaintiff in error was sued by the administrators of Louisa Hasseneyer to recover damages for the negligence of its agents and servants whereby her death was caused. The case comes up on alleged errors in the admission and rejection of evidence, and in instructions given or refused. The decedent was killed at the crossing of the railroad with Burdick street, one of the principal streets- in the village of Kalamazoo, on the 20th day of December, 1878. She was a girl 13 years of age, and was proceeding along the street with a small pail of milk in her hands. The morning was somewhat cold and stormy. As she approached the railroad track a train was passing in one direction, and its bell was being rung. From the other direction an engine was backing up several cars, and its bell was also being rung. It was by this train that the girl was struck and killed. There was a flagman at the crossing, and no negligence .seems attributable to him. The brakeman on the backing train was upon the ground, walking along by its side to guard against accidents, but did not notice the girl until she had been thrown to the ground and killed. No one saw the girl when she was struck, and the place where she was lying when first seen was outside the limits of the street. It was contended for the defence that there was no evidence of negligence on the part of the railroad agents and servants, and therefore nothing to go to the jury. It was also insisted that a clear case of negligence on the part of the decedent appeared, and that upon this ground, if not upon the other, the court should have instructed the jury to return a verdict for the defendant. We do not agree that the case was so plain on either ground as to justify the court in taking it from the jury. It may be that if we were at liberty to pass upon the facts we should reach the conclusion which the defence insist upon as the only conclusion that is admissible; but we cannot say that the case is too plain upon the facts for fair minds to differ upon, and following our former decisions we agree with the trial court that the facts were properly left to the jury. Detroit etc. R. R. Co. v. Van Steinburg 17 Mich. 99; Lake Shore etc. R. R. Co. v. Miller 25 Mich. 274, 295; Le Baron v. Joslin 41 Mich. 313. Upon a supposition that the jury might find that the decedent at the time she was struck and killed was outside the limits of the highway and upon lands belonging to the railroad company, the defence requested rulings in effect that if such was the fact the decedant was in law chargeable with negligence. We do not agree that this was necessarily the dase. The fact might have an important bearing, or it might not; depending on how far she was outside the street lines, and why she was there, and whether she was aware of the fact. As the street was without fences1 or cattle-guards at this point, it would be unreasonable to hold that at her peril she must keep herself strictly within 'its lines, and if no intent to leave the highway was apparent, and she was not further outside that one might inadvertently go in passing along the street and looking both ways for coming and passing trains, the fact should neither absolve the employes - of the railroad company from the observation of care to prevent injury, nor charge her with fault if otherwise sufficiently vigilant. Counsel for the plaintiff in error has been industrious im the discovery of faults in the rulings of the circuit judge, but for the most part his criticisms are too particular and' technical to be accepted, or to require discussion at our hands. With a single exception we think no error was committed to the prejudice of the party now complaining. The exception is found in the instructions to the jury respecting the degree of care required of the decedent to avoid the-danger to which she fell a victim. It was contended for the; plaintiff below that the law did not require the same degree • of care of a child as of an adult person, and the court so ■ instructed the jury, j This was unquestionably correct. Railway Co. v. Bohn 27 Mich. 503. But it was also insisted that the law did not expect or require the same degree of care and prudence in a woman as in a man; and the court gave tliisinstruction also. It is presumable, therefore, that the jury in considering whether the decedent was chargeable with contributory negligence, made not only all proper allowances ■ on account of her immature years, but further allowance also on account of sex. No doubt the difference in sex has much to do with the application of legal principles in many cases. Police regulations with the utmost propriety sometimes make distinctions between men and women, in the conduct required of them under the same circumstances, and the unwritten law is in some particulars more indulgent to the one sex than the other. Words and conduct which in the presence of " men might be condemned for bad taste only, in the presence-of women may be punishable as criminal indecency, and a crime of violence committed upon the one would be condemned less severely by public opinion and punished less severely by the law than the same crime committed upon the other. And no doubt also the law ought, under-all circumstances where they become important, to make- allowances for any differences existing by nature between men and women, and also for any that grow out of their different occupations, modes of life, education and experience. A woman, for example, driving a horse on a highway may be presumed somewhat wanting in the “ amount of knowledge, skill, dexterity, steadiness of nerve or coolness of judgment — in short, the same degree of competency ” which we may presume in a man; and the person meeting, .her under circumstances threatening collision should govern his own conduct -with some regal’d to her probable deficiencies. Daniels v. Clegg 28 Mich. 33, 42. In Snow v. Provincetown 120 Mass. 580, a question of contributory negligence was made against a young woman who, in attempting to pass a cart in a public way, which had commenced bacldng towards her, accidentally fell over an embankment and was injured. The following instruction by the trial judge to indicate the degree of care required of the plaintiff, was held unexceptionable: “ Care implies attention and caution, and ordinary care is such a degree of attention and caution as a person of ordinary prudence of the plaintiff’s sex and age would commonly and might reasonably be expected to exercise under like circumstances.” This no doubt is true. .But while the authorities permit all the circumstances to be taken into the account, age and sex among the rest, in determining the degree, of care to be reasonably required' or looked for, no case, so far as we know, has ever laid it down as a rule of law that less care is required of a woman than of a man. - Sex is certainly no excuse for negligence; Fox v. Glastenbury 29 Conn. 204: and if we judge of ordinary care-by the standard of what is commonly looked for and .expected, we should probably agree that a woman would be likely to be more prudent, careful and particular in many positions and in the performance of many duties than a man would. She would, for example, be, more vigilant and indefatigable in her care of a helpless child; she would be more cautious to avoid unknown dangers; she would be more particular to keep within the limits of absolute safety when the dangers which threatened were such as only great strength and courage could venture to encounter. Of a given number of persons traveling by cars, several men will expose themselves to danger by jumping from the cars when they are in motion, or by standing upon the platform, where one woman would do the same; and a man driving a team would be more likely to cross in front of an advancing train than a woman would. In many such cases a woman’s natural timidity and inexperience with dangers inclines her to be more cautious; and if we naturally and reasonably look for greater caution in the woman than in the man, any rule.of law that demands less must be unphilosophical and unreasonable. Suppose, for instance, that a man and woman standing-together upon the platform'of a moving car are accidentally thrown off and injured, could any rule of jaw be justified which would permit a jury to award damages to her but not to him, upon the ground that the law expected and required of him the higher degree of care? Or may the woman venture upon an unsafe bridge from which the man recoils, under the protection of such a discrimination? Or trust herself to a fractious horse expecting, if she shall chance to be injured, the tenderness of the law will excuse her with a verdict of such care as was reasonably to be expected, when it would pronounce a man foolhardy? ¥e think not. No person of any age or sex is chargeable with legal fault who, when placed in a position of peril, does the best that can be done under the circumstances. Voak v. Northern Central Ry. Co. 75 N. Y. 320. Even this statement indicates a more rigid rule than the law will justify, for the legal requirement is only the observance of ordinary care; .and while in laying down rules that are of general ajoplica•.tion, it is no doubt better to employ general terms, lest they .be supposed applicable to particular classes only; (Tucker v. Henniker 41 N. H. 317) yet when the actor is a woman, .an instruction that she is bound to observe the conduct of a woman of common and ordinary prudence, cannot be held legally erroneous because of being thus special. Bloomington v. Perdue 99 Ill. 329. "Women may enter upon and follow any of the occupations of life; they may be surgeons if they will, but they cannot as such claim any privilege of exemption from the care and caution required of men. A woman may be engineer of a locomotive if she can obtain the employment, but the law will expect and require of her the same diligence to .avoid mischief to others which men must observe. The rule of prudent regard for the rights of others knows nothing of sex. Neither can sex excuse any one for the want of ordinary care when exposing one’s self to known and obvious perils. If it was apparent that the error of the judge did not mislead in this ease, we might affirm the judgment. But that fact is not apparent. No one witnessed this accident; the question of due care is involved in doubts, and the erroneous ruling may have been controlling. It follows that there must be a new trial. The other ¿Tustiees concurred.

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Cooley, J. This case was once before in this court, and the decision upon it is reported in 41 Mich. 482. On a second trial defendant recovered judgment and the plaintiff brings the case here by writ of error. The exceptions are numerous, but in the main they come to this: that the judge, in the manner in which he submitted the case to the jury and in liis comments on the evidence, gave undue promrnence to'whatever would tell in favor of the defendant, and thereby unfairly prejudiced the plaintiff’s case. In respect to this complaint it is to be said that it is one very frequently-made by the defeated party in jury trials, and often without any good reason except such as may arise from personal interest, and the anxiety for success. To permit it to have any weight with others the bias of the judge ought to be-manifest in his charge, so that there shall be reason to-believe the jury were improperly influenced. We discover nothing of the sort in this case. The charge was evidently meant to be impartial and just, and we think was so. In so-far, therefore, as the exceptions assail the charge as a whole, we find no support for them in the record, and criticisms-upon detached sentences or passages require no comment. It is urged, however, that the judge, in presenting to the-jury the facts on which the plaintiff relied as meeting and' overcoming the defence, required of the plaintiff a quantumoí evidence which he was not justified by the law in demanding. The action was upon a draft of which defendant was drawer. On its face appeared an alteration of the time of payment from April to May, and the case turned upon the question whether this alteration was made before defendant signed it. Commenting upon this the judge said to the-jury, “Unless there is a clear preponderance of proof oil' the part of plaintiff that the word May as now in the draft was there -when Ortmann signed it, the verdict must be for the defendant. This results from the fact that the burden of proof upon this issue is upon the plaintiff, and he must sustain that burden by showing you by a preponderance of evidence that the word May was there at the time it was-signed.” This it is said was too strong; a “ clear preponderance of proof” would, in the minds of the jury, be-the equivalent of the absence of reasonable doubt. It would no doubt have been better if the judge had omitted the adjective which ho adopted from one of the requests of counsel; but an examination of the whole-charge makes it plain that the jux-y were not misled. The- judge returns to the subject at the conclusion, and is at great pains to state with accuracy the true rule: “ If you •.are satisfied from all the testimony that the word £ May ’ appeared in that draft at the time it was signed by Ortmann .as it now does, then finding the other facts that I have .•spoken of, the protest and the notice, the plaintiff will be •entitled to your verdict for the amount of the draft and the Interest at seven per cent, as stated. If you find there is a»ot a preponderance of evidence in favor of this conclusion, taking all the evidence together, then the defendant is ¡entitled to your verdict. If you find that the defendant did not undertake and promise in manner and form as charged In the declaration, or if you do not see 'any preponderance •of evidence either way, then the plaintiff cannot recover. If the evidence is just as strong in favor of the assumption •that £May’ was put into the draft after it was signed by •Ortmann as that it was there when he signed it, then the plaintiff cannot recover. But if you shall find, drawing such inferences from the statements of the witnesses as in your judgment they warrant, that there is a preponderance of evidence in favor of the plaintiff — in favor of the facts .assumed^by the plaintiff and upon which he seeks to recover —then your verdict will be for the plaintiff, otherwise for the defendant.” This surely is not open to just criticism. The judgment must be affirmed with costs. Campbell and Marston, JJ. concurred.

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Marston, J. The plaintiff below, McKinnon, commenced an action of assumpsit, declaring upon the common counts. The defendant pleaded the general issue and gave notice of recoupment. The plaintiff’s claim was for a balance due under a written contract to furnish the materials and make for defendant two boilers, have the same “ completed and all connected in the mill of the said first party on or before the fifteenth day of March, 1880.” The'defendant, in his notice of recoupment, set forth that the boilers were to be used in his steam-mill and salt block for the purpose of running and operating the samethat these were the only boilers he would have to furnish steam; that the capacity of his salt block was two hundred barrels per day; that without the boilers he could not manufacture any salt, all of which facts were known to the plaintiff; that the boilers were not made and connected until the 28th day of April, and that in consequence of the breach by plaintiff the use and profits of his salt block were wholly lost, and the profits he would have made from the fifteenth of March to the twenty-eighth of April he claimed the right to recoup. This claim was not allowed in the court below, and this raises the principal question in the case, viz., the proper measure of damages. The position taken by counsel for plaintiff in error as set forth in their brief is, that the defendant below could under the facts recover the value of the use of the machinery which lay idle in consequence of the delay, and that beyond this “what, he might have made from the use of the machinery, etc., — the profits which he would have realized from the business carried on with it.” There are undoubtedly many cases where upon the breach of a contract the injured party is entitled to recover as damages the profits he would have made had the contract not been broken. Where a party is to perform labor from which a profit would arise as the direct result of the work done at the contract price, such profits may be recovered. Burrell v. New York etc. Salt Co. 14 Mich. 39. Or where a party is to furnish and deliver material under a contract and is prevented, as in Masterton v. Mayor of Brooklyn 7 Hill 62. The principles recognized in this class of cases are well established and have been applied in a great variety of cases. So in cases of tort the loss of profits may be allowed. Allison v. Chandler 11 Mich. 558; White v. Moseley 8 Pick. 356. There is, however, another class of cases, within which this comes, where the authorities differ as to the right of the injured party to recover such profits as are claimed in this case. Perhaps the case most relied on, and upon which the others allowing such a recovery mainly rest, is Hadley v. Baxendale 9 Exch. 341. In that case the court held the loss of profits while the mill was kept idle could not be recovered, because it did not appear the carrier knew that the want of the shaft was the only thing which was keeping the mill idle. The court also intimated that a different rule might have prevailed had the facts been fully known to the carrier. Of course no snch question was before the court in that case, and intimations'given upon facts that may perhaps appear in some future case are not usually relied upon. No effort will be made in this opinion to classify or reconcile the cases bearing upon and discussing this question. The profits to be recovered must not be conjectural or speculative in their nature, or dependent upon the chances •of business or other contingencies, and must have some reference to the nature of the contract and breach complained of. In the present case the contract is silent as to the particular business which was to be carried on in the use of these boilers. That, it is said, was well known to both the contracting parties. But admitting all this, would not the profits to be made in the manufacture of salt be dependent upon many other things besides the performance of this contract, — a necessary supply of fuel, which the defendant claims to have had, of brine, of machinery for pumping the same, of proper vats, grainers, pipes and other things necessary to carry on successfully and profitably the manufacture of that commodity, the certainty or probability even, even if all these things did exist and were in proper order, of their remaining in like condition ? But supposing the party had completed the boilers and put them in place, but had failed to make all the necessary connections; — no use could be made of the boilers in such a condition; would the damages be the same ? In other words, “ where the chattel was itself only part of something else, which was rendered useless for want of it, should the profit of the entire chattel be recovered ? If a vessel were delayed in port for want of a bowsprit, should a loss of freight, to the amount perhaps of thousands of pounds, be obtained in damages ? ” Very many questions similar to this might be put, and if the rule contended for by plaintiff in error were to prevail, in many cases the breach of a very simple contract, or failure in some part, might bring ruin upon the parties failing, where no such loss was contemplated. .The adoption of such a rule would be extremely dangerous. If such consequences are to follow, it is much better that the parties, when contracting, expressly provide for such enlarged responsibility. This they may do, and the damages-then may fairly and safely be said to have been contemplated by them at the time of entering into the agreement. Where the damages claimed, as in this case, largely exceed the contract price of the materials and- labor to be furnished and performed by the party in default, we may well question the justice of such a conclusion in the absence of a clear showing that such a result was anticipated by the parties. It was also claimed that in the absence of anything to the contrary, the value of the use of defendant’s salt block would be the net profits to be made from operating it, and this should be taken and allowed as damages. It does not follow that the fair rental value of premises can be ascertained by showing the profits. How the profits were arrived at in this case does not appear. If no account was taken of the money invested, the profits would be apparently much greater, and would be an unsafe criterion to fix rental values by. We need not however spend much time upon this question in view of the way it comes up. As no error is discovered the judgment will be affirmed with costs. The other Justices concurred.

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Campbell, J. The bill in this case was filed by a daughter of David Babcock, deceased, to set aside certain conveyances of land made by her father shortly before his death, and certain transfers of personal assets made at or about the same time, whereby all of his estate was transferred to his two sons George W. Babcock and Warren Babcock, and to their children. Most of the land went to the sons for life, with remainder to the children. Some was disposed of immediately. These dealings are attacked on the grounds of mental incompetency, and of fraud and undue influence. If there was no fraud or undue pressure, we do not think the ground of incompetency made out. The testimony shows a very peculiar character, with striking faults and some weaknesses, but we do not think Mr. Babcock is shown to have been incompetent at any time to deal with his property, and there are no witnesses familiar with him who give us reason to doubt his capacity, if let alone, to dispose of his property by will or otherwise. The question of undue influence is more serious, and the court below held the transfers of personalty, but not those of realty, void on this account. We do not see any reason for this discrimination, and are of opinion that they were essentially parts of one transaction which must stand or fall ogether. We do not think it necessary to refer to facts except far enough to explain our conclusions. Mr. Babcock died in December, 1878, at the house of his son Warren, in Kent county, being about 80 years old. lie had been taken out there from Ypsilanti during the summer or early fall. The reason for having him removed was his evidently failing strength, and the difficulty of getting him properly looked after in Ypsilanti. It appears very clearly that this removal was not the result of any family scheme, but suggested by outside neighbors who took an interest in having him attended to. For several months previous to this removal he had lived in a somewhat miserly and irregular way, having rooms at different places and sometimes preparing a part of his food himself. He had quarrelled alternately at different periods with all of his children, and had in like manner become reconciled perfectly or imperfectly with them. His son George lived in another State and had not been in Michigan for some time. His son Warren lived in Lowell, Kent county. His daughter, Mrs. Twist, lived in Washtenaw, and he had once lived with her, but he had recently quarrelled with her and her husband on account of her obtaining the property of her bachelor brother that he appears to have expected himself and claimed as his own. All of these children had children of their own, grown or growing up to maturity. He does not appear to have li^d anything which could properly be called affection for any of his descendants, although he appears to have felt more of it towards his grandchildren than his children. He was a man of fair intelligence, and a good deal of business capacity, but very obstinate and intolerant of opposition. He showed signs of folly and eccentricity in some of his conduct, but it is the opinion of nearly all the more intelligent witnesses that while he was always unpleasant and hard-headed, he never lost his sanity. It is made clear by the proofs that during the year 1878, and probably before, he had expressed the intention of providing chiefly for his grandchildren, not having apparently much confidence in the prudence of their parents. lie had’ felt very bitterly towards his son-in-law, Mr. Twist, and while there is some conflict concerning his intentions towards his daughter and her children, we think the testimony predominates against his having overcome his harsh views. During this year it is plain that he was seriously considering the disposal of his estate, and he made or attempted several different wills. In the fall of 1877, before the quarrel, he dictated a will of personalty in which all the Michigan grandchildren were to participate, as well as Georger Babcock. This will was not completed because he was-unable to determine what disposition to make of a portion of his lands. In June, 187S, he executed a will disposing' of all his property, and expressly disinheriting Mrs. Twist, while providing for all of the other families. This was-done before he went to Lowell, and was, so far as we can judge, his own uninfluenced act. The subsequent"dispositions differed in some respects as to shares and interests, but' followed the same general purpose. Ilis disposition was such as would render him quite liable-to influence if cunningly exerted, and there is a good deal of' testimony which would indicate that Warren Babcock had' no personal affection for his father, and had selfish inclinations and a desire to profit by the circumstances. Ilis letters show this scheming disposition, and the testimony indicates that he did more or less to keep alive the old-man’s jealousy of the Twists. But it also indicates that lie never obtained any considerable influence over his father, and was obliged to get his brother George to suggest a transaction which nevertheless, while two of his children wore benefited by it, was of no special advantage to himself, as finally consummated. The final arrangements were made when the deceased had the aid of competent counsel, and all the testimony indicates-that there was no interference with him. It also shows that-he knew then and subsequently what he was -doing, and ajiproved it. ' If the family of his daughter, Mrs. Twist, had been pro vided for like tlie rest, there is nothing in these transactions which wóuld be open to criticism as unwise or singular. There is no reason to suppose, if he changed his will of June, 187S, he would have changed it in her favor. While his feelings were to any ordinary mind unnatural and despicable, they were not disturbed by insanity, and his acts -cannot be held void merely because they were wrong in •morals. We are compelled somewhat unwillingly to uphold them as legally valid. The result must be the modification of the decree and its reversal so far as it avoided the transfers of personalty. Upon the question of costs we have a discretion which wo feel bound to exercise. We think Mrs. Twist was perfectly justified in bringing this suit. The deeds involved in this litigation were not recorded until after the original bill was filed in this causé, and they were'intentionally kept from the inspection of Mrs. Twist. She had a right as heir At law to know what disposition had been made of the estate, and such concealment fully justified her in supposing it was meant to carry out a fraud. There was also great cruelty, to use no stronger term, in the concealment of her father’s sickness and death and the heartless manner of providing for his burial. While there is sometimes difficulty in giving costs to a defeated party, we think under such circumstances no costs should be given against her and that .she- should recover costs below against Warren Babcock. The decree must be reversed and the bill dismissed, with the further order that all parties pay their own costs in thÍ3 Court, and that complainant recover her costs below from. Warren Babcock, senior. Graves, C. J. and Cooley, J. concurred.

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Cooley, J. The writ of certiora/ri issued in this case-brings up for review the proceedings had in the Recorder’s-Court of Detroit for the opening of Arch street to Grand River avenue. The proceedings were instituted under the act of 1877',. Public Acts 1877, p. 246. Four parcels of land were required for the purpose. In the first two persons had interests as joint owners of the fee, one as dowress, one as-mortgagee, and one as lessee. The damage to this was assessed at the gross sum of $550. In the second the interests were the same1 as in the first, and the damages were-assessed at $2450. The third was owned by one person exclusively, whose damages were assessed at $999. In the fourth two persons were concerned as owners of the fee and one as lessee, and the damages were assessed at one dollar. The assessment district as fixed by the common council iucluded one hundred and twelve parcels of land. Against seventy-nine of these the jury made assessments and against. the others none. The proceedings of the jury were confirmed in the Recorder’s Court June 30,1881. Affidavit for certiorari was made January 18, 1882. All the plaintiffs in error were personally served with notice as required,by the statute, but Patrick Lynch alone defended. The assessment against him is $20. The only interest Nicholson has in the proceedings is that of lessee of the fourth parcel, and entitled to share in the one dollar damages assessed in respect to it. The other-plaintiffs in error are assessed for the cost of the improvement, with a large number who do not appear to complain. The substantial errors relied upon are: That the petition by which the proceedings were initiated did not allege the particular and specific interests of the mortgagees and lessees of the parcels to be taken. That the jury by their verdict did not apportion or award to the various parties interested in the several parcels of land to be taken the damages and compensation severally. That the jury did not assess any sum whatever on many of the parcels included in the assessment district. On the other hand the city insists that the writ of certiorari should be dismissed as improvidently issued;' and an affidavit is filed showing that before the writ was sued out all the parties to whom assessments were made for land taken had been paid, and that of the assessments for the cost of the improvement considerably more than three-fourths had been collected. Ve think the motion to dismiss should be granted. The statute gives to aggrieved parties an appeal to be taken within five days; the result of which would be likely to affect all concerned equally and therefore justly. These parties have elected not to appeal, but to wait until the city and the majority of the persons taxed have made their payments respectively, and then resort to a remedy from which, if succesful, injustice and inequality must flow of necessity. They wait until the improvement is apparently secured, and then move to escape their just share of the burden. This should not be suffered unless reasons require it more imperative than appear in this record. The proceedings were undoubtedly erroneous in this case. The jury shoidd have apportioned the damages between the owners of a lot, and those having interests as mortgagees, lessees or otherwise, so that each could receive a warrant for the specific sum to which he was entitled. But the error in this particular was waived when the parties concerned accepted the sums awarded. It is presumed they agreed upon an apportionment between themselves. Parkinson, the only one who is complaining in this proceeding, was entitled to share in one dollar only, so that his grievance could not have been very serious if the others had obtained the whole of it. A party attacking an assessment for so slight a wrong may well be required to move with special alacrity. We agree with the plaintiffs in cerUorari that an assessment should have been made against each parcel of the land. The common council define the special taxing district, and compose it of the property which in their opinion will be benefited by the proposed improvement: Public Acts 1877, p. 246, § 2; and the jury “ assess and apportion the total damages and compensation to be paid for the private property so taken upon the lots and parcels and subdivisions thereof within the assessment district fixed by the common council or board of trustees, which will be benefited by the improvement, in proportion to the benefits they will severally receive.” Id. p. 249, § 14. To omit a portion of the lots from the assessment would in legal effect be to establish an assessment district different from that prescribed by the common council; and this the jury have no power to do. But if the jury believe that the benefit to some lots will, as compared with that to the others, be merely nominal, they have a right to make a merely nominal assessment; and the error which consists in failing to make a merely nominal award is not of sufficient substance to demand our intervention at this late day. See Hickey v. Baird, 9 Mich. 32. The writ will be dismissed with costs. Graves, C. J. and Campbell, <1. concurred. Afterwards, on June 27, tbe following opinion was filed; Cooley, J. When this case was decided an erroneous-statement in one of the briefs that the sums assessed to landowners and others for damages had been paid before the writ issued, was taken for true, and the judgment was-in part based upon it. An inspection of the files discloses-the fact that the payment was subsequent to the writ. The-question now arises whether the judgment should have-been the same had the fact been understood. We are of opinion that upon the merits it should. The persons to-whom • damages were assessed had the right to waive the-error, which consisted in a failure to apportion the damages-between them, and they might do this as well after the writ was sued out as before. But we awarded costs to the city, and this we think should1 be changed. As the proceedings stood when the writ was-sued out, there was very substantial error, and it could not' then be known that the error would be waived. The writ was therefore for legal cause, and though the subsequent waiver justifies us in dismissing the writ, we think com-plainants are entitled to their costs. Graves, C. J. and Campbell, J. concurred.

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