aidos-lab/mich-embeddings-int8-mixed-bread-large

text stringlengths 12 234k	embeddings sequencelengths 1.02k 1.02k
Lesinski, C. J. Plaintiffs Wolverine Golf Club and Joseph Comeau have filed the instant suit as an original action before this Court seeking a writ of mandamus ordering defendant Secretary of State to accept an initiative petition for canvass and immediate submission to the present session of the legislature. The facts giving rise to this suit are not disputed. In 1966 the Congress of the United States enacted the Uniform Time Act, 15 USCA, §§ 260-267, which required “Daylight Saving Time” in all time zones from the last Sunday in April until the last Sunday in October. Pursuant to a provision of the Uniform Time Act, the Michigan legislature exempted this state from the act, thus keeping Michigan on what was formerly standard time. MCLA § 435.211, et seq. (Stat Ann 1970 Cum Supp § 18.872[1] et seq.). The effect of MCLA § 435.211, et seq., supra, was suspended by the filing of referendum petitions. Michigan Farm Bureau v. Secretary of State (1967), 379 Mich 387. Michigan, therefore, went on daylight saving time during most of the summer of 1967 and all of the summer of 1968. However, when the referendum was presented to the voters during the general election held November 5, 1968, MCLA § 435.211, et seq., supra, was approved by a margin of 490 votes out of the 2,805,614 votes cast. MCLA §168.472 (Stat Ann 1956 Rev § 6.1472), provides: “Petitions to initiate legislation shall be filed with the Secretary of State not less than 10 days before the beginning of a session of the legislature.” The present session of the legislature convened on January 14, 1970. On February 12, 1970, counsel for plaintiffs inquired of the Secretary of State by letter whether initiative petitions would be accepted notwithstanding the statutory deadline. The Secretary of State replied that the statute prohibited acceptance of the petitions for submission to the 1970 session of the legislature or the electorate in the 1970 general elee tion. Subsequently, plaintiffs commenced the instant suit seeking a writ of mandamus. As mandamus is clearly the proper remedy if plaintiffs are entitled to relief, Solo v. City of Detroit (1942), 303 Mich 672; Toan v. McGinn (1935), 271 Mich 28, we turn to the merits of the case. The sole issue raised by plaintiffs is whether the statutory requirement that initiative petitions be filed not less than ten days before the start of a legislative session is an unconstitutional restriction of the right of initiative. Resolution of this question requires an understanding of the initiative process, its historical setting in Michigan, and the background of the statutory 10-day filing deadline. We, therefore, turn to a brief review of these points. Essentially, there are two types of initiative in Michigan. A direct method operates independent of the legislature wherein a proposal backed by a sufficient number of signatures is automatically placed on the ballot. This method is made available only to proposed constitutional amendments and is incorporated in Const 1963, art 12, § 2. Under constitutional initiative, signatures amounting to at least 10% of the total vote cast for all candidates for Governor in the last general election are required to place the proposal on the ballot. In addition, the petitions must be filed with the Secretary of State at least 120 days prior to the general election. The second type of initiative available in Michigan is the indirect method which requires that the proposal first be submitted to the legislature for approval, rejection or for an alternative proposal. After the expiration of 40 legislative session days, the proposal must be placed on the ballot of the next general election unless the legislature enacts the proposal into law without change. The indirect initiative method is available only for statutory proposals and is incorporated in Const 1963, art 2, § 9. Statutory initiative requires signature petitions amounting to only 8% as opposed to 10% for constitutional initiative. In this respect it is obvious that a statutory initiative petition drive is slightly less difficult than a constitutional initiative petition drive. Nevertheless, history has demonstrated that the statutory initiative process has been much less attractive to the electorate as a method of direct government. A study of direct government techniques in Michigan from 1913 to 1961 revealed that the constitutional initiative process was utilized by the electorate on 35 separate occasions, whereas the statutory initiative process was invoked only once. On that occasion in 1948 petitions qualified a statutory proposal which would render a 1901 statute prohibiting the sale of colored margarine of no effect. The legislature enacted the proposal which should have avoided the necessity of submitting the question to the electorate. However, opponents of the measure were able to qualify the legislation for referendum. Thus, the statute did not become operative until passed by the people in 1950. The dormant statutory initiative process, in sharp contrast to the frequently invoked constitutional initiative process, was a subject of discussion prior to the 1961 Constitutional Convention. “Why has the indirect statutory initiative been used so seldom? It would seem that the delay inherent in the process (and delay occurs unless legislative acquiescence is forthcoming and even then if opponents can gather sufficient signatures for a referendum petition) militates against the chance of successful promotion of such a measure. Then, too, the direct constitutional initiative requires only a slightly higher percentage of petition signatures and has the advantage of attracting more interest and receiving a direct popular vote. Whatever the reasons, the indirect initiative has been one of the least used of Michigan’s devices of direct legislation.” McHargue, Direct Government in Michigan, Michigan Constitutional Convention Studies, prepared for the Constitutional Convention Preparatory Commission (1961), No 17, p 30. “One may say, therefore, that the limited effect of the initiative and referendum has not been due to any inherent defects in the institutions themselves, but rather to the limitations and restrictions on their use imposed principally by the legislature.” Pollock, The Initiative and Eeferendum in Michigan, University of Michigan Press (Michigan Governmental Studies, No 6) p 68 (1940). California had a constitutional provision providing for indirect initiative as well as direct initiative. Even in that state, notorious for direct government activity, indirect initiative had been used only on four occasions from 1912 to 1966. The Ohio Constitution provided for a method of statutory initiative which like Michigan was indirect. It also provided for direct constitutional initiative and experienced similar inactivity with regard to the statutory initiative process. The initiative process was among the methods of direct government which gained considerable favor among the electorate during the progressive reform era of the early 1900’s. At the Constitutional Convention of 1907, the first effort to provide the people of the State of Michigan with a form of direct initiative came to fruition in Const 1908, art 17, § 2. It passed the convention by merely three votes, although its provisions were limited to constitutional initiative and the requirement that petitions be signed by at least 20% of the number of electors who had voted for Secretary of State in the last election made its accessibility virtually impossible. As it existed under the original draft of the 1908 Constitution, the constitutional provision was never used. In January of 1913 Senator Woodworth and Representative Kappler introduced almost identical bills proposing an amendment to the Constitution which would establish a more accessible constitutional initiative and a newly-created statutory initiative. These bills received almost unanimous support by the legislature and in April of the same year the electorate approved the amendments. The signature requirement of the constitutional initiative process was reduced to 10%. The statutory initiative process was incorporated into art 5, § 1 and provided in pertinent part: “Initiative petitions shall set forth in full the proposed measure, and shall be filed with the Secretary of State not less than ten days before the commencement of any session of the legislature. * * * Upon receipt of any initiative petition, the Secretary of State shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the Secretary of State shall transmit such petition to the legislature as soon as it convenes and organizes. The law proposed by such petition shall be either enacted or rejected by the legislature without change or amendment within forty days from the time such petition is received by the legislature.” It should be noted that Constitution expressly required that statutory initiative petitions be filed with the Secretary of State not less than ten days before the commencement of any session of the legislature. The statutory initiative provision of the Constitution was amended hy a proposal which passed both houses of the legislature in 1941 and won approval by the electorate in the spring election. The procedure was changed only to the extent that the Secretary of State was granted constitutional authority to check the names appearing on petitions against the names of registered voters. In that same year the legislature enacted PA 1941, No 246, which implemented the changes brought about by the constitutional amendment. In addition to the implementing statutes passed in 1941, many of the requirements for initiative and referendum set forth in the highly detailed constitutional provision were reiterated in statutory form in PA 1941, No 246 (CL 1948, § 200.1 et seq.-, Stat Ann 1941 Cum Supp § 6.685[1] et seq.) Among the constitutional provisions so codified was PA 1941, No 246, § 2 (CL 1948, § 200.2; Stat Ann 1941 Cum Supp § 6.685[2]) which provided: “Petitions to initiate legislation shall be filed with the Secretary of State not less than 10 days before the beginning of a session of the legislature.” PA 1941, No 246 was repealed by PA 1954, No 116, commonly known as the Michigan Election Law. The 1954 act was the result of a major effort on the part of the legislature to reorganize, consolidate and add to the election laws. The above-quoted statute reappeared unchanged as MCLA § 168.472 (Stat Ann 1956 Rev § 6.1472). Due to the historical origin of the 10-day filing deadline and context of the statute in which it was first codified, it appears that it was first enacted as a notice provision of important constitutional details. It is against this background that the Constitutional Convention delegates formulated and the Michigan electorate adopted Const 1963, art 2, § 9. In pertinent part § 9 provides: “To invoke the initiative * * * , petitions signed by a number of registered electors, not less than eight percent for initiative * * * of the total votes cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required. “Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided. “If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election. # # # "The legislature shall implement the provisions of this section.” Among the several details eliminated from the Constitution is the 10-day filing deadline. Neverthe less this former constitutional requirement remains enshrined in the statute now under attack. The 10-day filing deadline was clearly necessary and reasonable in 1913, when it first became law. This was due to the combined effect of three factors then in existence. (1) Under the 1908 Constitution, as originally adopted, the legislature met only during the odd-numbered years. (2) During this period the sessions of the legislature were quite short, generally convening in January and adjourning in May.or June. (3) The statutory initiative provision in Const 1908, art 5, § 1 gave the legislature only “40 days” to accept or reject initiative proposals, unlike the “40 session days” in Const 1963, art 2, § 9. Clearly under the provisions of the 1908 Constitution and realities prior to 1951, if no deadline had been set to insure the early presentation of initiative proposals to the legislature after time was allowed for the necessary certification of the signatures, the legislature might not get a full 40 days before adjournment. And, since the legislature was given only “40 days” rather than “40 session days” the period would continue to run while the legislature was not meeting. Moreover, even if provision had been made to allow the period of legislative consideration to continue from one session to the next, it would mean a postponement of nearly 1-1/2 years dividing the 40 days into two shorter periods. Thus, the 10-day deadline was reasonable and necessary to insure that the legislature would have an opportunity to consider the proposal. All three of these factors no longer exist, however. The legislature now meets every year. The sessions of the legislature are much longer, often running from January to December. And the legislature now has “40 session days” rather than only “40 days” in which to consider the proposal. Thus, the petitions can be presented well after a session commences and still allow sufficient time for legislative consideration. If the legislature adjourns, the remainder of the “session days” will continue during the next session. And now the periods between sessions are generally only a matter of weeks, rather than the old 1-1/2 years, thus reducing the possibility that the deliberations held during the previous session will be no longer remembered. Although the original factual basis for the filing requirement no longer exists and although the reason for enactment of the requirement in statutory form (i.e., notice provision of constitutional detail) is no longer present, nevertheless, this Court is bound to recognize the statute as an expression of legislative intent by the clear command of Const 1963, art 3, § 7 which provides: “The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” Our only inquiry must be whether the statute is repugnant to the Constitution. It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision. Soutar v. St. Clair County Election Commission (1952), 334 Mich 258; Hamilton v. Secretary of State (1924), 227 Mich 111, 125: “ ‘The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provisions is that the right guaranteed shall not be curtailed or any undue burdens placed thereon.’ ” Whether a constitutional provision is self-executing is largely determined by whether legislation is a necessary prerequisite to the operation of the provision. See 42 Am Jur 2d, Initiative and Referendum, § 3. “A constitutional provision may be said to be self-executing, if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may he enforced, and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may he given the force of law.” Cooley, Constitutional Limitations (7th Ed) p 121, quoted in Thompson v. Secretary of State (1916), 192 Mich 512, 520, wherein the Court declared art 5, § 1 (initiative and referendum) of the Michigan Constitution of 1908 to he self-executing. Whether art 2, § 9 is self-executing has been questioned by Dr. Nord, a delegate to the Constitutional Convention of 1961-1962. His argument centered on the provision in § 9 that in the event the legislature failed to enact the proposal, the duty to place the proposal on the ballot was vested in the “state officer authorized by law”. “Section 9. (Initiative and referendum) : There are two principal changes in this section. One of them permits the legislature by a three-fourths vote to amend or repeal an act adopted by the people by direct initiative or referendum. The other change is the elimination of a considerable mass of so-called ‘legislative-type detail’ relating to the initiative and referendum procedures. While the ‘Address to the People’ asserts that this section continues to be self-executing, it is highly questionable whether or not this is true. The following examples will illustrate the problems raised: (1) In the fourth paragraph, the ‘state officer authorized by law’ is relied on to submit to the electors any legislation proposed by initiative hut not enacted by the legislature within forty days, and also to submit to the electors for ratification any modification adopted by the legislature. The 1908 Constitution placed this responsibility on the Secretary of State, except as otherwise provided by statute. At present, a statute placed the responsibility on a board composed of the State Board of Canvassers and the Attorney General, but this statute now requires revision. In the event that this statute should ever disappear, it is an interesting question as to how the initiative process could be effectuated.” Nord, The Michigan Constitution of 1963, 10 Wayne L Rev 309, 320 (1964). This objection to the otherwise self-executing provision was raised by Dr. Nord on the floor of the Constitutional Convention. At that time the following argument was presented in response: “Mr. Chairman, I suppose that as a very technical kind of a situation maybe Dr. Nord has a point, except I don’t think it is a very practical one. It’s inconceivable to me to believe that any legislature would refuse to empower or direct an official to handle this thing. As a matter of fact, we already have statutes on the books. The general election law is already there.” 2 Official Record, Constitutional Convention 1961, p 2393, remarks of Delegate Hutchinson. It is not inconceivable that the State judiciary would in such event be able to order the person charged with the ministerial responsibilities under the general election law to place the proposal on the ballot if this responsibility was not specifically delegated by statute. However, it is not necessary to resolve that issue. The question whether a constitutional provision is self-executing is “ultimately one of intention.” American Youth Foundation v. Township of Benona (1967), 8 Mich App 521, 528. The convention comment, which may properly be considered when attempting to discover the intent of the framers (Beech Grove Investment Company v. Civil Rights Commission [1968], 380 Mich 405; Burdick v. Secretary of State [1964], 373 Mich 578), expressly states that the provisions of art 2, § 9 are self-executing. “Matters of legislative detail contained in the present section of the Constitution are left to the leg islature. The language makes it clear, however, that this section is self-executing and the legislature cannot thwart the popular will by refusing to act.” (Emphasis supplied.) To hold that the right of initiative reserved to the people of the State of Michigan is not self-executing is to ignore the expressed intent of the framers. This conclusion is more compelling in light of the perceptive opinion of Justice Bird in Hamilton v. Secretary of State (1924), 227 Mich 111, 130: “The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. It was in this mood that the electorate gave birth to the constitutional provision under consideration. In view of this I am persuaded that it was not the intention of the electorate that the legislature should meddle in any way with the constitutional procedure to amend the State Constitution. It was fittingly said in the following cases that: “ ‘A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.’ ” We view the term “self-executing” to be more than an after-the-fact description of the operative effect of the constitutional provision. It is a term intended to cloak the provision with the necessary characteristics to render its express provisions free from legislative encroachment. And this is so irrespective of the implementing provision contained therein. The original language expressed in Committee Proposal 118b sought to make clear that the general implementing provision was not a blank check grant of legislative power. “The legislature by general law shall provide further necessary methods for the exercise of these powers not in conflict with the provisions of this section’ (Emphasis supplied.) Following passage of Committee Proposal 118b the last sentence was changed by the committee on style and drafting to the form which was ultimately enacted. The style change, however, was clearly not intended to be a substantive change. The stautory initiative process contained in art 2, § 9 expressly limits legislative consideration of the initiated proposal to a period of 40 session days. Yet due to the statute in question, which requires the initiative petitions to be filed no less than 10 days prior to commencement of the legislative session, and Const 1963, art 2, § 5 which provides that general elections shall be held on the first Tuesday after the first Monday in November during each even-numbered year, the statute effectively operates to prevent a statutory initiative proposal from appearing on the ballot within a period of time less than 10 months after it is submitted to the legislature. By restricting access to the legislature, the statute has effectively limited access to the statutory initiative process. And this restriction is in conflict with the express 40-day limitation contained in the Constitution. Any further delay of the proposal for the convenience of the legislature operates to restrict the right of initiative beyond permissible bounds. “In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or executing of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified.” State, ex ret. Caldwell, v. Hooker (1908), 22 Okla 712, 718 (98 p 964). Plaintiff notes that only two cases exist which deal with a situation similar to the present case. In State, ex rel. Kiehl, v. Howell (1914), 77 Wash 651 (138 P 286), the state constitution which expressly declared itself to be self-executing contained the following provision: “This section is self-executing but legislation may be enacted especially to facilitate its operation.” The section referred to expressly reserved to the people the right of initiative provided that petitions were filed at least four months prior to the election. (This was a direct initiative process.) Pursuant to the constitution, the legislature enacted laws “facilitating” the operation of the initiative process. Included among those statutes was a provision requiring all petitions to be filed not earlier than ten months before the election. The statute was challenged as an unconstitutional infringement of the initiative right since it limited the petition drive period to six months (between the tenth and fourth month preceding the election). The court upheld the statute noting that the statute allowed for greater certainty that the voters who signed the petition were, in fact, residents of the state on the date the petitions were filed. Six months was viewed as a reasonable period of time to garner the requisite signatures. A contrary result was reached in the more recent case of Yenter v. Baker (1952), 126 Colo 232 (248 P2d 311). The right of initiative was expressly reserved to the people by the constitution which was deemed to be self-executing. Included within its provisions was the requirement that all petitions be filed at least four months prior to the election. (The initiative process was direct.) By statute it was required that all petitions be filed at least eight months prior to the election. The court struck down the statutory filing requirement of eight months, concluding that the legislature may not impose additional filing requirements. The foregoing cases, although reaching different results, are not inconsistent. In Kiehl, supra, the challenged statute did not enlarge upon the minimum filing requirement which was included in the constitution. Rather, a different requirement was formulated. The court concluded that the statute did not conflict with the constitution or unreasonably limit the petition drive period, a maximum requirement imposed being considered necessary for assuring the validity of the signatures. In Yenter, supra, the now-defunct statute enlarged on the filing limitation already present in the constitution, increasing the difficulty of the existing requirement. In the present case the ten-day filing requirement imposes a time limitation for the convenience of the legislature in addition to the 40-session-day period expressed in the constitution. In this respect the statute conflicts with the express language of the constitution. It is, however, defendant’s position that the ten-day deadline is a reasonable exercise of the legislature’s general duty under Const 1963, art 2, § 9 to implement that section of the constitution. Plaintiffs, however, argue that the time limit is an unreasonable restraint on initiative. Unquestionably the ten-day deadline does act as a restraint on the right of initiative. As demonstrated above, the statute results in requiring that petitions be filed with the Secretary of State fully ten months prior to the general election. We note that defendant offers this Court no explanation whatsoever as to why such a period of time is needed. Even conceding that during the ten months some time is needed to give the legislature the constitutional 40 session days to accept or reject the proposal, there is no need for this extended minimum period required by the statute. Const 1963, art 12, § 2 provides for constitutional amendment by petition and vote of the people. That provision requires petitions signed by 10% of the voters compared with the art 2, § 9 requirement of 8%. Yet, although the percentage is greater, art 12, § 2 requires petitions to be filed only “120 days” or four months prior to the election. Significantly art 12, § 2 further provides that the sufficiency and validity of constitutional initiative petitions be certified “at least 60 days prior to the election.” Thus, the 120-day period provided in art 12, § 2 contemplates two months for certification of the sufficiency of the petitions and two more months for preparation of the ballots and presentation to the voters. Adding these same periods to the “40 session days” allowed for legislative consideration of the statutory initiative proposal would result in a period of substantially less than 10 months. Defendant argues that if the time limit is unreasonable, then statutes prohibiting the signing of fictitious or forged names to petitions would also be violative of the constitution. There is, however, an important distinction between statutes which protect the people from fraudulent attempts to bypass the legislature through initiative and those which create unnecessary obstacles to restrict the lawful use of initiative. Moreover, the legislature may undoubtedly place certain ground rules on the petitioning for initiative in order to facilitate the enormous task of verifying the signatures on the petitions. Markowitz v. State Canvassers (1965), 1 Mich App 12. This distinction was clearly noted in State v. Snell (1942), 168 Or 153, 160 (121 P2d 930, 934): “Any legislation which tends to ensure a fair, intelligent and impartial accomplishment may be said to aid or facilitate the purpose intended by the Constitution. Any safeguard against deception and fraud in the exercise of the initiative and referendum powers tends to assure to the electorate the benefits conferred by § 1 of article 4. “Such legislation, however, must be reasonable, not ‘curtailing the right or placing any undue burdens upon its exercise.’ Stevens v. Benson, supra [50 Or 269, 91 p 578], Nor may it ‘hamper or render ineffective the power reserved to the people.’ State, ex rel. Ayres, v. Amsberry [1920], 104 Neb 273 (177 NW 179, 180, 178 NW 822); State, ex rel. Elsas, v. Missouri Workmen’s Compensation [1928], 318 Mo 1004, (2 SW2d 796).” See, also, Yenter v. Baker, supra. As indicated above, Const 1908, art 5, § 1 contained a highly detailed provision for statutory initiative. Many of these details were dropped when the successor provision, Const 1963, art 2, § 9, was adopted. Defendant argues that the elimination of these points from the constitution was part of an effort to leave to legislative discretion matters of specialized and technical significance. In this regard defendant cites the 2 Official Record, Constitutional Convention 1961, p 2392, where the chairman of the committee on legislative powers stated: “Removed from constitutional status are the provisions on content and time of filing petitions, canvassing of names on petitions, type sizes, and right of the legislature to prescribe penalties. Also removed is the date of effectiveness of legislative acts which is covered in article 5, section 21. “All of these matters are left to the legislature in the last sentence. However, the language of the last sentence also makes it clear that the section is self-executing and the legislature cannot thwart popular will by refusing to act.” We agree with defendant’s argument. Agreement, however, does not resolve the issue. For while the Constitution places the duty of implementation on the legislature, it does so as an incident to the granting of a right to the people. Although administrative implementation is needed if the initiative process is to function smoothly, the administrative statutes may not create unnecessary burdens which tend to restrict the constitutional right. The spirit of the Constitution is not met if the rights it grants are unnecessarily impaired under the guise of implementation. Moreover, as noted above the original committee proposal 118b gave the legislature only the power to provide “necessary methods for the exercise of these powers [initiative] not in conflict with the provisions of this section”. (Emphasis supplied.) There was, thus, the clear intent on the part of the convention to limit the power of the legislature to that which is “necessary” to the effective implementation of the initiative right. Thus, while the legislature has the power to establish the time of filing, since any deadline will act as a restraint on a constitutional right, the legislature may only create those restrictions which are necessary. Any statute which is both unnecessary for the effective administration of the initiative process and restrictive of the initiative right is unreasonable and thus unconstitutional. When Const 1963, art 2, § 9 was reported out of committee at the Constitutional Convention, it stated that the legislature was to accept or reject the proposed law “within 40 days.” (2 Official Eecord, Constitutional Convention 1961, pp 2390-2392.) As noted above, this phrase was changed to read “40 session days.” The Constitutional Convention, thus, not only removed the ten-day deadline from the Consti tution but, as evidence by the record of the Constitutional Convention debate (see footnote 15), contemplated the filing of petitions much later in the legislative session. Defendant agrees that initiative petitions may be filed at any time, but argues that filing after the statutory deadline results in submission of the issue to the following legislative session. Thus, in the instant case initiative petitions filed in 1970 would be submitted to the 1971 session of the legislature. The weakness in defendant’s argument centers in the unnecessary delays it would cause in the use of initiative. Const 1963, art 2, § 9 requires any law proposed by initiative which was rejected by the legislature be submitted “to the people for approval or rejection at the next general election.” Under Const 1963, art 2, § 5, however, the elections are regularly scheduled on “the first Tuesday after the first Monday in November in each even numbered year.” Thus, under the defendant’s argument the petitions would be filed in 1970, go to the legislature in 1971 and finally be presented to the public for vote in November of 1972, nearly 2-1/2 years after the filing. There are two basic reasons why we do not think such delays are consistent with the Constitution. First, the Constitution gives the legislature only 40 session days to consider the proposed law. In light of such a restrictive limit on the legislature, we do not believe delays ranging from a minimum of 10 months to a maximum of 34 months between the time of filing and the time of the popular vote was intended. And if such extended delays had been approved by the convention, we doubt that the pe riod allowed for legislative consideration would have been so limited. Second, we believe that when the convention provided for petitions filed long after the opening of the session, it indicated an approval of the “last minute” exercise of initiative. Such exercise thus should be limited only to the extent necessary to allow for the efficient administration of the initiative process. One other difficulty remains with the delays inherent in defendant’s position. While the instant suit involves daylight saving time, the right of initiative may be invoked for other issues of far greater importance and moment. If extended and unnecessary delays are permitted, issues may become moot before the public is permitted to act. We do not believe that such was the intent of the Constitutional Convention. It might be argued, however, that since the ten-day filing deadline existed as a constitutional standard for half a century, that the same standard in statutory form cannot now be declared so unreasonable as to be unconstitutional. Despite its surface logic, however, the argument falls short for two reasons, both historical. First, the statutory initiative provision in Const 1908, art 5', § 1, originated in the legislature as a proposed constitutional amendment in 1913. It was not the result of a constitutional convention or of constitutional initiative. Thus when the electorate approved the ten-day deadline as a constitutional amendment in the April election of 1913, it was only one small part of a much larger provision. If they rejected the ten-day deadline, there would have been no statutory initiative provision at all. Thus, it would be a fiction to say that the ten-day rule has stood as an expression of the overriding will of the people. Second, as demonstrated above, when the ten-day limit first became law it was clearly necessary and reasonable due to circumstances then existing. As the circumstances which necessitated the rule have all changed, it cannot be said that reasonableness of the rule necessarily remains. We hold that MOLA § 168.472 (Stat Ann 1956 Rev § 6.1472), constitutes an unnecessary and, therefore, unreasonable restraint on the constitutional right of the people to initiative. The statute is, thus, unconstitutional. In so holding we do not intimate that a time limit necessary and reasonable for the effective administration of the initiative process after the legislature has considered the initiative petition, might be invalid. Such will withstand challenge so long as it does not constitute an unnecessary restraint on the right of initiative. The petition for a writ of mandamus is granted. Const 1963, art 2, § 9. On oral argument of this cause plaintiffs moved to amend their complaint to add the allegation that they have a sufficient number of signatures upon petitions for prima facie compliance with the requirements of Const 1963, art 2, § 9. Further, at oral argument the attorney for plaintiffs stated in open court and on the record that he had actual knowledge that this allegation was factually correct. The motion was granted. We take judicial notice of the fact that plaintiffs’ petitions allegedly bear approximately 206,000 signatures and were filed with the Secretary of State on June 17, 1970. While the complaint was pending in this Court, petitioners filed in the Supreme Court an application for leave to appeal prior to decision by the Court of Appeals. By order of the Supreme Court, the application was denied on March 31, 1970. McHargue, Direct Government in Michigan, Michigan Constitutional Convention Studies, prepared for Constitutional Convention Preparatory Commission (1961); Pollock, The Initiative and Referendum in Michigan, University of Michigan Press (Michigan Governmental Studies, No 6) (1940). Discussing this fact, it was noted: “The statewide indirect initiative has been used but four times since 1912 and would be eliminated entirely by a revision of article 4 of the Constitution which will appear on the November ballot. West’s California Legislative Service 416-417, 424-425 (1966); California Constitution Revision Commission, Proposed Revision of the California Constitution 52, 141-142 (1966) [hereinafter eited as Constitution Revision Commission]. For further discussion of the revision see note 29 infra. A possible explanation for the failure of persons to take advantage of the lower signature requirement for indirect initiatives may be the extreme delay which stands between the completion of signature gathering and final submission of the measure to the voters. Unless the governor should call a special election, a minimum of approximately 23 months passes before an indirect initiative is placed on a ballot. This delay results because the indirect initiative procedure calls for submission of the proposed measure to the legislature before it convenes (Cal Const art 4, § 1 [¶ 4]); the legislature convenes for general legislative sessions in January of every odd numbered year (Cal Const art 4, § 2[a]); the measure, if not enacted within 40 days, must be presented at the ensuing general election (Cal Const art 4, § 1 [¶ 4]), but that general election does not come until November of the next even numbered year (Cal Const art 4, §3). Under the proposed revision of article 4, the legislature would hold annual legislative sessions (Constitution Revision Commission 29-30), and, if the indirect initiative were retained, it might become a more viable tool. The period of delay could be reduced to as little as 10 months and a few days. Staff Memorandum for California Constitution Revision Commission, January 12, 1965, p 11.” Comment, The Scope of the Initiative and Referendum in California, 54 Cal L Rev 1717, N19 at 1720 (1966). “The record of direct legislation in Ohio discloses the interesting fact that the device has been employed more freely at the constitutional than the statutory level. Between 1912 and 1950, 29 constitutional amendments were proposed by the initiative. Nine were ratified. During the same period 15 of 29 amendments proposed by the general assembly were approved. Seventeen legislative measures have been proposed by the initiative. Of these, three were enacted by the general assembly. Three not so enacted were carried to the voters by supplemental petition; one was adopted.” Fordham and Leach, The Initiative and Referendum in Ohio, 11 Ohio State Law J 495, 497 (1950). McHargue, supra, p 21 et seq. PA 1913, Concurrent Resolution Nos 3-4, pp 780-86. PA 1941, Joint Resolution Nos 1 and 2, pp 781-85. Const 1908, art 5, § 1. PA 1941, No 246 restated the following constitutional requirements : No 246, § 1 enacted the Const 1908, art 17, § 2 requirement that constitutional initiative petitions be filed four months before the election at which the proposal was to go to the voters; No 246, § 2 enacted the art 5, § 1 requirement that statutory-initiative petitions be filed 10 days before the commencement of the legislative session; No 246, § 3 enacted the art 5, § 1 requirement that referendum petitions be filed within 90 days of the adjournment of the legislature; No 246, § 7 enacted the art 17, § 2 requirement that a declaration of the sufficiency of the petition be filed at least two months prior to the election ; No 246, § 12 enacts the art 5, § 1 provision regarding the form of the petition and provides further details not set forth in the Constitution. Const 1908, art 5, § 13 provided: “The legislature shall meet at the seat of government on the first Wednesday in January, nineteen hundred nine, and on the first Wednesday in January in every seeond year thereafter, and at no other place or time unless as provided in this Constitution; and shall adjourn without day, at such time as shall be determined by concurrent resolution, at twelve o’clock noon.” The practice of having regular sessions only during the odd numbered years was not changed until Const 1908, art 5, § 13 was amended by legislative proposal in 1951 and ratified at the biennial spring election of April 2, 1951. Michigan Manual, 1969-1970, p 98, sets forth the following dates: Bate of Meeting Bate of Adjournment January 4, 1899 June 24, 1899 January 2, 1901 June 6, 1901 January 7, 1903 June 18, 1903 January 4, 1905 June 17, 1905 January 2, 1907 June 29, 1907 January 6, 1909 June 2, 1909 January 4, 1911 May 2, 1911 January 1, 1913 May 15, 1913 Const 1963, art 4, § 13. During tlie debates the following exchange took place (2 Official Record, Constitutional Convention 1961, p 3085) : “Mr. Brake: Mr. President, ladies and gentlemen of the convention, I have a question. In column 2, page 3, line 38, where it is talking about legislative action on initiative petitions presented to the legislature, it says this must be done within 40 days. I wonder if that shouldn’t be 40 legislative days. Suppose this petition is presented the last day before the legislature adjourns, or while they’re completely in recess? “Vice President Sutchinson: Mr. Brake, are you directing a question to a particular person? “Mr. Brake: Tes, Dr. Pollock, please. “Mr. Pollock: Mr. President, this was not before our committee as a substantive matter. * * * Therefore, I’m not prepared to answer your question, although it seems to me your point is very well taken.” (Emphasis supplied.) In direct response to this problem the language of the article was amended to read “within 40 session days” to insure that if a petition is filed shortly before adjournment the time period does not continue to run during adjournment. 2 Official Record, Constitutional Convention 1961, p 2418. After proposal 118b returned from the style and drafting committee, the following statement was made at 2 Official Record, Constitutional Convention 1961, p 2927: ‘‘Mr. Hoxie: Mr. President, I move that we dispense with the reading of this proposal, and I would like to state that since the return of these proposals from style and drafting, the committee has reviewed all of them. The committee finds no change, no substantive change in this proposal and we recommend that it be passed.” Both percentages are of “the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected.” Const 1963, art 2, § 9; art 12, § 2. See Burdick v. Secretary of State (1964), 373 Mich 578, allowing resort to the constitutional convention debates for the purpose of ascertaining the intent of the provisions of the Constitution. The substance of this statement was reiterated in the Convention Comment for art 2, § 9: “Matters of legislative detail contained in the present section of the Constitution are left to the legislature. The language makes it clear, however, that this section is self-executing and the legislature cannot thwart the popular will by refusing to act.” As noted above this language was changed by the committee on style and drafting to the present form found in Const 1963, art 2, § 9, but no substantive change was intended. 2 Official Record, Constitutional Convention 1961, p 2927. For definition of “session days” see Smith v. Attorney General (1911), 165 Mich 140; Davock v. Moore (1895), 105 Mich 120; and OAG 1963-1964, No 4329, p 494 (November 3, 1964). Coincidentally it was the same proposal which resulted in reducing the signature requirement for constitutional initiative from an impossible 20% to an accessible 10%. Moreover, it is interesting to note that the first time the ten-day limit was submitted to a popularly elected constitutional convention, it was taken out of the Constitution.	[ -13, 53, -15, -55, -12, 25, 16, 9, -11, 86, -60, 7, 20, -13, 1, -9, 2, 13, 58, 54, 8, 0, -20, -31, -17, 17, 8, -51, 1, -1, -25, -17, -17, -13, -25, -73, 27, 8, 30, 22, 10, -40, -33, -35, -18, -51, 2, 38, 39, -5, 6, 14, -65, 47, -47, 36, -38, -87, -23, 34, -11, 12, 37, -26, 13, -12, 17, -2, 24, -38, 21, -8, 41, -18, -26, 43, 3, -23, -35, 31, -59, 17, -5, -60, -18, -30, -46, 21, 15, -14, -59, -43, -73, -49, 40, 6, -8, -27, 1, -39, -57, 10, 6, 23, -5, -2, 24, -69, -8, -15, 27, 2, -20, 28, 5, 35, -4, 26, 37, -30, -12, 10, 31, 45, -46, -29, -55, 1, -3, 24, -3, 21, 65, -19, -11, 69, 1, -23, 43, -55, 5, -1, 37, -15, 15, -9, 18, 7, 59, -9, -10, -7, -65, 27, 7, 8, 6, 0, 37, 29, 0, 14, 5, -32, 14, 4, -96, -30, 0, -7, 8, -60, 34, -12, 16, -16, 1, 26, -18, 22, -42, 14, 27, -12, -41, -2, 10, -75, 4, -2, 54, -60, 0, -19, 40, 32, -6, 23, -16, 13, 1, -38, 38, -12, -37, -8, 66, -13, -8, 38, -12, -45, -26, 14, -14, 7, 34, -8, -38, -3, 25, 14, 75, 36, 34, 20, 8, -46, 22, 5, 37, -22, 54, -9, 27, -28, -39, 28, 25, 19, -8, -27, 26, 5, 33, 34, 2, -25, 23, 18, 14, -12, 24, -43, 18, 7, 45, 1, 14, 13, -28, 17, -41, -27, -41, 64, -37, 23, 38, -26, -50, 31, 54, -18, -44, -37, -35, -8, 52, -32, 17, -1, -22, 44, -42, 25, -6, -36, -15, 34, -45, 33, 17, 15, 10, 20, 19, 5, 10, 42, 31, 60, 47, -6, -41, -30, -52, -37, 17, -27, 25, 21, -34, 14, -16, -16, 25, 32, 60, -11, -50, -22, 16, 24, -42, -27, 64, 4, -36, -29, -10, -11, 2, 20, 50, -52, 50, 4, -3, 14, 39, 25, 38, 32, -18, 39, 20, -22, -32, -36, 0, -13, -19, 15, 13, 5, -10, -27, -60, 4, 13, -21, -79, 38, 17, 34, -31, 19, 46, 34, -41, 14, -1, 21, -43, 5, -5, 46, -46, 23, -1, -79, -24, -30, 48, -34, -42, -11, -16, -5, -25, -49, -26, -11, -12, -7, -5, -22, -11, 23, 46, -14, -24, -15, 12, -19, 8, 5, 10, 61, 4, -10, 57, 15, -17, -30, 19, 6, 53, -15, -46, -12, -38, -68, -48, -16, -19, 25, 1, 14, 15, 20, -7, 11, -22, 36, -9, -52, -5, -8, 22, 41, -4, -19, -11, -36, -28, -18, 24, 30, 63, -33, -18, -44, -28, -4, -16, 27, 27, -52, -40, -19, -10, 17, -21, 18, -64, -5, 44, -19, 20, 31, 28, 101, -67, 5, 12, 22, 10, -27, -35, -22, -30, -38, -48, -58, 19, 13, 5, 31, 2, 11, -11, 65, -43, 31, -50, -9, -24, 14, -18, -17, -5, 18, 3, -43, 33, -23, -15, -25, -15, -46, 27, 82, 3, 14, 9, 20, 6, 14, -81, -1, -22, 2, -44, 5, 9, -9, -19, -38, 48, -35, 33, -13, -56, -1, 2, 0, -70, 9, 56, 9, -12, 42, 70, -37, -12, -37, -12, 0, 25, -19, -104, -48, -9, 5, -5, 18, -17, -59, 17, 27, 42, -6, -10, -35, -25, 42, 4, -7, -20, 8, 14, -28, 20, 70, 48, -5, -6, 29, 30, 50, -74, -16, -9, -51, -7, -20, 25, 17, -25, -23, -40, 35, 53, 43, 31, -3, 31, -21, -13, 25, -41, 7, -28, -4, -30, 30, 24, 2, -9, -26, -1, 28, -53, -20, -32, 43, 22, 11, 19, 32, 36, 28, 14, -2, 30, 28, -9, -6, 6, 4, -40, -29, 0, -65, 41, 20, 20, -60, -84, -15, 2, 18, -6, -5, -43, 12, -24, 34, 18, 19, -9, -35, -46, -35, 16, 0, -18, -8, 4, -18, 3, -13, 30, 13, 25, -32, 22, -15, 34, 44, 20, -11, 94, -28, -10, 9, -45, 79, -48, -39, -10, -54, 22, 1, 19, -2, -1, -23, -4, 17, 31, -37, 42, -9, 5, 6, 30, 33, -26, 94, 38, 13, -48, 8, -18, 6, 69, 19, -40, -3, 5, -31, 34, 20, -22, 15, -28, -9, -30, 40, 18, -6, -27, -10, -33, -58, 33, -19, -21, 44, -37, -23, 33, -4, 8, 7, 7, 3, 13, 42, -6, -35, -4, -32, -31, 10, 27, 45, -46, -13, 5, 40, 0, -19, -51, 23, 8, 33, 49, -4, 18, -31, 18, 0, 56, 10, 64, -28, 45, -35, -27, -20, 1, -26, -42, -27, -17, -29, 19, 34, -5, -47, -17, -35, 15, -30, -5, -17, -13, -48, -1, -19, -25, 59, 4, 3, 24, -27, -14, -4, 76, 32, -2, -15, -8, -48, -27, -8, -5, 18, 16, 1, -36, 16, -13, 61, -12, -9, 18, 9, 18, 25, 49, 0, 43, -4, 4, -3, 57, 17, 26, -12, 34, -30, 21, -18, -20, -3, -20, -19, -4, 17, -50, 57, -20, 26, -31, -54, -32, 53, -42, 1, 35, 0, -20, -22, -7, -33, 21, 14, -55, 28, 3, -21, -6, -7, 37, 23, -12, -40, 21, -1, 1, 0, -47, -27, 15, -44, -1, -10, 4, -2, -35, -51, 25, -1, 16, 19, -2, 19, -25, 60, 79, 30, 2, -21, 13, 5, -30, 51, 42, -47, 7, 25, 36, 39, -13, 28, 22, -6, -12, -26, -2, -22, -44, 26, -7, 3, -2, 17, 0, -27, -34, 9, 4, 26, -2, 52, 7, -37, -10, -22, -21, -31, 17, -40, 48, 14, -57, -14, -10, -64, 13, -2, -36, 17, 8, 0, -30, -7, 59, 30, 24, -11, 13, -1, 35, 1, 18, 6, 41, 33, 11, -43, 38, -42, 22, 23, 25, 19, -42, 28, -16, 44, -25, 48, -5, 20, 13, -14, 35, -29, 53, 16, 11, 10, -25, -10, 41, 43, -19, -35, 4, -18, 17, -23, 45, -3, 43, 21, 11, 14, 52, -21, 46, -7, -17, 47, -35, -14, 16, 4, 6, 4, 25, 13, -3, -56, -14, 23, -50, -1 ]
J. H. Gillis. J. Plaintiffs are citizens of South-gate, Wayne County, Michigan. They opposed a proposition in defendant city’s election, which was held on April 7, 1969. The proposition passed, and on May 2, 1969, plaintiffs filed a complaint in the Wayne County Circuit Court entitled “Complaint Objecting to Election”, seeking to invalidate the election for fraud pursuant to MCLA § 600.4545 (Stat Ann 1962 Bev § 27A.4545). The complaint was filed without obtaining leave of the court, but within 30 days of the disputed election. Defendant moved for summary judgment, alleging plaintiffs’ failure to comply with the statute by not seeking leave of the court to file the complaint. Plaintiff’s answer to defendant’s motion requested that the complaint be treated as an application for special leave to object to the election. The trial judge denied plaintiffs’ request, reasoning that he was without power to grant special leave, since the hearing on defendant city’s motion occurred more than 30 days after the disputed election. Summary judgment was entered in defendant’s favor and plaintiffs appeal. Two questions are presented: We quote the first from defendant’s brief: “May a private citizen bring an action alleging election fraud or error without obtaining special leave of court?” Our answer is that he may not. An action alleging election fraud under MCLA § 600.4545 (Stat Ann 1962 Rev § 27A.4545) is an action for quo warranto, an extraordinary writ. See Author’s Comments following GrCR 1963, 715, in 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 221. And although the forms of action have been abolished in Michigan, GrCR 1963, 110.3, the appropriate substantive remedy remains unaffected. See Committee Comment, OCR 1963,110.3. Where, as in the present case, plaintiffs seek to test the validity of an election: “To assail such proceedings [they] must do so in the manner pointed out by the statute. Youells v. Morrish (1922), 218 Mich 194, 197. The manner pointed out by the statute is as follows. We quote subparagraph (2) of § 4545 of the Revised Judicature Act (MCLA § 600.4545 [Stat Arm 1962 Rev § 27A.4545]): “Such action shall be brought within 30 days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or judge thereof. Such action shall be brought against the municipality wherein such fraud or error is alleged to have been committed.” (Emphasis supplied.) It is evident from the express language of the statute, italicized supra, that a private citizen must obtain leave of the court in order to contest an election. Only where the attorney general or the prosecutor on his own relation, or on the relation of any citizen of the proper county, institutes the action is leave unnecessary. Our construction is in accordance with OCR 1963, 715.2(2), which provides: “Actions by Prosecutor or Citizen. Other actions for quo warranto shall be brought by the prosecuting attorney of the proper county, without leave of court, or by any citizen of the county by special leave of the court or a judge thereof(Emphasis supplied.) And see 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 236: “Private citizens may bring actions for quo warranto only upon obtaining a special leave of the court.” The second issue raised on appeal is whether the trial court erred in ruling that it was without power to treat plaintiffs’ complaint as an application for special leave to challenge the election. Plaintiffs contend that defendant was not prejudiced by their failure to obtain leave of the court, since the action was brought within the 30-day period prescribed by statute. Defendant argues that, notwithstanding the absence of actual prejudice, the trial court correctly dismissed plaintiffs’ action since no application for leave was filed within 30 days of the election. On this issue, we side with plaintiffs. In Heidelmeyer v. Village of Oakwood (1923), 222 Mich 331, plaintiffs filed a bill in equity challenging the validity of an election. The trial judge dismissed the bill without considering the merits; he ruled that plaintiffs’ remedy was an action for quo war ranto and that an election could not be attacked in equity. An issue presented on appeal was whether the trial judge should have treated the bill as a proceeding in the nature of quo warranto, rather than dismissing outright. The Supreme Court held that the trial judge erred in dismissing’ the action, notwithstanding plaintiffs’ failure to proceed correctly. Although in Heidelmeyer plaintiffs had made a mistake, the Court was of the view that the procedural error was not one affecting the substantial rights of the parties, since plaintiffs had filed their action within 30 days of the election. Compare Finlayson v. Township of West Bloomfield (1948), 320 Mich 350, 355-358. In the present case, plaintiffs likewise filed their action within 30 days of the disputed election. Defendant does not contend that it was prejudiced because of plaintiffs’ failure to secure leave of court. We hold that the trial court should have disregarded the error. Heidelmeyer v. Village of Oakwood, supra; GCR 1963, 13. Plaintiffs’ complaint, although unauthorized, sought to accomplish something meaningful ; it sought to guarantee the purity of elections. Under the circumstances, the trial court should have allowed plaintiffs to amend their complaint, thereby requesting leave. See Author’s Comments following GCR 1963, 110.3, in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 181. The trial court erred in ruling that it had no power to do so. GCR 1963, 118.1; MCLA § 600.2301 (Stat Ann 1962 Rev § 27A.2301). Plaintiffs request that we remand for a determination on the merits. Such relief would, at this stage, be unwarranted. The trial court must first determine whether, treating plaintiffs’ complaint as an application for leave to contest the election, it should grant the requested leave. This matter rests within the sound discretion of the trial judge, since the grant or denial of leave to file in quo warranto is discretionary by the terms of GCR, 1963, 715.2(2). Cf. McDonald v. Jackson (1966), 3 Mich App 287. The judgment is reversed and the case is remanded for proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full. All concurred.	[ 2, 19, -30, -9, -11, 50, -2, -9, -26, 43, 9, -14, 5, 15, -19, -19, 28, 7, 30, -3, -37, -26, -7, 15, -3, -41, -8, 3, -20, -45, -38, -18, -31, -17, 23, -80, 30, -48, 18, -5, -22, -31, -2, 10, -34, -13, 1, 26, 15, 46, 25, 11, -61, 8, -21, -5, -15, -7, -22, -52, -30, 56, 13, 1, 27, -19, -25, 27, -10, -50, 1, 1, -27, -33, -33, 12, 9, -11, 1, 38, 30, 4, 22, -93, 20, 5, 0, 7, -10, -14, -19, 14, -53, -34, 55, -16, -2, -17, 42, 3, -14, 45, 8, -11, -8, 8, 29, -37, -30, -75, 3, -5, -22, 1, -7, 0, -1, 26, -27, -67, 29, 2, 17, 49, 1, 9, -6, 3, 16, -2, 28, 54, 72, -15, -7, 40, 8, -46, 49, -15, 19, 13, 24, -67, 43, -10, 39, 13, 20, -6, -25, 19, -29, 68, -33, 13, 14, -31, 46, 15, 33, 39, -56, -27, 16, -50, -36, 14, 65, -30, -2, -25, 4, -52, -13, -22, -21, 6, -14, -29, -22, 54, 22, -8, 10, -10, -19, -45, -10, -16, 72, -31, 22, 8, 15, 19, -1, 57, 15, -21, -18, -23, 6, -27, -22, -19, 53, -41, -11, -10, -36, -44, 2, -26, 43, -44, 46, -8, 1, 20, 15, 18, -22, 23, -1, 11, -4, -8, 11, 21, 29, 3, 54, 0, -11, -28, 10, -19, 23, 21, -33, 6, 29, 46, 25, 36, -12, -23, 0, 12, 73, 0, 8, -20, -47, 20, -61, -9, 25, 39, 4, 35, -44, -26, -74, -15, 35, 23, -20, 2, -26, 44, -15, -1, -26, -44, -10, -13, 21, -22, -25, -15, -21, 39, -18, 35, -17, -5, 29, 34, -60, -19, -36, 37, 8, 23, 32, -20, 27, -8, 6, 87, 12, 20, -34, -58, -52, -2, 5, -23, 59, 13, -12, -6, 25, 23, 36, -23, 24, -54, -12, 15, -3, 6, -69, 21, 29, -40, -36, -41, 32, 1, 10, -32, 50, 2, 16, 4, -39, -12, 45, -3, 0, 42, 29, 13, -4, -38, -31, 16, 17, -11, -23, -10, 9, 14, 0, -33, -65, -4, -18, 10, -16, 51, 37, 9, -6, -25, 16, 36, -64, -19, 10, 5, -19, -24, -41, 30, -26, 62, -2, -56, 8, -20, 15, -31, -4, -39, -14, -28, -53, -12, -17, 33, -7, -12, 3, -14, 1, 66, 14, 39, 0, 50, -55, -12, -16, 37, 9, 49, 23, 27, 3, -18, 8, -46, 43, 37, 67, -60, 9, -7, -54, -73, -18, 12, 25, 6, 47, 17, 30, -33, -5, -27, 19, 15, -30, -27, -31, 18, 34, 7, -4, -15, -18, -39, -18, 6, -19, 6, 39, 18, -15, -56, -2, 1, 29, -9, -17, -40, -37, -53, -67, 53, -22, 44, -7, 11, 14, 31, 26, 20, -11, 50, -92, -10, -56, 18, 10, -11, -25, 10, -27, -91, -12, -10, 20, 12, -8, 33, -4, 24, -1, 99, 1, 43, 3, -10, -2, 45, 21, 44, 15, 31, 43, -1, -13, -11, 0, 24, -31, -33, 7, 78, 4, 26, 17, -6, 8, -26, -24, -46, -33, -55, -34, 32, -5, -23, 9, -28, 18, 7, 9, 18, 4, 3, -3, -18, -17, -15, 50, 59, 74, 39, 45, -42, -65, -32, 51, 23, 38, -31, -72, -29, 20, 0, -33, 3, 27, -13, 4, -11, 34, 22, 13, -22, 22, -9, -15, 22, -2, 24, 37, 5, 11, 26, 42, 16, -1, -20, 25, -7, -14, -24, 35, -49, -31, -19, 23, -26, -3, -49, -25, -8, 54, 49, -30, -3, 24, -27, 35, 12, -43, 0, 17, -11, -22, 14, -10, -33, 8, 35, -23, -13, 23, 3, -36, -8, 15, 32, -8, -31, 35, 27, 10, -50, 41, -18, -36, -15, 14, 14, -30, -18, -17, -9, 8, 41, 24, -5, -6, 9, 38, -15, 8, -16, -9, -62, -9, -11, -4, 60, -11, -1, 6, -10, 14, -14, 24, -44, -14, -14, -20, -18, -24, 23, 25, 14, 0, 63, 37, -9, 45, -14, 23, -31, 18, 4, -15, 37, -35, -12, -15, 26, 33, -64, -4, -5, -18, -29, 16, -5, 28, -21, 9, 0, -24, 10, 39, -30, -1, 18, 24, 7, -54, 30, 31, -12, 43, 2, -25, -11, 10, -3, 12, -35, -11, 0, 7, 31, -41, 4, -15, -5, 41, 7, 0, -4, 40, 0, -1, 15, 16, -5, -25, 20, 37, 0, -39, 36, 30, -14, -6, -45, 57, 27, 11, 6, -14, 4, 10, -4, 44, 46, -29, -9, -18, 26, 0, -7, 30, 14, 46, -35, -2, -21, -1, 16, 33, -1, -2, -12, 41, -47, 29, 50, -5, -38, 22, -15, 33, 40, 20, -45, -2, -38, 11, 8, -20, -13, 0, -89, -22, -29, 0, 6, 29, -23, -21, 15, 31, -29, 34, 27, -32, 5, 0, 19, -8, 13, -26, 20, -16, -39, -37, -24, -33, 38, -20, -38, 21, -9, -28, 5, 1, 22, 7, 8, 19, 30, 15, 0, 55, -21, 9, -52, -13, 10, -24, 2, -7, -24, -41, -4, -6, 40, -56, -13, -2, -22, -10, 42, -36, 8, 26, 14, -5, -28, 5, 3, -1, 50, -9, -15, 6, -23, -4, -36, 32, 30, 40, -31, 7, 47, -2, 11, -9, -10, 0, -34, -35, 8, 24, 4, -21, -11, 23, -34, -55, 46, 67, 21, 38, 51, 5, 6, 17, -27, 6, -2, -14, -8, 13, -49, -19, -1, 21, -9, -69, 20, 8, -48, -17, -29, 18, -33, -18, 35, 31, -19, 14, -27, -41, -45, -40, -35, -13, 24, 38, 32, 2, -13, -68, 0, 4, -24, -10, -36, 23, 21, -17, -15, -34, -49, -19, 44, -72, 30, -38, 32, -38, -47, 61, 39, 12, 29, 22, -27, 8, -19, 7, 18, 54, 14, 34, -2, -12, -35, 5, 8, -13, 11, -6, -34, 4, 20, -29, 18, -4, 43, 26, -20, -18, -21, 48, -23, -14, -17, -52, -15, 62, 37, 29, -66, -3, 19, -18, -49, -19, 31, 54, 20, 41, -20, 29, -19, 35, -17, 13, 50, 0, -37, 58, 14, -37, 30, -16, 1, -45, -49, 1, 10, -9, 44 ]
Per Curiam. Defendant Yirlie E. McIntyre pleaded guilty to the crime of murder in the second degree contrary to MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). On appeal, defendant contends that she did not understandingly enter a guilty plea because, inter alia, she was not informed of the elements of first-degree murder. The appellee has filed a motion to affirm the conviction, GCR1963,817.5(3). A review of the plea transcript reveals that the trial judge fully complied with the requirements of GrCR 1963, 785.3 and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). People v. Carl (1968), 11 Mich App 226. The question presented here on appeal is unsubstantial and requires no argument or formal submission. The motion to affirm the defendant’s conviction is granted.	[ 20, 15, -5, -13, -23, -20, 25, -25, -42, 73, -7, -28, 22, -34, -9, -33, 27, 13, -20, -5, -30, -2, -78, 34, -37, -40, 1, 29, 19, 44, -21, 39, -56, -76, 39, -57, 13, 9, 26, 7, -16, 54, 19, -12, -71, -16, 14, -20, 12, -25, 29, 3, -14, 23, -11, 40, -2, -4, 2, 47, -8, 34, -63, -35, -62, -15, 3, 8, -26, 18, -21, 12, -29, -1, -15, 40, -11, 62, 29, 39, -23, 43, 10, -27, -2, -10, 0, -28, 35, -23, 36, 28, -42, -6, 11, -17, 8, -47, 28, -64, 6, 5, 41, 31, 8, -8, -21, 11, 39, 4, 4, -34, -9, -55, -13, -19, 53, 0, -81, -44, 6, 14, 56, 77, 8, -6, 13, 11, 0, 22, 11, 30, 13, -25, 31, 1, 2, -16, 50, 50, -8, 7, 35, 6, 33, 0, -3, -27, -17, 0, 27, 55, -33, -37, 1, -19, -4, -52, -23, 28, 9, 3, -21, 18, -6, -21, -17, 11, -8, -57, -6, -42, 59, 7, 39, -10, 16, -30, -15, 41, -21, 32, 11, -7, -36, 16, -38, 2, -29, -90, -39, 19, 22, -51, 60, 27, 5, 44, 13, 15, 7, -12, 30, 26, 0, -26, -53, -5, -13, -69, -14, -48, -65, 0, 0, -21, -14, -31, -28, 48, -64, -14, 40, -21, -18, -30, 8, 31, -30, 30, 30, -11, 6, 21, 16, 4, 17, 2, 41, 4, -22, -8, 55, -4, 46, 30, 7, 0, -38, -36, 59, -9, 35, 22, -40, -19, 34, -1, -47, -8, -11, 26, 25, 33, -96, 43, -50, -13, -63, -44, 15, 6, 26, 32, 2, -22, -16, 60, -19, -2, 18, 26, 17, -28, -57, 41, -57, 42, 29, 53, 39, -21, -53, 7, 59, 10, 5, -49, -64, -15, 48, -1, 17, -51, 27, 27, 58, -24, -35, -13, 7, 26, 21, -2, 41, 25, 1, -20, 52, 16, -50, -15, -2, -48, -2, 7, 15, -40, 10, -1, -60, 31, 12, 25, 18, 23, -6, 27, -10, 2, 52, -20, -24, -32, -22, -6, 9, 35, -25, -13, -9, -38, 11, -27, 24, -59, -1, -8, 29, -33, 5, 14, -24, -24, 16, 16, 20, 12, 28, 24, 5, -46, -13, 29, -13, -25, 55, -32, -23, 36, -28, -28, 15, -21, 27, -6, -12, -55, -11, 11, -33, -44, -4, -50, 13, 1, 26, -2, 12, -2, 8, -9, 19, 0, -42, -11, -24, -52, -8, 39, -27, 28, -12, 56, 21, -29, 30, -35, 84, -28, 5, -38, 31, 17, 13, 7, -11, 14, -16, -70, -9, 16, -1, -43, -7, 52, -34, 45, 69, 5, -5, -5, -10, -6, -8, -40, -32, 29, 1, -45, 6, 21, 24, -44, 12, 23, -27, 30, 4, -19, 45, -7, -26, 2, 38, 3, -18, 12, 50, -21, 8, 27, -20, 31, 31, 13, 19, 33, -5, 6, 30, -15, -38, -44, -26, -25, -13, -52, 37, -43, 1, 9, 3, -13, -17, 5, 16, -29, -11, 23, -41, -36, -8, 49, -3, -30, -16, 9, 65, 6, -20, 22, 3, 6, -3, -3, 20, -42, 3, 12, 40, -44, 2, 2, -14, 11, -24, -8, -5, 40, 40, -3, 23, -14, 55, 1, -27, -46, 10, 28, 25, 38, -22, -1, -7, 34, 4, 10, -9, 21, -28, -1, -44, -3, -13, -20, 27, 1, 1, -28, -25, 19, 50, 13, 37, -49, -12, -25, 53, 0, 28, 9, -35, 14, -20, -14, 8, 62, 13, 33, 60, 44, -6, -38, -30, -13, 12, 17, 0, -1, -82, 21, 64, -38, -15, -29, -65, -23, 6, 9, 15, 19, -54, 10, 28, 4, 35, 1, 36, -80, 26, -1, -11, 32, 7, -7, 12, -31, -5, -1, -3, 23, 3, -24, -37, -33, -42, 6, -28, 25, 31, -17, -19, -16, -14, 66, -16, 26, -36, -51, 0, 50, -4, 10, 46, -27, 49, 32, 5, 12, -17, 12, -32, -43, 16, -5, -16, 65, 3, -25, 44, 35, -7, -43, 35, 31, -5, 2, 33, 25, -32, 4, -8, -33, -14, 34, 5, 30, 15, -15, -15, -55, 0, -31, -4, -35, -10, 18, 7, -5, -32, 10, 61, -16, -15, -45, 46, 41, -25, 22, 39, 30, -24, 34, 21, -29, 21, -38, -14, 1, -82, 23, -7, 18, -15, 15, -43, -2, 4, 11, -11, 25, 42, 11, -5, -21, 21, -26, 91, 0, 46, -4, 54, 41, 52, -7, -22, -10, 14, 40, -6, -12, -75, -56, -4, -8, 14, -13, 7, -46, 19, 21, 4, 31, -24, 16, 72, -66, 0, 4, -39, 14, -24, 4, -17, 12, -24, 32, 3, 14, -18, 0, 17, 7, -36, 39, -10, -11, 21, 5, 40, -13, 9, -26, -16, -26, -22, -54, -26, -15, -8, 42, -22, 32, 30, 18, -6, 16, 5, 34, 17, -17, 2, -10, -27, 6, 5, 9, -8, 58, 72, 18, -42, -16, 20, -40, 39, -54, -14, 18, 24, 46, -2, -25, 41, -43, 55, -17, -2, -23, 0, -5, -14, 36, -35, -14, 23, -11, 13, -20, -34, 7, 22, 14, -1, 28, 41, 2, 39, 22, 31, -33, -21, -56, 8, -27, -31, 32, -21, 0, 31, 20, -44, -29, -5, 27, 5, -13, 29, -44, -8, 11, 4, 4, 12, 30, -40, 3, -31, 54, 17, -23, 10, 9, 9, -28, -31, -18, -46, -8, 46, 27, 0, 38, -36, -13, 16, -16, -5, 4, 32, -3, 8, -3, 12, 24, 23, 31, 11, 64, -30, -7, 19, 5, -3, 2, -41, -55, -9, 13, -12, 45, -1, -2, -2, -16, 24, -44, -54, -9, -13, -33, 19, -55, -22, -10, -10, -53, -39, 22, -20, -1, -21, -19, -17, 35, -59, 17, -1, -14, 23, -48, -40, -2, -17, 5, 22, -22, -54, -8, -25, 40, -14, 11, 61, -3, -36, -5, 52, 26, 1, -29, -11, -21, 47, -9, -6, -10, 19, -62, 46, -43, -1, -16, 14, -4, 12, 5, -15, -50, 49, -55, 17, -32, -16, 6, 12, -30, -11, -17, -32, 43, 4, 26, -28, -15, -6, -11, -22, 13, 1, -7, 29, -23, -1, -4, 0, 6, 9, 43, -18, 37, -29, 3 ]
Per Curiam. Defendant, Ernest G. Pullen, Jr., was driving his automobile in Van Burén County when, on May 20, 1967, he struck and killed Catherine Morrice. Defendant was charged with two counts of manslaughter: Count I for negligently driving a car while under the influence of intoxicating liquor; Count II for operating a motor vehicle recklessly at a high rate of speed, to-wit, 70 or 80 miles per hour in a 25-mile-per-hour zone. Defendant filed a motion requiring the prosecution to elect between Counts I and II of the information or alternatively to quash the information. As a result of that motion the information was amended to read as follows: “Heretofore, to-wit: on or about the 20th day of May, 1967, at the city of Hartford, in the county of Yan Burén, Ernest G. Pullen, Jr., late of the city of Hartford in said county, did then and there unlawfully and negligently drive a certain motor vehicle, to-wit: a 1966 Chevrolet Sport Coupe, Michigan license SP9121, upon a public highway of this state, at East Main and Wendell Street, in the city of Hartford, Yan Burén County, Michigan, while under the influence of intoxicating liquor, and/or while driving said motor vehicle recklessly at a high rate of speed, to-wit: 70 to 80 miles an hour in a 25 mile an hour zone, and while so unlawfully and negligently operating his motor vehicle as aforesaid, did negligently and unlawfully drive said vehicle upon and over one Catherine Morrice, who was then and there lawfully in said highway, and did inflict grievous wounds upon the body of the said Catherine Morrice, as a result of which said Catherine Morrice did then and there die, and wherefore the said Ernest G. Pullen, Jr., did unlawfully kill and slay the said Catherine Morrice, and did then and there commit manslaughter.” At a trial before jury in Van Burén county circuit court, defendant was found guilty. From this verdict, defendant appeals. At trial there was testimony to the effect that Catherine Morrice died as a result of being struck by a motor vehicle. It was further established that the defendant was the driver of the motor vehicle which struck the deceased. There was testimony that the defendant had been drinking prior to the accident. An expert witness testified that analysis and tests of defendant raised the presumption that he was under the influence of intoxicating liquor at the time of the accident. There was testimony at trial by the defendant that he had consumed a minimum of four to five beers the afternoon of the accident. There was testimony by an eyewitness who estimated the speed of defendant’s automobile at over 50 miles per hour. During the trial a medical pathologist was called as an expert witness and questioned regarding injuries sustained by the deceased. In the course of this examination the prosecution asked Dr. Glaser whether the injuries could have been caused by an automobile traveling at the speed of 25 miles per hour. Defense counsel objected to this question, and the objection was sustained by the court.. Before the medical pathologist was excused from the stand, the following exchange took place: “The Court: I have one question that I would like to ask you, Dr. Glaser. There has teen testimony in this case estimating the speed of this vehicle at fifty miles per hour. “The Witness: Yes, sir. “The Court: Now, based upon that and upon your examination of the body and your experience would you have an opinion amounting to a medical certainty that this body being struck by a motor vehicle at that rate of speed could or would sustain these injuries that you discoveredf “The Witness: It would be an estimate, your Honor. “The Court: Well, do you have an opinion as to whether it could or not? “The Witness: Yes, sir, I do, I think this is slow. “The Court: All right. “The Witness: I think the speed was in excess of this. “The Court: All right. “The Witness: Based solely upon my observations, yes, sir.” (Emphasis added.) Non-eyewitness expert opinion on the issue of speed of a vehicle in a criminal prosecution is admissible where speed is a material factor to the case being tried and where the expert is competent, has conducted scientifically-recognized tests based on the facts presented, and does not invade the province of the jury, by testifying as to the cause of the accident or liability therefor, and the jury, because of its inexpertise, would require such testimony so as to effectively interpret complicated facts in issue. People v. Zimmerman (1968), 12 Mich App 241; see, also, 2 Wharton’s Criminal Evidence (12th ed), § 553, p 416; 31 Am Jur 2d, Expert and Opinion Evidence, §§ 16, 157 pp 511, 719; 29 ALR3d 258; 8 Am Jur 2d Automobiles and Highway Traffic, §§ 981, 984, 992, pp 531, 536, 547. The determination of whether a witness has the qualifications of an expert is a question for the trial court. We will intervene only where such determination evidences a clear abuse of discretion. People v. Hawthorne (1940), 293 Mich 15; Accetola v. Hood (1967), 7 Mich App 83; Brummitt v. Chaney (1969), 18 Mich App 59. In the present case the trial judge refused to allow the prosecution to establish the speed of defendant’s automobile solely from conclusion of the pathologist based upon postmortem examination. However, upon questioning by the trial judge, Dr. Glaser was asked, after having been informed that testimony had been received estimating the speed of defendant’s automobile at over 50 miles per hour, whether a person struck at that speed would sustain the injuries suffered by the deceased pedestrian. The doctor testified that the approximated speed was, in his opinion, too slow. Dr. Glaser’s testimony was corroborative of the prior testimony. Assuming, arguendo, that the admission of the doctor’s testimony was erroneous, that erroneous admission would not require reversal, as that evidence was cumulative to evidence properly received by the court. Ford v. Maney’s Estate (1930), 251 Mich 461; People v. Kregger (1953), 335 Mich 457; People v. Wolke (1968), 10 Mich App 582. Affirmed. MOLA § 750.321 (Stat Ann 1954 Rev § 28.553).	[ -8, 51, 20, -30, -24, -44, 14, 1, -3, -3, -32, -38, -5, -38, 23, -12, 53, 0, -14, -4, -20, -48, -28, -11, -3, -39, 35, 1, -26, 7, -26, -9, 12, -50, 20, -28, 28, 18, -15, 41, -46, -9, 5, 3, 8, -5, 26, -53, 20, -3, -29, 16, -13, -18, 0, -5, 19, 29, -10, 64, 20, -7, -11, -14, -54, 30, -3, 59, -22, 20, 15, -15, -47, 39, 0, 3, 34, 17, 9, -10, -37, 27, 44, 73, -10, -48, -65, -33, -36, -42, 11, -23, -12, -34, 13, -4, -35, -55, 36, -43, -25, 8, 36, 22, 1, -26, -18, -19, 23, -36, 36, 33, 45, 23, -12, -27, -4, -10, -10, 0, -11, -40, 38, 26, 2, -59, -5, -11, 22, -12, 43, 27, 25, -55, 27, -31, -40, -35, -31, -10, -29, 8, 26, 24, 17, 28, 23, 21, 16, 23, -40, 31, -2, -19, 27, -12, 39, -32, -21, 29, -24, -11, 53, 3, -53, -14, -67, 7, -36, -16, -2, -12, 44, -8, 79, 16, -6, 7, -28, 69, 1, 30, -4, 19, -39, -30, 1, 24, -23, -15, -16, -4, 6, -56, -2, 65, 10, 15, -2, 52, 22, -10, 26, -39, -20, -8, -42, 3, -8, 12, 38, -46, 0, 19, -23, -9, 1, -53, 2, 4, -28, 28, 30, -18, 15, -24, -37, -6, -34, 0, 64, 0, 24, 9, -43, -38, 15, -8, 15, 17, -4, 5, 32, 2, 39, 44, -12, -66, -27, 32, 11, -38, -1, -12, -28, -6, 68, -1, 32, 29, 19, 13, 23, 65, -43, 36, -9, 6, -36, -33, -15, -55, -3, 5, -50, -4, 12, 51, 8, -14, 29, -18, -25, -36, 9, 26, -44, 42, -25, 10, 26, -26, -34, 4, -16, 24, 51, -35, -34, -2, 23, 9, 21, 40, 3, -8, -14, 3, 8, -9, -20, -18, 0, 21, 22, -1, 26, -10, 57, -1, -42, 16, -18, -4, -24, 33, 21, -6, -35, 35, -4, 26, -14, 12, -10, -78, -24, 23, -10, -9, 10, -45, -42, 46, -30, 4, 31, 46, -60, -39, -35, -13, 79, -8, -54, -24, 25, -25, 44, -20, 0, -13, -21, 69, 1, -8, 8, -31, -15, 52, 6, -11, -16, 9, -22, -4, 47, -10, 9, 59, 19, -14, -23, -32, -7, 57, -34, -32, -22, 17, -18, -8, -20, -37, -1, -33, 11, -7, 15, -33, 7, 31, 27, -23, -25, 30, -61, 30, 41, -18, -34, -55, 73, 18, 44, -2, 5, -3, -14, -56, 5, 42, 27, -34, 19, -11, -19, 21, 21, 25, 52, 22, 56, 0, -7, 1, -30, 0, 92, -18, -14, -39, 16, 9, 9, 12, -2, 30, 36, 1, 62, -4, 23, -9, -38, 42, 49, 35, -31, 16, -13, -9, -27, -46, 16, 33, -33, 5, 31, -67, -3, -8, -18, 8, 8, -25, 13, 4, 12, -3, 13, 0, 26, -43, -20, -22, -38, -26, -2, -6, 25, -15, -32, 0, -30, -5, -7, 41, -18, -37, -24, -24, -27, 32, -5, -40, -45, -11, 17, 33, 11, -8, -15, -5, -5, -15, 14, -20, 36, 29, -1, 24, -4, 15, -13, -19, 46, -10, -35, -57, 39, -15, 12, -10, 48, -6, -43, -28, -51, -36, 58, 19, 13, 17, -29, -29, -37, 11, 10, 14, -6, 12, -46, -63, -7, -16, 44, -12, -29, -6, -10, 3, 4, 27, 14, -28, -7, -39, 59, -53, -6, 20, -13, -13, -20, 49, 19, 3, -33, -3, 15, 43, -25, 62, -24, 1, 23, 35, -3, -29, -28, 56, 10, 15, 68, -6, -12, -8, -34, -48, -12, 30, 15, 83, 69, 0, -11, -6, -12, -39, 37, 21, 1, 47, 0, 0, -24, -55, -24, 13, 24, -3, -10, 39, 24, 2, 24, 15, -13, 39, -43, 14, -34, 15, -31, 30, 32, 35, -22, -65, -11, 15, 10, -16, 11, 11, -9, 34, 11, -20, -55, -19, -13, 0, -24, -22, 17, -17, -26, 3, 25, 27, -50, -14, -18, -2, -71, -24, -15, 3, 34, -8, -7, -32, -2, 24, -8, 37, 41, 10, -21, -50, 11, -18, -21, -1, -18, 21, 37, 4, -30, 46, -35, 22, -43, -2, 9, 16, -25, 9, 37, 36, -16, 31, -42, 9, 52, -61, -60, 10, -60, -13, -8, -4, -14, 8, 25, -17, -30, -6, -29, 4, -7, -58, 0, 37, -27, -16, -13, 0, 56, -12, 14, -3, 55, -25, 8, -1, -43, -13, -20, -20, 0, -1, -15, -40, -28, 32, 3, 18, 5, 93, 67, -21, -37, 10, 88, 9, -36, -34, 19, 0, 0, 29, -35, -7, -51, 32, 34, 38, -44, 0, 27, -38, -61, 11, -62, -13, -18, -13, -9, -1, 20, -20, 44, -3, -50, -8, 14, -3, 29, -3, 12, 48, -24, -8, 21, 31, 21, -4, 2, 61, 13, 36, 19, -26, 45, 35, -3, 28, 46, 45, -12, -29, 3, 15, 12, -42, -35, 4, 51, -21, -12, -2, 26, -14, 19, -13, -3, 7, 42, 12, -14, 4, -25, 10, 34, 6, -8, 5, -10, 65, 0, 18, -31, 22, 62, 45, 6, 38, -8, -38, -19, -11, -1, 21, -23, -2, -18, 44, -9, -53, -45, -32, -25, 33, 18, 27, -28, 17, -54, 4, 26, 82, -15, 15, 13, -15, -9, 17, 30, -62, 34, 15, -1, 21, 8, -19, 0, -14, 29, 0, 0, -23, -61, -7, -7, 29, 4, -47, -9, 4, -39, 6, -13, -48, 10, 10, 13, -13, -9, 3, -3, 40, -19, 1, -43, -6, 12, -47, 27, 9, 5, 24, 14, -2, -8, -28, -44, 0, -23, -35, 25, -37, 6, 25, 14, -23, 19, -28, 12, 24, -53, 40, 35, 5, 34, -30, -17, 21, 12, -17, -11, 38, 40, 21, -26, 5, -19, 57, -4, 3, 40, -4, 42, 19, -1, 8, 36, 72, 5, 8, -13, 20, 68, -52, 45, 53, 8, -27, -13, -21, -8, 39, 32, -17, -29, -14, -62, 33, -36, -51, -4, 29, -30, 20, 8, 5, -7, -21, -23, -40, 1, 53, 17, -42, -5, 14, -6, 23, -50, -12, -46, -33, 6, 36, -24, 4, -17, -10, -47, 43, -45, 27 ]
Y. J. Brennan, J. This is an action to enjoin the State of Michigan and its agents from interfering with a guardian’s general access to the medical records of her mentally incompetent ward. The trial court entered the injunction sought by the guardian, subject to the outcome of this appeal by the state, and we affirm. The records in question involve the treatment of the ward as an in-patient of the Lapeer and Fort Custer State Home and Training Schools between 1959 and 1968, and are presently in the possession of the latter home. In April, 1968, the guardian’s attorney requested copies of the records, submitting with the request a consent and waiver of the physician-patient privilege, signed by the guardian. The officials at the Fort Custer State Home forwarded the request to the Department of Mental Health, which in turn forwarded it to the Attorney General. The Attorney General, through his assistant, advised the Department of Mental Health to deny the request. The request was denied. The state’s principal contention, both below and on appeal, is that the physician-patient privilege created by MCLA § 600.2157 (Stat Ann 1962 Rev § 27A.2157) bars a guardian’s general access to the hospital records of his mentally incompetent ward. This contention is without merit. Clearly, the purpose of the statutory privilege is to protect the confidential relationship between a physician and his patient. However, the privilege belongs not to the physician but to the patient, Harvey v. Silber (1942), 300 Mich 510, 517, and may be waived by the patient. Storrs v. Scougale (1882), 48 Mich 387, 395. Thus the only question is whether the privilege may be waived by the patient’s guardian. It has been held that those who represent a patient’s interest after death may waive the statutory privilege. Harvey v. Silber, supra, at 518; Fraser v. Jennison (1879), 42 Mich 206. See Bassil v. Ford Motor Co. (1936), 278 Mich 173; In re Oldenberg’s Estate (1913), 177 Mich 150. Moreover, the guardian of a mental incompetent enjoys a relationship with respect to the affairs of his ward similar to that of the administrator and his decedent’s estate. Under the probate code, MCLA §704.2 (Stat Ann 1962 Eev § 27.3178[252]), the guardian of a incompetent is included within the term “fiduciary”. The statute provides: “Every fiduciary shall stand in a position of confidence and trust with respect to his cestuis que trustent, heirs, devisees, legatees, beneficiaries or wards, as the case may be, and except in response to any legal process or in cases expressly required by law or in the necessary or proper administration of the estate, no facts or knowledge pertaining to their property in his hands or to their affairs shall be disclosed by the fiduciary in any manner except with the consent of the cestui, heir, devisee, legatee, beneficiary or ward: Provided, however, That such consent may be given by the fiduciary of a minor or incompetent, in behalf of such minor or incompetent: And provided further, however. That such restriction shall not apply in any suit or proceeding in which the fiduciary and the cestui, heir, devisee, legatee, beneficiary or ward, as the case may be, are parties adverse to each other.” (Emphasis added.) In OAG 1941-1942, No 21030, pp 327, 328 (September 3, 1941), the Attorney General advised officials of the Traverse City State Hospital that this section of the code authorizes a guardian’s waiver of the physician-patient privilege: “In our opinion, the foregoing section of the statute gives the guardian authority to waive the privilege created by the general statute. This is a wise rule for there are often instances in which it is necessary for disclosures to be made in order to enforce certain rights to benefits due to the ward’s estate. The incompetent being incapable of making such disclosures, it seems just that his guardian should be permitted to act for him. “Accordingly, it is our opinion that you are within your rights in granting requests for full transcripts of the records of insane patients in yonr hospital if such requests are accompanied hy the written permission of the guardians of the patients involved.” (Emphasis added.) We concur with this analysis. The physician-patient privilege does not bar a guardian’s general access to the hospital records of his mentally incompetent ward once the guardian has executed a valid consent and waiver of the privilege. A secondary contention of the state involves the service of process in starting this action. The summons and complaint named only the State of Michigan as a party defendant and were served on both the Attorney General, personally and his assistant as agents of the state. Neither the director of the Department of Mental Health nor the superintendent of the Fort Custer State Home and Training School was named as a party, although the Attorney General filed an appearance in behalf of both. The state contends that under GCR 1963, 205.1 both the director and the superintendent are necessary parties to this action, that under GCR 1963, 201.3(5) both must be named as parties defendant by either their official or their own name, and that service upon the Attorney General alone was therefore insufficient. We do not agree in the first instance that the director and superintendent are necessary parties. Under GCR 1963, 205.1, a necessary party is one whose “presence in the action is essential to permit the court to render complete relief.” Although only the state was named as a party here, the director and the superintendent are but agents of the state and therefore are bound in their official capacity by any determination that might be made. Complete relief may be had without their presence. And, we add in passing, we are unable to say that the Attorney General, either personally or by his assistant, was not the person upon whom service against the state was to he made. See Edward Thompson Co. v. Maynard (1934), 269 Mich 97. The Attorney General’s reliance on GCR 1963, 201.3 is misplaced. The rule allows suit against the state or one of its units either in its own name or in the name of the officer authorized to he sued in its behalf unless the suit is brought to compel the performance by the officer of an official duty, in which case the officer must he named, at least by his official title. The instant suit was brought not to compel the performance of an official duty, hut to enjoin the state and necessarily its agents from interfering with the plaintiff’s right of access. It was not necessary to name the director or the superintendent as parties. The order enjoining the state and its agents from interfering with plaintiff’s right of access is affirmed. All concurred.	[ 22, 1, -19, 61, 11, 21, 24, 49, -48, -4, -25, -20, 78, 3, -4, 4, 12, 23, -47, -17, 45, 30, -48, 11, 10, -12, 34, 36, -53, 10, -1, -3, 0, -7, -22, -4, 64, -29, 53, 47, 19, 1, 33, -10, -40, -39, 7, 28, 0, -43, -3, 14, -10, 10, 3, 27, 28, -30, 19, -29, -84, -19, 61, -33, 45, 62, 6, -14, -36, -16, 0, 33, -43, -30, -6, 20, 51, 14, 87, 19, 80, 6, 17, 6, 44, -5, -6, 45, -28, -29, 16, -48, -40, 4, -7, 28, -17, -11, 76, -26, -31, 57, 43, -2, 26, -1, -2, 11, 34, -33, -47, -38, -55, -28, 6, -12, -15, 53, -29, 43, 12, -58, 31, -24, 36, -24, 23, -33, 52, 0, -39, 22, -14, 11, -42, 42, 25, -51, 61, -31, -37, -15, 50, 14, 3, -41, 15, -73, -13, -36, 13, 36, 5, 0, 11, 0, -7, 21, 15, 51, -25, 11, 46, 12, 27, -32, -1, 35, 32, 2, 7, 72, -28, -23, -48, -23, 7, 55, -29, -5, -35, 19, 52, -21, -14, -28, 8, -47, 3, -32, -32, 3, 33, 10, 19, 55, -26, 22, -9, -25, -7, 33, -9, 52, 59, 0, -25, -68, -10, -26, 5, 33, -33, -27, 31, -35, 29, 15, -66, 15, -18, -5, 48, 32, -9, 18, 14, -41, -17, -71, 33, 65, -12, 58, 1, 12, -5, -4, 64, -8, -38, 26, -4, -5, -6, 10, 6, -20, -14, -33, 31, -9, 1, -45, -81, 6, -10, 28, 18, -35, -33, 25, -48, 65, 13, -6, 28, 25, 52, -43, -63, -1, 29, -9, -39, -19, 26, -16, 27, -43, 6, -29, 6, 3, -17, 19, -33, -25, -10, -9, 25, -56, -41, -9, 19, 14, 25, -65, -52, 24, 0, 28, -9, 40, -33, -52, 16, 24, 42, -9, 35, 44, -26, 18, -42, -5, -18, -65, -9, 4, 32, 20, -59, 35, -36, -6, 16, -44, -1, 2, 26, 35, -7, -7, -14, 10, -34, -51, 2, 8, 32, 2, 7, -3, -35, -27, -28, 10, -32, -11, -13, 35, 2, 20, 20, 17, -13, -55, -27, -12, -22, -14, -32, 46, -25, 9, -8, -35, 57, 49, 24, -19, 3, 5, -31, 6, 29, -30, -7, 25, -24, 10, 15, 8, -22, 41, -83, 70, 50, 43, -11, -11, 3, 31, -9, -9, -10, 44, -4, -30, 44, 32, -31, 74, 61, -25, 12, 4, 48, 56, -37, 53, -11, 31, 16, -4, 58, -20, 13, -33, -1, -5, -56, -21, -4, 7, -21, 39, -27, 28, -16, -56, 11, 7, 41, -55, -5, 5, 12, -15, 4, -40, 0, 15, 23, 38, 17, 21, 29, -35, -10, 76, -26, -1, -47, -9, 20, 12, -80, -33, -33, -50, -4, 5, -5, 41, -14, -20, 30, 7, -36, -4, -27, 26, 7, -11, -10, 25, -25, 20, -41, 23, -13, -30, -12, 11, -38, -7, -3, -44, -24, -49, -64, 66, 54, 4, -20, 5, -26, -7, 52, 17, -18, 72, 45, -70, 14, -22, -34, -26, -27, -25, -11, 49, -20, 20, 59, -79, 28, -16, 28, 37, 18, -22, -13, -25, -19, 6, -1, 5, 21, 37, 58, 21, -34, -36, 4, 74, -27, -26, 16, 3, -6, 23, 34, -30, 7, 27, -3, -20, -48, -16, -25, 26, 6, -25, 12, 36, 25, -2, -47, -45, 34, 0, -32, 3, -40, 26, 31, -26, 46, -32, -22, 13, 21, 38, 48, 15, -18, -29, -19, 23, 70, 11, -47, -31, -6, -51, 13, -23, 20, -43, 4, -5, 9, 9, -11, -34, 2, 40, 24, -15, 14, 10, -21, 53, 26, -18, 39, -67, -14, 0, -39, -60, -77, 28, -18, -26, -13, 56, -40, 2, 12, -17, 42, -33, 12, -3, -14, -7, 2, 3, 24, -34, 37, 9, -28, -24, 16, -14, -6, 31, -23, -1, 60, 32, 107, -36, 4, -2, -54, 88, -75, 22, -22, -21, 21, -18, 60, 30, -3, -31, -51, 26, 15, 65, -4, -19, -4, 20, 33, 48, -21, -9, 29, -37, 21, -4, 55, -34, -83, 12, 44, 28, 43, 0, -29, 10, -11, 5, -6, 5, 26, -11, 14, -63, -57, 51, 25, 10, -43, 13, -33, 37, -58, -7, -33, -39, -44, -38, -9, -4, -16, 20, 42, 8, -18, 7, 16, -9, -32, -23, 6, -10, 26, -21, -6, -21, -23, -55, -17, -59, -3, 27, -15, 31, 11, 33, 2, 0, 28, 49, -10, -5, 35, -21, 41, -35, -5, 20, 3, -23, -40, 45, -20, 10, 13, -5, 15, 31, 2, 23, -41, -84, 25, -12, 7, 40, -43, 8, 37, -10, -29, 1, -43, -29, -71, -31, 7, -13, -3, -33, -20, -17, 9, -46, 0, -33, -13, 10, 6, 8, -44, -27, 67, 26, 38, -40, -18, -16, 71, 34, -1, 27, -8, 13, -36, 5, -17, 23, 81, 12, 28, -29, -22, -61, 35, -5, -9, 0, 63, -27, -39, 8, -28, -2, 15, -11, -16, -8, 1, 31, 13, -36, 37, -28, -6, 5, 2, 37, -9, -13, -2, 25, 5, -28, 27, -29, -1, -25, -6, -7, -27, 21, 16, -55, 12, -64, 34, 28, -32, 47, -9, -23, 23, 34, -45, -18, 83, -31, -46, 13, 10, -24, -33, -7, -2, -35, -26, 50, 32, -14, -31, -31, 30, 31, 32, -24, -40, -20, -1, 23, -15, 49, -36, 9, 26, 39, 5, 17, -2, -45, 22, -1, -26, 44, -8, -1, 24, -42, -18, -16, -8, 16, -2, -4, -18, 18, 11, 24, -38, 14, 9, -28, -5, 12, 6, 3, -53, 23, 17, -41, -5, -30, 78, -13, 64, 1, -44, -7, 24, -5, -50, 15, 8, 23, 26, -25, -1, 18, -27, -57, 8, -34, -56, 75, 2, -30, 15, 16, -49, -22, -39, 31, -5, -43, 23, -24, 29, 43, 13, 14, -70, 34, -10, -1, -38, -3, 5, 62, -52, -33, -17, -11, 16, 22, -22, 19, -4, -39, 18, 31, -90, -7, 40, 41, -9, 2, 81, 36, 1, -20, -26, 35, -21, -14, 18, -44, -5, -5, 74, -31, 74, -43, -21, -56, 1, 22, -58, -10, -10, -14, -3, 35 ]
Per Curiam. The defendant appeals his conviction by a judge sitting without a jury of entering or breaking into an automobile for the purpose of stealing property worth at least $5. MCLA § 750-.356a (Stat Ann 1954 Rev § 28.588[1]). The trial judge’s questioning of the defendant and another witness in this nonjury case did not exceed permissible bounds under the standard enunciated in People v. Wilder (1970), 383 Mich 122. A police officer testified that he saw the defendant enter and leave an automobile, and that when he apprehended the defendant shortly thereafter, he had with him a raincoat. Another witness testified that it was his automobile and his raincoat, the latter having been purchased a short time before for more than $5. The officer also testified that the value of the raincoat exceeded $5. The people’s evidence of value was not doubtful as in People v. Hanenberg (1936), 274 Mich 698, where there was a close question concerning the value of property over two years old at the time of the alleged crime. There was sufficient evidence of value even though the defendant said he had purchased the raincoat for less than $5. While the trial judge, in finding the defendant guilty, did say, “I could be wrong,” he also said that he found that the people had established their case “beyond a reasonable doubt”. The judge’s recognition that even though he was convinced beyond a reasonable doubt he could be mistaken is an acknowledgment of the obvious. Absolute certainty is not required, only that the trier of fact be convinced beyond a reasonable doubt. And the record affirmatively shows that the judge applied the reasonable doubt standard. Affirmed.	[ 14, 39, 2, -29, -30, -7, 31, 3, -21, 55, 66, -32, 12, -22, 1, -35, 22, 39, 76, -46, -21, -27, -50, 21, -21, -36, 31, 30, -52, 95, 17, 11, 19, -38, -13, 24, 8, 1, 0, 30, -6, -19, 21, -10, -36, -38, -43, -21, 15, -30, 21, -23, 22, -16, 37, 52, 39, 36, -17, -4, 32, 13, 5, -40, 9, 27, -33, 5, -37, 17, 17, -6, 4, -23, 11, -16, 30, 46, -22, 32, 7, -17, 29, 39, 46, -23, 32, -41, 10, -44, -30, 32, -4, -31, -20, -33, 48, -35, 53, -14, -69, -35, 15, 47, 6, 49, -64, -25, -44, -42, -7, 17, 39, -8, 0, 5, -23, -3, 24, -23, 17, -9, 33, 29, 20, -58, 28, -13, -24, -8, -4, 28, -11, 9, -3, -25, -13, -9, -25, 16, 32, 29, 6, 5, -3, 8, 25, 10, -15, 35, -33, 31, -9, -8, 8, -21, -58, -66, 7, -25, -31, 29, -42, -8, 26, -20, 11, 7, -10, -52, 10, -10, 44, 11, 58, 7, -20, -3, 9, -21, -25, 27, -5, 27, -17, -18, -33, 18, -13, -11, 9, 38, -27, -7, 23, 15, 11, 10, 39, -59, -25, 0, -3, 1, 11, 31, 20, -61, 13, 18, -21, 48, 42, -58, 10, -17, 3, -30, -27, -12, -8, -20, -16, 12, -10, -40, -10, 33, -2, 19, 10, 3, -4, -22, 25, 16, -11, -28, 7, -5, -17, -18, 19, -11, -5, -17, 10, -15, 30, 43, -18, -8, 5, 41, -40, -21, 29, -18, -4, 38, -28, 54, -21, 31, -53, -11, 18, 25, -48, 18, 3, 27, -31, 20, 12, -33, -56, 1, 0, -13, 0, -19, -5, 4, 22, 23, -21, 9, 58, -21, 50, 5, -41, -23, 11, 21, 24, 15, -39, 23, 9, 2, -12, 12, -2, -25, 22, 5, -65, 40, 5, 21, 0, 78, 32, 25, -31, -20, 13, -16, -50, -18, -28, 1, 9, -18, 47, -53, 0, -29, -13, 16, -16, 12, 32, -21, -1, -13, 4, 25, 13, -1, -4, -47, 36, 25, -30, 29, -62, -16, 24, -4, 9, 5, 0, -47, 5, 11, 18, -11, 47, 19, 5, 9, 18, 31, -31, -42, -16, 11, 36, -71, -28, -6, -6, -37, 35, -12, -39, 14, -18, -47, 4, -26, -16, -8, -22, -58, -41, 7, -54, 3, -4, -1, -8, 36, -9, -24, 34, -32, -61, 26, 20, -3, -28, -28, 10, 28, -21, -8, -27, 27, 50, 34, 7, 1, 58, 16, 21, -50, 0, -5, 22, 0, 24, -30, -43, 18, -22, -15, 49, -10, 0, -30, -1, -6, 11, -42, 12, -9, -13, 20, -25, 23, 42, 13, 7, 2, -9, 13, 23, -46, 36, -37, -2, 49, 48, -32, 25, 7, 18, -15, -6, -21, 36, -35, -48, -32, 70, -21, 56, 22, -7, 9, -26, 11, -3, -14, -14, 12, -10, 17, 22, -30, -15, -28, -37, -27, 46, 44, -26, 8, 23, -7, 28, 2, -14, 2, -7, -7, -30, 13, 8, -8, 9, -26, 4, -33, 37, -6, 24, 36, -30, 23, -47, -29, 4, -3, 37, 61, 12, -60, 1, -1, 4, 16, -23, -17, -40, -20, 17, 18, 1, -46, 62, 23, 15, -29, -15, 1, -21, 32, -24, -15, -7, -14, 36, -52, -6, 13, -3, 20, -12, -6, 17, -37, 13, -5, 15, 7, -9, 33, 49, 19, -5, -3, -2, 11, 55, -10, -9, 4, -12, -18, -25, -1, 13, 4, -12, 45, 23, 56, -2, -8, 6, 35, 10, 28, 3, -16, -34, 17, 23, -15, -39, -27, -31, -41, 23, 13, 14, 17, -30, -7, 70, -33, -17, -8, -39, -5, 67, 19, -11, -29, -8, 11, -44, -14, 34, 6, 19, -26, 10, -21, -5, -36, -17, 30, -39, -65, -36, -66, -6, 22, 2, 27, 33, 12, -78, -13, -17, 2, 10, -40, 0, 8, -20, 8, 10, -63, 25, -10, -6, -41, 43, 10, -14, -14, 8, -23, 39, 25, -67, -13, -26, 46, -38, -7, -13, 12, -3, -52, 0, 15, 18, 52, -14, 21, -9, 16, 5, -66, -2, 1, -4, 24, -49, 40, 57, -39, -8, -4, 56, -29, 28, -32, 42, 16, -17, -32, 16, -58, -10, -34, -15, 16, 37, 9, -52, 35, -64, 41, -44, 27, -27, -39, -17, 26, -15, 34, 5, -31, 33, 0, -6, 36, 23, 0, -1, -6, 22, -8, -7, -11, -29, 32, 2, 25, 0, -55, -57, 61, 79, -8, -48, -3, 57, -17, -11, 19, 18, 16, 71, 12, -22, 55, 15, 39, -3, -63, -5, 56, -58, -30, -6, 32, -29, -52, -6, 55, -51, -56, 44, 2, -13, 11, -19, -18, 66, -8, -45, 11, -46, 39, -13, -5, -37, -48, -11, 3, 43, 9, -47, 27, 19, -9, 16, -3, 36, -20, 32, 19, 19, -37, -29, -2, -7, 6, 16, -17, 84, -10, -13, -62, 39, 30, 39, 0, -33, -41, 39, 6, -24, -26, -15, -11, 11, -79, -1, 6, 3, -26, -11, 68, -52, 8, 13, -25, -5, -5, 0, 11, -16, 50, 47, 35, -11, -24, -11, 29, 39, 30, 11, 40, -10, -25, -16, 52, 34, -16, -34, 15, -31, -2, 35, 0, 21, -6, 17, -6, 21, 61, -29, 24, -9, 48, -5, 36, -20, 18, 16, -10, 13, 35, -6, 5, -11, -39, -21, 16, 3, 14, 3, -12, -1, -14, 8, -18, 10, -15, 16, -17, -43, 14, 62, -12, 8, -3, -22, -4, 5, -22, 26, -6, 58, -5, -28, 4, 19, -35, -10, 38, 8, 28, -1, -16, -17, -34, -38, 5, -61, -12, 34, -16, 26, -22, 0, -24, 32, -48, -17, -56, -34, 70, -12, -9, -30, 5, 4, 23, 23, 48, -44, 14, 16, -41, 25, -28, 5, -8, -49, 6, 28, -11, 35, 69, 64, 40, 1, 40, 40, -37, -24, -40, -1, -34, 0, 8, -54, 28, -2, -7, -6, 5, 48, -54, 0, 46, -27, 10, -22, -50, 28, 25, -38, 12, 1, 6, -21, -23, -30, 26, 18, -49, 26, -15, 2, -9, -5, -4, -16, -15, 22, 18, -43, -6, 15, -35, -15, -23, -35, 55, 6, 42 ]
Clark, J. Defendant was convicted of possessing intoxicating liquor. On error he contends that he was arrested unlawfully, that the officer, without warrant, had no reasonable and probable cause to believe that a felony had been or was being committed by him, and that the motion to quash, to suppress, and for discharge,. timely made, ought not to have been overruled. Of the arrest the officer testified: “About a month ago I saw Mr. Stewart upon the streets of Owosso. He came out of the National Hotel and went south on South Washington street and went down as far as number 206, if I am not mistaken. That would be in the second block in front of a little restaurant and soft drink parlor, as they call them. He was standing in the doorway. I arrested the gentleman thinking he had some liquor on him. A man named Walter Nimphie was also standing in this same doorway. I think this was on the 11th day of April, 1925. I was standing just south of the door on Washington street when he came out of the National Hotel. We had been watching him for quite a while. “Q. Were you there that night standing where you were, for the purpose of looking and watching for Mr. Stewart? “A. Not any more so than any one else. “Q. After he came out of the hotel what, if anything, did you do? “A. It looked to me as though there was something that wasn’t just right, which we often form ideas that are not correct. * * * I told Mr. Stewart he could consider himself under arrest. He stood there a minute, then we started to the jail or the city hall. * * * “Q. What was your object of following him on this particular night? “A. Well, sir, I followed him because I thought that he was handling liquor. “Q. You thought he was handling liquor? “A. Yes, sir. He had been under our eyes for quite a while. “Q. What information did you have at that particular time, at the time you started to follow him, which led you to believe that he had liquor? “A. His actions. “Q. Why did you allow him to proceed a distance of a block and a half before you made the arrest? “A. I wanted to satisfy myself in my own mind that he had it. “Q. Did you have a warrant for his arrest? “A. No, sir. “Q. Had any complaint been made to you in writing at that time? “A. No-, sir. “Q. Had any complaint been given to you orally regarding his actions on this particular day and night or this night time? “A. Please state that again. (Question read.) “A. Orally, what do you mean? “The Court: By word of mouth, spoken to you? “A. May I have the question, once more? (Question read.) “A. No, sir. “Q. And you didn’t have any information or complaint, either written or oral, at that particular time? “A. No, sir. “Q. Then this idea that you had about Mr. Stewart dealing with liquor in any way at all, was purely a guess on your part, wasn’t it? “A. A guess. We had had complaints coming in. “Q. I am talking about this particular night. “A. Yes, sir. “Q. What did he do that led you to believe that he had liquor? “A. He came out and walked down the street. I see another party walking down the street ahead of him. “Q. How far was this party ahead of Mr. Stewart? “A. Well, that would be very hard for me to give that distance. “Q. That is, he was on the same side of the street? “A. Yes, sir. “Q. And they both were walking on the sidewalk? “A. Yes, sir. “Q. Would that set of facts justify you at any time, a man following another man down the street or another man preceding him, that there was liquor involved in any way? “A. It looked very suspicious to me. “Q. What were the grounds that you based your suspicion on as to his having liquor? “A. The grounds would be that he was going down that way, and we had him under our supervision. “A. We had been watching this man for quite a while and watching every move that he made. “Q. There are other men that you watch, too, aren’t there? “A. Yes, sir. “Q. Would the fact that he should come out of a place of business at 10:20 at night and follow another man down the street, raise the same presumption that one of them had liquor? “A. Yes, sir. It would to me if they were watching him. “Q. These words you used, I believe, on your direct-examination, I think you used these words — possibly you recall them — ‘it looked to me as though there was something wrong and I followed.’ What I am attempting to get at, officer, what was the particular thing that looked wrong that caused you to follow him? “A. Just his general actions. “Q. Just his actions? “A. Yes, sir, coming out of the hotel. “Q. What did his actions consist of that aroused your suspicion? “A. Because we had watched this man’s step continuously. “Q. Was he intoxicated this evening? “A. Not to my knowledge, he wasn’t. “Q. You were near enough to place him under arrest? “A. Yes, sir. “Q. At the time you placed him under arrest, did you put handcuffs on him? “A. No, sir. “Q. How near were you to him? “A. I was right up so I could touch him. “Q. Did you detect the odor of liquor on his breath? “A. No, sir, I did not. “Q. Were you near enough so you could have done so? “A. Yes, sir. * * * “Q. Officer, why was it that you waited the length of time that you did to arrest Mr. Stewart, if you had grounds to base a suspicion on at the time he left the National Hotel? “A. I wanted to watch him to see what he was doing. “Q. Did you see him do anything up to the time you made the arrest? “A. No, sir.” This testimony does not show reasonable and probable cause to believe that defendant had committed or was committing a felony. It was said in People v. Burt, 51 Mich. 199: “But no one, whether private person or officer, has any right to make an arrest without warrant in the absence of actual belief, based on actual facts creating probable cause of guilt. Suspicion without cause can never be an excuse for such action. The two must both exist, and be reasonably well founded.” That it turned out later that the officer was right in his suspicion has no bearing on the question before us. The “reasonable and probable cause to believe” must be present at the moment of arrest. People v. Kamhout, 227 Mich. 172. The reason and the importance of preserving the rights of persons to be secure against unlawful arrest have been considered and stressed so often by the courts that further discussion would be idle. After arrest, on the way to the jail, defendant took from-his pocket and threw away a bottle of. whisky. The officer succeeded in recovering a part of the liquor and it was received in evidence over objection. It ought not to have been received. It was procured by means of the unlawful arrest. Had the officer-searched defendant after the arrest and taken the whisky and later offered it in evidence the situation,, in principle, would not be different. People v. Margelis, 217 Mich. 428. Reversed and defendant discharged. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ 37, -14, -9, 43, -28, -15, 2, 28, -4, 83, 37, -9, 9, -29, 43, 30, -7, 9, 34, -12, 48, -47, -59, 11, -14, -25, -41, 30, -46, 42, 20, 12, -5, -66, 33, 13, 64, -29, 43, 0, -10, 25, -9, -9, -42, -11, -65, -54, 7, -24, 22, -27, 41, 60, 41, 2, -13, 21, -3, 0, -18, 47, -16, -57, -41, 0, -56, 31, -11, 7, 21, 16, -28, 12, -8, 33, 5, -29, -16, 17, -33, 33, 0, 15, 0, -21, -16, -61, 49, -33, 68, 12, -33, -16, -14, -49, -25, 18, 29, -2, -1, -37, -52, -27, 48, 24, -54, 0, -13, 1, 0, -10, 75, 11, -2, -37, -9, -9, -22, -15, 58, 15, 33, 9, -16, -39, -9, -1, -26, -3, 41, 18, 7, -32, -10, -14, -55, 31, 14, -6, 5, 29, 23, -8, 36, 14, -5, 70, -16, 61, -48, 22, -12, 22, -41, 29, 4, -26, -41, -13, -72, -15, 9, -14, 12, -10, -25, 11, -33, 13, -18, 21, -24, 16, 51, 41, -12, -14, -28, -41, -32, 15, -9, -45, 37, -47, -22, 2, -5, 54, -11, 23, -14, 13, -23, 60, -6, 13, 17, -73, -13, 22, -2, -2, -37, -42, 20, -8, 54, 2, -28, -23, 16, -66, 12, -39, -59, -56, 16, 4, -20, 3, -19, 29, -15, -79, -14, 30, -54, 30, 18, 9, -19, 30, 28, -35, 45, 10, 46, 33, -20, 8, -35, -19, 49, -24, -51, -1, -10, 36, 8, 4, -5, 17, -29, -27, 23, -48, -14, -19, 19, 21, -3, 6, 1, -35, 35, 26, 10, 36, -3, 19, -11, 11, 3, -2, -39, 57, -12, 55, 15, -36, -9, 90, -13, -66, -11, 18, 8, -17, 57, -9, -35, -43, 19, 32, 17, 67, -33, 19, 5, -12, -18, 22, -35, -21, 45, 40, -22, -10, 21, -19, -34, 23, 46, -31, 21, 34, 0, -22, -68, -12, -39, -55, 15, 0, 13, 15, 18, -39, 5, 6, -24, 10, -30, 51, 22, -7, -23, 19, -26, -18, -10, -18, -26, 21, 4, -3, -7, -45, -26, -42, 26, 0, 24, 8, -42, -5, 35, -39, 34, -7, -7, 18, 13, -3, -9, -8, -10, 21, 25, -54, 6, -18, -11, -4, 24, -20, -67, 23, -23, -54, 26, 17, -31, -19, -19, -43, -30, 29, -3, 9, -5, 0, -19, 27, 1, 30, 34, -37, -65, 19, 67, 3, 2, -18, 26, 12, 62, 8, -23, 17, 33, 37, 24, 8, -20, 17, 25, -20, -12, -24, 35, 7, 64, 17, -19, -4, 37, -53, 10, -24, 12, 48, -30, -9, -52, -43, -1, -37, -40, -27, -46, 51, 50, -15, -48, -20, -22, 13, 17, 13, 20, 8, 0, 87, 0, 31, 26, 12, 28, -12, -10, -33, 22, 10, -24, -45, 9, 33, 15, -1, -13, -42, -58, 10, 8, 10, -1, -19, -44, 27, 53, -6, -25, -29, -11, -58, 52, 39, 48, 20, 0, -22, 2, -24, 34, 18, -61, 35, -30, -3, -69, -33, 11, -40, 12, 58, 20, 40, -33, 24, -34, -11, -30, -36, 11, 4, 4, 28, 103, 12, -10, 7, -39, 50, 17, -61, -13, -64, 16, -9, -20, 0, 44, 12, 42, 0, 18, 3, 9, -6, 36, 30, 12, 11, 1, -24, -18, 26, -3, 50, 5, -40, -16, -20, 22, -19, -69, 0, 2, -22, 27, 4, -14, 14, -34, 36, 27, 32, -23, 27, 30, 33, -65, 15, 1, 15, 4, 41, 56, 27, -16, 11, -19, 34, -54, -1, -52, 0, -75, 16, -6, 25, 37, 5, -20, 0, -21, 25, 13, 1, 21, 10, 12, 17, 26, 27, 14, -8, 52, 49, 16, 15, -33, 39, -38, 16, -34, 21, 26, -37, -49, 14, -18, -17, 14, 3, 3, -37, -52, -7, 3, 13, -4, 6, -35, 13, -25, 42, 31, -34, -1, 35, -1, 25, 34, 18, -6, -5, -19, 6, 35, 22, 4, -44, 1, 30, 35, -37, 8, 37, -17, 19, -23, 15, 11, 3, -5, 37, 38, -38, 7, 2, 39, 1, 19, -20, 4, 4, -13, 6, 30, -10, 56, 6, -47, 1, 0, 28, -25, -6, 48, -1, -15, 48, -22, 1, 29, -8, 4, -51, 56, -38, 18, -32, 31, -40, -60, -20, 1, 20, 19, 21, -6, 22, -1, 47, -9, 35, -6, -7, 40, 17, 40, 30, -25, -11, 30, -108, 35, -47, 48, -39, -20, 9, -35, -31, 17, -8, -23, 8, -28, -20, -16, -11, 21, 15, 0, 2, 12, 23, 54, 6, -4, 37, 26, -33, -42, -25, 2, -6, -39, -6, -62, 38, -20, 8, 8, 27, -15, -54, 24, -46, -13, 30, -7, -3, 9, -12, -5, 15, -58, 0, 6, 15, -16, 8, 13, 13, 2, -25, -4, 11, -16, -12, 59, -47, -8, 9, 30, -21, 30, 10, 26, -4, -10, 54, -37, 3, 11, 12, -5, -55, -46, -30, 4, -35, -1, -30, 16, 8, 28, -51, 20, 10, 27, -46, -16, -10, -67, -5, 13, 17, 21, 10, -5, -53, 4, 21, -9, 63, 5, 31, 1, -22, 28, -12, -34, 22, 11, 19, -21, -28, -28, 21, 5, 31, 7, -3, -54, -8, 3, -90, 33, -41, 4, -2, 7, 28, 24, -20, 22, 29, -45, 39, 33, -17, 22, -7, 34, 0, 28, 43, 16, 5, -28, -34, -6, 50, 8, 21, -15, -34, -51, 34, 20, 2, -12, -29, 3, -17, -17, 13, 24, -27, 34, 19, 0, -19, -33, 22, -33, -24, -2, 4, -78, -44, 4, -33, -25, 46, -18, 31, 8, 9, 0, 18, -15, 37, -45, -35, -43, -7, -29, -9, 31, 10, -19, 9, -61, -45, -3, 23, 14, 60, -10, -42, -18, 52, -29, 12, -63, 8, -12, -6, -17, -11, -9, -33, -11, 28, 10, 2, -26, 33, 6, 25, -10, 0, -15, -42, -42, 20, 1, 10, -10, -10, -5, 20, -7, 36, -13, 21, 16, 36, 61, 26, -38, 11, -33, 1, -9, 83, 2, 45, -62, -26, -26, 21, 4, 0, 24, 23, 74, -41, -17, 30, -55, -48, -54, -71, 17, 1, 12, 44, -13, -29, -27, 30, -7, 8, -6, 60 ]
Sharpe, J. Defendant reviews his conviction on exceptions before sentence of a violation of section 14 of Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11958), as amended by Act No. 404, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11958), which provides that: “It shall be unlawful for any investment company or dealer, or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner whatever in this State,, any stocks, bonds or other securities except as expressly exempted herein, unless and until said commission has approved thereof and issued its certificate in accordance with the provisions of this act.” * * * The gist of the information is that defendant,— “who was then and there a dealer * * * did then and there negotiate for the sale to the complainant and divers other persons to the complainant unknown, of stocks of a certain company known and designated as the Augustine Automatic Rotary Engine Company,”— without having complied with the provisions of the statute requiring the obtaining of a certificate of ap proval of such stocks from the securities commission. The Augustine company is a New York corporation, having its office and factory in the city of Buffalo. Defendant is its president. Sale of its stock had not been authorized in this State. Henry A. Goodrich, of Charlotte, had purchased some stock in 1911 in a company organized by Augustine. In the summer of 1921, Goodrich received a letter from Augustine. Accompanied by four residents of Charlotte, he went to Buffalo. They looked the plant over. They did not see Augustine. After their return, Augustine wrote Goodrich, who again went to Buffalo, accompanied by five of the business men of Charlotte. They looked over the factory and the motor. He gave them some booklets descriptive of the engine. He told them that the stock was all disposed of except 1,000 shares, which had been retained for stockholders of the old company, of which Goodrich was one. They brought some literature and blank applications back with them. A number of applications were made and forwarded by Goodrich, and the stock certificates sent direct to the subscribers. On October 26, 1921, Augustine came to Charlotte. He had a model of his engine, which he demonstrated to several persons. In the evening, he addressed a meeting, called, however, without his knowledge, at which he explained his rights under his patent, told about his plant and the orders which had been received. The particular incidents relied on by the prosecution to prove a violation of the law by defendant are thus stated by the prosecution in its brief: “Mr. S. E. Cook of Charlotte on October 26th went into Goodrich’s store to purchase one share of stock. Mr. Augustine was there in the room when he made his application; Goodrich told him that he did not know whether he could let him have the stock or not, that he would check up. Goodrich informed Augustine of Mr. Cook’s desire and told Augustine that the stock was over-subscribed. Augustine said: ‘Well, I will tell you Mr. Goodrich, you can let one hundred shares more go,, but no more until I get to Buffalo and make arrangements.’ Mr. Goodrich took Mr. Cook’s subscription that same day. “Joseph D. Powers of Charlotte saw Mr. Augustine in the front room of Goodrich’s store and afterwards had a talk with him in the back room. He advised Augustine that he desired to purchase some stock, but did not have the money to put into it at that time. He made a proposition to purchase stock on a partial payment plan. Augustine talked over this proposition with Powers and informed him that he might take it up with the board of directors and let him know, which he did. Powers had some correspondence with Mr. Augustine and received a letter stating that his proposition would be accepted. Powers made application on blanks obtained from Goodrich for ten shares of stock and made the first payment of $27. He received a contract and credit for his payment. The contract sent from Buffalo provided for monthly payments of $27 ‘which was the same amount talked over in the back room of Goodrich’s store’ between Powers and Augustine on October 26th.” There was proof, tending to show that Augustine appointed Goodrich an agent of the company to sell its stock and that he was afterwards paid a commission of $4,000, or more, for doing so. One hundred fifty-seven subscribers were listed in the book of sales kept by him. 1. Counsel differ as to the construction which shall be placed on the language of .the statute. The defense insist that to constitute an offense it must be shown that defendant negotiated for the sale of stock in this State, while the prosecution contend that if the negotiation be had in this State it is immaterial that the sale was to be consummated in some other State. The statute prohibits the sale by any person himself, or by others acting for him, the offering for sale, the taking subscriptions for or the negotiating for a sale in any manner whatever. The words “in this State” which follow would seem to apply with equal force to any of the acts which are prohibited. The statute has no application to acts performed without the State. It seeks to protect the citizens of this State in their investments by providing that securities offered for sale to them must first be approved by the commission. If it be charged that an unlawful sale has been made, it must appear that the sale was made in this State. If, however, the charge be that securities not approved by the commission were offered for sale, the fact that the sale was not completed within the State would be immaterial. The unlawful act was the “offering for sale.” If it was committed within the State, it would be immaterial whether it was intended that the sale would be finally consummated in this or some other State. The same reasoning, we think, applies to the act of negotiating for the sale of such securities. Such a negotiation is prohibited by the statute. The offense is committed when the negotiation is had, even though no sale be consummated as a result thereof. The purpose of this provision' is to prevent the citizens of the State from making investments in unapproved securities by inducements held out to them by those interested in the sale thereof. The negotiation must, of course, be conducted in this State. Liability for a violation of the provision may not be evaded by arranging that the subscription secured as a result of the negotiation is to be sent by the subscriber to a place without the State and the sale consummated by the mailing of the stock to him. 2. In his instructions to the jury the court said: “Now, going to the meaning of the word negotiations as contained in this statute. Negotiation is that deliberation which takes place by the parties touching a proposed agreement. • It means to treat with another or others, to arrange for or procure by discussion or bargaining. The term is sometimes used as meaning to discuss or arrange for sale or bargain, or the preliminaries of a business transaction. It means also to converse in arranging the terms of a contemplated contract. Negotiate, as defined by Webster, is to transact business, to treat with another respecting a purchase and sale, to hold intercourse, to bargain or treat, to conduct communications or conferences. It is that which passes between parties or their agents in the course of or incident to the making of a contract; and is also defined as conversation in arranging the terms of a contract. As used in this act, I instruct you that the word negotiate includes every act of the defendant, done directly or indirectly, which has for its ultimate purpose the sale of stock of the company; in other words, such acts as tend to promote the sale of stock.” Error is assigned upon the language used in the last sentence of the quotation. It is insisted that by saying “As used in this act,” after having defined the word “negotiate” generally, the jury were given to understand that it had a different meaning as here used from that which had been theretofore stated. Followed as it was by saying that it includes “such acts as tend to promote the sale of stock,” we are impressed with the force of counsel’s contention. After having deliberated for some time, the jury returned into court, and one of them said to the judge: “In regard to the negotiating for stock. Some of the boys don’t understand the definition of that word, and what constitutes negotiation for stock.” The instruction as above quoted was then read to them. It must be assumed that the legislature used the word “negotiate” in the sense and with the meaning ordinarily understood when applied to the matter under consideration. This the court had correctly stated. The word “promote” is defined by Webster: “To contribute to the growth, enlargement, or prosperity of; to forward; to further; to encourage; to advance.” In order to negotiate with another, there must be a purpose to bring about a purchase or sale, or to arrive at some kind of an understanding, bargain or agreement. At the time of defendant’s visit, there was talk about the establishment of a branch factory at Charlotte to manufacture the motors. In this the people of that city would naturally take much interest. The address delivered by the defendant at the meeting, which was attended by a considerable number of citizens, would have a tendency to interest the people in the company and thereby “tend to promote the sale of stock.” Its delivery, however, was not a negotiation by the defendant with those present for the sale of stock to them. We are impressed that the jury may have so understood. The testimony is in conflict as to what the defendant said to those with whom it is claimed that he negotiated. We feel constrained to hold that the instruction given constitutes reversible error. The conviction is set aside, and a new trial granted. McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ 37, 13, 53, -17, 23, 28, 3, -1, 41, -12, -29, 54, 0, 24, 32, -5, 70, 19, 0, 21, 4, -47, -14, -8, 8, -48, 5, -30, 18, 29, -22, -40, -34, -20, -41, 14, 3, 6, 12, -14, -16, 11, 9, 68, 2, 4, -7, -32, 47, -2, 73, 2, 58, -13, -16, -51, 19, 52, -9, 55, -4, -9, 44, -10, 15, 13, -37, 37, -10, 41, -44, -29, 7, 24, 8, -9, 21, 40, -2, -25, 22, -11, 33, -49, -72, 106, -21, -4, 12, -15, 4, -22, -23, -17, 20, -9, -20, 21, -11, 7, 3, -1, 11, -4, 4, 24, -31, -7, 29, 1, -27, 20, 31, 58, 26, -2, -104, 13, 0, -19, -17, 18, 0, 16, 29, 23, -35, -29, -53, 67, -21, -9, -11, -16, -11, -9, -33, -27, -10, -13, 11, 6, -37, 19, 34, 41, -22, -6, 4, 14, -54, 3, -20, 15, -6, -40, -28, -12, 39, -33, -15, -15, 11, 19, -37, 43, -8, -1, -65, 14, 21, 55, -36, 0, -31, -30, 6, -29, -48, 15, -23, 0, 19, 6, -10, -28, 51, 43, -10, 0, 60, -42, 35, 39, -40, -39, 9, 1, 28, 5, -9, 11, 2, -27, 14, -47, -21, 44, -6, 12, -8, 4, 10, -37, -15, 58, -48, -47, 62, 24, 17, -13, -36, 17, 24, -28, 38, 28, -21, 9, -41, 12, 18, 13, -49, 21, -6, 0, 34, 72, -44, -10, 7, 15, -14, 0, 37, 3, -14, 18, 0, -15, -56, -4, -29, -23, -42, -40, 14, 18, 31, 22, -39, 40, 18, -19, 14, -28, 2, -21, 11, -20, -37, 52, -39, -59, 47, -7, 20, -32, 47, -2, -22, 18, 0, -3, -21, 0, -45, -33, 12, 41, 61, -27, 19, 6, 1, 12, -29, -33, -22, -3, 13, 7, 67, -16, -27, -34, 0, -41, -43, -25, 6, -36, 28, -43, 37, 14, -25, -7, -2, 27, 5, 38, -18, -6, 75, -60, 97, 6, -16, -33, 3, -44, -34, 5, 43, -3, 23, 0, -29, 41, 34, -38, 4, -11, 16, 21, 0, -5, -8, -5, -7, 35, -9, 12, 32, 10, -11, 36, 71, 3, 30, -19, 7, 20, -28, 12, 3, 72, 9, 5, -42, 9, 33, 18, -22, -38, -22, 25, -2, 14, 41, 10, -20, 16, 19, -12, -33, 3, -23, 75, -29, -2, -21, -21, 10, -22, -7, -12, 0, 34, -42, 39, -2, -42, 21, 25, 7, -2, 6, -35, 48, -1, -42, -25, 12, 39, 38, -65, 2, -11, -25, -21, 8, -24, -14, 3, -51, -15, -15, 15, 11, -2, -18, -22, -41, 36, 39, -3, -7, -3, -23, 34, 23, 4, 14, -16, 34, 27, 24, -19, 39, 16, 9, 32, 38, -4, 10, -2, -18, -25, -34, -33, -9, -16, 50, -42, 24, 5, -32, 9, 2, 10, 10, 10, -4, 16, -26, -4, -32, 59, 13, -38, -24, -36, -49, 10, 29, 8, 4, -5, 2, -26, -14, -11, 18, -7, 13, 35, -51, -28, 49, -11, -43, 1, 3, -40, 41, 54, -21, -18, -24, 37, 18, -34, -64, 59, 19, 74, 53, -24, -79, 10, -40, -42, 35, 2, 4, -65, 36, 10, -27, -40, 44, -54, 1, -8, -6, 0, -60, 6, -23, -3, -13, -29, -14, 17, 11, -34, -28, 16, 48, -28, 28, -48, -9, -25, -31, 45, -28, 17, 3, -23, 12, -9, 10, -2, -18, 24, -8, 17, 29, 34, -56, 16, -11, 37, -24, -31, -21, 20, 13, -42, -55, 10, -57, 18, -40, -32, -10, 19, -9, 17, 51, 13, 41, 18, 2, -13, -50, -13, 14, -13, -40, -26, -61, 58, -3, 2, 36, 9, -18, -18, 2, -6, -14, 3, -23, -41, 7, 21, -25, -12, 29, 24, 40, 51, 7, 33, 28, -44, -21, 6, -28, 21, 1, 6, -27, -28, -7, -43, 30, -54, 15, 18, -22, 14, 29, 24, -27, -20, -5, -19, -11, 4, 11, -15, -8, -41, 10, -51, 11, 33, 65, -21, -4, 20, 5, -38, 40, -6, -3, -55, 40, 65, 15, 41, 7, 35, -11, -3, -39, 40, -36, -39, 21, 41, 35, -26, 11, 24, -22, -11, -8, 24, -24, -6, 24, -34, -15, -14, 30, 41, 10, -20, -16, -11, 20, -11, 32, -33, 4, 4, -6, -7, -6, -8, -39, -48, -20, 1, 25, -35, 9, 74, -7, -23, -30, -27, 2, 8, 13, 15, -19, 11, -37, -92, -20, -41, 25, 4, -2, 25, -73, -23, -4, 33, 34, -2, 10, 78, 30, 17, 44, 36, 13, 7, -45, -43, -25, 39, -27, -4, -48, 39, -41, -43, -35, 0, 11, 7, -33, -9, -15, -6, -8, -35, 28, -7, -2, -30, -4, -39, -10, -31, -31, 10, 73, 0, 24, -15, -17, 13, -25, -12, -8, -13, 24, -47, 11, -55, -15, -8, 12, -51, 71, 3, -12, -4, -39, 59, -34, -57, 34, -38, -22, -23, 17, -18, -27, 13, -32, -2, -27, 18, 4, 17, -33, 22, 46, -57, -26, 54, 0, -25, 43, -15, -7, -81, -10, 8, -6, 50, 26, -15, -21, 9, -31, -22, 5, 4, -15, -11, -9, 5, 2, 16, 14, 38, -9, -13, -25, -1, 33, -1, -45, 10, -9, 47, -19, 42, 4, -30, -46, 38, 5, -17, 7, 41, -20, -23, -9, 10, -64, 2, 15, -23, -8, 28, -14, -54, -40, -57, 16, -1, 3, 18, 41, -5, 0, 5, -4, 28, -7, 33, -11, -1, -11, 20, 29, -16, -29, -2, -90, 65, 33, -13, -9, 25, 18, -29, -5, 40, -6, -5, 19, -11, 25, 29, 6, -33, 33, -2, 46, -3, 17, -30, 31, 39, 34, 22, -17, 13, -23, -68, 2, 45, -16, -4, 36, -23, -52, 39, -22, 19, -29, -8, 21, -26, 11, 17, -15, 31, 31, -1, 19, 15, -6, -35, -10, -14, 39, 42, 17, 37, -3, 10, -2, 13, -20, 22, 2, 87, 44, -32, 1, 55, -33, 42, -18, 28, 3, 40, -17, 13, 32, 43, -9, -51, 13, -61, 0, 0, -1, 39, 1, -35, -17, -9, -23, 0, -9, 62, -12, 7, 45, -10, -29, -37, -23, 25, -26, 27 ]
Danhoe, J. Defendant was arrested on March 27, 1969. He was charged with robbery, unarmed, CL 1948, §750.530 (Stat Ann 1954 Rev § 28.798). At his arraignment defendant stood mute and the court entered a plea of not guilty for him. On September 15, 1969 a count of larceny in a building was added, CL 1948, § 750.360 (Stat Ann 1954 Rev § 28.592). Defendant, while represented by counsel, entered a plea of guilty to this lesser crime. On October 14, 1969 defendant moved to withdraw his plea of guilty. This motion was denied, and on October 30, 1969 defendant was sentenced to a term of three to four years in prison. He was given credit for 82 days spent in the county jail prior to his transfer to prison for a parole violation. He was not credited with the 136 days following his transfer to prison but prior to his sentencing in the present case. On appeal defendant argues that he should have been permitted to withdraw his guilty plea and stand his trial because he was not guilty, and the only reason he pled guilty was because he thought he would become eligible for parole earlier by doing so. The record in this case reveals that the defendant, after careful consultation with his attorney, was thoroughly advised of his rights by the court. The defendant signed a statement that he had a copy of the information; that he knew and understood the elements of the offense; that he knew he was entitled to a trial by jury or by the court at which he would he presumed innocent until proven guilty beyond a reasonable doubt; that he had full and adequate opportunity to converse with his lawyer, friends and relatives; that he knew the maximum sentence which could be imposed; and that he pled guilty because he was guilty and that he did so voluntarily, freely, understandingly, and without promise of leniency, and without any undue influence, compulsion, duress, threat or constraint. Defendant’s attorney certified that the defendant’s statement was voluntarily made and that the attorney agreed to it. Only then did the trial court accept defendant’s guilty plea. A motion to withdraw a plea of guilty is directed to the discretion of the court. There was no abuse of discretion in denying defendant’s motion to withdraw his change of plea. People v. Temple (1970), 23 Mich App 651. See also People v. Stewart (1970), 23 Mich App 589. Defendant also argues that he should have received credit for the 136 days following his transfer to prison but prior to his sentencing in the present case. We agree. The opinions in People v. Chattaway (1969), 18 Mich App 538, and People v. Hall (1969), 19 Mich App 95, state that the sentence credit statute, MCLA § 769.11b (Stat Ann 1970 Cum Supp § 28.1083 [2]) is remedial and should be liberally construed to effectuate its purpose. Cf. People v. Pruitt (1970), 23 Mich App 510. Pursuant to G-CB 1963, 820.1(7) it is ordered that the defendant’s sentence he amended specifically to grant him credit for a total of 218 days. Affirmed in part, and reversed in part. All concurred.	[ 36, 12, -3, 19, -40, -19, -26, -38, -39, 76, 23, -9, -29, -58, 2, -23, 17, 14, -31, -12, 17, -30, 39, 10, -15, -11, 11, 35, -1, 16, 36, 5, -14, -22, 21, 21, 19, -37, 17, 43, -37, -7, -24, -21, -24, -5, -39, -5, 34, -19, 34, 8, 19, 23, 4, 27, 25, -7, 24, 34, -9, 32, -80, -15, -27, -21, 1, 0, -54, -17, 15, -39, 29, 10, 28, 42, 7, 45, -2, 26, 30, 20, 17, 9, 45, 16, 31, -57, 18, -54, 28, 65, -17, 1, 10, -30, 7, -4, 17, -22, -39, -45, 5, -42, 43, -4, -10, -20, -17, 15, -29, 1, 36, 18, 30, -65, -19, -31, -10, -18, 14, -20, 60, 63, -2, -7, -11, -43, 53, -7, -7, 54, -20, -54, -6, 7, 26, 27, 23, -11, -27, 6, 48, -42, 26, 29, -72, 20, 7, 0, -24, 15, -42, 7, -25, 23, -53, 18, -53, 2, -6, 14, -19, 23, -16, -11, -25, 9, 13, 0, -13, -17, 32, -19, 22, 1, 4, 39, 20, 38, -6, 5, 8, 1, -9, 9, 63, 29, -36, 3, 0, -3, -46, -67, 87, 10, 0, 56, 23, 10, -29, -50, 55, 13, 0, -33, 25, -5, 42, 23, -55, -50, -5, -17, -39, 31, 16, 4, 19, 4, -29, 10, 10, 16, -44, 19, 2, 8, -17, 30, 24, 1, -13, 22, 0, -6, 20, 15, 47, 0, -69, -38, 45, 10, 65, -16, 16, 5, -15, -9, -29, 8, -56, 9, -34, -41, 33, -43, -68, 9, -28, 37, -13, 14, -10, 3, -7, -11, -60, -32, 37, -4, -41, -4, 16, -19, -20, 7, 21, -8, 56, -22, 13, 4, -29, -26, -3, 15, 4, 32, 56, -43, 9, -11, 22, -18, 35, 14, -47, 4, -1, -19, -33, -42, 10, -19, 16, 12, -5, -18, 9, 2, 3, 41, 53, -58, 15, 2, 2, 13, -64, -26, 2, -53, -17, 2, 45, 23, 11, -13, -25, 37, -6, -28, -42, 34, -18, -52, 5, 20, -35, -6, -26, -10, 43, 26, -53, -3, -26, -32, 17, -24, 0, -25, 36, -37, -37, -28, 20, 3, 31, -18, -30, 24, 42, -40, 1, 22, 38, 30, 49, -45, -11, -46, -8, 9, 30, -15, -16, -2, -38, -21, 33, 15, 8, -47, -38, -50, -26, 37, -50, 8, -43, -105, 36, 28, 34, -14, 34, -54, -3, 4, -3, -25, -44, -35, -18, 4, -14, -8, -3, 17, 69, 88, -1, -48, 20, -50, 38, -37, 11, 17, 16, -10, 3, 35, -7, 2, -27, -25, 7, 11, 45, -24, 65, 67, -47, -1, 43, 15, 2, -7, -16, 25, 58, -4, -51, -29, -18, -2, 3, 41, -20, -68, -50, 36, -11, 15, -22, -2, -13, 0, -27, 0, 27, -52, -58, -28, 48, -7, 25, -24, -31, 8, -6, -11, 17, -35, 30, 6, -28, 7, -48, -32, 1, -12, -31, -81, 18, -1, -7, -17, 27, -8, -32, 50, -27, -15, -20, 64, -74, 31, -45, -13, 63, 10, 35, -16, 73, 44, 1, 44, -36, 6, 14, -21, 10, 10, 22, 41, -23, -17, 17, -26, 4, 61, -19, -31, -30, 42, 65, -63, -29, -47, 22, -9, 10, -12, -3, -2, 43, 29, 30, 46, -23, 12, 3, -6, 3, 22, 60, 4, 10, -44, -9, -2, -35, -12, -10, -33, -19, 33, 62, 11, -26, 37, 20, 4, -33, 34, 23, 57, 1, 8, -1, 12, -7, 4, 17, -34, 51, 68, -9, -5, 4, -6, -6, 3, 11, -17, -77, 43, 16, -40, 7, -7, -43, -7, -18, 6, 16, 13, -46, 20, 54, 4, 42, 11, 23, -31, 67, 22, -53, 20, -30, 36, -11, -16, -28, 19, -27, -31, 0, -58, -23, -43, -30, 6, -24, -16, 9, 22, 10, -22, -37, 6, -33, 22, -35, 13, 0, 26, -10, -21, 29, 32, -13, -17, -1, -9, -40, -23, -9, -18, 68, -13, -35, 20, 44, -35, -12, 55, -43, -4, -3, 54, 13, -21, 18, -6, -33, -19, 18, -4, -5, 6, 12, 10, 15, 47, -7, -23, -23, -49, -23, -27, -6, 17, 16, 39, -43, 36, 5, 23, 46, 9, 46, 46, -2, 24, 24, -5, 51, -16, -18, -13, 0, -16, 11, 6, -46, 23, -4, 34, 10, -43, -66, 16, -32, 29, -36, -36, 15, 65, -9, 4, 36, -36, 23, -32, 11, 18, -3, -8, 24, -10, -35, -25, 16, 46, -30, -11, -47, -4, -26, 52, 15, -29, 24, -34, 63, -12, -15, 65, 2, 48, 45, 1, -68, -15, -5, 24, -8, -21, -43, 39, 6, -31, 83, 25, -38, -24, 3, 2, -54, 1, -44, 16, 4, 13, 29, 3, -33, -3, 17, -29, -14, -14, 2, 2, -14, 20, -44, 65, 25, 47, 17, 6, -22, -10, -42, -17, 16, 30, 0, -35, 39, 43, 0, -32, 32, 39, -25, -29, 1, -2, -3, -36, 18, -19, 16, 17, -43, 1, -12, 27, 11, -24, 23, 14, -29, -55, 94, 16, 2, -28, 26, 13, -33, 6, 15, 2, 7, 14, 13, -19, 16, -59, 6, 48, 17, -15, -62, -13, -43, 8, 25, 19, -17, -100, 10, 9, -17, -36, -5, 31, 20, 7, 18, -54, -24, 4, 53, 82, -10, 31, -8, 8, -1, -8, -3, -4, 38, 15, 13, 6, 0, -48, -34, 7, 39, 57, -52, 1, -24, 1, 0, -36, -7, -27, 79, -14, -6, -27, 63, -13, 3, 31, -22, 46, -19, 9, 1, -15, -21, -49, -18, 14, 42, -21, -6, 7, 13, 9, -4, -26, 34, 21, -23, 25, 21, 12, 14, -99, -11, -10, 48, -73, -11, 23, -18, 24, -57, -13, -20, 10, -43, -56, -9, 16, -33, -15, -17, -1, -2, 28, 6, -10, 12, -9, -15, 8, 9, -20, 3, 89, 2, -6, 6, 57, 22, -70, 13, -38, 36, -3, 22, 2, 14, -8, 25, -12, -58, -42, 22, 18, 50, 62, -26, -36, 13, -2, 5, 46, 17, 16, -10, -52, -24, -2, -34, -10, 17, 46, -24, -44, 4, 22, -5, 20, 31, 29, -6, 11, 6, 1, -2, -11, -39, 12, -33, -12, -50, 53 ]
Moore, J. The facts are not complicated. On April 29, 1914, and prior thereto, Gordon Beaudry, nearly 15 years of age, was employed by Watkins & Radcliffe as a delivery boy, and he was furnished a bicycle with which to do his work. On that date he was to make a delivery on Cass avenue. Permission was given him to get his luncheon at home, No. 997 Theodore street, and he was then to call for a package and return to the store. One of his employers testified he— “asked my permission to go. home to lunch from Theodore street, or whatever the call back might be. I reluctantly gave him permission to make that trip that way on the ground that he would hurry up and come back. I think it was about 20 minutes to 11 when I gave him this order, and he argued that he could go to Cass avenue first; that he could go and make the pick-up and get his lunch and get back early. “Q. Making this pick-up and making this delivery were in the course of his employment? “A. Oh, yes. “Q. He was employed to do this very thing, Mr. Watkins? “A. He was.” The boy called at his home at about 11:30 o’clock, and took 10 minutes for lunch. He told his mother he had another delivery to make and was in a hurry. As he was proceeding in a westerly direction on Can-field Avenue East, he caught on the right rear end of a motor truck, proceeding in the same direction. This truck overtook and passed another truck, also proceeding in a westerly direction. The boy was still hanging on the right rear end of the truck, which turned suddenly to the right. As a result of the truck making this sudden turn, the boy was thrown to the pavement a few feet in advance of the rear truck, and, before the driver in charge could stop, the left front wheel passed over the boy’s body. Death resulted soon. Deceased at the time of his death was earning $6 a week, which he gave to his mother each week for use in the family. Deceased was an expert bicyclist. We quote from the brief: “It is the claim of respondent: (1) Gordon Beaudry, deceased, did not receive a personal injury arising out of and in the course of his employment. (2) He was injured by reason of his intentional and wilful misconduct.” Sections 1, 2, pt. 2, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, §§ 5431, 5432), are quoted. Under the first grouping it is argued — we again quote: “After it is shown that the accident happened within the time during which he is employed, and at the place where he may reasonably be during that time, that is, within the period and the scope of the employment, the workman must also know [show] that it was a risk incident to the employment; that it arose because of something he was doing in the course of his employment, or because he was exposed by reason of the peculiar nature of his employment to the particular hazard which caused the injury” — and that as the accident happened in the instant case because of decedent taking hold of the truck, there could be no liability. Counsel cite many authorities which it is claimed support his contention. Under the second heading it is argued: “If the court should hold that in order to constitute intentional and wilful misconduct, it should appear that the workman intended or expected to injure himself, it would be interpolating into the statute a limitation upon the clause which cannot be gathered from a plain and obvious meaning of the word.” The authorities cited are chiefly those of foreign jurisdictions. This court had occasion to consider the language used in sections 1 ajid 2, pt. 2, of the act (2 Comp. Laws 1915, §§ 5431, 5432) in Clem v. Motor Co., 178 Mich. 340 (144 N. W. 848, L. R. A. 1916A, 352), and in Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22; Am. & Eng. Ann. Cas. 1916A, 386). A construction of section 2 was involved in Gignac v. Studebaker Corporation, 186 Mich. 574 (152 N. W. 1037). While the instant case is not on all fours with any one of those cases, we think it must be said that the reasoning used in deciding them justified the ruling of the Industrial Accident Board. The judgment is affirmed, .with costs. Stone, C. J., and Kuhn and Person, JJ., concurred with Moore, J. Ostrander,’J. In my opinion, the risk assumed by the boy, though the cause of the injury, was not a risk incident to his employment. Steere and Brooke, JJ., concurred with Ostrander, J. Bird, J., did not sit.	[ 24, 20, -6, 0, 36, -4, -3, -15, 30, 28, -44, -7, 54, -45, -13, 17, 41, 7, -17, -41, 28, -37, 20, -54, 12, -73, -17, -51, -36, 96, 26, 20, 14, -9, 8, 32, 23, -20, 32, 46, 5, -14, 4, 2, 76, 34, 45, 25, 19, -44, -34, -3, 33, -26, 29, -6, 18, 63, 7, -3, -18, -49, 16, -11, 0, -35, 9, 47, -14, 33, -58, -2, -8, 51, 35, -49, -10, 30, -17, -3, 8, -24, 47, -26, -27, 12, -34, 19, 8, -30, 34, -17, 19, -13, -33, -10, -1, 17, 0, -41, -16, 1, 62, -35, -30, 16, -22, -81, -20, 65, -25, 24, 15, -5, 61, -41, 0, 20, 57, 33, 36, -12, -17, -29, -34, -10, -54, 13, -43, 17, 4, 37, -11, -17, 52, 24, -59, 34, -19, -11, -3, -6, 0, 25, -49, -24, -8, 27, -43, 24, 4, 38, -24, -70, -54, -9, 15, -38, 69, 0, -5, -22, 42, 49, -20, 31, -48, 17, -17, 5, -17, -8, 2, -21, 83, 80, 17, -9, -11, -6, -91, 1, 8, 1, -18, -46, -39, 29, 57, 7, 21, -9, -33, 10, -25, 15, 19, -14, 23, -25, 20, 22, -2, -36, -52, 15, -6, 26, 4, 39, 38, -15, -4, -37, -13, 1, -14, -19, 27, -39, -3, -25, -14, -23, -27, -19, -44, -11, 8, 5, 34, 35, -33, 17, 19, 20, 64, -44, -29, 48, 60, 19, -2, -31, 9, 48, 11, -41, 19, 35, -10, -21, -12, -12, -30, -7, -11, 19, 5, -13, 35, 77, 29, 25, 95, -12, -16, 38, 0, 2, 37, -66, 13, -45, -49, -26, 44, 25, 31, -30, 14, -36, -38, 33, 12, -70, -17, -5, -1, -15, 42, -42, 41, 28, 38, 41, 85, 18, -43, -22, 33, -23, 0, 25, -25, 24, 1, -14, -33, 7, 3, -59, -22, 18, 35, -23, 20, -25, 38, 4, -18, 34, 23, -8, -9, 1, -33, 9, 46, -26, 52, 57, 3, -1, 18, -67, 43, 14, 29, -13, -14, 64, -13, 0, -22, 17, 56, 73, -44, 11, -2, -1, 40, -21, -19, 22, 28, 4, -7, 61, -4, -61, 7, 29, -17, 21, -9, -10, -56, 39, 0, -17, -42, -42, -2, -41, -25, -26, -32, 42, -10, -49, -13, -37, -16, -5, -55, -18, -19, 7, -26, 15, 27, 6, -28, 6, -9, 80, -3, -37, -51, 24, -31, 9, 54, 1, -32, -20, 49, -4, -31, -37, 63, -2, -1, -10, 14, -30, -38, 11, 8, 29, 3, -16, 7, -11, -7, -5, 14, -7, 2, -63, 2, -58, -22, -16, -5, -42, 23, -46, -32, -4, 2, 19, 9, 21, -23, -2, 9, -52, 31, 12, 37, 21, -9, -15, 4, 48, -9, -11, -23, 6, 31, -6, 14, 39, 32, -4, 37, 0, -44, -4, -50, 2, -16, 12, 19, -6, 1, 20, -74, 44, -7, 6, 8, -37, -31, 1, 11, 44, 30, -8, -97, 18, -36, 49, -3, 68, -35, 6, -48, 10, -19, 37, 24, -77, -2, -49, 2, -2, -29, 19, 1, -12, 31, 45, -7, 72, 20, -19, 59, -13, -36, 13, -51, -30, -2, 8, -65, -103, 29, -52, 16, -10, 12, -23, 16, 34, -19, -37, -21, 13, -29, -7, -42, -63, -9, 33, 1, 2, 39, 24, 27, -69, 28, -27, 14, -22, -25, 18, 0, 24, 15, 47, 12, -8, 4, -12, 9, -42, -75, -1, -23, 3, -47, 59, 28, -3, -38, -25, 9, 4, -24, 63, -6, -4, -5, 23, 11, -38, -18, 37, -17, 41, 70, -18, 7, -31, 24, -19, 15, 41, -18, 14, 28, -2, -38, -5, -8, -41, 6, 32, -24, 8, -40, -25, -41, -5, 28, 0, -31, 8, -42, 38, -49, -10, 28, 39, 23, 27, -9, 55, 6, 27, -26, -26, 4, 24, -23, -18, -6, 24, 46, -26, -21, 29, -40, 40, -43, -13, -66, 0, -20, 28, -27, -13, 10, 13, -72, 22, 12, -11, 28, -13, -55, -9, -80, 9, -15, -38, -8, -17, 2, 30, 22, 46, -6, 33, -1, 33, -21, 26, 26, -23, 20, 40, 53, -21, 38, -27, -38, -3, 18, -26, 25, 33, 11, -34, -9, -17, -37, -12, -70, 38, -45, 13, 13, -15, -24, 43, -42, 11, 6, -13, -7, -10, 20, 33, -5, -33, 10, -4, -3, -48, 46, 36, 34, 29, -35, -9, 34, -2, -28, -45, -13, -2, 7, -18, -3, -29, -5, -3, 14, 12, -67, -32, -31, 4, -8, 42, -1, 54, 62, -33, 18, -25, 60, 28, 15, -33, -3, -39, 44, 33, -33, 17, -10, -22, 14, -27, -17, -15, -26, 5, -43, 42, -18, -52, 43, -16, 10, -25, 28, 35, 6, -17, 13, -10, 15, 27, 25, -13, -11, 24, -5, 26, -7, -47, 26, -21, 11, 7, -7, 73, 63, -67, 55, 2, 14, -36, -15, 5, -35, -6, 7, 17, 38, 29, -18, 32, 32, -17, 3, -37, 46, -2, -2, -16, 10, 0, -9, -50, -11, -18, -47, 57, 19, -3, 18, -42, 38, 32, -13, 38, 25, -2, 25, 30, 0, 8, -2, -28, 32, -2, -8, 5, -15, -35, 6, 3, -61, -29, -24, 20, 8, 38, -48, -9, 21, -57, 41, 41, 67, -15, 15, -70, 4, 0, 36, 47, -2, -65, -2, 45, -51, 41, -13, -39, -9, 1, -39, -33, -35, -67, -34, -36, -44, 48, 30, -35, -4, 41, -13, -4, -46, -40, -13, -27, -32, -7, 22, -17, -2, -9, 11, -7, 16, 66, 22, -48, -16, -20, -7, 20, 63, 14, 0, -7, -4, 39, 41, 54, 40, 7, 29, -42, 26, -19, -62, -41, 22, 40, -17, 11, 23, -69, 11, -29, -27, -28, 11, 34, -23, -18, -7, 30, -36, 21, -13, -15, 14, 17, 15, 19, 53, 18, 57, -14, -60, -15, -13, -10, -32, -12, 53, -71, 31, -44, 0, 47, 0, 3, -11, 90, 35, 22, -13, -65, -14, -4, -19, -5, 15, 49, -18, -55, -27, 36, 28, -25, 5, -1, -37, 13, -14, -27, 22, 26, 22, -34, -38, 43, -30, 13, 22, 46, -31, -11, -7, -18, -19, -2, 38, 36 ]
Bird, J. (dissenting). Plaintiff brought suit to recover two annual assessments and interest on a fire policy which it issued and delivered to defendants on August 25, 1920. The assessment for 1921 was $15.60. If not paid when due, 10% a month was added for a period not to exceed one year. The assessment for 1922 was $12, and interest thereon, as in the previous item. The defendants conceded they were liable for the 1921 assessment and interest at the rate of 5% per annum. They, however, say they are not liable for the 1922 assessment because their policy was suspended on March 1, 1922, and they further say that 10% per month was a penalty and not liquidated damages, and therefore cannot be collected. The trial court held with defendants on both of these propositions, and judgment was rendered for plaintiff for $17.72, the amount tendered by defendants for the assessment of 1921, and interest thereon at 5% per annum. The same questions are before us for solution: (1) Was the 10% a penalty or liquidated damages? (2) Was the policy assessable in that part of 1922 while under- suspension? Was a charge of 10% per month for failure to pay the assessment when due usury or a penalty? It is not usury because the excessive rate was not absolutely payable. Where the payor can avoid the excessive rate by making payment of the demand when due it is not usury. While there is some authority to the contrary, the prevailing opinion is that whenever the debtor by the terms of a contract can avoid 'the payment of the larger by payment of a smaller sum at an earlier date the contract is not usurious, but conditional, and the larger sum becomes a mere penalty. Ruling Case Law states the rule as follows “Where a borrower has agreed to pay a rate of interest not forbidden by law, but has stipulated that in the event of his not making payment at the time specified, the obligation shall bear a higher rate of interest, either from default or from the date of its execution, or that some specific sum shall be paid in addition to the increased principal and interest contracted for, the increased rate is generally regarded as a penalty and not within the usury laws.” 27 R. C. L. p. 232. Cyc. makes a similar statement: “The agreement by the borrower that in case of default in payment at the time of maturity, there should be paid an additional sum in excess of legal interest, as liquidated damages is a penalty and generally unenforceable; but it is not usurious since it is not absolutely payable. But there is some authority holding such contracts usurious.” 39 Cyc. p. 985. The following cases are in accord with this statement of the rule: Lloyd v. Scott, 4 Pet. (U. S.) 205; Blake v. Yount, 42 Wash. 101 (84 Pac. 625, 7 Ann. Cas. 487, 114 Am. St. Rep. 106); Ward v. Cornett, 91 Va. 676 (22 S. E. 494, 49 L. R. A. 550). Valuable notes will be found in 55 Am. Dec. 396; 46 Am. St. Rep. 178; 81 Am. Dec. 737; 91 Am. Ct. Rep. 588. Inasmuch as defendants in the present case could have relieved themselves from the excessive rate by making payment of the assessment when due, we must conclude that the excessive charge was not usury but was a penalty and therefore not recoverable. Are defendants liable for the assessment during the period when the policy was suspended? Subdivision (/) of article 10 of the charter provides : “A member is liable for his ratable proportion of all liabilities of the company which may accrue during the time his policy is void or suspended, and until his policy is legally canceled.” This provision does not appear to be altogether unreasonable. During the period of suspension the insured has the right to reinstate himself by making payment of his arrears. This is not true if the policy is canceled as he is then obliged to make a new application and it is optional with the company whether it will again accept his risk. The validity of this charter provision perhaps might be challenged on account of the word “void” but we need not pass upon that question as there is no contention in the present case that the policy is void. The charter provision will control in so far as the policy was suspended on account of defendants’ default in payment. In -view of the plaintiff’s excessive and illegal demand the suspension was unauthorized and no recovery could be had for an assessment during that period. For that part of the year in which the policy was in force no basis appears in the record for computing the amount due. Therefore plaintiff should not be permitted to recover in this suit for any part of the assessment of 1922. This being in accord with the conclusion of the trial court, the judgment should be affirmed. Defendants should recover costs in both courts. Moore and Wiest, JJ. concurred with Bird, J. Sharpe, J. The plaintiff company was organized under Act No. 262, Pub. Acts 1895 (2 Comp. Laws 1915, § 9586 et seq.), and reorganized under Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 et seq.). Section 2 of chapter 1 of part 2 of the act provides, in the ninth subdivision (§ 9100 [46]), that mutual companies must set forth in their articles of association “in what manner assessments, premiums or payments are to be required from the members.” The articles must be executed in triplicate and on forms provided by the commissioner of insurance, and, before filing, must have indorsed thereon a certificate of the attorney general that they comply with the provisions of the act. Subdivision (e) of article 10 of plaintiffs articles of association reads as follows: “A member neglecting or refusing to pay a premium or assessment note when due, or an assessment on or before the last day of the month in which the assessment is levied, shall pay a stipulated damage of 10 per cent, of the amount of such premium or assessment note or assessment, and thereafter an additional stipulated damage of 10 per cent, on the first day of each month until paid, but not to exceed twelve months in all. Provided a member pays his premium or assessment note, or assessment before suit for collection is started, the secretary shall collect a stipulated damage of only five per cent, per month instead of 10 per cent, per month. The secretary may, with the approval of the president, give a longer time than is herein specified in which an assessment shall be paid or before a stipulated damage is added, if in their judgment the best interest of the company demands it.” In defendants’ application for insurance they agreed “that this application, together with the policy of said company, its charter and by-laws, are a part of the contract of insurance,” and the insurance was accepted “subject to the charter, by-laws, rules and regulations of said company.” It will thus be observed that the provision for the payment of the 10 per cent., if in default, was not a regulation of the company, but an integral part of the contract of insurance. The purpose of mutual companies, such as plaintiff, is to furnish insurance to its members at approximately the actual cost thereof. If considerable insurance be written, and all assessments be promptly paid, the expense of operation is trifling. Many such companies have been organized in this State. Several have failed. Some are prosperous. We may take judicial notice that the failures in most, if not all, cases have been due to the inability to collect the assessments made. The amounts are usually small, those here sued for being but $15.60 and $12. It is apparent that if suit must be brought to enforce collection, the company will receive but little, if any, benefit therefrom. This fact is well known to those who seek to organize such companies. It is for this reason that the provision for the payment of the 10 per cent, by those in default is inserted in the articles and becomes a part of the contract of insurance. Its purpose is not to secure interest on the delayed payment, but primarily to induce the members to make payment within the time limited therefor, and secondarily to cover in part the expense of collection. ' I am unable to conclude that such an agreement, entered into by a person when he becomes a member, is not enforceable. I agree with Mr. Justice Bird that the provision is not usurious. Neither do I think it a penalty unenforceable at law. I think. it may well be regarded as damages, stipulated and agreed upon by the defendants as a compensation to their fellow members for their failure to live up to the terms of their agreement. The actual damages which the company will sustain, due to their default, cannot be estimated to a certainty. If but one member be in default, the damage would be trifling; if many be, the condition of the company could but be serious. • Its standing is dependent upon the prompt payment of its losses, and such payment is dependent upon the collection of its assessments. It has no assets to pledge as security for a loan. In case it borrows money to pay losses, its only way to make payment is by additional assessments, and, if these are not paid, a receivership under the statute must follow. The contract entered into by the defendants was not one for the payment of a definite sum of money simply. It was an undertaking that if one or more of the members suffered a loss, they would contribute their ratable share of the sums necessary to reimburse them, and, in order to induce and secure prompt payment and to cover any expense due to the collection of arrears, they agreed with their fellow members that the percentage provided for should be collected as their additional share of the sums necessary to pay such losses and the expenses of operating the company. The percentage, when collected, goes into the treasury of the company. The entire membership receives the benefit, if there be any, incident to its payment. The relationship of lender and borrower does not exist. While there is an obligation resting on the insured member to' pay the assessments levied, this obligation is coupled with his agreement that, if not paid when due, he will pay the additional amount, plainly stated in the contract. The organizers of this company felt impelled to insert this provision in the articles to insure its stability. When the defendants and all others became members of the company, they agreed that it should become a part of the contract of insurance, binding alike with the other provisions therein. It operates on all alike. I can see no reason why it should not be enforced. My attention has not been called to, nor have I been able to find, any Michigan decision in which this question was considered. The general rule undoubtedly is that interest on moneys in default is compensation for the delay in securing payment. Damages in such cases, although agreed upon, will ordinarily be construed as penalties, and cannot be enforced. See Davidow v. Wadsworth Manfg. Co., 211 Mich. 90, 94 (12 A. L. R. 605), and cases cited. An exception to this rule, where the relation of borrower and lender did not exist, was pointed out in Flanders v. Chamberlain, 24 Mich. 305. A note, given on the sale of property, provided that it should draw no interest if paid at maturity, but, if not then paid, it should draw interest from date. Christiancy, C. J., said: “As this note shows upon its face, that it was to draw no interest before maturity, if then paid, it is. claimed that this is in the nature of a penalty; and in an ordinary case, when a note is given for a precedent debt, I am strongly inclined to think such a provision for interest from date, at ten per cent., if not paid when due, ought to> be treated as a penalty rather than stipulated damages, for nonpayment at the day. But it is shown that this note was given for property sold on these specific terms, such being the condition of the sale; and undoubtedly a' vendor has a right to refuse to sell except upon this or any other condition; and such being the condition of the sale in pursuance of which the note was given, I think it must draw interest from date at the rate mentioned.” This case is cited and quoted from with approval in Wrenn v. Land Co., 65 Or. 432 (133 Pac. 627, 46 L. R. A. [N. S.] 897), wherein the authorities are reviewed at length, and the same conclusion reached. See, also, note in 12 A. L. R. 374; 33 C. J. p. 221, and note. The effect of such agreements arising out of contract, where the relation of lender and borrower does not exist, is well illustrated in Hardee v. Howard, 33 Ga. 533 (83 Am. Dec. 176). Defendant drew on plaintiffs a draft for $2,870.85, payable at a bank, agreeing with the acceptors— “that if. they failed to send them in time cotton sufficient to satisfy the same at maturity, then, and in that case, they bind themselves, * * * to pay to the said acceptors ten per cent, on the principal and interest * * * as stated and liquidated damages therefor.” There was default in making shipment of the cotton, and it was held that the ten per cent, was collectible as stipulated damages. In United Shoe Machinery Co. v. Abbott, 86 C. C. A. 118, 158 Fed. 762, it was held (quoting from the syllabus): “But an agreement in a contract for the sale or lease of property to give the debtor a discount in excess of legal interest in the event of his payment of the agreed price or rental before it is due is not obnoxious to public policy, is not a contract for a penalty, and is enforceable in the courts.” The right of a public service corporation to exact a charge for delay in payment has been passed upon by several courts. In State, ex rel. MacMahon, v. Telephone Co., 59 Wash. 156 (109 Pac. 366, 31 L. R. A. [N. S.] 329), the validity of a regulation of the company requiring payment of rentals in advance, and providing that— “in case the monthly advance payment was not made, an additional charge of 50 cents each month would be paid by relator as compensation for the additional cost of collecting and handling the account,” —was involved. After alluding to the duty of the company to render efficient service, the court said: “Manifestly, if all the subscribers of appellant continuously refused to pay their rentals in advance, and thus necessitated the employment of collectors, additional office force, and the incurring of other expenses incident to the collection of such rentals, the .moneys thus expended must be taken from the revenues of the company, and thus impair a fund to which the company must look for the expenditure necessary to keep its plant in the highly efficient condition required and demanded because of the public nature of the service. It is therefore not unreasonable that the company adopt a rule and enforce a regulation providing for the payment of its rentals in advance, and for an additional charge in case such requirement is not complied with. Such a charge is not an addition to the maximum rate provided for in the franchise. It is rather a charge for default and delinquency, which may be avoided by a compliance with the reasonable regulation for the payment of rentals in advance.” It was further said: “There is some discussion in the briefs as to whether the 50-cent charge is in the nature of liquidated damages for the breach of contract to pay in advance, or whether it is a penalty. It is immaterial what it's nature may be and we shall not attempt to critically analyze or define it. It was a proper regulation, of the company, to assist in the prompt payment of the monthly rentals, and as such a proper and reasonable regulation it is sustained. It is not a fixed rate which must be paid to receive the service of the company, and which may not be increased from that fixed by the city in granting the franchise. It is rather in the nature of a regulation to insure the prompt payment of that fixed rate, beneficial alike to the company and its subscribers.” Cases from other States are reviewed in the note thereto. See, also, note to 43 L. R. A. (N. S.) 63. A similar question to that here considered was passed upon in People’s Mut. Fire Ins. Co. v. Groff, 154 Pa. St. 200 (26 Atl. 63). We quote from the syllabus: “A stipulation in the application of defendant for his policy that, if any assessment be not paid within 30 days after notice of the same, he will ‘pay 25 per cent, thereon for expense of collection,’ is not uncon scionable and illegal, and may be collected, in addition to the assessment.” Some of the cases hold that there is a distinction between an agreement to pay a stated sum which might be satisfied by the payment of a smaller sum if paid at a specified time and an agreement to pay a specified sum with a proviso that if not paid by a specified time a larger sum would be due. The tendency of the later decisions has been to hold that there is no distinction in legal effect between the forms of such contracts. In Longworth v. Askren, 15 Ohio St. 370, it is said: “Nor, in our view, does the order in which the sums are stated change their character, or the legal effect of the instrument; for, whether the amount to be paid is to be reduced upon compliance with the terms of payment, or to be increased on a default, is only a different mode of expressing the same’thing.” I agree with Mr. Justice Bird in holding that the provision in article 10 of the charter, quoted by him, is enforceable. I have expressed my views on this question at length in Johnson v. Insurance Co., ante, 204. In my opinion, defendants are liable for the assessment levied in 1922. The judgment is reversed and set aside, with costs to appellant, and a new trial granted. McDonald, C. J., and Clark, Steere, and Fellows, JJ., concurred with Sharpe, J.	[ -2, 28, -67, -13, 0, 8, 32, -10, 40, 17, -5, 23, 70, 8, -22, 4, 5, 1, -25, 45, -49, -35, 4, 2, -13, 41, 32, -2, 47, 27, 30, -4, -63, 21, -20, -17, -22, 1, 2, -10, 67, 0, 12, -5, -4, -20, -5, -51, 32, -1, 35, -26, 46, -19, -9, 42, 0, -11, -64, -3, -8, -18, -3, -11, -32, -6, 11, 5, 29, -20, -60, 0, -4, 19, -25, 5, -44, 21, -44, -12, -25, -50, -11, -16, -10, 32, -18, -15, -22, 43, -8, 51, 27, 20, -6, 4, -21, 7, 22, 16, 24, -73, 17, 37, -3, 30, -24, -57, 0, 1, -32, 54, 15, -25, -25, -33, -41, 16, -43, -43, 32, 3, 2, -34, -49, 40, -2, -27, -40, 1, -18, 1, -66, 17, -37, -27, 4, 7, -51, 15, -69, -52, -59, -48, -16, -10, 52, -50, -27, 0, -10, 10, 10, 15, -46, -28, 0, -13, 29, -47, 37, -37, -7, 4, -7, 1, -29, 43, 42, -37, 53, 12, 6, -7, 17, 41, -2, -82, 2, 36, -14, 10, -30, -26, 63, -21, -80, 10, 54, -23, -2, -26, -23, 15, -16, 16, 18, 26, -6, -18, -41, -38, 21, 25, -24, -14, -17, 10, 11, 9, 3, 5, -21, 1, -9, 32, -24, -16, -55, 20, -3, 10, -14, -6, 5, -43, -16, -5, 19, -11, -43, -4, 38, 41, -10, 60, -23, 57, -18, 55, 18, 48, -31, -42, -44, 0, -15, 1, -11, -21, -14, 2, -32, 77, -27, -30, -3, -27, -15, -24, -83, 47, 8, 25, 21, -29, -25, 36, 22, 1, -4, -31, -21, 25, -3, -58, -48, -28, -31, -37, -6, -9, -17, 2, -35, -4, 20, 26, -34, -61, 50, -51, 24, -13, 61, 23, -1, 44, 12, -35, 10, -61, 12, 35, 88, -16, -5, 53, -12, -29, -46, -22, -23, -10, 70, -29, -7, 27, 29, 6, 47, -30, -5, -16, 40, -16, 47, -27, 12, 28, -79, -32, 23, 11, 22, 4, 8, 7, -7, -6, 31, 26, 1, -23, 26, 30, -33, -44, -47, 42, -50, 54, -33, 33, -10, 47, 47, 40, -20, 36, 66, 20, 24, -39, 21, 7, -16, -8, 31, 45, 37, 16, -22, -49, -22, 36, -6, 47, -33, 48, 9, -28, -48, 40, 32, 5, -32, -3, -32, -19, -53, 27, 1, 25, 4, -49, -19, -26, -57, -11, -12, -15, -34, -75, 8, -43, 11, 9, -41, -10, 0, 21, -27, -50, -14, 24, 45, -30, -3, -30, 86, -1, 58, -2, 5, -66, 12, 9, -35, -3, -21, -20, 8, -56, -27, -41, -40, 31, -24, -2, 41, 41, 32, 28, 43, -6, -61, 5, 22, 42, -5, -67, 37, -5, 8, 8, 40, -18, -4, -29, -3, -1, 24, 24, 39, -69, -32, -35, 45, -5, -9, -7, 12, 7, -3, 5, 7, -15, 5, 11, -30, 38, 34, 9, -18, 0, 0, -43, -18, 23, 15, -33, -47, -20, -20, 12, -3, -30, -41, 23, -50, 16, 20, 2, 35, -4, -22, -75, 41, 28, -45, 9, 50, 54, 35, -12, 64, -14, 24, 44, -19, 30, -65, -4, 8, 18, -27, 13, 1, -22, -6, -8, -19, -27, -4, 0, 45, 19, 23, -21, -59, 39, 43, 14, -2, -3, 17, 9, 11, 6, -55, -51, 44, 30, -56, -28, 8, -6, -19, 24, -15, 27, 3, -15, 1, -46, 10, -5, -2, -40, 16, 12, 1, 27, -55, -21, 0, -20, 38, -15, 9, 35, -21, -27, 16, 39, -43, 29, 0, 37, 43, 35, -2, 38, 11, -29, 10, -10, 4, 42, -21, 13, -30, -35, -8, 5, 11, 2, -5, -3, 65, 41, 12, 40, 16, 5, 26, 6, 30, 3, 22, 11, -5, 10, 10, 6, 38, -10, -16, 67, 17, -30, 17, 15, -61, 24, 21, 38, -8, -8, -27, -26, 13, 24, -24, 70, -62, -2, -19, -22, -28, 49, 7, -2, 2, -29, -30, 13, 23, -42, -24, 8, 26, 41, -78, 25, 9, 16, -4, 9, 36, -43, 23, -41, 27, 40, -64, 114, 63, 17, -44, -25, 13, 55, -8, -65, 6, 11, 31, -3, 14, -51, -23, -9, 33, 1, 37, 31, 24, -4, 17, -47, 2, 13, -36, -2, 30, 15, 5, 9, 59, 10, 24, -7, -39, -44, -17, -11, -37, 11, 4, -37, 45, -24, 14, -4, 36, -6, -72, -41, 1, 15, -19, -11, 26, 15, 20, 14, 32, -22, 7, -15, 25, 10, -34, -14, -28, 4, 34, 37, -4, -9, 27, -30, -21, -13, -22, -28, -5, 4, -14, 27, 11, 63, -19, -19, 17, -31, -6, -59, -20, -9, 16, -27, 14, 48, 3, -25, 31, 29, 3, 1, 28, 4, -29, -53, 0, -13, -19, 15, -22, 11, 17, -20, -12, 32, -2, 8, 15, -14, 4, -7, -17, -13, 39, -4, 41, -39, 13, -2, -54, -49, -13, 16, -1, 25, -15, -14, 36, -1, -32, 98, -9, 13, 10, 7, 30, -40, -5, -9, 3, -33, -29, 7, -9, -13, -20, 10, -5, 16, 27, -51, -29, 70, 21, -9, -67, 13, -42, 20, -18, -28, -12, 20, -51, -12, -13, -6, 7, -16, 11, -4, 4, 50, 58, 55, -42, 43, -32, -19, -17, 78, -37, -6, -6, 11, -8, -26, 19, -18, -4, 18, -13, 31, -15, 22, -6, -14, -57, 93, 53, 3, 41, 19, -5, -51, -33, 15, 44, 16, 5, -51, 8, -31, -3, 57, 8, -5, -29, 71, 9, -19, -5, -13, 20, 48, 0, -60, 23, 46, 19, -24, -30, -49, 5, -8, 21, 22, -10, 13, 21, 47, 44, 63, 45, -11, 11, -23, -18, -35, -10, -20, 13, 16, -41, 49, 41, -5, 55, -6, 4, 60, 31, 69, -10, -47, -43, 17, -18, 18, -37, 4, 7, -74, 65, 48, 20, -5, -40, -53, -21, -19, 15, -43, 41, 31, 57, -54, -48, -19, 0, -40, 7, -23, -45, -26, 3, 2, 3, 21, 45, -21, -17, 53, 18, -40, 15, -14, 45, -64, -16, -62, 39, -2, -6, -59, 49, 62, 19, -63, 10, 76, -2, 30, 9, 14, -28, 22, -30, -22, 58, 52, -31, 54 ]
Montgomery, J. This is an appeal from the Alpena circuit allowing a claim in favor of Abraham R. Blakley against the estate of Julia Farwell, deceased. Mr. Blakley was the business manager of the estate of Julia Far-well from the time she came into possession of her estate by inheritance from her mother until her death, which occurred February 29, 1896. This estate consisted of dwelling houses, a brick block, and unimproved property, or city lots, situated in Alpena, a portion of which had been sold on land contracts. Miss Farwell disposed of her property by will, dividing it into three equal parts. One-third she willed to George Grove Cochran, the contestant in this case; one-third to her sister, Mrs. Osborn; and one-third principally to charitable institutions. Mr. Blakley filed two claims in the probate court against the estate of Miss Farwell, — one for his personal services in managing the estate for the last few years, the other on a promissory note, which reads as follows: “$1,200. Alpena, August 14,1888. “One year after date I promise to pay to the order of Mrs. A. E. Montague twelve hundred dollars, at Alpena (value received), with interest at 8 per cent, per annum until paid. [Signed] “Julia Farwell, “By Abraham R. Blakley, Agent.” The note is indorsed: “A. R. Blakley. A. E. Montague.” Both of these claims were allowed in the probate court, and from that order Mr. Cochran appealed to the circuit court. Mr. Blakley presented no evidence on the trial in the circuit court in support of his claim for services, but his claim upon the note was allowed by the jury at $1,966, and the case is brought to this court for review. In 1887 the house occupied by Mr. Blakley, and the one adjoining it, were partially destroyed by fire. Mr. Blakley collected the insurance, and commenced to repair the one he lived in. He also repaired the corner house, and on June 1, 1888, the comer house was completed and rented to Mr. Gilchrist. August 14, 1888, Mr. Blakley gave Mrs. Montague the note presented against Miss Far-well’s estate. In the spring of 1889 he sold Mrs. Montague a farm, and took this note in payment. Miss Far-well resided in St. Paul, Minn., from October, 1885, until April 5, 1889, when she visited Alpena. She returned to St. Paul, May 16, 1889, and remained until September, 1892, from which time she made Alpena her home. She was absent from Alpena when the fire occurred and when the houses were repaired. No claim is made that Mr. Blakley had any authority whatever, under his power of attorney or otherwise, to make this note. It is contended that Miss Farwell recognized her liability on the note, and ratified the transaction. Defendant contends that there was no evidence of ratification; and, further, that no recovery should have been permitted until the claimant accounted with the estate as to all his transactions, and showed affirmatively that he did not owe deceased on account of such dealings. Claimant could not himself give testimony as to facts equally within the knowledge of deceased. He, however, called his wife as a witness. She testified that she saw and read a letter to claimant written by deceased while she -was in St. Paul, in answer to a letter written by Mr. Blakley, in which deceased wrote that she was glad he (Mr. Blakley) was able to raise the means to fix over the house and to pay for the repairs, and that it was all satisfactory to her; that she was glad it was done. Mrs. Blakley further testified that at a later date, in a conversation between deceased and herself, relating to the note in suit, deceased said there were some missionary causes she wanted to give more money to. “Said she would like to give more money to those missionaries, or some cause they had, but said that she didn’t think she could on account of this note of Abraham that she owed; she must pay that first.” It is contended that, before a ratification can be shown, it must appear that the principal has full knowledge of the transaction. This knowledge may be inferred from the circumstances proven. At the time of this last conversation, deceased was a resident of Alpena, living in the family of claimant, and the jury might well have drawn the inference that she had informed herself of the situation before making the statements shown. No claim of set-off was filed, nor was there any definite showing as to the amount of money that came to the hands of claimant as agent of deceased. The note in question, if a valid obligation, came to claimant by transfer from the payee, and was a distinct item by itself. It was not incumbent in a suit on this note to show affirmatively that in all the dealings between the parties, for all the years in which he acted as her agent, he had properly accounted to her. This was matter of defense. The charge of the circuit judge was sufficiently favorable to the estate. Judgment affirmed. The other Justices concurred.	[ 31, 32, -10, 11, -7, 16, 62, 29, 36, -7, -13, -65, 11, -19, -14, -12, -13, -14, 33, -15, -13, -30, -34, -8, 14, 8, 27, -3, -62, -13, 18, -5, -54, 20, -6, 3, -21, 4, -27, 11, 6, 56, 43, 28, 25, 26, 10, 5, 33, -7, -10, -9, 34, 14, 7, -15, -14, 46, 37, 2, -19, -44, -12, -13, 30, 44, 48, 0, -34, -5, 6, -4, 20, -3, 28, -11, 25, -8, 18, 33, -6, -18, -6, -58, -17, -101, -19, 6, 45, 19, -56, 0, -49, 46, 14, -10, -14, 9, 15, 22, 40, 4, 47, 62, -71, -7, 5, -13, 14, -10, -73, -5, 37, -18, 1, -5, 33, -73, -1, 33, -18, -29, 21, -18, 6, 19, -42, 44, 26, 0, -26, 28, -52, 1, -18, 34, -24, -38, 14, -13, 19, 30, 23, -21, -15, 26, 25, -40, -6, 51, -22, 28, 15, 49, 49, -3, 66, -26, -15, 2, -11, -27, 18, -46, -56, -51, 45, 9, 33, 25, 13, 7, 12, -23, 4, 19, 41, -23, -66, 44, -6, -7, 16, -14, 4, -70, 10, 6, -2, -32, 37, -26, 14, 19, -20, 5, 20, -29, 7, -32, 40, 1, 4, -18, 21, -4, -37, -35, -16, -51, 0, -1, -12, -7, -38, 51, 25, -1, -20, 15, 9, 15, 27, 49, -52, -55, -25, -39, 31, -20, -39, -31, -34, -39, -12, 23, -49, -2, -47, -45, 1, -8, 9, -7, -11, -20, -29, -14, 7, 53, -8, -10, -20, 61, 1, -9, 26, 7, -14, -21, -36, 9, -24, 31, 65, 0, 10, 32, -1, 51, 0, 28, 43, -24, -6, -47, 6, -2, 19, -48, 26, -51, 17, 4, 0, 23, -1, -20, -19, 26, -30, -4, 1, -43, 5, 6, -20, -26, -3, -29, 24, 0, -13, -9, 17, -25, 19, -77, 2, 4, 7, 38, -6, 45, 9, 0, -12, -25, -21, -45, 16, -42, -35, 4, 11, 1, 2, 27, -16, 66, 24, -2, -6, 18, -20, -7, 36, 39, -3, -24, 16, -20, 19, 33, -18, -20, 7, 34, 0, -15, -22, -10, -44, 37, -60, -4, 70, 27, -30, 24, -7, 0, 30, -24, 25, 10, -31, -18, 3, -20, -7, 38, -7, -6, 33, -10, -50, -22, -15, 47, -11, 1, 27, 46, 30, -3, -7, -32, -1, 31, -21, 36, 21, 49, 32, 28, 3, 14, -53, -19, -28, 49, -53, -33, -62, -15, -22, 10, -26, 29, 20, -11, 10, -14, 30, -32, -4, -7, 7, 27, 6, 42, -19, -19, 20, -3, 49, 51, 14, -62, -32, 54, 24, 33, -2, -20, -20, 0, -2, -42, 0, 54, 13, 12, -29, -12, -25, 21, 38, -34, -20, 7, -19, 0, 29, 0, 104, 27, -3, 6, -7, -3, 38, 51, -11, 36, 28, 5, 26, 12, 1, 39, -24, -84, 9, 25, -1, 29, 27, 25, 10, 3, 5, 18, 13, -27, -19, -33, -50, -50, 65, -48, -35, 0, 13, -31, -13, -2, 49, -27, -36, 8, 67, 19, -40, -13, 1, 22, 35, 27, -18, -57, 37, 28, -7, 23, 27, -5, -2, -37, -8, -10, -60, 40, 36, 27, 48, 12, 29, -35, -45, -22, -17, -32, -47, -19, 21, 23, 21, 21, -9, 44, 38, -5, -98, 36, 15, 13, 36, -3, 16, -59, -19, 19, 16, 25, -21, -30, 1, 40, 39, -44, 21, -51, 19, -33, 35, -31, -9, 23, -46, -46, 33, -53, -12, -50, 19, -22, -21, 52, -1, -25, -2, -17, 20, 40, 19, -10, -40, 34, -23, 38, -20, 24, -8, -24, 1, 30, 24, -35, -22, 8, -33, -19, -18, 14, -43, 2, 7, -21, 11, 3, -38, -7, 19, 23, 21, -50, 46, 0, 11, 47, 20, -6, 0, -8, 4, 38, -23, 5, 24, -45, -61, 28, -2, -29, 33, 21, -77, 29, -63, 7, 2, -6, -30, -16, 2, -19, -14, -31, -54, -19, -8, 27, 13, -4, 67, 81, -1, -24, 61, -9, -3, -14, 8, 36, 1, -23, -18, 34, -50, -33, -28, 3, -75, -41, 12, 34, 29, 63, 22, -8, 31, 71, 31, 2, -25, 15, -12, -52, -19, -20, 14, -3, -34, 19, 17, -25, 89, -11, 24, 6, 25, 50, -25, 12, 39, -28, -6, -80, -75, -16, 74, 34, -43, 3, -2, 7, 73, -8, 24, -26, 11, 0, 2, 22, 48, 21, -33, -35, 9, 44, -38, 24, 28, 17, 4, -56, -44, -22, -62, -7, -40, 24, 31, -14, 54, 14, -34, -41, -2, 55, 56, 16, 41, -40, -34, 1, -27, 1, -28, 12, -45, -9, -1, 8, 24, -10, -20, 7, -14, 69, -28, -21, 9, -16, 1, 14, 67, -38, 34, -32, -56, -13, -13, -13, 7, -12, 12, 26, -72, -17, 5, 6, -76, -30, -32, -37, -34, 23, 3, -3, 23, 66, -23, 4, -80, 24, -37, 7, 2, 45, -15, -69, -29, -29, 0, 26, -5, 45, -44, -22, -9, 43, 21, -13, 21, 23, 0, -19, 28, -23, -64, -20, 7, -32, 23, 11, 7, -36, -65, -8, -7, -7, -60, -55, -28, 62, -11, 20, -6, 4, -20, -10, -48, -51, -10, -23, -62, 24, -6, -20, -26, -8, -28, 8, 37, 19, -19, 0, -18, 26, -46, 11, 44, 26, -37, -25, -1, 32, -32, -52, -48, 14, 11, 74, 68, 26, 12, 9, 7, 1, 5, 34, -45, -21, -13, 7, 26, -28, -9, -15, 24, -6, 14, 13, 7, 39, 29, 16, 51, -35, -38, -46, -1, 35, -39, 35, -61, 64, 23, -29, -29, 25, -15, 43, 29, -4, -16, 42, -28, -32, 16, -52, -30, -35, 8, -63, -36, -8, 70, -12, -1, -10, 23, 26, 66, -13, -4, 40, 35, 0, 20, 52, -1, 25, -11, -13, 13, 15, -32, 3, -4, -9, 51, -25, 7, 29, 19, 9, -11, -76, -49, -30, -12, -7, 58, 22, 29, -68, 11, -7, -9, 12, 0, -23, -27, -34, -24, -12, 3, -23, -31, 34, 51, 10, -13, 12, -46, 0, 8, -33, 13, 28, -6, 24, 42, 5, 4, 27, -36, -38, 30, 38, 39, 15, 31, 17, 49, -11, 13, -42, 8, 14 ]
Montgomery, J. The respondent was prosecuted for a violation of Act No. 184, Pub. Acts 1895, known as the “Factory Inspection Law.” This law provides (section 12) that “the commissioner of labor * * * and deputy factory inspectors shall be factory inspectors in the meaning of this act, and are hereby empowered to visit and inspect at all reasonable hours, and as often as practicable or required, the factories, workshops, and other manufacturing establishments in the State,” etc. A further provision is that any person who violates or omits to comply with any of the provisions of the act, or any person who interferes in any manner with the factory inspector in the discharge of his duties, shall be punished, etc. The charge preferred against this respondent is that he did unlawfully interfere with one Otto Reinhardt, a deputy state factory inspector, in the discharge of his duties, “by Refusing him access to the machinery department of the Edison Illuminating Company, of which said Alexander Dow was then and there the general manager. ” The evidence on the trial disclosed that the inspector visited the premises of the Edison Illuminating Company, and was referred by the person in charge of the office to the engineer. The office was upstairs. He then went downstairs, and found a door which he assumed to be the door leading into the engine room. It appears by the undisputed testimony that, as a matter of fact, this was not the regular door used for that purpose; that, while it led indirectly to the engine room by means of a flight of steps, yet there was a regular door to the engine room. While standing near this door the respondent entered the other door. The parties are not agreed as to just what the con versation was, but both do agree that respondent directed Mr. Reinhardt to the engineer, and directed him to go around to the other door. This the inspector refused to do, but demanded admission at the door in question. The prosecuting attorney in his brief says that the question to be decided is whether the factory inspector or his deputy has the right, at all reasonable times, to enter at any door or entrance that is open, and through which access may be gained to the machinery, in any factory that the duties of the factory inspector or his deputy, as set forth in the statute under which the warrant in this case was issued, may call him, or whether the factory inspector or his deputy may be compelled to enter such factory through such opening or door as the proprietor or person in charge may ■see fit to designate. We have no hesitancy in answering this question, and affirming that it is the duty of the factory inspector to observe the reasonable regulations of the proprietor. The authority conferred by this statute is extraordinary, and due regard to the rights of others would suggest to the officers that the authority be exercised in such a way as to avoid collison with the owner or occupant, if possible. It is not suggested that the door to which this factor inspector was directed did not afford access to the department which he sought to inspect. This being so, it cannot be said that the respondent interfered with the inspector by refusing him access to the machinery department of the company, unless it be held that the inspctor is to be the judge of the aperture through which he is to enter. It would, of course, be a physical possibility to enter through an open window, but, if the proprietor had provided a door to admit persons to the premises, he would not be bound to permit the inspector to enter at the window. The case would have been quite different if the refusal had been captious, or if the door to which the inspector had been directed would not have afforded him full access to all parts of the factory which he desired to inspect. The provisions of the law are wise and salutary, and we would by no means be disposed to place such a construction on the statute as would be calculated to unnecessarily hamper officers in the discharge of their duty; but, on the other hand, the power to enter upon private premises for the purpose of inspecting property is a delicate power, and should be exercised with great caution. We think the evidence in this case did not warrant a conviction. Judgment will be reversed, and a new trial ordered. The other Justices concurred.	[ 1, -33, 9, -12, 0, 3, -51, 19, -54, 26, -19, 38, 20, -29, 35, -30, 40, 32, 19, 25, 94, 9, -27, -7, -24, 3, 2, 27, -49, 50, 12, 20, -6, 8, 13, 26, 89, -25, 47, -16, -45, 26, 23, -74, 7, 14, -14, 48, 20, -12, -17, 33, 12, 40, 75, -57, -13, 34, -18, 23, -25, 3, 40, -20, 41, -14, 15, 15, -31, -3, 15, -13, -16, -14, 21, -12, 55, -25, 9, 21, 6, -22, 0, -71, 11, 8, 20, 17, -29, -19, 33, 22, -35, -3, 7, 8, -28, 27, 37, 10, -9, 24, -30, 37, 8, 35, -18, 40, -15, 31, 19, -7, 13, 1, -19, 22, 36, -20, -28, 0, 73, 1, 33, 42, -12, -30, 0, -50, -11, 27, 0, 74, 4, -73, -13, 3, -22, 3, 4, 34, 12, 6, 4, -17, -26, 11, -36, 46, -11, -29, -31, -38, -17, -12, -1, 13, 35, -24, 8, 53, -16, 54, -26, -2, 2, -18, -28, 0, -9, 0, -34, 42, -16, -8, 59, -38, -26, 2, -31, 22, -23, -63, -36, -9, 21, 19, 51, 30, 8, -18, 3, 14, 2, 2, 26, 28, 0, 15, 18, 2, 2, 42, 0, 22, 7, -18, -47, 74, -39, -7, -14, 49, -11, -16, 0, 0, -27, 30, 21, 39, -53, -31, -33, 21, 6, -42, -16, 26, 70, -5, -5, 8, 62, 28, -2, -1, -13, -60, 44, -10, -34, 47, 5, 22, 6, -48, -31, 2, 28, 21, 6, -34, 60, -8, -20, 0, -29, -14, 60, -27, 31, 6, 1, 2, 35, -31, 26, 28, -39, 6, -30, 21, 20, -1, -43, -15, 14, 53, 14, -55, -26, -23, -18, 43, -19, 9, 21, -5, -76, -36, 25, -46, -31, 1, 31, 9, 15, 1, -68, 20, -15, 11, 1, -51, 49, 27, -10, -13, 16, -20, -42, -8, -33, -7, 41, 5, 8, 13, 14, -27, -39, 20, -5, -26, -5, -33, 1, -11, 14, -40, 25, -18, 15, 49, -63, 34, 15, 1, 29, -4, -1, 8, 23, -45, -34, 36, 15, 7, 31, -62, 74, -76, -10, -28, 8, 22, -7, 12, -15, 6, 22, 19, -14, -10, -53, -41, -53, -44, -6, 11, -4, -69, 10, 12, -21, -40, 12, -32, -17, 37, -7, -40, -25, -13, -17, -1, 13, -9, -35, 24, -30, -9, -8, 8, -38, 6, 54, -16, -12, -13, -17, 14, -5, 20, -4, -34, 16, 10, 5, 7, -16, -1, 10, 42, 30, -53, 25, -42, 65, -20, 26, -8, 50, 3, 77, -9, -10, -10, 6, -1, -7, -63, -8, 17, -45, -47, -16, -8, 31, 12, -47, 16, -54, 29, 36, -1, -8, 12, 16, -22, 22, 3, 10, 19, 29, 13, 6, 46, 79, 47, -5, 11, 8, -14, -3, -17, 44, -16, 29, 13, -28, -11, -20, -18, 0, -57, 4, 53, 23, -4, -2, -18, 55, 27, -47, -47, -30, -17, 5, 20, 35, 76, 4, -16, 30, 44, -8, -18, 0, 36, -83, 0, -18, -3, -9, -31, 29, 14, 62, -5, -44, 1, 0, 4, 0, -34, -3, 10, 39, -14, 57, -47, -2, 5, -10, 30, -20, -28, 6, -23, 45, -10, 20, -36, 54, -44, 15, -7, -10, -10, 26, 0, 69, 35, 5, -61, -4, 34, 8, -7, 45, 27, 0, -30, 11, -4, -25, 61, -18, 65, -18, -29, 19, 6, 2, -23, -35, 51, 77, 19, 14, 59, -16, 31, 33, 23, 8, 3, 22, 1, 23, -16, 20, -10, -36, 17, -24, -8, 4, -30, -71, -46, -34, -26, -8, -18, -7, 56, 36, 31, 1, -24, -15, 22, -20, 11, -22, 22, -14, -6, 2, -43, -16, -37, -20, 41, -76, -20, 20, 15, 24, -15, -22, 21, -35, 15, -9, -8, 9, -22, -54, -13, -18, 30, 8, -6, 72, 1, -13, 32, 27, -22, -39, -52, -29, 23, 59, 19, 19, -7, 0, 6, 29, -7, 29, 9, 9, 25, 16, -16, 34, -21, 41, 0, 62, 0, -70, -19, -73, -35, 45, 31, 16, 56, 0, -25, 35, -19, -24, -4, 6, -14, -8, 22, 11, -9, 16, 0, -25, -49, 17, -3, 40, -59, -10, 40, 53, -75, -10, -17, -41, -21, 21, 45, 10, 11, 23, -27, 38, -18, 43, -8, 1, 24, 15, -9, -16, 0, -9, -28, -24, -8, -7, 31, 4, 51, -28, -16, -12, -42, 26, -11, -5, -9, -16, 44, -69, -48, -21, -44, 41, 46, 11, 32, -1, -35, 39, 6, -27, 14, 10, 68, 11, -28, -4, 12, 0, -6, -62, 38, -10, 0, 12, -2, -24, 17, -40, -39, 21, -4, -33, 25, 31, -14, 2, 64, -3, -43, -15, -22, -23, -16, -5, -1, -4, -30, -36, 15, 26, -11, 2, -14, -8, -13, -2, -9, 35, -56, 16, 3, 20, -71, -27, 39, -34, -73, 18, 14, 1, -20, -6, -11, -59, -57, 16, -27, 24, 7, -12, -13, -20, 23, 34, -22, -1, -19, 33, -39, 32, -21, 6, 50, -16, 38, -8, -10, 2, 15, -8, -26, -35, 24, 19, 61, -10, 10, -13, 24, 8, 23, -10, -8, -50, -29, 27, 0, 55, -5, 32, 44, -25, 0, -21, 22, -12, -53, -51, -58, -15, -53, -4, 12, 37, -38, -35, 10, -28, -57, 19, 72, -14, -46, 41, -26, 25, 15, -30, -28, -9, 36, 2, 25, -7, 60, -38, -6, 51, -30, 51, -10, -4, 24, -3, 18, 6, 13, 3, -34, -24, -7, 11, 22, -28, -1, 8, 34, -44, 2, 8, -29, -40, -8, -7, 59, -10, -17, 13, -41, 19, 14, 13, -80, 38, -44, 5, -39, -12, -33, 19, -14, 15, 19, -68, -6, -14, -20, 20, 12, 15, 3, -1, 37, -51, -27, -8, 11, -12, -36, -52, -1, -20, 12, 32, 32, -32, 1, 45, -11, -24, -49, 7, -20, 11, 22, -1, 22, -31, 21, 32, 14, -5, -2, -8, 56, -36, -37, 1, -35, -17, -42, -33, 25, -17, 45, -16, 19, -78, -4, 71, 28, 9, -12, 11, -16, 40, 25, -3, 1, -20, 3, -4, -43, 3, -4, -2, 9, -48, -30, -58, -42, -11, -5, -54, 17 ]
Holbrook, P. J. This is an appeal by plaintiff, Victoria Ann Ross, wife, from the alimony, children’s support, property settlement, and attorney fees provisions contained in a judgment of divorce granted her from defendant husband, Harry Stewart Ross. Both plaintiff and defendant were residents of Berrien County before their marriage, and were members of very fine families. They were married in 1954 while they were studying in England. Both parties have enjoyed the benefits of higher education, the husband being an ordained minister, and the wife having graduated from college and having been awarded a Fulbright scholarship for study at the Old Vic Theatre school in London. • Before their marriage, defendant’s father gave him 3,500 shares of the common stock of Clark Equipment Company which has appreciated over the years and through stock dividends the number of shares have multiplied several times. There are four children of the marriage, Sarah C. B., Deborah H. (St. Andrew), Harry Beach and James Patrick Stewart, respectively 12, 10, 9 and 7 years of age. In 1959 defendant’s father deeded to defendant six acres of valuable land on Lake Michigan together with a very fine house situated thereon. This has been their family homestead since that time. The defendant husband, held the important position of pastor of one of the churches in St. Joseph, and because of his health and the publicity occasioned by the divorce proceedings, he resigned that position. His salary and expenses while serving in that capacity amounted to $725 per month. Since the divorce defendant has not been employed. The wife has not actively been engaged in her profession of acting, but did accept a contract for a few weeks in 1966 and received $650 as salary. The father of defendant husband during the marriage and until his death in 1966 was very kind to all members of the family. Unknown acts of kindness may have been many, but those brought to light in this case include gifts of life insurance policies and payment of premiums to the son; gift of stocks and three $50,000 life insurance policies on the life of defendant assigned to the wife, in- eluding the payment of premiums to the extent that the cash values of the policies at the time of the divorce were worth more than $32,000 (defendant’s mother paid premiums on these policies subsequent to defendant’s father’s death); gifts of stocks, cash, life insurance policies, including payment of premiums to each of the grandchildren, and an irrevocable trust for each of the grandchildren consisting of substantial stocks and cash. The proceeds of the trusts are payable to the children as they arrive at age 21 with the provision that the proceeds may be used if needed before that time. The defendant father and a bank in Benton Harbor are at the present time co-trustees of these trusts. The assets owned by the. children in their own right and the holding of the trusts are substantial and assure the caring for the needs of the children if other sources fail. The assets of the defendant husband as of May 24, 1968 and shown in plaintiff’s exhibit 1 are as follows: Stocks and cash Real estate (including house $677,614.70 and 6 acres of land) $122,500.00 Cash surrender value of life insurance policies $ 35,000.00 Other receivables $ 11,000.00 $846,114.70 with liabilities of $100,790.78 made up of loans from banks, leaving net assets of $745,323.92. The assets of plaintiff, Victoria Ann Ross, were automobile $1,500 (estimated), stocks and bonds $7,600, cash value of three $50,000 life insurance policies on life of defendant husband $32,563, for a total of $42,663. The net assets of both plaintiff and defendant together totaled $788,149.92. The trial court granted plaintiff a judgment of divorce on the grounds of extreme cruelty which provided in part for plaintiff to have custody of the children and for defendant to pay for children’s support $600 per month ($150 per month for each child) and, in addition, to pay any extraordinary educational expenses (including, but not limited to, costs of private schooling) and/or medical expenses (including, but not limited to, costs of neurological treatment and orthodontia) incurred for and on behalf of said minor children. The court reserved all questions relating to the payment of costs and expenses incidental to the college education of the children for determination upon application of either party at the proper time thérefor. The court awarded alimony to plaintiff wife in the sum of $400 per month, such payments to be terminated upon the death or remarriage of the plaintiff, and should defendant predecease plaintiff and she is not remarried the award shall be a claim and lien against the estate of the defendant. The court in providing for the property settlement and provision in lieu of dower awarded to plaintiff wife the family homestead located on six acres and household goods and furniture (mutually agreed to be of the value of $100,000); an automobile; $85,000 cash; three life insurance policies on the life of defendant, each in the face value of $50,000 and stocks and bonds of the value of $7,600. The trial court further required defendant husband to place marketable assets of the value of $100,000-in escrow with a bank in Niles, Michigan, the purpose of said escrow account being to secure alimony and support payments to said plaintiff and to provide for payment to said plaintiff by the escrow agent out of the escrow account any sum or sums of money in default for more than 30 days. The balance of the assets were awarded to the defendant husband. Attorney fees were awarded to the plaintiff in the sum of $5,000, together with costs of $602.50. The trial judge in his written opinion stated in reference to these provisions: “The court sincerely feels that the above provisions made for the plaintiff, Mrs. Ross, and for the children will give the family the security that it needs and will not substantially alter the standard of living that the family has enjoyed.” Plaintiff raises three issues for determination on this appeal. 1. Did the court abuse its discretion in awarding plaintiff $400 per month as alimony and $150 per month (total $600) for each of their four children as support? 2. Did the court abuse its discretion in awarding attorney fees to the wife of $5,000 plus costs of $602.50? 3. Did the court abuse its discretion in awarding to plaintiff for a property settlement the award of the automobile, the family homestead including household goods and furniture, stock and life insurance policies held in her own name, and $85,000 in cash for a total value of $227,663? I The alimony and support payments for the children are to assure suitable support and maintenance of herself and the children of the marriage, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case. MCLA § 552.23 (Stat Ann 1970 Cum Supp § 25.103). Plaintiff asked the trial court to award $300 per month alimony and $2,600 per annum for each child for support until age 14 and then $4,200 per child. Had the court so ordered as requested it would have ordered a total of $14,000 per annum instead of the $12,000. The income for 1967 of defendant as shown on his income tax return is as follows: dividends, $26,718; salary as pastor $5,500; interest, $1,612; and undistributed capital gain of regulated investment companies, $4,423, for a total of income of $37,279. This income was subject to be reduced by $5,500 because defendant was not employed at the time of the judgment of divorce (the cause of his unemployment was found by the trial court to be ill health and the publicity occasioned by the divorce) and a further sum representing reduced dividends of $3,500 caused by the payment of $85,000 to plaintiff wife as part of the property settlement. After these reductions the gross income of defendant would be $28,279 per year with the following expenses: interest $4,986; medical expenses (1/2) $2,530; and estimated state taxes $800; and estimated federal taxes $2,000 for a total of $10,316. Under these facts the usable income of defendant would amount to $17,963. Out of this sum defendant was required to pay plaintiff $12,000 as allowance and support for herself and the children plus extraordinary medical and educational expenses for the children. It is evident that the alimony and support to be paid by defendant is possibly more than he can pay out of his income. Unless defendant obtains employment or sells some of his assets he will not be able to make ends meet and provide a necessary living for himself. In the case of Ackerman v. Ackerman (1966), 5 Mich App 338, 349, we quoted from the case of Bialy v. Bialy (1911), 167 Mich 559, 565, 566: “Alimony * # * is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily it signifies, not a certain portion of his estate, but an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life during their separation, whether it be for life or for years.” In the case of Socha v. Socha (1966), 5 Mich App 404, 412, 413, we stated: “The right to alimony arises out of the husband’s duty to support the wife under the marriage contract. Johnson v. Johnson (1956), 346 Mich 418. Although the court’s power to grant alimony is not inherent but statutory, Ritzer v. Ritzer (1928), 243 Mich 406, the statute rests discretion in the court. “CL 1948, § 552.23, as amended by PA 1964, No 11 (Stat Ann 1965 Cum Supp § 25.103) provides: “ ‘Upon every divorce from the bond of matrimony for any cause except that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate real and personal, to be paid to her in gross or otherwise as it shall deem just and reasonable, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case.’ ” Considering all the facts in this case as we are required to do under the rule of law hereinabove stated we must conclude that the trial court did not abuse its discretion in awarding alimony and support payments in the sums ordered. II The plaintiff claims she should have been awarded $7,500 attorney fees, the amount her attorneys charged her, instead of the $5,000 ordered by the court. Factors to be considered in setting attorney fees are: the needs of the wife, the ability of the husband to pay, and the difficulty of the case. 1 Moore and Moore, Michigan Practice: Marriage, Divorce and Separation (2d), § 1364 pp 457, 458. This case took one day to try and we recognize the fact that considerable property was involved and the law applicable to the division thereof was somewhat complicated and that extensive briefs were filed. However, attorney fees have been consistently referred to as being in the discretion of the trial court. Socha v. Socha, supra, and Maynard, v. Maynard (1950), 329 Mich 247. The court awarded attorney fees of a few dollars more an hour than the amount specified in the minimum fee schedule for the county of Berrien. Under the circumstances present in this case we cannot say that the court abused its discretion in the setting of the attorney fees. Ill The plaintiff asserts that she should have been awarded one-half of defendant’s assets. In plaintiff’s brief it is stated: “A careful analysis of the more recent cases compels one to conclude that there is no rigid rule of one-third or one-half which our Supreme Court follows (Smith v. Smith [1952], 334 Mich 56; Johnson v. Johnson [1956], 346 Mich 418). Obviously, the ‘ability’ of the husband to pay alimony and sup port and the assets he is permitted to retain are interdependent. That the legislature contemplated this result is made clear by our Supreme Court in DeMay v. DeMay (1949), 326 Mich 72, 76, when it said: “ ‘the court will provide a property settlement and alimony allowance so that the plaintiff can live under the conditions that they had hoped would exist when they came to the later years of their married life.’ ” Plaintiff further claims that the trial judge should not only have carefully considered the vested interest of defendant of 10% in his father’s estate but in any event should have at least awarded her one-half of defendant’s assets in the event the court disregarded the defendant’s interest in the estate of his father. As we stated in the case of Socha v. Socha, supra, p 410: “The rule to be followed in divorces pertaining to division of the property is aptly stated in Johnson v. Johnson (1956), 346 Mich 418, at p 431, wherein the court stated: “ ‘The portion of property awarded to each party depends upon all the equitable factors involved, including the following: source of property, contribution towards its acquisition, the years of married life, the needs of the parties, their earning ability and also the cause for divorce. Even the needs of children may affect the property settlement.’ “See, also, Stalker v. Stalker (1945), 313 Mich 209; Wells v. Wells (1951), 330 Mich 448; Cosher v. Cosher (1959), 356 Mich 567; Wojcik v. Wojcik (1965), 375 Mich 616.” In the instant case we have a 40-year-old plaintiff and a 42-year-old defendant. They were married 14 years at the time of the divorce judgment. All of the property both real and personal owned by each was acquired through gift or gifts from the defendant’s father. There are four children of the marriage. There was testimony taken from plaintiff to show what sum would be needed to provide her and the children with a living comparable to what they had been accustomed. Specific necessary items that plaintiff testified to showed a need for $1,045 per month. Some items were not mentioned, but needful — such as upkeep and repairs to the home and depreciation on an automobile. The trial judge ascertained that plaintiff under the judgment would be enjoying an $18,250 annual income which would be quite adequate to maintain their present standard of living. Taking into consideration the property of the children and the provision for their welfare from the irrevocable trusts created by their grandfather, we must agree. However, in figuring the $18,250 annual income figure for the plaintiff and the children the court considered that the plaintiff would have $125,000 to invest at 5%, i.e., $85,000 cash and $32,500 cash value of life insurance policies, and $7,600 of stocks and bonds. This presumes that plaintiff would cash in the life insurance policies which we feel she should not be required to do. These policies of insurance are valuable investments and it should be her choice as to whether they should be retained or cashed in, even though to keep them requires payment of about $2,000 per year. Computing plaintiff’s annual income on this basis we find she will have $12,000 from alimony and support awards, plus 5% on $92,600, or $4,630, for a total income of $16,630 per year. The total net assets of both plaintiff and defendant amounted to $788,149.92 and plaintiff was awarded assets by the trial court valued at $227,663 or 28.8%. In Paul v. Paul (1960), 362 Mich 43, the Supreme Court modified the decree of divorce as to property settlement so as to “provide a fairer result”. On page 47 the Court stated in part: “While this Court hears appeals in chancery matters de novo, it generally does not reverse or modify unless convinced that it would have had to reach another result had it occupied the position of the trial court. Wells v. Wells (1951), 330 Mich 448; Ethridge v. Ethridge (1948), 322 Mich 578. For the reasons we have given, we are convinced of this in this case.” We adopt this reasoning of the Supreme Court in the instant case so as to assure plaintiff and the children the income deemed sufficient and necessary by the trial court to live in the manner to which they had been accustomed when living with the defendant. We therefore modify the judgment of divorce insofar as the property settlement is concerned to provide for an additional $32,500 to be paid by defendant to plaintiff within 30 days. This will assure plaintiff and the children, $18,250 annually, heretofore determined by the trial court to be a fully adequate income, and raise her share of the total net assets to approximately one-third. Plaintiff cites cases for the rule that under certain circumstances a wife may be entitled to share in property inherited by the husband after marriage. Zimmers v. Zimmers (1956), 346 Mich 28, 35. Also, in Zimmers the case of Reitz v. Reitz (1953), 338 Mich 309, is referred to for the rule: “It is the accepted rule in this state that there is no rigid rule of division of property in divorce proceedings, the major consideration being the security of living for the wife. See Mayer v. Mayer (1934), 266 Mich 241.” Each case must be decided upon its own facts. In the instant case practically all of the assets of de fendant were acquired as a gift to him from his father; approximately seven-eighths before marriage and one-eighth subsequent thereto. Defendant’s father died in July, 1966, and this divorce was commenced in October, 1967, at a time when the estate of the father was being probated and at the date of the hearing before this Court, the probating of the estate was still in progress. We conclude that the living of the plaintiff and the children have been adequately secured and although the trial court carefully considered the 10% interest of defendant in his father’s estate, as it was rightfully permitted to do, the facts did not require it to award a portion of the said estate to the plaintiff. A judgment will enter here modifying the judgment of the trial court in the particular mentioned and otherwise it is affirmed. Plaintiff may have costs including an attorney fee in the sum of $1,500 payable to counsel representing her on this appeal. Such judgment shall further provide that the cause be remanded to the circuit court for enforcement and for such further proceedings as may be required or advisable. Affirmed as modified. All concurred.	[ 7, 37, 19, -2, -18, -17, 3, -6, 41, -35, -21, -17, 24, 19, -14, -34, -13, -57, -14, -29, -43, -27, -8, 5, 44, 22, 35, -7, 22, -8, -12, -6, -43, -57, -41, 44, -13, -35, 10, 0, -49, -52, 72, 30, -5, 37, 39, -38, -23, 0, 4, -43, 42, -5, 29, -20, 22, 35, -7, -31, 22, -15, 34, 55, 57, 39, 3, 44, 71, -21, 0, -36, 7, -4, 0, -1, 0, 32, -11, -11, -18, -11, 16, 24, -39, 2, -24, 41, -12, 9, -57, 24, -24, 7, -13, -6, -34, -19, -17, 35, -44, -5, 0, -16, 10, 37, 13, -5, -25, -39, 55, -10, 31, 18, 17, 10, -39, -70, -22, 15, 15, 16, 45, -19, 51, 19, 33, -12, 5, -3, 11, 68, 36, -5, 25, -64, 11, -30, 1, -64, 6, 1, -12, 17, 37, 10, -15, -90, 0, -50, -28, -14, -3, 25, 84, -40, 8, -19, 43, -28, -18, -36, -41, 33, 0, -51, 26, 25, 33, 4, 38, 18, -27, -45, -2, 47, 29, 0, -20, 18, 12, 43, -12, -11, -43, -28, 57, -29, -56, -28, 30, -29, 44, 22, -21, 26, 23, 30, -13, -6, 5, -36, 46, 39, 43, -19, 34, 5, 6, -13, 31, 34, 34, -47, -27, 28, -86, -37, 13, -31, 63, -31, -6, 26, -45, -19, -15, -34, -26, -22, -60, -16, -9, -47, -41, 25, -20, -12, 10, -6, -15, -69, 54, 21, -9, 0, -26, 2, -27, 85, -32, 29, -71, 7, 8, 13, 28, 39, -30, 47, -17, 14, -77, 44, 46, -11, 3, -20, -5, -16, 0, -13, -3, -38, -25, -27, -11, 42, 18, -25, 25, 16, -8, -24, 0, -19, -6, -30, 18, 0, 15, -3, 40, -52, 58, 19, 35, -4, -49, 30, 4, 6, -4, 27, 16, -16, -54, -27, -9, 20, -18, -61, 16, -80, -7, -22, -48, 6, -46, 13, 24, 0, -28, 42, -31, 24, 12, -24, 15, 38, -26, -35, -24, 11, 17, -18, -4, 11, 14, 6, 16, -1, 37, 15, -33, -30, -47, -19, 4, 4, -2, 32, -6, -1, -50, -10, 27, -8, -23, 38, 32, 20, 49, -37, -20, 3, 29, -47, -37, 34, 21, 47, -31, 8, 9, 39, -64, 55, 18, 12, -5, -14, 29, 1, -39, -46, 8, 5, 5, 30, -37, 27, 45, -3, 2, 34, 1, 13, -27, 4, -24, 8, -26, 13, 8, -22, -14, -9, -34, 18, -40, -1, 64, 41, 58, 0, 38, -18, -15, 52, 35, 46, 19, -7, -12, -4, 4, -66, -29, 2, 10, 63, 31, -4, 59, -10, -36, 38, -8, 28, 23, 32, 12, -10, -43, 1, 10, 3, 54, -51, 1, 24, 16, 25, -46, -35, 17, 16, -34, -46, 38, -20, 27, 36, 40, -33, -24, 48, 23, 12, -13, 9, -31, 36, 16, 2, -16, -12, -12, 4, -28, 11, -55, 29, -8, 46, -47, -14, -26, 25, 28, 9, -40, 8, 60, -34, -15, -23, 25, -74, -31, 6, 44, -11, 13, -12, -3, 3, -32, -9, 2, -63, 18, 42, -12, -14, -12, 11, 29, 50, -21, 33, 1, 22, -5, -9, 39, -17, -14, 33, -18, 23, -40, -52, -9, -28, 11, -17, -33, -39, 13, 13, -24, 13, -36, 6, 5, -46, -39, 16, -37, -29, -7, 4, 17, 4, -52, -15, -20, -50, 33, 13, -23, -8, 32, -38, -19, -28, 31, 51, -21, -42, 31, -7, 35, 28, -4, 29, -39, 3, 18, 16, -31, -23, -19, 7, 16, 37, 10, 13, -26, 31, 11, -1, 20, -85, -10, -51, 18, -24, 0, -10, 2, -11, -64, 6, -32, 28, 25, -27, 14, -10, 2, -14, -1, -12, 7, -6, -51, -54, 37, 10, 41, -41, 9, -1, 29, 12, -7, 8, 40, -5, 15, 37, 53, 30, -18, 34, 0, -32, 24, -1, -32, 27, 4, -36, 18, -52, -15, -49, 15, -4, -27, 13, 10, -37, 0, -38, -70, -12, -1, -43, 21, 66, 4, 8, 48, 42, 6, 29, -41, -25, 49, 31, 31, 31, -32, 22, 39, 9, 4, 15, -29, 24, -59, 23, -9, -7, 23, -9, -5, 4, -45, 6, -40, -4, 21, 24, 6, 23, 1, 2, 6, 8, -1, 32, 32, -4, -26, 8, -21, 11, 11, 12, -46, 25, 31, -45, -16, -3, -19, -12, -27, -33, 31, 13, 8, 1, 6, 22, 7, -12, -20, 7, -47, 0, 17, -59, -18, -5, 19, 14, 1, 18, 3, 25, 9, 23, 39, 6, -10, 38, -15, 11, -17, 20, 0, 29, 21, -30, -31, 9, -76, -24, -29, 38, -8, 15, 32, -16, -30, 18, -40, 1, -40, -14, -40, 20, -16, -18, -2, 4, 9, -15, 4, -7, 62, -71, 5, 19, -38, -60, -7, 2, -7, 0, 18, 0, 25, -68, -17, 54, 33, -17, -3, 23, -65, -9, -9, 10, -18, 14, -6, 4, -26, 12, -33, 4, 14, 22, 2, -31, -10, 68, 24, 19, -20, 12, -18, -11, -3, 19, 20, 46, -34, 16, 24, -30, -37, -20, 66, -12, -48, 15, 36, 22, 57, -18, 45, -36, -10, -31, 40, 24, -35, 2, -11, 9, -11, -16, 0, 2, -25, 14, -8, 3, 35, -5, 15, 2, -30, -25, -11, 6, -1, 25, 26, -23, -15, 13, -51, 38, 23, -6, -35, 9, 5, 14, -36, -19, -31, 36, -22, -44, -19, -24, -3, -14, -17, -40, 23, -41, 7, 1, 25, -19, -17, -4, 24, -5, -10, 18, -1, -1, -54, 31, 47, 24, 2, -2, 27, -65, -26, 0, -21, -19, 16, -13, -46, 30, 15, 3, -61, 24, 56, -24, 51, -4, 39, 34, 13, 29, -28, 0, 12, 19, -15, -19, 7, 11, -2, -27, -15, 81, -10, -19, 0, 39, -28, 26, -20, 17, -44, 16, 46, -36, -4, 41, -15, 19, -22, -53, -21, -12, -18, -68, 35, 33, 7, -16, 27, 30, -6, 28, 5, -1, -39, 35, -37, 0, -10, 11, 36, -1, 41, -13, 16, -17, 5, -13, 40, -12, 19, 67, 15, -28, 0, 51, -11, -3, -22, 13, 23, 2, -30, 51, -36, -42, 21, -4, 20, 12, 22, 10 ]
Long, J. Action of ejectment. The court below made findings of fact and law, from which it appears that on the 16th day of August, 1873, the plaintiff was in possession of, and the owner in fee simple of, the N. of the N. E. £ of section 33, town 6 S., range 6 E. On that day he conveyed the strip in dispute to the Chicago & Canada Southern Railroad Company, by the following description and terms: •“ The right to enter upon, construct, maintain, and operate its railroad and appurtenances in and upon the following-described premises, to wit: The north one-half of the northeast quarter of section thirty-three, town six south, range six east,— and to use and occupy for its railroad a strip of land one hundred feet in width across said above-described premises, as the same is now located thereon by said company; reference being had for a more definite description of the said strip of land to the map of the route of said company on file. ” This grant was made upon the condition that the said railroad should be completed through said premises within three years from the date thereof, or, if such railroad should cease to be occupied for railroad purposes, then the right of way granted under such conveyance should terminate. It is admitted that the said strip has been abandoned by the railroad company, and ceased to be used for railroad purposes, and that the defendant took actual possession thereof. On March 14, 1881, the plaintiff conveyed the following premises to the defendant, to wit: “The north one-half of the ¡northeast quarter, except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad, in section thirty-three, town six south, range six east.” Each of the parties to this suit now claims to own the tract so abandoned by the railroad company, so excepted as aforesaid in defendant’s deed. The court found in his conclusions of law that the deed from plaintiff to defendant conveyed the fee of said strip to the defendant, and that the defendant was entitled to retain possession of the same. The plaintiff claims that the strip in question was excepted in the deed, and that no interest therein passed to the defendant, and that on its abandonment by the company it reverted to him. The contention of counsel for defendant is that the conveyance to the railroad company was only of a right of way; — -an easement, — and that the company was not entitled to take and hold more than that, and that the plaintiff, in his deed to the defendant^ meant to except only that which was granted to the railroad company, to wit, the easement. The deed is not susceptible of such construction. The language, “except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad,” means that the plaintiff conveyed to the defendant all the land described, excepting therefrom the 2.46 acres. It is the general rule that, where a general description in a deed is followed by a clause stating the intention of the parties as to the premises conveyed, such clause will have a controlling effect upon all prior phrases used in the description. Plummer v. Gould, 92 Mich. 1 (31 Am. St. Rep. 567). In Wait v. Baldwin, 60 Mich. 622 (1 Am. St. Rep. 551), it appeared that the plaintiff conveyed the land, and inserted in the deed, after the description, the.words, “excepting timber therein.” It was held that the title to the timber remained in the plaintiff. In Vincent v. City of Kalamazoo, 111 Mich. 230, it appeared that the deed conveyed a lot in the defendant city, except so much thereof as was “set apart for sidewalk purposes.” It was held that the land excepted was not included in the deed. See, also, Reidinger v. Cleveland Iron Mining Co., 39 Mich. 30. Under the facts found by the court below, the judgment should have passed in favor of plaintiff. Judgment reversed, and judgment entered here for the plaintiff on the findings, and case remanded for further proceedings under-the statute. The other Justices concurred.	[ -14, 27, 46, 24, 14, 45, 34, -4, 71, 26, -41, 67, -5, -46, 41, 17, -18, 3, -5, 21, 0, -34, 25, -24, 22, -10, 24, 51, -21, -2, 28, 14, -40, 33, -5, 36, -14, -21, 17, 6, -7, 27, -16, 5, 39, 36, -6, -4, 4, -6, 37, 19, 10, -13, -43, -22, -43, -5, -7, 38, -3, -57, -19, 10, 1, 21, 24, -30, -2, -26, -51, 15, -15, 23, 47, 24, 10, -11, -5, -22, -20, -4, 21, -67, -22, 28, -4, -15, 21, 21, -19, -26, -24, 15, -2, 51, 15, -14, -45, -25, 8, -1, -5, -6, -1, -32, -21, -11, -12, -80, -27, -32, 31, -52, -15, 2, -11, -39, 23, 2, 7, -20, 46, 28, -1, 7, -9, 41, -37, 23, -39, -23, -23, 7, 59, -12, 0, 5, 59, 10, -22, 18, 39, -29, 0, -2, -9, 48, 15, -19, -29, 2, 13, -2, 10, -8, 30, -8, 41, 0, 34, -21, 52, -19, -46, 2, -1, -21, 0, 77, 9, 1, 26, -29, 6, 40, 12, 8, -46, 10, 27, 14, 5, -22, 5, -12, 29, 25, -10, -2, 59, -16, 13, -44, -55, 32, -24, -1, -24, 11, 20, -39, -39, 11, -57, 7, 39, 25, 23, 3, 16, 41, -19, -49, 28, -4, -5, -59, 34, -54, 42, 6, -32, 2, -15, -33, 1, 36, -21, 9, 40, -4, -13, -29, -53, -15, -22, -25, -26, 8, 51, 39, -50, -51, -3, 0, -12, -5, -31, 52, -49, -51, -65, 55, 52, -6, 14, -21, 0, -15, 27, 43, -47, 15, 44, 0, -33, -34, -23, 40, 20, 13, 7, 46, -9, -30, 18, -26, 5, -26, 54, -29, 3, 30, -56, 26, -32, -2, 0, 68, 8, -18, -6, 39, -19, 39, 47, 46, 28, 11, -5, 0, -28, 8, 2, 18, -33, 0, 24, -37, -26, 9, 23, -23, 53, 17, 6, -30, -8, -78, -18, 17, -6, -3, 55, 24, 45, 21, -12, 21, 82, -30, 22, 31, -31, 19, -64, 7, 31, -31, 4, 5, -34, -2, 24, -14, 11, -82, 56, 7, -28, -34, -1, 14, -18, 3, -18, -34, -15, 12, 62, -20, 71, -49, 44, -77, -37, -26, 10, -27, 4, 19, -2, 4, -17, -11, 26, -11, -25, 33, 12, -13, 20, 28, 23, 22, -75, -48, -52, 30, -24, -12, -12, 44, 26, 11, -5, 67, -14, -41, 21, -3, 3, 42, -27, -60, -21, 40, 2, 51, 5, -7, 43, -28, 11, 15, 13, 15, 48, 40, 8, 15, 25, -25, -21, -5, 6, -12, -32, -46, -27, -2, 47, 16, 0, 33, -23, -21, -18, 6, -38, -4, 19, 41, -18, 32, -39, -3, 0, -19, -12, 14, -11, -6, -42, 15, -22, -25, 44, 45, 47, 17, -1, 48, -14, -21, -25, -22, 13, 36, 7, 42, 23, 9, -55, -25, -21, 3, -37, 12, 6, -33, -27, -8, -14, -43, -47, -10, 36, 41, 50, 9, 30, -41, 28, -58, 13, -17, 8, 14, -13, 6, 41, -12, -23, 38, -17, -18, -6, 74, 31, -27, 19, -10, 14, 34, -42, 12, -7, -18, 19, -1, -10, 8, 7, -24, 35, -22, 10, -30, 26, -39, -2, -20, -42, 54, -6, 1, 8, -47, -32, 53, 20, -19, -51, 27, 28, -2, 8, 19, -22, 1, 21, -11, 0, -11, -56, -58, 9, -1, -34, -37, 46, -63, 39, 14, -15, -45, 11, -25, -16, 33, 43, -39, -20, -5, -3, -14, -14, 44, -25, -35, 14, -21, 11, 13, -1, -10, -36, 37, -4, 21, -21, -36, 24, -6, 6, 81, 7, 5, -1, -24, -43, 15, 29, 28, -69, 5, 15, 45, 26, 9, 12, 61, 46, 7, 4, 26, 7, -16, -4, -17, -18, -12, -33, -24, -18, 53, -10, 12, -4, 13, -27, 40, 21, 10, 38, -1, 52, 5, -29, -17, -2, -25, -58, -2, -62, 22, -17, 13, -43, 44, 47, 14, 28, 43, -15, 40, -7, -22, 32, -27, 38, -10, 0, -18, 23, -42, 2, 7, 11, -34, 0, 40, -42, 13, 7, 22, 45, 44, -1, 1, 24, 10, 28, 3, -13, 2, 21, 30, 0, -43, -6, 9, 10, 31, -3, -13, 19, 3, 23, 59, 48, 27, 5, -5, -9, -8, -17, 15, 38, -46, 41, -13, 13, 14, 10, -16, 9, -18, 86, 23, -51, -37, 18, 55, 10, -9, -34, -24, -7, 22, -36, -72, -16, 14, -3, -14, -30, -42, -28, -37, -4, 62, -33, 23, 7, -1, -52, -1, 11, -15, 25, 27, 39, -28, -28, 14, -9, -84, -7, -38, -52, -3, -25, -18, -69, -7, -16, -12, 0, 2, -31, -22, 14, 13, 0, 28, -7, 3, 18, -6, 38, -3, -7, -31, -24, 26, 28, -2, -32, -28, 0, -8, -70, -24, -6, -17, -7, 4, -71, 5, -55, -14, -49, 20, -23, 42, -14, 10, -50, 4, -41, -42, -46, 22, -15, 29, -9, -11, -30, 48, -17, 13, 23, 34, 27, -19, 5, 35, 31, -2, -13, 25, 23, -65, 18, -5, 3, -33, -16, -8, -58, -45, 8, -34, -26, 5, 18, -14, -53, -12, -42, -73, -35, -53, 18, -4, 9, 22, 8, 30, -21, -15, -22, -41, -26, -28, 1, 26, -32, 26, -9, 6, -12, 4, -25, -61, 27, 25, -9, -30, -3, 6, -18, -23, 0, -16, 26, 39, -12, -13, -21, -4, -21, -10, 27, -32, 27, 7, -21, 30, 29, -8, 55, -6, 40, -7, 9, 3, -6, -12, -6, -17, -7, 7, -39, 23, -8, 35, 21, 56, -19, -9, -23, 29, 20, 21, 21, 25, -52, 5, -30, -40, 32, 0, -39, -97, 37, -7, 16, 9, -26, 61, -3, 13, -9, -37, 15, 29, -17, -15, 0, 22, -18, -39, -32, 37, -57, -34, 36, 25, 28, -22, -1, -8, 39, 9, -10, -47, -45, -41, -17, 26, 27, 8, 25, 24, -25, -35, 70, -36, -50, 12, 50, 9, 1, 18, -9, -18, 13, 28, 1, -7, 37, 25, 10, 24, -24, -25, 13, -53, 9, 6, 19, -8, 25, 36, 28, -33, -33, -28, 78, 36, 51, 25, 0, -9, -6, -6, 31, -28, -5, 33 ]
Lesinski, C. J. On December 12, 1967, a Montgomery Ward private security officer observed Leroy Morgan and a female accomplice approach the sweater counter in the Livonia Ward store, place two sweaters in a bag, and leave without paying. The guard called a fellow officer and followed defendant and the girl outside. The first officer testified that she stopped the pair and accused them of taking some merchandise without paying. Defendant replied, “Yes.” The pair were taken, to the store security office and questioned about the crime. The defendant stated that the girl was pregnant and that he took the sweaters to sell to obtain food money. The Livonia police were called and arrested the two persons. After trial by jury the defendant was convicted of larceny in a building and sentenced to a prison term of three to four years. He appeals as of right. At the outset we note that no objections were raised below concerning the issues raised on appeal. While, as a general rule, this Court will not review matters not properly preserved for review, we will, in the exercise of onr discretion, search the record to determine whether the errors indicate manifest injustice depriving defendant of a fair trial. People v. Reynold (1969), 20 Mich App 397; People v. Owens (1968), 13 Mich App 469; People v. Willis (1965), 1 Mich App 428. See, also, People v. Kelsey (1942) 303 Mich 715. The first allegation of error concerns the security officer’s testimony relating to defendant’s statement in the security office. Defendant argues that the statement was inadmissible because the officer failed to advise defendant of his constitutional rights, before interrogation, as required by Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694). Defendant correctly recognizes that this Court discussed this issue in People v. Omell (1968), 15 Mich App 154, 157, where we held that “a private investigator is not an officer of the law in such capacity that he is required to render a constitutional warning precedent to the taking of a statement in the nature of a confession.” However, defendant attempts to distinguish Omell on the grounds that the security officers here were acting “in concert with the police” while in Omell they were not. We disagree. In Omell the officers, private detectives hired by defendant’s employer to investigate possible embezzlement, suspected defendant of wrongdoing, confronted him at his office, and persuaded him to write a letter to his employer admitting wrongdoing. We discern no practical difference between the facts r.of Omell and the facts of the instant case. Omell controls. Defendant’s second allegation of error is that the prosecutor’s remarks during closing argument violated defendant’s right against self-incrimination. The prosecutor stated first that “[w]e have uncontroverted evidence here on the stand, and I want to emphasize ‘uncontroverted evidence,’ that the defendant here went into the store with a female friend”. Again in rebuttal the prosecutor said: “Now, as I told you before, there is uncontroverted evidence here. The case is that simple. There is no defensive testimony here showing otherwise than what had occurred”. Defendant argues that the statements concerning “uncontroverted evidence” were made for the purpose of emphasizing to the jury that defendant failed to take the stand and controvert the evidence against him. This issue was decided adversely to defendant in People v. Alexander (1969), 17 Mich App 497. See, also, Leak v. Follette (CA2, 1969), 418 F2d 1266, where the court, per Friendly, J., held similar remarks permissible: “Neither the language, the history, nor the policy of the self-incrimination clause affords support for the surprising proposition that in declaring that no person ‘shall be compelled in any criminal case to be a witness against himself,’ the authors of the Bill of Rights intended to prohibit proper advocacy concerning the strength of the prosecution’s case. “We would not want this opinion to be taken as issuing any roving commission to prosecutors. Inflections and gestures may have an effect the cold record cannot convey, and trial judges must be alert to prevent abuses of that sort. We hold only that where the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant’s failure to testify even if in practical fact, although not in theory, no one else could controvert them.” Defendant’s third allegation of error concerns the failure of the prosecution to call, as a res gestae witness, the defendant’s female accomplice. Although the prosecutor is under a general obligation to indorse on the information and call as witnesses all noncumulative res gestae witnesses, this duty does not extend to the calling of accomplices. People v. Chaney (1970), 21 Mich App 120; People v. Virgil Brown (1969), 15 Mich App 600. No error occurred. Defendant’s final allegation of error concerns the trial court’s alleged failure to consider the possibility of sentencing defendant, a narcotics addict, to probation conditioned upon commitment to the Narcotics Rehabilitation Center in Lexington, Kentucky. Without deciding whether the trial court had the power to issue such an order, we find that the record indicates that the trial judge did, in fact, consider many possible alternatives to a prison term for this defendant. However, after determining that no adequate facilities for the treatment of convicted criminals, suffering from addiction, exist in the State of Michigan and that other charges were pending against this defendant, the trial court reluctantly imposed a prison sentence. The sentence was within the maximum provided by law and cannot be disturbed on appeal. People v. Guillett (1955), 342 Mich 1; People v. Pate (1965), 2 Mich App 66. We also reach this decision somewhat reluctantly because we recognize the dilemma of the trial judge. The de fendant here was convicted of a crime. However, it is apparent that the driving force behind defendant’s actions is his insatiable and expensive narcotics habit. Unless the defendant receives proper medical treatment aimed at controlling or curing his sickness, he can be expected to steal again. Unfortunately treatment facilities do not exist in Michigan. The trial judge was aware of this fact, as is this Court; however, as courts we are powerless to erect the proper drug treatment facilities. Having found no error in the proceedings below the conviction and sentence of the defendant are affirmed. Affirmed. All concurred. MCLA § 750.360 (Stat Ann 1954 Eev § 28.592). Leroy Morgan’s eodefendant entered a plea of guilty of attempted larceny in a building and was sentenced to one year in the Detroit House of Correction. No objection was raised. The trial judge denied the prosecutor’s request to charge the jury on the uncontroverted nature of the evidence and told them instead: “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 the 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 evidence of his guilt or innocence. The failure of the defendant to testify is not even a circumstance against him, and no presumption of guilt can be indulged in by the jury because of this failure on his part.”	[ -11, 6, 0, -20, -35, -3, -41, -31, -21, 47, 33, -5, 0, 27, 60, 0, 33, 27, 38, -12, 57, -58, -41, 8, -41, -41, 13, 42, 0, 76, -29, 29, 52, -62, 39, 35, 35, -5, -27, -1, 7, 41, 37, -28, -35, -16, 44, -20, 18, -39, 52, -15, 4, 17, 0, -5, 11, -8, 51, -29, -26, -17, 21, -11, -13, -31, -39, 20, -30, -44, 51, 23, -47, -40, 5, 0, 18, 1, -42, 11, 32, -5, 47, -29, 41, -43, 0, 0, -3, -10, -5, 32, -50, -23, -4, -40, 11, -27, -8, -67, -39, 1, -12, 41, -8, 60, -21, -45, -11, 2, -26, -5, 30, -21, -24, -23, 0, -11, 30, -25, 41, 10, 60, 5, -6, -23, 11, -7, 0, -40, 20, 48, 31, -30, -34, 5, -17, 44, 22, 35, -55, 52, -6, -14, 49, -1, 2, 19, -11, 1, -2, -38, 13, 35, 12, -2, -20, -35, -27, 31, -21, -15, -41, -6, -4, -25, -17, -32, -3, -13, 12, 21, -1, 41, 3, -38, -46, 21, -1, 5, -6, -26, -31, 15, -17, -7, 34, -49, 4, -28, 0, 13, -17, 41, 22, 53, -24, 51, 4, -71, 7, -29, 3, -6, -5, -34, 29, -39, -27, -14, -24, 21, 8, -22, 11, -35, -28, 0, -29, -25, -48, -10, -52, 14, -28, -43, 4, 33, -37, 26, 56, -2, 0, -27, -9, 0, 20, 2, 56, 36, -10, -14, -21, -17, 23, -1, 0, -36, -21, -18, -2, 2, -2, -18, -20, -19, 19, -35, 37, 45, -25, 44, -25, 64, -5, 26, -3, 27, -85, -15, -38, -16, -13, 10, 13, -5, -24, 29, 33, 0, 6, 13, -43, 38, -7, -77, -32, 23, 15, 14, 16, 20, -41, 0, 69, 4, 23, 6, -71, 14, 11, 55, -5, -35, -21, 12, 27, -1, -16, -1, 25, 30, -23, 33, -9, 23, -13, -10, 54, 25, -43, -32, -9, 24, 41, -27, 6, -30, 38, -93, 12, -9, 1, 29, -10, 25, 5, 17, 7, 22, -17, -5, 70, -62, 17, 39, -45, 47, -49, -22, 34, 3, 11, 17, 20, 20, -17, -11, -8, -19, 8, -46, -30, 23, -18, 27, -45, -46, 13, 41, -23, -50, -24, 6, -11, 6, 13, -65, -4, 73, -32, -13, -14, -54, -41, -68, -28, -7, -11, 15, -51, 0, 1, 13, 6, -24, -4, 12, 38, -14, 4, 5, 54, 24, -35, -37, -14, 13, 22, -4, 7, 26, 46, 29, -44, -36, 24, -14, 4, -19, 13, -32, 20, -5, 21, 38, -12, 44, 3, -36, 5, -11, 4, -65, 5, -27, -51, -6, 18, -29, -16, 19, -58, 36, 26, -25, -34, -8, 31, 0, 48, -6, 39, -86, -18, 25, 25, -21, -24, -18, -10, -16, -30, -5, 25, -23, -44, -87, 15, 14, 34, 3, -18, 25, -28, 27, 13, 8, 9, 7, 5, -21, 65, 5, -65, -25, 11, -53, 0, 31, 23, 2, -17, 7, 31, -6, 5, -7, 29, 18, -20, 29, 25, 25, 41, 4, -2, -21, 43, -19, -17, 67, -29, -1, -8, -26, 20, 16, 53, -16, 41, 1, -4, 54, -36, -3, -8, -11, -59, 1, 13, 3, 31, 10, 71, 16, 69, -35, -23, -30, 17, 7, 20, 70, 11, -26, 30, -49, 15, 0, 55, -3, -3, -34, -21, -36, -6, 32, -39, 4, -30, 1, 41, 50, 33, -2, -4, -3, 45, -19, -17, 36, -17, -8, 42, 47, 43, 17, 2, 16, 59, 31, -26, -11, 12, 22, 27, -5, -12, -32, -41, -25, -12, -2, 44, 30, -55, -32, 10, 0, 54, -15, -26, -1, 29, -65, 12, 37, 1, -27, 30, -19, 47, -22, -17, 23, -82, -3, -30, 5, -11, 18, -18, 67, 1, -5, 5, -11, -25, -19, 19, -8, 26, -6, 2, 0, 29, -5, -48, -23, 12, 7, 4, 45, 36, 0, -19, 42, 4, -35, -24, 19, 68, -20, 25, -42, -23, 6, 14, -22, -10, 46, -51, 40, 25, -25, -10, -22, 40, -25, 4, 12, -24, -15, 15, 5, 59, -26, -29, 11, 9, -13, 0, -17, 23, 17, 1, -21, -23, -19, -37, -34, 48, -23, 35, -11, 38, -4, -21, -18, 6, 0, 39, 1, 6, 2, 2, -65, -1, -12, 1, -4, -4, 11, 9, -4, -51, 34, 0, 36, -66, 24, 45, 21, 4, -28, 14, -25, -16, -1, -2, 29, 27, -19, 46, 31, -38, -14, -19, 5, -20, 46, -11, -48, -7, -18, 4, -3, 11, -6, 21, 82, 55, 15, -26, 13, 11, -14, -44, -67, -23, 32, 22, -48, -18, 10, -11, -20, 44, -6, -7, -57, -10, 2, -36, 30, 4, -42, -1, 0, 36, 7, -11, 0, 12, -4, -5, 0, -27, -16, 9, -14, -19, -14, -29, 23, 26, 30, -21, -32, 11, -12, 19, 32, -17, 11, -31, -8, 11, 4, 28, -28, 3, -52, -21, 30, 8, -4, 30, -41, -10, 8, 8, -5, -38, 34, 27, -16, -48, 7, -12, 39, 22, 4, -20, 13, -9, -28, 41, -12, 28, -5, -23, 44, 32, 65, -4, -14, -34, 39, -12, 4, -28, -4, 36, 3, 5, 27, -4, 7, -29, -12, -25, -41, -61, 46, 26, -49, 2, 14, 24, 57, 10, 18, 17, 12, -7, -31, 0, -3, 3, -43, 32, -2, 24, 13, -31, -51, -30, -7, -24, 39, -8, 48, -41, -22, -9, 0, 54, -38, 31, 7, -31, 10, 28, 13, 12, 30, -20, -39, 23, -64, 10, 24, 3, 32, -51, 9, 44, -33, -57, -7, 32, 53, 6, -6, 22, 39, -42, 37, -13, 28, 12, -29, 13, -21, 50, -29, 1, 8, -9, -9, -19, -7, -5, 44, -5, -15, 23, -19, 17, 10, 7, 10, -30, 2, -14, -25, -14, 29, -36, 25, -22, 25, 5, 35, 37, -28, 13, 8, 9, -51, -27, -80, 29, -4, 0, 19, -14, -26, -21, 0, -49, 39, 58, -10, 17, 18, -26, -7, 4, -7, 0, 18, -9, 37, -31, -51, -3, 10, 28, 20, 39, 0, -19, -37, 37, -12, 7, 32, 9, -72, 25, -16, -19, 0, -2, 49, -37, -26, -37, 29, -3, 60 ]
Fitzgerald, J. The present case is prefaced by an earlier action commenced by plaintiff Perry & Derrick Company, Inc. for an amount due on a contract for goods and services against the Farmer’s Exchange and Perfection Flour Mills Company and against Stanley Murawaski, individually, as surety on a guarantee note. The flour company did not appear and a default judgment was entered against it. A consent judgment was entered against Stanley Murawaski. There was an execution and sale of the property belonging to the flour company which satisfied only part of the judgment. Subsequent to the above judgments and the execution sale, discovery was had on Stanley Murawaski at which time it was learned that the flour company had failed to comply with the Michigan corporations law and was illicitutm collegium. In December 1965, plaintiff filed a complaint against the present defendants alleging that they were liable on the original debt as members of a joint venture or partnership because the corporation had never become a legal entity under Michigan law. In their answer, defendants alleged affirmative defenses of failure to join a party, splitting a cause of action, and res judicata. On July 15, 1966, plaintiff brought a motion for summary judgment denying defendants affirmative defenses. The motion was denied and on May 2, 1969, the court rendered a judgment in favor of defendants. The parties to the present case base much of their respective arguments upon G-CR 1963, 203 to 208, dealing with joinder of claims and parties. In spité of the detailed statement of questions involved and arguments presented, we find that the actual issue is whether the doctrine of res judicata precludes a party who has received a judgment against a corporation from subsequently suing the officers of that corporation based on the same claim and alleging that they are a partnership or joint venture because the corporation has been voided. Plaintiff argues that because the flour company was voided as a corporation the present defendants are liable, either as a partnership or joint venture. Presumably, this has the effect of making them a different party. However, despite the fact that the flour company was not a de jure corporation, plaintiff is estopped from denying it corporate status. The theory of corporations-by-estoppel is explained in 8 Fletcher, Cyclopedia of Corporations, § 3964, where it is stated: “Estoppel to deny the existence of a pretended corporation may arise from a judgment either for or against a corporation. So a person who has sued and recovered judgment against a company as a corporation cannot thereafter maintain a second suit against its members individually or as partners on the same cause of action; nor can he maintain a suit to charge its members as partners with the amount of the judgment, nor for damages for falsely representing that they were a corporation.” This rule has also been adopted in Michigan and is explained in Estey Manufacturing Co. v. Runnels (1884), 55 Mich 130. The question of whether the present defendants would have been liable as individuals hinges on whether the flour company could have been considered a de facto corporation. See Tisch Auto Supply Co. v. Nelson (1923), 222 Mich 196; Berlin State Bank v. Nelson (1925), 231 Mich 463; Campbell v. Rukamp (1932), 260 Mich 43. However, that issue should have been raised in the first suit and the doctrine of res judicata prevents plaintiff from raising it now. In Gursten v. Kenney (1965), 375 Mich 330, 335, the Supreme Court, faced with a similar situation, explained: “The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” Furthermore, the fact that plaintiff did not know of the voided status of the flour company until after the first judgment does not change the result. Through reasonable diligence, plaintiff could have investigated the company’s corporate status and, failing in this respect, they will not be heard to assert lack of knowledge of the character of the corporation. See Love v. Ramsey (1905) , 139 Mich 47. The fact that the original judgment against the flour company was obtained through default does not affect the result we now reach. A default judgment is just as conclusive an adjudication and as binding upon the parties of whatever is essential to support the judgment as one which has been rendered following answer and contest. As is true with a judgment on the merits, a default judgment will bar a second suit between the same parties and their privies on the same cause of action. (1961), 77 ALR 2d 1410. In recent years, the dockets of Michigan courts have become increasingly crowded and it is a situation such as this that the doctrine of res judicata is designed in part to control. In Knowlton v. City of Port Huron (1959), 355 Mich 448, 456, the Supreme Court stated: “This claimed right to ‘sue till something gives’ cannot he sound law. There must be an end of litigation, and out of sheer self-defense and considerations of broad public policy our courts cannot gladly permit repeated litigation of the same old question under the circumstances appearing in this case.” For the reasons stated above the decision of the trial court is affirmed. Costs to appellees. E. B. Burns, P. J., concurred.	[ -15, 34, -2, -34, 1, 28, -28, -28, 12, 28, -5, -11, 18, 14, 1, -12, 8, 50, 16, 16, 22, -49, -70, 14, -39, 1, 29, -21, 32, 2, -33, -27, 2, -30, -39, 25, 16, -35, 7, -10, 62, 36, 7, 5, -28, -11, 23, -53, 41, -25, 56, 12, -19, 16, 22, -3, 2, -5, 23, -26, -4, 10, 8, 11, 10, 13, 16, 35, -10, 11, -37, -33, 4, 16, -16, -30, -7, -5, 39, 0, 8, -12, 25, -43, -59, 46, 19, 14, 28, -26, -8, -43, -71, -14, 8, 39, 6, 4, -3, -3, -5, -3, -33, -7, 20, 52, 15, -12, -36, 55, -16, -1, -2, -35, 0, -22, -28, -26, 5, -43, 8, 26, -2, 31, 20, 0, -45, 1, -3, 6, 26, -31, -19, 28, -25, 21, -4, -2, -7, 5, 29, 67, -39, 35, 27, 74, -15, -13, -7, -56, -9, -25, 42, -5, -34, 8, -6, -11, 50, -72, 32, -9, 17, -1, -4, 7, -26, 35, -86, -14, -19, 24, -23, -25, -8, 7, 18, -62, -14, -14, -18, 3, -27, 13, 25, -28, 8, -3, 9, 0, 24, 2, -34, 50, 3, 15, -16, 80, 0, 45, -1, -11, -14, -1, -15, -19, 63, 14, -44, 49, -13, -20, 0, -17, -39, 10, -27, -51, -4, -23, 7, 9, -44, 14, -20, -1, 12, -11, -15, -8, 20, -3, -26, -5, -64, -61, 21, 31, 33, 15, -5, 0, -32, -5, -8, 11, -12, 26, 1, 42, -12, -62, 8, 16, -8, -24, -96, 10, 37, -28, -11, 55, -55, 7, -40, -13, 36, 29, -35, -15, -2, -2, 9, -6, -27, 1, -27, 6, 4, 20, 0, 23, 12, 7, -56, 1, -11, 17, -68, -27, 39, 17, 6, -49, 13, 6, 32, -74, 2, 51, -6, 4, 20, 7, -20, -1, -27, 33, 29, -39, -28, -23, -18, -62, 43, -22, -7, 74, 40, -39, 7, 53, 31, -18, 1, -6, 28, -41, 60, 20, -41, 40, 23, 19, -29, -37, 89, -17, -36, 29, 25, 14, -15, -33, 4, 58, -15, -6, 26, -24, -20, 11, -3, 17, 29, 39, -30, -13, -60, 30, -8, -29, -56, 5, -22, 69, -45, 17, 4, 62, -65, 21, -21, -3, 4, -33, -34, 8, -67, 53, -14, -59, 19, -37, 4, 12, -28, -16, -81, 10, -77, -6, 30, 16, 14, 11, 22, -3, -19, 3, -24, 44, 9, -2, -30, -38, 3, -61, -14, 17, 11, -24, 13, -8, -19, -31, 33, -46, 18, -15, 17, -38, -9, -17, 6, -61, 9, 25, -20, -17, -15, 19, 11, -37, 21, 18, -73, 11, 73, -1, -23, 58, -41, -20, 54, 25, -11, 2, -9, -3, 23, 35, 34, -1, -5, 14, -22, -3, 32, -10, -4, -28, 63, -23, -5, -15, 14, -65, -13, 30, -28, 1, 33, 69, -26, -1, 17, 46, -4, 0, 0, 65, -6, -22, -21, -7, -6, 20, -15, -9, -20, 24, 17, 15, -44, -15, 9, 3, 6, 30, 9, 0, -14, -32, -25, 19, 10, -37, -33, 37, -20, -31, 69, 26, -2, 33, -7, 58, 17, -2, -43, 8, -45, 22, -51, 12, 25, 24, 42, -33, 57, 12, 26, 8, -6, -1, 34, -35, -57, -26, -42, 1, -30, -22, 25, -6, -18, 8, -16, -12, -65, -24, 34, 29, 31, 10, 14, 5, -3, 33, -20, -7, 12, -25, 22, -21, 27, 21, 41, 35, -42, 7, 13, 35, 10, -15, 37, -12, 17, -38, 17, 6, 29, -84, -43, 30, -6, -47, 3, -11, -9, -13, -14, -63, -18, -1, 35, 0, 7, 7, 30, 16, -66, -53, -33, -27, 13, 39, 4, -13, -8, 10, -35, 15, 32, -1, 35, -23, -18, 27, 19, -13, -33, -45, 12, 0, 34, -2, -17, 10, 45, -20, -31, 48, -23, 26, 25, 25, -39, 8, 6, -31, 17, 15, 17, -57, 12, 23, 8, 27, 25, 24, 20, 9, -1, -6, 0, -26, 42, -41, -8, -6, 0, 26, 27, 33, 11, -13, 44, 11, 16, -28, 33, -13, 29, 17, 45, -9, 17, 67, 12, -40, -24, 4, 2, -34, 12, 2, 3, -53, -33, 25, -62, -31, 9, 44, 2, 8, 21, -4, -31, 5, -8, 61, -16, -2, -41, 32, 50, 13, 81, -54, 8, -22, -3, 60, -23, 35, 3, -26, -16, -66, 22, -12, -6, 0, 22, -20, -14, 23, 17, 12, 38, 6, 29, 19, 23, -75, -57, 7, 8, -44, 11, 5, 4, 12, 14, 25, -23, 27, -16, 7, 29, 58, 49, 11, -53, 11, -67, -16, 9, 24, -22, -28, -18, 59, -17, -28, 29, -13, -56, 6, -1, -3, 19, 10, 2, 38, 34, 3, 39, -2, 26, 15, -42, -69, 40, -21, 6, 34, 8, -15, 58, -24, -14, 13, 11, 16, -3, -17, 15, 1, -14, 19, -9, -30, -3, 25, 31, 2, -5, -27, -3, 5, 34, 24, -79, 3, 3, 5, -14, -42, 10, -6, -33, 15, 3, -6, 8, 16, 22, -14, -54, 26, 15, -3, 20, 43, -15, -79, -15, -46, -29, 6, 27, 37, -39, 32, -53, -26, -6, 34, 2, -8, 32, 6, -33, 32, -24, 32, 34, -13, -75, 21, 22, -42, -39, -30, -1, -1, 30, 24, -30, 49, 46, 1, 3, 7, 3, -25, -29, 71, -1, -16, -14, 2, 21, -11, -31, 12, 13, 19, -11, 0, 26, -9, -7, -51, 14, 21, -50, 8, 28, -6, -5, 45, 30, 9, -30, 39, 60, 29, 41, 45, -37, 25, 18, 30, 23, -16, -12, 17, -29, 0, -54, 28, -38, 42, 35, 35, 13, -8, -20, 26, -21, -26, -4, -7, 46, 26, 20, -19, -14, -17, -61, -32, 6, 22, 22, -27, -44, -12, 12, 19, -25, 7, 25, -36, -41, -49, 3, -2, -54, -2, -14, -12, 4, -50, 30, -16, -3, 29, -36, -40, -55, -7, 2, -1, -25, -12, 36, -13, -19, 65, 13, -64, -8, -44, -13, -37, 38, 40, 6, -10, 0, 11, 16, 3, 37, -21, -5, 2, -6, -10, 3, -21, 44, 0, 7, 18, -4, -4, 40, 46, 3, -17, -28, -6, 21, 22, -69, 28, 35, 31 ]
Steere, J. Plaintiff brought this suit in the circuit court of Genesee county to recover damages from defendant for the death of his son, Ralph June, a youth 19 years of age, who met his death on Saturday, November 4, 1922, in the collision of a Ford automobile in which he was riding with a train; of defendant at the intersection of its track with Stevenson street in the city of Flint. A trial by jury resulted in a verdict in favor of defendant by direction of the court. A motion was made by plaintiff for a new trial, on the grounds that the verdict and judgment were clearly against the weight of evidence and the court erred in directing the verdict in defendant’s favor. On the evening of November 4, 1922, some friends of Philip Reed, who was 20 years of age that day and lived with his parents, met socially at his home. It was decided that they take a little drive in his auto which was a Ford touring car. The six then there started out and soon met deceased and Beatrice June who were expected at the gathering and picked them up for the ride, making eight occupants of the car,, with four in each seat. Philip Reed was driving, and. sat on the left side of the front seat, in which were also three other young people. A Miss Ancompaugh, then 16 years old, sat in the seat beside him, and next to her sat a young man named Sherman Bean, with Miss June sitting on his lap. Ralph June, deceased, sat on the right-hand side of the rear seat. Miss Eva Main sat next to him, and J. G. Reed sat next to her, with a Miss Opal Babbit on his lap. Stevenson street runs approximately north and south, and crosses the Grand Trunk Western Railway nearly at right angles. At this crossing there are five switch tracks to the north of the main through track and north of the north switch track is the Flint river. The collision was on the main track. The Ford car in which the 8 young people were riding was going south along Stevenson street approaching the crossing .from the north and had to cross the five switch tracks before it came upon the main track. It is 8 feet from the north rail of the main track to the south rail of the first switch track north of it; the next switch track north is 26.9 feet from the main track, the next 47.2, the next 112.2, and the last farthest north 147 feet from the main track. De fendant’s line after crossing Stevenson street at about right angles extends straight west for approximately 200 feet, then curves to the south for a short distance and swings back west again, making a somewhat S-shaped curve. Stevenson street is shown upon the map introduced in evidence to be slightly over 50 feet in width. It is practically level from the north switch south over the crossing. The sidewalk on the west side is about four feet wide. The driveway over the crossing is planked 18 feet in width east and west, the westerly end of the planking being 12 feet from the easterly side of the west walk, and about the same distance on the other side. The automobile was struck on the right side near the center of the rear wheel by the engine of a train coming from the west on the main track. In the collision plaintiff’s decedent, Ralph June, was thrown against a telephone pole, causing his death. Philip Reed testified that the train went down the track so that the engine stopped about 350 feet from the accident. Plaintiff’s witness Hunt testified, “the engine and a couple of the cars, maybe three of them, passed the street before it stopped and there were cars on Stevenson street when it stopped.” The negligence charged against defendant is failure to give notice of the approaching train by bell or whistle, excessive speed at the crossing in violation of an ordinance of.the city of Flint, and leaving a string of freight cars on the switch track next adjacent to the main track extending so far west from Stevenson street as to shut off the view of an approaching eastbound train on the main track from an automobile as it approached the main track when going south on Stevenson street. Negligence cannot be predicated on omitting to sound the locomotive whistle, as its use in the city is prohibited by the ordinance plaintiff invokes. As to ringing the bell of the locomotive, the engineer, fireman and others of the train crew testified positively that it was rung continuously as they approached the crossing. A witness for defendant named Stanley who was walking south on Stevenson street toward the crossing and saw the accident testified that the automobile passed him near the first switch track going south and he heard voices of men and women singing in the auto as they passed, he then noticed a train coming from the west, saw. the reflection of its headlight play on the tracks and heard the bell ringing, but he couldn’t do anything and just watched the auto which had passed him, until the collision. Philip Eeed testified that he was driving from 6 to 10 miles an hour and as he approached the crossing looked both to the right and left for trains or engines coming, that his wife (then Miss Ancompaugh) who sat beside him remarked “for a wonder there wasn’t a train coming,” he was listening in particular as he approached for a bell because of the crossing and heard none, there was no talking in the back seat or any singing as they approached the crossing. Mrs. Eeed gave testimony to like effect. They were the only occupants of the auto called as witnesses although all survived except Ealph June. Plaintiff’s witness Hunt testified he was walking north towards the crossing along the west walk of Stevenson street and was about six rods from there when the accident happened. He saw both the auto and train approaching the crossing. While watching both of them he saw the reflection of the locomotive headlight from the approaching train, as it came around the curve, plainly visible across the street as it drew near, but he heard no bell or whistle. There was sufficient conflicting-testimony to raise an issue of fact on whether or not the bell was rung. The city ordinance limits the speed of trains over crossings within its limits to 12 miles an hour. De fendant’s evidence is positive that the train was moving slowly through the city and that speed was not exceeded. Aside from Philip Reed’s testimony that he was driving over the crossing at from 6 to 10 miles an hour and the front part of his auto was on the main track when he first saw the train which struck him, 200 feet away, plaintiff’s only evidence of excessive speed is that of Hunt, who, when asked if the train was going very fast, said, “not over 15 miles an hour or 20; I don’t know just how fast it was going. I know it wasn’t so awful fast or awful slow.” We are of opinion that this record furnishes sufficient evidence in support of plaintiff’s allegations of defendant’s negligence to carry that issue to the jury, and there is abundant evidence to carry to the jury the question of the negligence of Philip Reed, the driver of the automobile; but his negligence cannot be imputed to plaintiff’s decedent, Ralph June, who was.a minor. His negligence can only be predicated upon what he himself did or did not do. Hampel v. Railroad Co., 138 Mich. 1 (110 Am. St. Rep. 275); Donlin v. Railway, 198 Mich. 327; Davis v. Railroad Co., 222 Mich. 239. Beyond the fact that when invited Ralph got into this automobile with seven others and sat down on the back seat, no one testifies as to what he did or said or saw or should have seen or done. It was shown that he came from a farm and had only resided in Flint about a month, working in one of the automobile factories. The car in which he was riding was driven by a friend who had lived in Flint for years and could be presumed well acquainted with its streets and their dangers. He admitted familiarity with the location of the crossing where the accident occurred, but said he did not think he had crossed it over 15 times. There is no evidence deceased had any knowledge of the fact that they were approaching a crossing. The approach was planked and the speed of the auto was not changed as they approached it. Briefly summed up, the undisputed facts shown are that after deceased got into the back seat of the car that evening it was driven at a speed of from 6 to 10 miles an hour without stop or change of gears until the accident happened. He was sitting on the right-hand or west side of the car. The view to the west along the east-bound main track on which the accident occurred was obstructed by a line of cars standing next adjacent to the east-bound main track but back some 10 or 15 feet from the west line of the west sidewalk of the street, some 26 feet or more from the westerly end of the planking across which the automobile was being driven. Plaintiff’s testimony shows there was; no talking, outcry or warning of any nature given by any member of the party as they approached or crossed the crossing except Mrs. Reed’s remark to the driver next to whom she sat that “for a wonder there is no train coming,” and no evidence indicating Ralph heard her. While the trial court undoubtedly took into consideration all the facts and circumstances of the case the only announcement of reason for directing a verdict for the defense was: “I am inclined to think Mr. G— is right about that, that where one of a party of eight pile into an automobile and go across a railroad crossing as they did in this case, and an accident occurs, he is guilty of contributory negligence.” The number of young people who piled into this car beyond its seating capacity was a proper element of the case for the jury to consider as bearing on the question of deceased’s lack of reasonable caution, but in itself it was not, as a legal proposition, conclusive evidence of contributory negligence. It is not claimed that the weight of that number of people in the car made it more difficult to drive nor that they in any way obstructed the view of the driver. Both his and his wife’s testimony is to the contrary. He said only the string of freight cars north of the main track interfered with his view to the west, that he had his auto under control, was running only from 6 to 10 miles an hour and at 6 miles an hour he could stop “almost instantly.” It is the undoubted rule that the invited passenger is not absolved from the duty to exercise reasonable care for his own safety. Whether he had done so under the circumstances shown and situation in which he is placed usually becomes a question of fact for the jury. That proposition is fairly covered by Justice Weaver in Bradley v. Railway Co., 191 Iowa, 1351 (183 N. W. 493). In that case plaintiff was riding in an automobile as an invited guest sitting back of the driver and the plaintiff was injured in a collision of the auto with a train at a street crossing. The court there said in part: “The question as to what is reasonable care in such emergency is peculiarly a question for the jury. Within reasonable limits the invited passenger in an automobile may reasonably and lawfully rely on the skill and judgment of the driver. He cannot physically interfere with the driver’s control of the car without peril of disaster. He may, under proper circumstances, sound an alarm if he sees danger ahead of which the driver seems oblivious, but even then he must still to some extent place his reliance upon the driver to avoid it. There is no rule of law which obliges him to forcibly seize the steering wheel and wrest it from the hands of the owner, or to jump from the rapidly moving vehicle to certain injury or death. The appearance of danger of this character in almost every case comes in an instant of time, the peril is immediate, imminent, and if a collision occurs, the destruction is accomplished in a twinkling.” Deceased not only had no control or authority over the driver whose guest he was, but was sitting in the back seat of the auto with closed curtains. Under such circumstances the rule of reasonable care for his own safety does not apply with the same degree of strictness as it would were he in the front seat with like opportunity to observe as, and in close communication with, the driver. In Weidlich v. Railroad Co., 93 Conn. 438 (106 Atl. 323), it was said of a similar situation: “The intestate must have exercised due care, but this is the care that may be reasonably inferred from the circumstances. The guest on the rear seat of an automobile owes a very limited degree of care. He is not expected to direct the driver, nor to keep a lookout. Dangers or threatened dangers known to him, he must warn the driver of, and for his failure to do so be chargeable with having proximately. contributed to the accident, unless a reasonable person under all the circumstances would not have given the warning. * * * The intestate was seen a few moments before the accident and a short distance from the crossing, seated on the rear seat of the closed automobile. If he had been asleep, or reading a book, or in deep thought, he would not have 'been negligent because of this. Ordinary experience instances this as not infrequently the conduct of the ordinarily prudent person when riding as a guest on the rear seat of an automobile.” In Webber v. Billings, 184 Mich. 119, where the testimony tending to show that the passenger acquiesced or participated in overcrowding the car and recklessness of the driver was much stronger than here, this court held contributory negligence of the passenger was a question for the jury. The authorities on this question will be found instructingly reviewed in Berry on Automobiles (4th Ed.), § 591 et seq. The judgment is reversed, with costs to plaintiff, and a new trial granted. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred.	[ -18, 25, 13, 10, -2, -4, -3, -13, 40, -31, -14, -53, 16, 4, -9, 22, -12, -4, 4, -41, -45, -8, -5, -32, -11, 13, 18, 10, -21, -46, 20, 13, 11, 28, 1, -24, 16, -4, -13, 14, 0, -26, -26, -6, 42, -3, 53, -17, 34, -43, -33, -16, -24, -44, 16, -16, 23, 14, -67, 39, 8, -24, -3, -29, -39, 5, 39, 9, 16, 67, -23, -28, -14, 37, 16, 5, -7, -15, 1, 16, -23, 5, 38, 16, -29, -14, -11, 0, -38, 29, 10, -8, -31, -35, 50, 15, -29, -26, -11, -2, -44, 25, -1, 20, -1, 0, -20, -2, 4, -33, -39, 16, 29, -5, 36, -44, 21, 10, 38, 19, -18, -21, 19, 56, 0, 5, -41, -16, 30, -8, 43, 33, 30, 31, 30, 11, 14, 0, -54, -7, -17, 22, -31, 10, -73, 48, 10, 48, -11, 12, -61, 3, -5, -33, -4, -7, 1, -47, 57, 47, 1, 4, 35, -5, -89, -49, -30, 35, 37, 12, -67, 24, 31, -26, 59, 52, -29, -6, -65, 3, 28, 49, 34, 1, -40, -80, 33, 9, -26, -8, 38, 25, -15, -60, -40, 78, -13, -57, 2, 70, 50, -85, -27, -19, -62, 0, 31, -25, 30, -6, 12, 22, 5, 2, 9, 10, -11, -26, 23, -48, -5, 9, 51, 0, -24, -5, -14, 17, -33, 3, 25, -7, 1, 40, -42, -41, -8, -35, 0, -15, 5, -10, 61, -41, -21, 11, -32, 0, -21, 61, 15, 18, -13, 8, 29, 59, 29, 8, 36, -2, 22, 65, -34, 16, 26, 11, -11, 7, 22, -28, -4, -57, -4, 60, 5, -33, 15, 52, 53, 46, 20, -37, -51, -27, 40, 24, -34, -37, 20, -37, 16, -24, 12, -17, -33, 33, 34, 25, -17, -16, 3, 1, -25, -13, -16, 29, -4, 12, -29, 12, -3, 4, 6, 10, 68, 21, 13, 26, 59, -12, -52, 17, -21, -5, -9, 65, 5, -32, -24, 73, 28, 53, -4, -20, -17, -62, 24, 39, 4, -22, -8, 55, -49, 16, -31, -23, 63, 22, 7, -36, -47, -56, 57, -52, -56, 3, 48, -23, -39, 18, -18, 9, -17, 60, 17, -49, 18, 2, -26, 21, 16, 18, 20, -9, 8, -65, 10, 5, -4, 72, 11, -16, 1, -28, -6, 13, -27, -1, -54, 38, -1, -34, 8, 1, 40, 17, -1, 21, -73, -57, -11, 23, -4, 11, -26, 67, -31, 36, 15, -24, -2, -39, 55, -21, 46, -42, -14, 7, -20, 6, 9, 46, 21, -45, 11, 18, 33, -22, 61, 8, 12, 19, 2, -18, 30, 68, -22, -22, 18, -7, 2, -1, 85, 17, 7, -38, -16, -6, -1, -4, 28, 29, 3, 40, -9, -12, -17, 28, 2, -3, -41, -7, 3, -25, -5, 35, -40, 8, -8, 15, -22, 41, -12, -45, 8, -43, 39, -25, -8, -14, -3, -28, -11, -32, 22, -39, 17, -12, 34, -18, 54, 45, -17, -2, 28, -26, -30, 48, -29, -64, -27, -13, -34, -44, 33, 20, -34, -22, -40, -18, 47, -2, -22, -16, 2, -13, -8, -34, 21, -9, -3, 23, 38, 1, -9, -31, 41, 0, -3, -50, 25, -4, -23, 47, 8, -42, -58, 18, -11, 10, 11, 16, 43, -47, -33, -31, 0, -7, 35, 9, 15, -23, -13, -55, 23, 0, 20, -14, 13, -14, 7, -20, 46, -18, 3, -22, 12, -32, 78, -67, -55, 62, 23, -43, -49, 33, 7, 22, -26, 11, -16, -9, -36, 3, -3, 1, -4, 40, -51, 53, -30, -17, -26, 32, 36, 1, 40, -7, 14, -29, 54, 19, -24, 63, 31, 38, -52, 14, -36, 0, 53, -30, -6, -3, 10, -1, -6, 7, 14, 1, -1, -28, -18, 41, -14, -28, -3, 9, -52, -9, -80, 21, -84, 13, -14, -24, 21, 29, -6, 16, 0, 14, 42, -65, -43, -34, -37, -31, -58, 18, -71, 16, -14, -8, -54, 50, -9, 18, -37, 2, 7, -16, -42, -12, -49, -15, 56, -11, 12, 14, 18, -13, 14, 30, 2, -3, 17, 73, 12, 40, 19, 31, 19, -36, 41, 9, -13, 20, 5, -17, -29, 64, -79, 41, -50, 17, 24, 21, -31, -24, -13, 1, -23, 14, -49, -31, 1, 12, 9, 16, -25, 43, 52, 0, -11, 15, 41, -14, -11, -9, 19, 13, 10, -29, 10, -21, 20, -4, -38, -41, 26, 9, 16, -4, -26, -19, 13, 33, -42, -48, -5, -16, -16, -13, -65, 4, 30, -3, -11, 2, -10, 20, 58, 12, 4, -19, 47, 4, -19, -14, 20, 2, 28, -14, -35, 36, -8, 49, 20, 8, -18, 30, -23, -21, -29, 15, -24, -57, -16, -1, -7, -13, 29, 21, 14, -6, 34, 6, 18, -2, 16, -15, 9, -15, -12, -10, 40, 0, 31, -23, 12, 38, 5, 0, -6, -16, 10, 36, -8, 38, -7, 17, 1, -43, 1, -50, -3, -7, -40, 3, 33, 35, 21, 10, 0, 12, -1, -22, 1, -48, 18, 14, 2, -5, -26, 19, 66, 1, -1, 4, -9, 2, -48, -5, 43, 24, 18, 24, 33, 29, -8, -16, -26, -20, -41, 36, -41, -48, -25, 44, -26, -42, -82, -12, -4, -12, 1, -58, -42, -24, -31, -16, -19, 12, -35, -30, 46, -23, 18, -30, 13, -98, 55, 40, -23, -37, 5, -40, 24, 28, -44, 14, 49, -14, -27, -4, -46, 13, 49, 0, 29, 6, -33, -27, -64, -73, 11, -28, -24, 7, -16, -22, 5, -2, 8, -4, -36, -17, 1, 2, 8, -5, 10, 48, -15, 0, -11, 2, 4, 70, 2, -22, -24, -68, 32, 1, -6, -6, 24, -14, 44, -10, -53, 4, 17, -23, 15, 11, -44, 46, 29, -41, 16, 55, -4, -9, -8, -6, 36, -7, 45, 69, 37, -4, 11, -46, -14, -5, 22, 26, 4, 6, 31, -19, 7, -28, 64, 22, -24, -40, 21, -27, -28, 23, 4, -32, -24, -48, -19, 68, -45, 21, 15, -2, 7, 41, -9, -21, -17, -10, -16, -33, 11, 15, 30, -19, 3, 31, 10, 36, -39, 7, 30, 25, 56, 59, -40, -2, -2, -29, 19, 19, -5, 31 ]
Steere, J. This case was commenced in Wayne county circuit! court in April, 1921, under the title “Commercial Acceptance Trust, trustee under the laws of the State of Massachusetts, plaintiff, v. O. Mowat Mackie, defendant.” The declaration, filed April 13, 1921, was upon the common counts in assumpsit with notice that under the money counts plaintiff would give in evidence a certain contract, a copy of which was attached to the declaration. The purpose of the suit was to recover a balance claimed due under a conditional sale agreement for purchase of a Cadillac sedan automobile entered into between defendant Mackie and the Weisman Motor Sales Company of Detroit, Michigan, on May 27, 1920. The agreement of sale with a note of defendant for the unpaid balance attached were at once assigned by the Motor Sales Company to the Commercial Acceptance Trust. The list cash price of the car was $4,700. The Weisman Motor Sales Company sold it to Mackie under their deferred payment agreement for $4,982, upon which the latter paid in cash $1,992.80, giving his note and executing the conditional sale contract for $2,989.20, which was payable in 8 instalments of $378.65 each, distributed monthly over a period of 8 months, beginning one month from the date of the contract. The Motor Sales Company realized from this sale the list price of $4,700, selling the contract and note to plaintiff with a discount of $282. The Commercial Acceptance Trust had its main offices and headquarters in Chicago and dealt in conditional sales agreements of this kind. It maintained a branch office in Detroit under a manager named Franks who solicited business there. Mr. Weisman of the automobile firm testified that Franks solicited their business in that line and during the year 1920 his company had from 50 to 70 transactions of this nature with the Acceptance Trust which furnished its own blanks for the conditional agreements of sale and notes used in their transactions, and fixed the extra charges above the list price, saying of this sale: “Unless we charged $282 (more than the list price) they would never have bought the contract.” The $282 was divided into 8 payments which were included in those specified in the contract and note. The promissory note attached to the contract is enlarged by provisions waiving presentment, protest, and exemption laws. It irrevocably authorizes any attorney to appear for the maker after its maturity in whole or in part in any court of record in the United States, in term time or vacation, and there to waive issue and service of process, confess judgment against the maker in favor of the payee or any subsequent holder for the amount appearing unpaid, together with costs, expenses and. attorney fees. The contract is of the lengthy type customarily used in such cases, specifying that title does not pass by delivery, the note is but evidence of the debt, the seller may repossess the car without demand or notice upon any default in payment by the buyer who waives all right of action growing out of repossession and retaining of the car by the seller, upon default the entire unpaid balance becomes due with interest thereafter at the highest legal rate, the seller may retain all payments as liquidated damages, with right of action for deficiency, time is made of the essence of the contract, etc. Thirty-nine pages of the record are devoted to pleadings and other preliminary proceedings. The Commercial Acceptance Trust’s simple declaration on the common counts, filed April 13, 1921, was amended on May 16, 1921, by adding a special count covering the contract. On June 22, 1922, a certificate of conducting business under an assumed name was filed with the clerk of Wayne county by the nine persons constituting the members of the Commercial Acceptance Trust pursuant to Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6849 et seq.), stating in part that they— “the undersigned, trustees of Commercial Acceptance Trust, under a certain agreement and declaration of trust dated October 22, 1918 (copy of which is on file with the Old Colony Trust Company, of Boston, Massachusetts), * * * now intend to conduct and transact business in the city of Detroit, Michigan, under the name and style of Commercial Acceptance Trust.” On May 11, 1928, an ex parte order was obtained joining the Weisman Motor Sales Company “as a party defendant in the above entitled cause,” based upon an affidavit stating that “the above entitled case has been brought against O. Mowat Mackie upon a promissory note in which he appears as maker” and the Weisman Motor Sales Company is indorser. On the same date an order was made on motion of plaintiffs’ counsel that— “David B. Forgan, Charles W. Folds, Clive T. Jaffray, John D. Larkin, Stephen B. Strattan, Alexander E. Duncan, William H. Grimes, It. Walter Graham and James C. Fenhagen, trustees, doing business under the firm name. and style of Commercial Acceptance Trust, may be and are hereby joined as parties plaintiff in the above entitled cause.” The pleadings and other preliminary proceedings were concluded by defendants’ plea of the general issue, filed October 26, 1923, with 11 notices of special defense amplified on December 18, 1923, by the addition of four more special defenses. The case was tried by jury. At commencement of the trial plaintiffs’ counsel moved for and was granted an order, against defendants’ objection, discontinuing— “the cause of the Commercial Acceptance Trust, trustee under the laws of the State of Massachusetts, against Weisman Motor Sales Company, a Michigan corporation, and O. Mo wat Mackie, and retain (ing) the cause of David R. Forgan and eight others, who are described in the declaration, doing business under the style and firm name of Commercial Acceptance Trust against Weisman Motor Sales Company and O. Mowat Mackie.” The special defenses most appealingly pressed by the defense were payment in full before this action was brought; that discontinuance of the cause of action by the Commercial Acceptance Trust was a discontinuance of the entire case; filing notice by the trustees of said trust that they were doing business under an assumed name as partners was contrary to their articles of association creating the trust; and said trust company is in effect a quasi-foreign corporation forbidden to do business in this State without domesticating by applying to the secretary of State, paying the imposed fee and obtaining from him the prescribed certificate of authority. Mackie made four of the eight partial payments, which were sent to plaintiffs’ Chicago office where the papers were kept, but became delinquent as to further payments. In December, 1920, as plaintiffs claimed, the agreement and note were forwarded to the Detroit branch office for collection, but never reached there. In January, 1921, as defendant claimed, a man representing himself as collecting agent of the Commercial Acceptance Trust went to Mackie’s office with those papers and demanded payment of the balance due on them. On Mackie’s offering him a check for the amount he insisted on a certified check or the money, as it was after banking hours and he said he must return to Chicago that night. Mackie then obtained the cash and paid him the balance in full, receiving from him in return the original agreement and note. When he was later pressed for payment by plaintiffs’ representatives from its Detroit office Mackie insisted he had paid the amount in full to one of its collecting agents who; had come to him with the original papers and delivered them to him on receipt of the payment. They were produced in court by the defense and their genuineness admitted. The man was a total stranger to Mackie. He produced no evidence of his authority except the papers which were made payable to the Commercial Acceptance Trust and not indorsed by it, or marked in any way authorizing the payor to pay any one except the owner of the paper. It is urged for the defense that the possession and production of the note and contract, obtained by paying the amount due upon them to the person in possession of them who demanded payment as collector for the owner, is at least prima facie evidence of payment to carry that question to the jury. It is said for plaintiffs that “Mackie’s good faith in making payment is not questioned,” except that the paper was long past due, Mackie’s office was not far from plaintiffs’, he made no inquiry by telephone or otherwise to ascertain the identity or authority of the man demanding payment, but “the money was paid, if at all, to a total stranger,” to whose order the paper he produced was not payable, and its possession is no evidence of payment to plaintiffs. The trial court so held in directing a verdict for plaintiffs. While we do not discover that this exact question has been squarely passed upon in this jurisdiction, payment is made an affirmative defense in this State and a marked distinction is universally recognized under the law of payment, as to the duty of the payor, between negotiable instruments payable to bearer and those payable to order. The burden of proof rests upon the party seeking to establish payment to show the authority of the person in possession of an unindorsed instrument payable to order, to collect in behalf of the owner or payee specified therein. Conceding that unexplained or uncontroverted evidence of payment to any person in actual possession of the instrument is, standing alone, prima facie evidence of payment, under defendant’s own explanation of the circumstances and plaintiffs’ controverting evidence, it does not shift the burden of proof. “Where substantial controverting evidence is introduced, merely prima facie evidence is not, it has been held, sufficient to sustain the burden of proof and warrant a verdict.” 23 C. J. p. 9. Upon this subject it is said, with sustaining citations, in 2 Daniel on Negotiable Instruments (6th Ed.), 1390: “Such person in actual possession may perhaps be presumed to be agent of the holder prima facie. But even this is doubtful, and to us seems wrong, for nothing is more common than to indorse negotiable instruments to agents for collection; and if the bill or note be unindorsed in blank, or specially to the party having it in possession, it might be that the owner had withheld his indorsement for the very purpose of preventing collection by a person not entitled to receive the money; and if this were so, the presumption of agency (if, indeed, it be at all admitted) would be rebutted. The contrary doctrine destroys a great and salutary safeguard to the rights of proprietors of negotiable instruments, and to a large degree breaks down the distinction between those pay able to order, and those payable to bearer.” See, also, Eaton v. Knowles, 61 Mich. 625. While not prepared to reverse the ruling of the trial court on that question we are impressed that the court erred in not recognizing defendants’ motion for dismissal of the case and directed verdict on other grounds referred to. A certified copy of the declaration of trust and articles of agreement creating and naming the Commercial Acceptance Trust was introduced in evidence, against plaintiffs’ objection. They are dated October 22, 1918. In 1920, that legal entity was engaged in a commercial business with its headquarters and main office in Chicago, Illinois, and a branch office in charge of a manager established and doing business for it in Detroit, Michigan. The business done by it involved here was transacted in its name. Its blanks were used. Assignment of the conditional sale and indorsement of the note by the Auto Sales Company were to the Commercial Acceptance Trust, of Chicago, Illinois. Payments were made to it as such and this action was commenced by it against defendant Mackie in April, 1921, as the “Commercial Acceptance Trust, trustee under the laws of the State of Massachusetts, plaintiffs.” Over two years later, on May 11, 1923, the names of 9 persons were added as plaintiffs by an ex parte order. No indorsement of the note or assignment of the contract to them collectively or individually by the Commercial Acceptance Trust is . shown. What kind of legal entity other or differing from the Commercial Acceptance Trust they became or claimed tó be when they filed their certificate of intention to assume its name is not shown. They were all nonresidents of this State and then were in combination as trustees conducting the business of this plaintiff trust, in the trust name conferred on it when organized. Their certificate of doing business under an assumed name could not transfer to them any' property or property rights of the trust or effect its organization and existence as a legal entity. ’ Its articles of trust, “made in the city of Boston, Commonwealth of Massachusetts, on the 22d day of October, 1918,” first recite in part: “That whereas, the subscriber, in accordance with the terms of a certain agreement of even date herewith between the subscriber and the trustees, proposes to transfer, assign and deliver to the trustees, under the designation of ‘Commercial Acceptance Trust,’ certain assets formerly of the Agricultural Credit Company (Incorporated), a corporation of the Commonwealth of Virginia, and described in said agreement, and the trustees, for the purpose of defining the beneficial interests of the subscriber and its assigns in such property, have agreed to issue to the subscriber negotiable certificates for five thousand (5,000) shares of preferred beneficial’ interest and twenty thousand (20,000) shares of common beneficial interest in the said Commercial Acceptance Trust, each said preferred share to be expressed of the par value of one hundred dollars ($100.00) and. each said common share to be expressed of no par value, all of the said shares to be issued to the subscriber or to its nominees.” This voluntary association organized in Boston, under written articles of agreement and declaration of trust was admittedly what is known as a Massachusetts common-law trust, that State having enacted legislation expressly pertaining to and recognizing such legal entities. Scattered through the lengthy articles of the- Commercial Acceptance Trust agreement are various powers and provisions characteristic of corporations not applicable to partnerships or even to an individual trustee. A few of them are, that the trustees in their collective capacity shall be designated “Commercial Acceptance Trust” and under such name transact the business of the trust, execute instruments in writing, etc.; the trustees are given the legal title to all property owned by it with absolute management and control of the same, and may sue and be sued in the trust name; ownership of shares gives the beneficiary no title interest in the trust property and no right to a division of the same, or to an accounting; personal liability of both trustees and eestuis que trustent is expressly negatived; exclusive power is given the trustees to make loans of money belonging to the trust without collateral security, to mortgage or borrow money upon the same as they may determine “and generally to take any action or do anything not in the regular and usual course of business;” authority is given to adopt and use a common seal to be affixed to instruments executed by the trust; any trustee is authorized to acquire, own and dispose of shares in the beneficial interest of the trust the same as though he were not a trustee; such shares are made personal property; the trustees are forbidden to call upon' the beneficiaries for payment of assessments; a fiscal year is fixed for the trust, which is to “continue for a term of twenty-one (21) years after the death of the last survivor of the following persons, to wit:” (naming the 9 originally named as trustees). The chose in action upon which this case is founded was owned by the Commercial Acceptance Trust, which began this case as owner in its .own name. When it withdrew and discontinued the case by permission of the court it ended that case. There was nothing of the case left for the remaining nominal plaintiffs to litigate in any other capacity. Defendants’ motion to dismiss as to all parties should have been granted. The judgment is reversed without retrial, with costs to defendants. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred.	[ 3, 33, 35, -19, -2, 7, 59, 17, 6, 7, -25, -13, 12, 30, -38, 27, 30, 16, -26, -32, 12, -58, -58, -41, 23, 32, 3, -81, 15, -17, -38, 0, 3, 13, -37, -11, -33, -5, 23, -4, 5, 6, -17, 5, 2, -12, -6, -90, 20, -14, 17, 23, 30, 0, -31, -10, -10, -13, -30, 18, -5, -39, 69, 12, -55, 15, 20, 0, -10, 25, -37, -22, 28, 9, 7, -19, -10, 11, 13, -51, 34, -40, 62, 26, -37, 19, 4, -20, -6, -20, -19, -8, -7, 19, -6, 15, -17, -7, -3, 4, -38, -24, -5, 5, 32, 35, -12, -23, 11, 19, -43, -19, 35, 32, 8, 12, -11, 6, 16, -5, -23, 1, -21, 6, -26, 2, -17, -13, -26, 15, 38, -17, 13, 70, 3, 16, 3, -60, -31, 27, -12, 39, -62, -31, -8, 51, -2, -35, -6, 2, -35, 22, 20, 5, 13, 9, -14, -11, 0, -3, -29, -19, 26, -3, -45, 15, -40, 55, -7, 17, 15, 13, 6, -74, 3, 25, 0, 1, -43, -1, -7, -15, 17, -44, -12, -38, -29, 6, -4, -4, -1, -12, 0, 9, -15, -11, -34, -25, -22, 53, 42, -9, -5, -42, -79, -22, 22, -39, -30, -1, -30, 32, -1, -33, -17, 29, 48, -7, 12, -9, 36, 1, -20, 62, 11, -37, 2, 1, -22, 24, -9, 16, -22, 35, -25, 9, -1, 38, -21, 34, 20, -20, 15, -18, 0, -58, -38, 0, 48, -1, -9, -6, -26, 28, 13, -16, -18, 22, 11, 9, -22, 74, -30, -8, -41, 5, 0, -12, 7, -2, -23, -9, -27, 24, 15, -48, -19, -5, -12, -24, 8, -73, -26, -54, 23, 4, -60, -23, -72, 8, 4, 18, 77, -23, 4, 6, -54, 31, 9, -30, -4, 17, 16, -5, 26, 2, -38, -5, 7, -5, -17, -8, 8, -10, 42, -22, 16, 13, 35, -24, 5, 39, -15, 54, 2, -23, 33, -34, 6, -9, -9, -20, -7, -59, -35, -53, 30, 26, 39, 16, 18, 39, 41, -2, -16, -11, 0, -29, -33, 20, -7, -75, -23, 2, -36, 45, 90, 60, -30, 51, 19, 0, -32, 55, 41, 36, -23, 2, -8, 45, 14, 22, -16, -33, -39, -61, -44, -30, -58, 40, 7, -34, 12, -6, 38, -37, -18, -31, -30, 6, -35, 41, 9, 43, 9, -25, -16, -51, -41, -40, 19, 31, -25, -43, 4, 6, 36, 17, -17, -7, -13, -24, 6, -8, 4, -29, 33, -37, -53, -1, 30, -9, -10, -22, 34, -39, 81, 11, -46, -11, 8, 27, 42, -8, 2, -14, -13, -12, 35, -14, 28, 34, -10, 4, 51, -33, -1, 8, 5, -14, 60, 27, 13, 39, -11, 32, 46, 21, 3, 7, 16, -43, 53, -2, -23, -7, 6, 1, -6, 13, -19, 34, -1, -20, -7, 0, 3, -45, -20, -20, -41, 49, 10, -10, -6, -24, -61, -36, -9, -2, 24, 8, -24, 43, -32, -35, -23, -1, 6, -26, -12, -24, 6, 32, 11, -19, 14, -23, 10, -14, 8, 7, -6, 35, 49, 9, 6, 34, 19, 31, 24, 78, -4, -3, 25, 20, 51, 11, 26, -26, -19, 0, -5, 28, 12, -32, 9, 16, 0, -38, -7, -10, -34, -16, -28, 5, -34, 28, 38, 2, -9, -59, 26, -30, 31, 21, 49, -3, 7, 75, -20, 53, 41, -10, 24, -21, 2, -37, 34, 22, -22, 23, 31, 23, -25, -48, -13, -22, -1, -16, -5, 38, -1, -61, -23, 63, -4, 6, -57, 23, -6, -24, -11, 15, 34, 6, 56, 47, 0, 36, 20, 8, -61, 18, -24, -63, -11, 28, 3, -10, 28, 2, 13, 42, -17, -12, 3, -8, 8, 61, 21, 19, 16, 15, -15, 52, 13, -14, -17, 55, 0, -12, -16, 14, -9, 3, 30, 18, -47, -66, -48, 20, 17, -49, -19, -65, -75, 8, 0, -28, -68, -1, 29, 2, 0, 6, 1, 8, 35, 9, 22, -24, -46, -21, 25, -46, 6, -22, 11, 14, 15, -12, 5, 7, 39, 24, 2, 64, 66, 58, -25, 11, -20, 4, 6, -28, 42, 0, 5, 10, -13, -1, -38, -57, -51, -7, 4, 42, -13, -14, 9, 35, -21, 35, -39, 27, -9, 23, -5, 8, 30, 2, -10, -8, 5, 56, -9, 61, -38, -60, -25, -31, 30, -28, 15, -7, 7, -24, -68, -13, 28, 10, -12, -20, 21, 61, 35, -32, -32, -56, 6, 20, 40, 28, -11, -11, -9, 69, 11, 5, 11, -24, 30, 49, 85, 8, -11, 23, -20, -17, -60, 16, 30, 14, -38, 70, 19, -12, 9, -53, -20, 0, -6, 2, -5, -48, 8, 20, -1, -19, 12, -18, 5, 0, 3, -5, -56, -24, 12, 25, 3, -22, 22, -16, -44, 5, 46, -35, 15, -47, -49, 44, -35, 26, 34, -51, 19, 13, 56, -31, -51, 14, -12, -51, 17, -33, -21, -25, -47, -8, 20, 35, -25, -8, -49, -8, -22, 14, -17, -19, -4, 20, -6, -24, -43, 25, 30, -32, 14, -15, -26, -35, -61, 41, 8, 46, -53, 61, -2, -18, -18, 43, -58, 28, 0, -23, -8, -24, -14, -2, 2, -13, -59, 14, 33, -17, 16, -27, -8, -30, 5, -4, -16, -12, -23, 39, 40, -26, 37, 0, -4, -42, 31, 37, -23, -35, 81, -21, 3, 42, -4, -8, -78, -42, 11, -40, 21, -25, 86, -11, 2, -29, -9, -15, 3, -38, 26, 82, 27, 59, 46, 18, -12, -4, -6, 1, -4, 14, -11, 11, 65, -50, -67, -30, 25, 23, 9, 34, 28, 76, -27, -7, 43, 2, 13, 14, -33, -27, -2, -29, 7, -5, -29, -17, 1, -13, 16, 18, -12, 0, 12, 22, 69, 62, 10, -6, -32, -32, -22, 4, 20, -3, 24, -37, 0, 9, 18, 26, 21, 59, -10, 20, -9, -38, -5, 17, 36, -13, -22, -33, 35, 18, -15, 51, 29, -8, 0, 33, -69, 20, 57, -25, -20, 25, -1, 7, 85, 0, 28, -62, 7, -7, 15, 0, -55, -37, 44, 5, -20, -9, -26, -5, -16, 37, 28, 13, 14, -15, 5, -15, -19, 19, -22, 30 ]
Sharpe, J. Anna Dabudka, wife of defendant, made application to the plaintiff for insurance on her life, in the sum of $500, on April 8, 1918. Pursuant thereto, a policy was issued on April 24th, and delivered to her. The defendant was named as beneficiary therein. The insured died on October 31, 1918. Proofs of death were furnished. Plaintiff refused to pay. Defendant brought suit to recover. Plaintiff thereupon filed the bill in this case, praying for the cancellation of the policy on the ground of fraud, concealment and misrepresentation of material facts on the part of the insured in her application. The trial court entered a decree dismissing the bill, from which plaintiff appeals. The application was signed by the insured by her mark. A copy of it was attached to the policy .when delivered. It is not claimed that any false statement was made in the application as signed by her. Attached to and made a part of it were certain statements purported to have been made by her to plaintiff’s medical examiner, Dr. McKinley. This was also signed by her by mark, the doctor signing his name as a witness thereto. These statements were in answer to questions put to her by the doctor. These questions and answers contained statements that she had not theretofore been attended by a physician, and had never been under treatment in any hospital. • To maintain its case, plaintiff offered a certified copy of the death certificate, signed by Dr. Sherwood, who attended deceased “from Oct. 27, 1918, to Oct. 27, 1918,” in which the cause of death was stated to be “dilated heart and influenza.” Plaintiff’s counsel offered in evidence a paper, headed “Attending Physician’s Statement,” signed by Dr. C. E. Watson, which was received over the objection of defendant. This statement was made on a blank prepared by the plaintiff. Preceding it, on the same page, was a “Declaration Made by Claimant,” and signed by defendant as follows: “I desire to file the following statement by attending physician with and as part of the proofs of death submitted by me to your company on account of policy No. 2483707-C.” It was dated December 10, 1918. In this statement appeared certain questions and answers, written by the doctor, stating that he had treated the deceased in October, 1917, for “bronchial asthma and valvular heart trouble and dropsy.” Plaintiff’s assistant manager, Mr. Bozyk, testified that the company furnished blanks for proof of death to defendant. These were filled out and delivered to him. They do not appear in the record, but it may be inferred that one of them was a certified copy of the “Medical Certificate of Death” signed by Dr. Sherwood, above referred to. The only provision in the policy relative to such proof was the undertaking of the company to pay to the beneficiary the sum of five hundred dollars “upon receipt at the home office of the company in the city of New York of due proof of the death of Anna Dabudka.” There is no suggestion that the proof furnished by the defendant did not fully comply with this requirement. The manner in which the affidavit of Dr. Watson was secured is testified to by Mr. Bozyk as follows: “Q. When the claimant, Nicholas Dabudka, made this claim to your office after the death of his wife, you gave him that slip to fill out, didn’t you? “A. No, I took that to the doctor personally. “Q. Who furnished you with the name of the doctor? “A. Well, I got that by investigating in the neighborhood. I got that, I think, from Dr. Sherwood. He thought there was other doctors attending her. “Q. Well, Dr. Sherwood made the statement there were no other doctors to his knowledge? “A. He wasn’t sure, but he thought there was. When he told me that I inquired in the neighborhood and I found that there was this doctor attended her, so I called on this doctor and he completed the statement. After it was completed I took it to the claimant and he signed it. “Q. Then the information of the doctor was on there at the time the claimant signed? “A. Yes. “Q. Did the claimant know it was information? “A. I told him it was information from the doctor. “Q. He didn’t try to conceal it, did he? “A. No.” This court has decided that proofs of death are to be treated as evidence of the facts stated in them, being in the nature of an admission (John Hancock Mut. Life Ins. Co. v. Dick, 117 Mich. 518 [44 L. R. A. 846]), subject, however, to such explanation as the beneficiary may offer. Hubbell v. North American Union, 230 Mich. 668. In our opinion, the affidavit of Dr. Watson, procured in the manner above set forth, was not such a part of the proofs of death furnished by the beneficiary as entitled it to be treated as evidence within the rule above stated. It was not furnished voluntarily by the defendant. It was not read over by him, or to him, before he signed the declaration which preceded it. Had the affidavit not been procured, and had Dr. Watson been called as a witness, he would not have been permitted to testify to the facts therein stated, upon which plaintiff relies to establish misrepresenta tion. 3 Comp. Laws 1915, § 12550; Gilchrist v. Mystic Workers, 188 Mich. 466 (Ann. Cas. 1918C, 757). In the Gilchrist Case, a waiver of the statute, contained in the application for insurance, was held to be against public policy and void. A somewhat similar statement was considered and held not to be competent proof in Repala v. Insurance Co., 229 Mich. 463. In a “Notice to Policyholder,” indorsed on the policy, it is said: “It is not necessary to employ an attorney or any other person to collect the insurance under this policy, or to secure any of the benefits it provides.” A beneficiary may not thereby be lulled into security and advantage taken of his legal rights by the course here pursued to secure evidence on behalf of the company not otherwise admissible. Helen Wheelock, record clerk at the Harper hospital, was called as a witness. She was handed “a group of papers,” which she testified were “records of this case of Mrs. Anna Dabudka.” None of the entries on the exhibit were made by the witness, nor did she have any personal knowledge as to who made them. The record showed that “Mrs. Nicholas Dabudka (Anna),” residence, “93 Mercier street,” entered the hospital on February 23, 1918, and was discharged March 11,1918. We have no statute permitting such records to be used as original evidence. The witness had no personal knowledge relative to them. There was no showing that the person who made them, or that the doctor or other person who directed the entries to be made, might not have been produced as a witness. There was no proof that they were records made in the ordinary course of the business conducted by the hospital by a person whose duty it was to make them. The admissibility of such proof is discussed at length in Delaney v. Power Co., 202 Mass. 359 (88 N. E. 773). See, also, 22 C. J. p. 902, and cases cited in footnote. Even if we should apply the familiar “shop work rule” to such records, it is clear that under the proofs here submitted they were not admissible as evidence. The record is barren of any competent proof tending to support the allegations of fraud and misrepresentation. The decree is affirmed, with costs to- appellee. McDonald, C. J., and Clark, Bird, Steere, Fellows, and Wiest, JJ., concurred. Moore, J., did not sit.	[ 3, -52, 16, -18, 12, -16, 25, -21, 28, -13, -27, -5, 74, 67, 1, 9, -5, -3, 24, -25, -48, 3, -6, 7, -28, -20, -41, -28, 36, -19, 0, 43, -42, -12, 49, -16, 59, -25, -55, 37, -24, -31, 57, 41, -38, 19, -23, 29, -5, 20, 31, -8, 14, -41, -78, -31, 12, 36, -11, 6, -35, -56, 65, -8, -25, 58, 19, 35, -39, 46, 23, -27, 18, -38, -30, 6, -31, -10, -25, -52, 27, -37, 2, -24, -11, 61, -27, 0, 21, 25, -17, -17, 2, -10, -30, 35, -22, 49, 14, 93, 40, 23, -26, -1, 31, 40, -1, -30, -78, -6, -17, 11, 29, 18, 77, -1, -2, 39, 2, -27, 11, 48, 31, -39, 4, 60, 28, -19, -4, -13, 5, -35, 7, 4, 0, -32, -8, -71, 14, -62, -5, 44, -21, -12, 9, 37, -27, -8, -43, -29, -35, 42, -13, -11, 24, -21, 10, -21, -6, -48, 27, -26, 45, 25, -13, -6, 20, -14, 28, 7, 20, 12, -25, 19, 19, 11, 61, 11, -8, 13, -17, 31, 2, -29, -12, -31, 10, -17, 42, 53, 14, -86, -14, 33, 0, 20, 15, 34, 37, -33, 47, -23, 6, -35, 20, 24, -32, 20, -10, 18, 13, -32, 5, -26, -13, 38, -22, -53, -48, -11, -30, -3, 14, 48, -44, -23, -11, -37, -13, -51, -8, 24, -27, 98, -25, 26, -21, -24, 26, 10, -80, 31, 21, 9, 32, 43, -13, 1, -32, 14, 0, 49, 4, 63, -23, -49, 18, -8, 9, 12, -40, -1, -6, 23, 69, -21, 41, -36, 67, -32, 24, -15, 20, -61, 0, -91, 26, -22, 8, -11, 66, 13, -66, -44, -3, -20, -7, -33, 18, 21, -12, 13, 14, -16, 53, -18, 19, -45, -30, -27, 8, 3, 59, -6, 23, -17, -19, -36, -15, -35, -39, -10, 0, -35, 32, -7, 4, -58, -25, 13, -14, 35, -26, 10, -22, -9, -14, -12, 37, 19, -72, 8, 38, -13, 18, -45, -25, 13, -13, -14, 7, 8, -69, 30, -42, 48, 28, 43, 7, -50, -30, -14, 12, 7, -71, 30, 46, -4, 20, 64, -4, 8, -9, 33, 9, -36, 34, 18, -52, 40, 22, 14, -36, -55, -15, -2, -1, 70, 29, 15, -31, -8, 11, 43, -36, 26, 41, -13, 15, 29, -27, 41, -4, 19, -14, 14, -55, -20, -15, -39, -22, 30, 18, 26, -27, 11, -48, -20, -30, 57, -33, -5, -15, -31, 4, 33, 10, -8, -9, -8, 18, 18, -30, 16, -33, -34, 2, 30, -28, -75, 0, 43, -6, -6, 15, -39, -50, 11, 21, 21, -24, -10, 19, 24, -54, -20, -8, 0, 13, -39, 13, -13, 33, 12, -20, -6, -10, -9, 3, -17, -10, -25, -10, 3, -1, 48, -4, 9, 30, -51, -2, -20, -66, -46, 31, 0, -16, -6, -20, -28, -40, -26, 40, -26, 13, -3, -8, 15, -5, -8, 36, -75, -41, -40, -44, 9, -33, -25, -56, -25, -22, 2, 32, 18, -13, -36, -7, 4, 8, 23, -10, -13, -48, -12, 21, 20, 40, -6, -8, -22, 25, 3, -10, 0, 27, -22, 40, 0, 0, -2, 10, 10, -14, -62, 0, -10, -5, -35, -20, -27, -4, 31, 31, 31, -31, -26, 0, -1, 4, 4, 19, -33, 7, 30, 1, -28, 37, -14, -1, 16, -2, 5, -31, -7, 7, -16, 29, -9, -2, -49, -15, -15, 6, 18, -34, 26, -38, -4, -32, 51, -16, -1, 15, 14, -56, 34, 13, 37, -15, -32, 10, 4, 41, 8, 16, -23, 43, -17, -15, -23, -31, 5, -43, 23, -7, 15, -25, 26, 29, -67, 13, 2, -11, -16, 29, -16, 24, -14, -16, -52, 0, 58, 8, 14, 17, 49, 10, 50, -13, 18, 53, -52, 37, -32, -4, -60, -18, 40, 12, -34, -30, -13, 17, 6, -26, 33, 13, -17, -6, -26, -5, 5, 9, -20, -47, -35, 0, 11, -46, 39, -36, -34, 17, -10, 6, 31, 93, 5, -33, 1, 24, 30, 19, -34, -2, -23, 20, 21, -7, 9, 17, -6, 47, -10, -9, 11, -26, 0, 39, -10, -9, 15, -50, -26, -18, 9, -21, 14, 33, -2, 60, 14, -75, 3, -11, -44, 19, -46, -9, 24, -9, 27, 17, -29, -29, 37, 20, 42, 32, -44, 27, -39, 30, -11, -60, 23, 33, 15, -7, 0, 19, -11, -37, -19, -28, 7, 15, -47, 14, -11, 22, 30, 51, 42, -14, -35, 11, 0, 13, 13, -12, 44, -21, -32, 36, 30, 11, -12, 26, -31, -29, 10, 9, -3, -31, 39, 5, 10, -22, 1, 21, 21, 23, -11, -36, 0, 4, -49, -36, -10, 36, 31, -11, -9, 6, -13, -25, -2, 56, 11, 6, 0, 1, 4, 12, 29, -27, -36, -19, 1, 47, 15, 8, 31, 25, 34, -15, 8, -16, -28, -14, 38, 31, -9, -79, -5, -41, -20, -5, -20, 4, 44, 16, 47, 41, -24, -24, -19, 14, -5, -32, -56, -1, -9, -14, 49, 7, 10, -67, -43, -6, 35, 40, 73, 27, -2, 33, -12, 7, -64, -8, -30, 10, 35, -3, 1, 13, -24, -26, 20, 31, -63, -3, -21, 15, 17, 20, 54, 44, -23, -22, 13, -61, -14, -26, 52, 4, -51, 72, -24, -57, 30, -31, 42, -24, 12, 34, -9, -18, -17, 36, 56, 1, -27, -3, 18, -36, 35, 7, 12, -16, -9, 61, -19, -26, -14, 5, 6, -29, -26, 14, -54, -2, -42, -55, 66, 32, 5, -28, 23, -28, -29, 43, -17, 25, 17, 59, 51, -19, 13, 30, -10, -25, 48, 3, -21, -40, -44, 0, -4, 38, -10, 10, -1, -23, 9, 54, -44, 0, 26, 53, 4, -3, 47, -62, 1, -17, 0, -16, 40, 45, -3, -37, 42, 13, 1, 22, 47, 12, -6, 38, -15, -23, -43, -17, -75, 73, -3, -1, 21, 9, 1, -9, 31, -47, 33, -44, -10, -10, 41, 12, 44, -50, 50, 57, 6, 19, 11, -34, -25, 25, -31, 37, 69, -7, -3, 7, -25, 1, 16, -1, 64, -5, -1, 3, -10, 8, -8, -47, -19, 30, 13, 16, -19 ]
Clark, J. The action is replevin for certain certificates of stock. There was trial without a jury. Defendants had judgment. Plaintiff seeks review on error. The trial judge filed an opinion in writing which counsel have treated as findings of fact and law. No exception to any of them was filed. The assignments of error are upon the findings. In the circumstances we may treat the opinion, containing findings of fact and law, as such findings. Jackson v. Insurance Co., 211 Mich., 378; Messer v. Dornbos, 210 Mich. 46; Thurber v. Aldrich, 167 Mich. 656; White v. U. S. Gypsum Co., 168 Mich. 238. Because of the failure of appellant to file exceptions, the point being raised by appellees, we are precluded from considering whether the findings are against the clear weight of the evidence. Circuit Court Rule No. 45; 3 Comp. Laws 1915, §§ 12586, 12587; Curry v. Shears, 216 Mich. 699; Ironton Cross Tie Co. v. Evans, 146 Mich. 197; Cope-Swift Co. v. Schlaff Creamery Co., 223 Mich. 543. A question usually open, in the absence of exceptions to findings, is that the findings do not support the judgment, but as no assignment of error here presents the question, it cannot be considered. Weist v. Morlock, 116 Mich. 606; Dennison v. Carpenter, 213 Mich. 658; Curry v. Shears, supra; Messer v. Dornbos, supra. Appellant urges error in admitting and rejecting evidence. A reason, here sufficient, for declining to consider such matter is that it is covered by no assignment of error, and whether the matter, if presented by proper assignment of error, could be considered in the absence of exceptions to the findings, need not be discussed. There is nothing to review. Judgment affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ -23, -5, 35, -52, -20, 14, 44, -6, -22, 87, 36, -12, -9, 13, 19, -32, -2, -17, -19, -31, -12, -15, -40, 28, -42, -49, -6, 5, 43, 26, -7, -11, -45, -32, -35, 12, 9, 46, 8, 7, -9, -12, 50, -54, -39, -25, 9, -10, 22, -31, 53, 4, 3, 12, 9, 3, 12, 16, 2, -4, 13, -23, 57, -26, 12, 9, -15, 1, 11, 15, -43, 29, -26, 8, -37, -47, 48, 4, -63, -16, 14, -17, 48, 30, 29, 26, 25, 25, -4, 15, 16, -28, -62, -20, 7, 12, -7, -35, -10, -8, 43, 27, -37, 0, -42, 23, -43, -15, 29, 13, 41, 41, -17, 3, -53, -23, -18, 1, -56, -37, 33, 25, 11, 38, -14, 58, -1, -24, -32, 46, -20, 59, 1, 42, -11, -77, 0, -59, -30, -15, -3, -14, -12, -37, 6, 6, 16, -30, -8, 16, -1, 1, -9, 5, -20, -35, -6, -20, 48, -57, 31, 25, -46, 0, 3, 9, -16, -2, -14, -41, 0, -18, 2, -37, -24, 39, 28, -53, -21, -26, 1, 25, 21, -24, -19, 15, -23, -13, -27, -75, -2, -8, 21, 36, -8, 8, -3, 51, 95, 8, -40, -21, -7, -8, -34, 57, -25, -18, -11, -15, -18, 52, -35, -36, -13, -26, 1, -38, -7, -17, -29, -29, -7, -14, 30, -29, 20, -12, -96, 18, -11, 11, 24, -40, 48, -2, 21, -33, 58, 38, 71, -15, -21, -1, -17, -27, 3, -19, 13, 14, 10, 43, -6, -5, -2, -80, -24, 21, -73, 17, -15, 63, -39, 33, -39, -20, -4, 9, -13, 11, -25, 8, -5, -1, -14, -1, 1, -12, 30, -8, -32, 30, 12, 11, -75, 19, 14, 29, 0, 22, 25, -14, -1, -4, 48, 4, 18, 38, 0, -56, 17, -16, 0, 22, -2, -7, -49, 16, -16, -35, -19, 29, 0, 5, 4, -17, -22, -9, 57, -30, -14, 30, -8, -42, 15, 5, 22, -90, -24, 31, 17, 21, 19, 66, 25, -13, 25, -4, -27, 29, 8, -10, 10, -31, -4, -17, -8, -28, -37, 39, -20, 15, -24, 45, 11, -12, 21, -31, -27, 6, -7, 15, 39, -24, -31, 2, -12, -23, -1, 57, 41, -7, -3, -69, -11, 5, 18, -2, -11, 30, -58, 16, 28, 5, -7, 7, 13, 10, -15, 6, -41, -28, 8, 34, -91, 39, -40, -32, -11, 20, 1, 6, 20, 2, -21, 23, 18, -18, -6, 27, -33, 14, 36, -30, -31, -24, 49, 13, 29, -42, -13, -39, 21, -45, -23, -55, 36, -12, -11, 37, -44, -4, -4, -53, -13, -21, -23, -20, 39, 15, -63, 10, -47, -3, -13, -39, 50, 48, 38, -11, 30, 18, 20, -19, 16, 54, 52, -42, -17, -21, 62, -41, 12, 36, 14, -9, -4, -28, 65, -6, -22, 7, 10, 34, -53, 13, -31, 29, -28, 36, 6, 64, -24, -43, -51, 28, -17, -15, -19, 19, -9, 35, 24, -38, -58, -22, 11, -4, -45, 41, -23, -12, -7, -27, 45, 21, 12, -47, 20, 19, 0, 16, 17, 28, -13, -20, 22, 9, -10, 43, 11, 9, -76, 9, -99, -9, -51, -34, -1, 17, 60, 20, 0, 13, -21, 18, 7, -51, 1, 2, -17, 4, 4, 54, 42, -19, 20, 34, -9, -6, -16, -4, 26, -2, 7, -15, 32, 14, 3, -30, -40, 30, -16, 36, 62, -10, -21, -19, 39, -1, 67, -8, 18, -16, 0, -29, 37, 38, 25, -16, -8, 44, -2, -99, -12, -31, 23, -11, 13, -37, 9, -33, -31, -39, -39, -13, 22, -29, 63, 54, -10, -9, -15, 14, -11, 4, 9, 29, 8, -30, 19, -49, 0, 14, -2, 8, 13, 63, -36, 26, -39, 39, 5, -10, 12, -10, 1, 0, 32, -79, 60, -11, 14, -19, -42, 13, -15, -33, -20, -1, 34, 15, 32, 31, 49, -86, -38, -14, 21, 19, -8, 72, 4, -11, -7, -3, 39, 1, -11, -49, 30, -3, 2, 36, 7, 56, 18, -35, 46, 17, 13, 44, -23, 1, 14, 27, 58, 19, 13, 27, -13, -7, 12, 2, 20, -79, -16, 43, 10, -23, -18, 59, 18, 10, 7, -76, 52, 26, 17, -72, 9, -40, 5, 10, 22, -9, -9, 10, 23, 3, 3, 33, -33, 8, 0, -1, -31, 34, -38, -52, 20, -23, 45, -13, 9, 34, 43, 34, 27, -34, 9, -12, 3, 52, -32, 58, 55, -29, -20, -23, 47, 9, -22, -21, -50, 46, 54, 7, 50, 26, 20, 36, 4, -9, -35, 56, 26, 5, -9, -6, 1, -12, -38, -28, -44, 25, -9, -39, -7, -6, -29, -22, 20, -49, -13, 76, -8, -47, 32, 10, -18, 12, 14, 54, -20, -46, 0, -23, -37, 1, 40, 1, -5, 14, 41, -17, 9, 27, -25, 8, 27, -14, 2, -28, -17, 14, -9, 42, 24, 26, -16, -5, -36, -10, 46, -26, 12, 3, 4, -38, 19, 35, -8, -39, -57, 6, -10, -44, 37, 13, -9, -25, -45, 32, 22, -12, 0, -18, 10, -7, 28, -7, -23, 5, 17, 33, -61, -3, 19, 11, -2, -3, 28, -33, 1, -3, -25, -12, 31, 45, 20, 16, -29, -38, 58, -22, -29, -8, -10, 2, 1, 35, -33, -20, -35, 23, -34, -15, 17, 11, 24, -20, 57, 14, -30, -44, 9, 2, -1, 33, 44, 1, 21, 0, -30, -35, 8, -18, 5, 39, 11, 6, 5, 29, 48, 26, -12, -3, -30, 48, 21, 0, 15, 15, 25, 34, -34, -28, -3, -23, 17, 30, 0, -37, -12, -1, 9, 48, 0, 3, -9, 25, 2, -2, -3, -45, 9, -27, -56, 23, -22, -47, 14, -10, -28, -53, -36, 43, 8, -6, -4, -14, -29, 5, -8, -21, 13, 10, -1, 21, -8, 28, -47, 12, 21, 31, -2, 14, -52, -2, 23, -9, 37, -35, -7, 26, 0, -15, -52, 31, 0, -24, -34, 5, 6, -33, -36, -7, 3, 4, -13, -1, 20, 8, -46, 38, -9, -8, 36, 16, 23, 0, 26, 12, 4, -17, -9, 23, -74, 11, -1, 31, 72, 60, -8, 17, -27, -54, -44, -30, -2, 90, -7, 17 ]
Sharpe, J. Defendant expressed to plaintiff a desire to purchase a car load of Northern Spy apples. Plaintiff agreed to make an effort to secure them. Soon after he appeared at defendant’s place of business in Detroit with a basket of such apples. Defendant agreed to take a car load similar to the sample at a price then agreed upon. Plaintiff shipped to defendant at Detroit a car load of Northern Spy apples purchased by him in Lapeer county. Defendant advanced a part of the purchase price before shipment. When the car reached Detroit the apples were unloaded at the plant of the Detroit Refrigerator Company, agreeable to defendant’s orders. He soon after inspected them, and determined that they were not of the quality he had agreed to take. He at once telephoned plaintiff, who came to Detroit about a week later. The parties differ as to what was said at that time. No settlement was reached. Plaintiff began suit. A few days later, defendant notified plaintiff by letter that, unless plaintiff advised him to the contrary, he would dispose of the apples to the best advantage he could and recoup his loss in the suit plaintiff had begun. He made sale of the apples, receiving less therefor than he had advanced to plaintiff on the purchase. Plaintiff’s claim and defendant’s claim of recoupment were submitted to the jury, who found for plaintiff for the balance as claimed by him. The following special question was submitted: “Did the Northern Spy apples actually shipped by plaintiff to defendant in the month of November, 1922, come up to the grade of sample submitted ?” The jury answered it, “Yes.” Defendant reviews the judgment entered by writ of error. Both parties are agreed that the only question presented was whether the apples delivered conformed to the sample. The plaintiff testified that he attended to the loading of the car, that he “picked over the apples that were brought to me by those farmers, every crate.” He was asked, “Were they hand-picked?” and answered, “Yes.” “Mr. Sloman: Would like to move the statement ‘hand-picked apples’ be stricken out, unless he testified to being present when the apples were picked; otherwise it must necessarily be hearsay. “The Court: Not necessarily; an experienced fruit picker knows a hand-picked apple when he sees it. The court happens to know that to be a fact. Your motion is denied.” The witness then testified: “I have lived on a farm practically all my life. I have had considerable experience in the gathering of apples, covering a period of 20 years. * * * The apples that I showed him, that I could get at Columbia-ville and Lapeer, were the same brand of apples that I afterwards shipped him. They were as good. They were the same apples. Same as sample.” The court then suggested that the plaintiff, having proved the contract and delivery thereunder, might well rest, and, after cross-examination of the witness, he did so. Defendant’s counsel then moved for a directed verdict— “for the reason that the testimony of the plaintiff himself shows that the agreement made with Mr. Neumann regarding the Spy apples was a sale from sample, which sample were admitted to be fancy Spys and perfect Spys, and the testimony of this plaintiff is to the effect that the apples were good apples, good Spy apples, that he delivered; no showing here that he delivered the apples to correspond to the sample.” This motion was denied. Plaintiff had testified, as quoted above, that the apples shipped were “same as sample.” In his instruction to the jury, the court very clearly stated the issue of fact which they must decide. It was also specifically stated in the special question submitted. Error is assigned upon the statement: “There is no dispute but what the proper amount was delivered in the proper way.” This was followed by— “There is no dispute by the plaintiff in this case that if he failed, or did fail, and you find that he did fail, to deliver a car load of apples fairly in accordance with sample, that the defendant should recover. * * * Boiling it all down, the issue is a very plain one: Was, this car load of Spy apples in accordance with the sample?” The defendant had testified as to the grade of Northern Spy apples to which the apples shipped belonged. Other witnesses who examined them also so testified. The court said: “I will stop here to explain, that there has been a lot said about the grading of these apples, fancy, extra fancy, No. 1, No. 2, culls. You are not concerned with them at all. It’s not decisive in this issue. The court instructs you that this car load of apples was sold in accordance with a sample. There is no proof of any conversation had between the plaintiff and the defendant at any time or place whereby the plaintiff sold to this defendant a car load of apples in accordance with any grading whatsoever; so the only thing for you to consider is, Was the car load of apples fairly in accordance with the sample furnished? Call it what you like; call it hickory nuts, or anything else you see fit; there was apples, a bushel of apples or crate of apples, submitted as a sample.” We have quoted quite freely from the record as defendant’s argument is centered around the claim of error that— “The court erred in the attitude maintained by the trial judge, consciously or unconsciously, during the trial, as well as in his charge to the jury, which too clearly indicated the judge’s opinion regarding the facts of the case.” We find nothing in the record to indicate that the trial court had, or expressed to the jury, any opinion regarding the issue of fact in dispute. His purpose in the language complained of was to limit the consideration of the jury to the one question in dispute: Did the apples shipped “come up to grade of sample submitted?” There was no motion made for a new trial, so the weight of the evidence is not before us for consideration. The judgment is affirmed. . McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ 3, 27, 21, -38, -50, -45, 24, 19, 8, 31, 16, 0, 21, 57, 2, -18, 45, -40, 69, -46, 49, -27, 21, 16, -28, -41, -8, -42, 14, -21, -32, 40, 8, -20, -16, -3, 35, 6, -15, -27, -16, -3, 42, 42, 28, -4, 12, -24, 36, -24, 53, 15, 15, -25, 1, -14, 4, 56, -16, 36, -2, -3, 10, -7, 31, 17, -13, -25, -26, 19, -44, -11, 12, -32, 40, -62, 0, 22, -1, -25, 46, 0, 27, 0, -33, 34, -10, -30, -44, -34, -20, 50, -40, -11, 62, 32, -16, 38, 6, 28, 27, 3, -13, -13, 44, 9, -13, -45, -53, 30, -2, 10, 46, 13, 9, -9, 14, -15, 15, 23, 0, 12, -17, -8, 31, -7, -25, -19, 3, 27, 88, 10, 47, 46, -17, 2, -43, -14, -44, 12, 41, 15, -25, 3, 46, -23, -40, 4, -24, -23, -35, -18, -43, -8, 21, 14, 9, -12, 33, -10, 42, 15, 11, 17, -31, 12, -49, -13, -8, 18, -2, 8, 8, -5, 14, -27, 19, 24, -52, -45, -1, 11, 6, -4, -26, 11, 3, 29, -20, -4, 27, -41, 32, -2, -44, 37, 22, -17, 8, 12, -5, -57, 20, -27, 1, -24, 10, -32, -10, 41, -40, -5, 3, -53, -15, -5, -1, -35, 32, -13, 42, -43, 17, 27, -36, -6, -5, 7, 22, -15, -43, 25, -7, 46, 12, 4, 6, -42, 53, -24, -1, -17, -25, -21, 10, 17, -46, 9, 9, 48, 4, 6, -13, -15, -5, -71, -2, 9, 45, -3, -13, 21, -27, 55, -19, 19, 2, 29, -18, 27, -65, -10, -20, 12, -41, -39, -12, -21, 21, -28, 28, -23, -27, -29, 14, 5, 5, 5, -32, 37, 9, 34, 3, -32, 13, 43, -26, -14, -5, 26, -23, 27, -16, -3, 17, 20, -2, -5, 5, -38, -17, -55, -1, -4, 41, -29, 38, 0, 3, 4, -35, 30, -14, 39, 3, -5, -3, -1, 13, -23, -1, 20, 32, 4, -27, -5, -6, 2, 5, 4, 43, 13, -7, 1, 34, 10, 14, 11, 6, -58, 22, -22, 18, -7, 30, 12, 47, 31, 7, 51, 24, -28, 32, 50, -8, 15, 8, -31, -42, 52, -45, 30, -32, 8, -28, -33, -32, -63, -1, 37, 4, -16, 14, -22, 3, 2, -25, -11, -24, -1, -13, -8, 0, 47, -31, -22, -18, -47, 1, -14, 27, 33, -12, -46, -16, -10, 5, -8, 48, -17, -23, -12, -7, 4, -13, -31, 21, 26, 4, 23, 35, 68, -48, -24, 68, -12, 28, -9, -54, 12, 6, -6, 46, -11, -11, 21, -36, -9, -13, 17, -23, 21, -51, 14, 5, -32, -44, 23, 44, 16, 39, -21, 6, -1, -12, 40, 48, -36, 32, -27, -12, -28, -23, -13, -51, -33, 8, -49, 23, -12, -8, 66, 10, -23, 22, 30, 32, 12, 27, 33, -67, 19, 53, -18, -65, -21, -51, 13, 7, 79, 30, -46, -8, 20, -43, 10, 18, -21, 32, 0, -29, -30, 0, -17, 6, 5, 41, -20, 55, -3, 20, 0, 24, -15, 4, -18, -7, 56, 2, 34, -8, -23, -18, 22, -15, 34, 51, -37, -23, -36, 2, 16, -17, -72, 40, -30, 26, -61, 25, -8, 4, -16, 20, -25, -36, -5, -24, -46, 6, 2, 46, -29, -1, -23, -7, 30, -34, 4, -30, -3, -19, 18, -20, 12, 72, 0, 3, 23, 71, 18, -3, -49, 73, 59, 13, -43, 1, -25, -44, -3, -44, 25, -59, -26, -35, 0, 28, -2, -1, -11, -38, 26, 16, -13, 43, 4, -1, 6, 42, -34, 0, 5, -44, -21, -29, -33, -56, 41, -1, -12, 1, 17, 21, -34, -8, 8, -38, -12, 0, 20, 22, -17, -24, -27, 36, -1, 43, -3, -17, 1, 10, -52, 15, 46, -28, -10, 40, 28, -40, -51, -27, -58, -22, 1, 14, -14, -37, 44, -54, -23, -10, -16, 23, -12, -7, -16, 0, -17, -20, 3, 27, -4, -25, -14, -13, 1, 7, -14, 15, 5, 29, -8, 4, -10, 17, -8, 2, 48, 15, 28, -1, -20, 13, -1, -16, -17, 4, -39, 15, -36, -33, -38, 3, -41, -17, -7, 54, -19, 16, -43, -1, -10, 9, 1, -13, 25, -24, 15, -1, 17, 33, -9, -9, 2, -13, 18, 8, 52, 24, -22, -11, 18, 72, -49, -24, -23, -25, -43, -41, 10, 18, 21, 31, -10, -14, 5, 18, -51, -8, -21, 5, 50, 20, -12, -14, -7, 43, 7, -48, 33, 3, 2, 51, 45, -7, -27, 3, 36, -51, -38, 7, 8, -39, -45, -16, 2, 48, -60, 34, 23, -50, -28, -14, 29, 13, -11, 0, 6, 5, -39, -35, -10, 10, 0, -10, -23, 25, -2, 80, 33, -13, -39, -14, 27, -19, 7, 55, 33, 36, -22, 23, -36, 32, 16, 6, -5, 6, -4, 41, 39, -2, -6, -8, -48, 13, -7, -30, -37, 20, 9, 34, -25, -9, -8, -20, 21, 0, -7, 5, -5, 11, -20, 8, 31, -48, 74, 32, -52, -29, 26, 0, 4, -21, 26, 21, 7, -2, -2, -22, -64, -14, -33, -22, 32, 32, 35, 10, 9, 10, 17, -26, -24, -42, -12, 17, -26, 10, -55, 14, -10, 31, 60, -48, -22, 6, 15, -36, -31, 12, 0, -18, 17, -5, 40, -22, 16, -13, -40, 24, 11, 15, 4, 4, -14, 9, -48, -29, -14, 29, -7, -9, -7, 5, -6, 3, -47, 7, 18, -14, 3, 17, -67, 39, -28, -79, 33, -21, -23, 10, -1, 19, -25, -6, 2, -10, -17, 20, 16, -16, 35, 18, 6, 40, -27, 4, 28, -34, -66, 30, 19, 3, 54, 6, 2, -30, -63, -7, 22, 15, 23, 59, -13, -44, 48, -5, -30, -65, -25, -8, 51, 22, 51, 6, 36, 29, 46, -3, 30, -1, -14, 15, 5, 28, -28, 36, -17, 23, 16, -5, 23, -21, -38, -36, 54, 54, -29, -19, -21, -60, -10, -17, 26, 8, 6, 16, 11, 4, -13, -2, -59, -2, -22, -5, 20, -3, -26, 18, 45, -63, 28, -43, -3, -13, 48, 7, 11, 33, 10, -48, -26, 9, 15, 29, 40 ]
McDonald, C. J. This is an appeal from a decree dismissing a bill to enforce a partial assignment of a fund alleged to be in the hands of some of the defendants. Defendants Tuchman and Stellwagen entered into an agreement to exchange properties. Tuchman’s property consisted of eight stores with a garage in the rear, located at the comer of Shoemaker and St. Clair avenues in the city of Detroit. Stellwagen had a farm in Sumpter township in Wayne county. The exchange agreement is in the form of a written offer to Paterson brothers and an acceptance by Stellwagen. The material part of the offer is as follows: “This offer is made with the understanding that you will negotiate a mortgage of ten thousand ($10,000) dollars to be placed on the above described farm. Proceeds of which I will use to pay the forty-nine hundred ($4,900) dollars incumbrance mentioned above, together with your commission amounting to two thousand two hundred eighty ($2,280) dollars; the balance to revert to me.” Paterson brothers are the real estate brokers who brought the parties together and who handled the transaction for Tuchman. The plaintiff Donne was employed by Paterson brothers on a commission basis'. He was given active charge of the business in question and to assist him hé employed the plaintiff Schwartz. This was done with the consent of Paterson brothers. Acting, as he claims, under authority from Paterson brothers, Donne gave Schwartz the following assignment of a portion of the commission: “April 16, 1923. “To Mr. David Tuchman : “We agree in consideration of signing this day agreement covering offer to sell property on St. Clair and Shoemaker avenues, that if for any reason deal shall not be consummated then there shall be no liability of any kind for commission. “Also you may upon written request of Chester L. Schwartz deduct one-third of commission from sum to be paid by you and Mr. Stellwagen and deduct from commission.” The bill avers that the agreement for the exchange of properties was consummated, but that Tuchman declined to pay the broker’s commission; that in accordance with a custom which they followed Paterson brothers refused to sue for the commission; and that, having no action at law against any of the parties, Mr. Schwartz was compelled to file this bill to enforce the assignment which he had received from Paterson brothers. Mr. Donne was permitted to intervene as a party plaintiff. The defendants, Pater-, son brothers, filed an answer in the nature of a cross-bill in which they admit that plaintiffs are collectively entitled to one-half of the commission and that they, Paterson brothers, are entitled to the other half, and they pray that their portion of the commission may be decreed to them. The answer of the other defendants denies that any commission is due to the plaintiffs or to Paterson brothers, and asserts that in any event their claims should be prosecuted in an action at law. On the hearing the defendants offered no testimony, but at the close of the plaintiffs’ case made a motion for a dismissal of the bill. The court dismissed the bill on the ground that the plaintiffs had an adequate remedy at law. From the decree entered the plaintiffs have appealed. The only question presented by the record is whether a court of equity has jurisdiction to hear and to determine the issue involved. At the conclusion of the plaintiffs’ case, responding to defendants’ motion to dismiss the bill, the circuit judge said: : “Any claim that exists is a claim against Paterson Bros. & Company, if any exists. That is purely a legal action. His claim, under his own testimony, was for a part commission that Paterson brothers have not collected. If they do not see fit to collect a com mission, that is their matter and their business. _ If he is entitled to one-third, or whatever he claims, 700 odd dollars, he can substantiate that by an action at law.” As the record stands it shows that there came into the hands of defendant Tuchman $2,280 which he had agreed in writing to pay to Paterson brothers for their commission. Paterson brothers assigned one-third of this fund to the plaintiff Schwartz as compensation for his services in assisting in negotiating an exchange of the properties. This assignment was accepted by Mr. Schwartz and it is not claimed that it was an insufficient partial assignment of the commission due or to become due to Paterson brothers. The question is, Can it be enforced in equity? “A partial assignment of a chose in action is enforceable in equity, although the debtor has not given his assent, provided that all the parties in interest are before the court, so that the rights of each in the fund may be determined in one suit and settled in one decree.” 2 R. C. L. p. 619, § 27, and cases cited. “At law, a partial assignment may be good between the parties, and if the assignor collects the money, he would in such case hold it as the trustee of the assignee. But the assignee has nó legal remedy against the debtor who does not become a party to the arrangement. The reason for the legal doctrine is obvious. The law permits the transfer of an entire cause of action from one person to another, because in such case the only inconvenience is the substitution of one creditor for another. But if assigned in fragments, the debtor has to deal with a pluralty of creditors. If his liability can be legally divided at all without his consent, it can be divided and subdivided indefinitely. He would have the risk of ascertaining the relative shares and rights of the substituted creditors. He would have, instead of a single contract, a number of contracts to perform. A partial assignment would impose upon him burdens which his contract does not compel him to bear. * * * In a court of equity, however, the objections to a partial assignment of a demand which are formidable in a court of law disappear. In equity the interests of all parties can be determined in a single suit. The debtor can bring the entire fund into a court and run no risk as to its proper distribution. If he be in no fault no costs need be imposed upon him, or they may be awarded in his favor. If he be put to extra trouble keeping separate accounts he can, if it is reasonable, be compensated for it. In many ways a court of equity can, while a court of law with its present modes cannot protect the rights and interests of all parties concerned. “The debtor is not the only party whose interests should be considered. There is as much natural equity in many cases in protecting an assignment of a part of a claim as an assignment of the whole of it. * * * “We think upon reason and principle,'partial assignments should be sustained in a court of chancery in all cases where it can be done without detriment to the debtor or stakeholder, whenever equitable- and just results may be accomplished by it.” Exchange Bank v. McLoon, 40 Am. Rep. 388 (73 Me. 498). See, also, 3 Pomeroy’s Equity Jurisprudence (4th Ed.), § 1280. It is not necessary to cite other cases in support of this doctrine. It is settled by a great array of authorities. But it is said that the plaintiff cannot maintain this action in equity to enforce his assignment, because he has an adequate remedy at law. Against whom has he an action at law? Not against Paterson brothers, because they have paid their debt to him by the assignment, by which they deprived themselves of ownership and all control over a definite portion of a particular fund. He has no action at law against them unless, ignoring the assignment, they had collected the whole fund. This they did not do. He has no action at law against Tuchman because Tuchman never promised to pay him any part of the fund. Tuchman had a right to pay his debt in solido, and he cannot be compelled to pay it in piecemeal, except upon his positive promise to do so. The plaintiff had no such promise, but he had an assignment of part of a particular fund enforceable only in equity. The circuit court had jurisdiction of the matters involved. All of the parties interested were before the court and their respective rights should have been determined. The defendants offered no testimony in support of any of the defenses raised in their answer, but by their motion to dismiss elected to rest upon the case presented by the plaintiff. We must dispose of the issues on the record before us. It shows that Mr. Tuchman became indebted to Paterson brothers for a broker’s commission in the sum of $2,280, and that Paterson brothers, Schwartz and Donne, got together in an agreement for a division of the commission. In their brief, Paterson brothers say: “On behalf of Paterson brothers, defendants and appellees, it is hereby conceded that plaintiff Donne is entitled to one-half of the commission earned by Paterson brothers under the terms of Exhibit 2, after deducting therefrom the commission due plaintiff Schwartz as assigned to him under the terms of Exhibit 3.” As the evidence shows that the money out of which the commission was to be paid went into the hands of Tuchman, the bill should be dismissed, with costs, as to the other defendants, Stellwagen and Dreifuss. A decree will be entered in this court requiring the defendant Tuchman to pay to Paterson brothers, Schwartz and Donne, respectively, the sum of $760, with costs. Clark, Bird, Sharpe, Moore, Steere, Fellows, and WlEST, JJ., concurred.	[ -29, 37, 22, -2, -38, -14, 5, 38, -32, 32, 0, 22, 12, 39, -8, 1, 39, 0, 13, 24, 13, -45, -34, 11, -15, -14, 17, -70, 15, -30, -38, -35, -19, 31, -45, 4, -22, -12, 38, -85, -5, -36, -3, -16, 32, 10, -3, -32, 31, -37, 29, 30, 23, 47, -30, -40, -44, 31, 4, 0, -17, -34, -12, -27, 10, 19, 26, 30, 37, 21, -3, 9, 10, -5, 18, 11, -18, 15, -11, -22, 29, -21, 49, 22, -53, 64, 27, 3, 39, 41, -14, -15, 15, -1, -3, 42, 33, 43, -32, -17, -9, -10, -28, 18, 44, -4, 16, 23, 32, 103, 6, -61, 34, -29, -8, 6, -57, -9, -27, 32, 1, -4, -27, 2, 3, 18, -52, 3, -39, 18, 1, -12, -45, 7, 1, 61, -5, 7, -27, 14, 16, 31, -71, -12, -13, 9, -39, -74, 10, -38, -24, 3, -5, 53, 0, -97, 19, -17, 26, 0, 0, -20, 14, 23, -8, 27, -65, 28, -78, 39, 3, 17, -25, -42, -19, -12, 27, 15, -25, 3, -16, 43, 20, -42, 20, -64, -6, 17, 20, 12, 29, -11, -6, 7, -14, -11, 20, 31, 9, 54, -34, -19, -9, 9, -19, -46, 22, -2, -16, -36, -40, 16, 6, -15, -3, 40, -8, -31, -3, -40, 29, 1, -20, 24, -23, -56, 7, 22, 8, 11, -48, 23, -11, 20, -7, -21, 45, 18, -14, 17, 4, -3, 3, 5, -21, 27, -48, 42, 43, 27, -29, -55, -21, -15, 62, 34, -61, 19, 6, -34, 6, -9, -19, 25, 27, -18, 0, -46, 8, -9, 28, -33, 12, 28, -75, -56, -34, -16, -13, 9, 18, -35, -18, 8, 51, -3, 3, 5, -71, -2, -49, 16, 37, -5, 24, 18, -23, -53, 14, 6, -65, -14, 11, -13, 56, -20, -25, -22, 52, 16, 25, -33, -16, -13, 1, 6, 13, 19, -4, -16, 32, -2, 8, 38, -1, -12, 2, 4, -1, 11, 18, 25, 21, -11, -24, -9, 17, 19, -4, -11, 42, 10, 11, -20, 7, -8, 27, -16, -28, 37, -7, -51, -8, 36, 15, 11, 62, 45, -13, 28, 41, 43, -68, -24, -52, 15, -11, -22, 7, 31, -37, 29, -30, 20, -28, 41, -46, -14, -47, 53, 22, -10, -2, 43, 67, -29, -3, 1, 15, 23, -31, 26, -7, 32, 11, -92, -17, -29, -25, -14, 36, -10, -22, 8, -31, -11, 11, -20, -1, -10, 11, -33, 7, -40, -3, 25, -3, -21, 19, -5, 29, 35, -50, -20, 29, -12, 22, -2, -15, 30, -14, 9, -15, 3, 24, 31, -43, 5, -60, 54, -26, -12, 17, 20, 38, -42, -74, -10, 21, 6, 5, 49, 7, 41, -18, 28, -2, 3, 41, -49, 28, -73, -19, -44, -32, -31, 17, 0, 44, 30, -13, 13, 14, 14, -10, -2, -36, -42, -26, 16, -32, -15, -9, 15, -35, -38, -38, 22, -32, -3, 3, 22, 41, 21, -1, -4, -7, 2, 21, -30, 11, -41, 47, 72, 31, -32, 14, -27, 19, 4, -18, -34, 4, 17, 7, 45, -40, 0, 57, 18, 72, -1, 11, 1, -11, -11, 36, 3, 17, -10, -14, -39, 8, -15, 9, -39, 10, -25, 12, -6, -36, -6, -54, -9, -3, 53, -41, 0, -5, -58, -6, -77, 51, -24, -16, -15, 28, -22, 14, 1, 9, 27, 11, 7, 39, -12, 9, 8, 2, 24, -37, -10, 14, -4, -7, -30, -22, 4, -3, 40, -59, 10, 35, -22, -17, 39, 0, 24, -49, 48, -8, -16, 0, -18, 38, -19, 24, 36, 21, 39, -25, -16, -56, -15, -35, -69, 13, 44, 12, 6, -18, 29, 12, 17, -15, 20, -4, -14, 2, 17, 9, 19, 16, 2, -17, 27, 25, -11, 22, 37, 22, -31, 26, -12, 5, 38, 10, 17, -37, -15, -23, 22, -52, -20, 13, -6, -9, 31, 12, -5, 4, -1, 54, 6, -13, 25, 18, -25, 18, -12, 68, 10, -24, 25, 42, 1, 57, -11, 47, 5, -4, 22, 21, -9, 23, 21, 0, 67, -1, 13, 36, 0, -1, 13, 19, -3, -4, -25, -17, 20, -25, -1, -36, -46, -12, -4, -20, 0, 27, -32, -5, 26, 0, 24, -20, 37, 9, 17, -20, 2, 52, -13, -19, 17, 6, 18, -5, 44, -27, -33, 13, -4, -6, -41, 28, -30, -25, -5, -15, 41, 13, -47, 26, -19, -32, 43, -56, -8, -56, -36, -21, 10, -22, 21, -21, -36, -27, 16, -16, -29, -12, 52, -4, 29, 47, -4, -12, -5, -36, 28, -26, -7, -26, 51, 9, -2, 40, -28, 0, -24, -86, 14, -55, -9, -11, -20, 28, -5, -11, 5, -25, -23, 9, -16, 8, 8, -6, 21, 24, 12, -35, -9, -59, -7, -16, 1, 55, 46, 64, -47, -19, 14, 9, 40, -51, -17, -49, 16, 36, 40, -21, 24, -19, -21, 13, -10, 13, -2, -3, 9, 5, -13, -5, 0, -21, -31, 4, 16, -50, 31, 22, -4, -16, 25, -17, 6, 2, -15, -16, -40, -1, -90, -36, 13, 22, 7, -25, 73, -5, -36, -47, -27, -24, -1, -4, -17, -32, 3, 1, 32, 35, 27, -18, 16, 15, -55, -46, -34, -16, 26, -8, 12, -36, 1, 37, 4, -10, 6, 25, 19, -21, 13, -29, -15, -41, 39, -3, -16, -14, 8, 2, 14, -59, -5, 29, -41, -22, -14, 56, 11, 7, -5, 29, -41, -51, 43, -6, 77, -1, 35, 14, 1, 15, 1, -50, 29, -25, 1, 4, 20, 4, -15, -48, 9, 8, -11, -33, 25, 40, 5, 10, 33, 21, -20, 13, -99, 42, -59, -26, 6, 23, -55, 0, -3, 20, 11, 30, -23, -25, -1, -10, -10, 17, 28, 0, -34, -31, -32, -63, -24, -5, 16, -19, -14, -12, -71, 41, -4, -15, -15, -3, 49, -58, -19, 9, -24, 20, 28, 9, -11, 67, 22, -14, 78, 4, 20, 21, 29, -22, -2, 28, 24, 25, 13, 7, 9, 22, 14, 5, -55, 4, 14, 9, -6, 53, 9, 65, -6, 32, -5, -8, 56, -6, 54, -38, 4, 38, 33, 4, -9, 20, -1, -39, 98 ]
Clark, J. For putting up a building plaintiff furnished materials to Crows, a contractor, with Victor and Lipshitz as owners. The first of the material was furnished on June 19, 1917, and the last, it is stated, on October 30, 1917. The amount said to be due is $754.73. Statement of lien was filed December 28, 1917, and later a bill to enforce it. Plaintiff had decree. Defendant Applebaum, appealing, claims to have purchased the building on July 6, 1917, and had testimony that on that date the building was completed or practically so, and seeks reversal on the ground, chiefly, that the statement of lien was not filed within 60 days after'the furnishing of the last of the material, insisting that the material charged as of October 30, 1917, in the sum of $12.53, was not in fact furnished, and that if it was, furnishing it was an afterthought, a subterfuge, and that therefore the claim of lien must fail. Plaintiff testified that the furnishing was done before he knew of Applebaum. About 75 per cent, of the material was delivered and used on the job after Applebaum claims to have purchased. There is conflict in testimony of the two witnesses for appellant and the three for plaintiff. The trial judge, who saw these witnesses and heard their testimony, found that plaintiff, sustaining the burden of proof, had established that the materials had been furnished as charged and that they had gone into the building. We reach the same conclusion. The evidence of value is sufficient. Plaintiff furnished material three times in June, five times in July, nine times in August, and twice in September (the last on September 10th), the last before October 30th. Appellant argues that the item of October 30th is unusual, isolated, 50 days after the last material theretofore furnished, and that this circumstance, added to his direct testimony, requires a holding that plaintiff did not furnish such material, and that if there was such furnishing, it was an effort to acquire by trick a right to make and file statement of lien. But October 30th was within 60 days after September 10th. If the last of the material were furnished on September 10th, why would plaintiff, on October 30th, resort to subterfuge or trickery to get a right which he then had? Considering all the evidence, we think that the materials were furnished in due course and in good faith. Decree affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ 3, 12, 7, 3, -29, -15, 9, 5, 52, 10, 30, 20, 2, -37, 31, -6, -23, -9, 27, 0, 13, -8, -40, -33, 6, 59, 5, 29, -1, 69, 39, 28, -5, -55, 29, 28, 10, 9, 44, -26, 39, -35, -7, -59, 25, -14, 6, -38, 71, 0, -1, -5, 28, -15, 2, -47, -27, 3, -12, 4, 32, -52, -10, -12, 15, -6, 22, 18, -9, -18, -39, 39, -9, -44, -38, -39, -32, 13, -47, -11, 44, 6, 18, 0, -21, -13, -25, -45, 21, 1, -24, -26, -2, 21, -43, 62, 5, 70, 22, 21, 27, 0, -50, 12, 5, 24, -32, -56, -40, 29, 21, -6, 55, 26, 11, 5, -6, 32, -68, -46, 70, 14, -18, -47, 3, 23, 17, -9, -42, -4, 4, -31, -27, 6, -12, -4, -2, 6, 7, -7, 34, 23, -31, -13, -4, 21, 9, -1, -31, 15, -39, -29, 9, 18, 5, -4, 3, -19, 1, -61, 44, -24, -11, -70, -11, 11, -34, -22, -18, -13, 26, 13, -36, -33, 12, 20, 49, -40, -16, -62, -28, -4, 51, -28, 38, -9, -22, 15, 58, 28, 23, -25, -34, 8, -20, 9, -21, 19, 24, 0, -50, -41, 12, -61, -26, -1, 29, -3, 5, -12, -3, -14, -36, -53, -15, 6, -1, 7, 3, -5, -49, 3, -25, 27, -49, 0, -8, -1, 42, 5, -50, -3, 36, 24, -1, -3, 38, -3, 15, 17, -13, -25, -69, 6, 10, 7, -54, 65, -1, -14, -9, -4, -8, 52, -5, -48, -30, 3, -7, -13, -18, 22, 18, 5, 75, -27, 29, -1, -8, 68, -8, 14, 7, 65, -21, -41, -50, -15, -5, -31, 29, -28, -31, 1, 0, 0, 25, 24, -21, -2, -17, 13, 44, -38, 43, -1, -21, -3, -6, -23, -26, -5, 6, -37, -11, 16, -11, 27, 3, -1, -35, -8, 27, -38, 35, -12, -11, 0, 15, -55, 55, -23, 0, 14, 18, 0, 32, -6, -49, -13, -6, 1, -4, 22, -46, 28, -11, -32, -2, 9, 53, 24, 0, -8, -4, 53, 12, -51, 0, -7, 15, -25, -1, 13, 8, 36, -22, 3, 18, 38, 65, 57, 27, -18, -33, -13, -21, -12, 6, 38, 37, -15, -29, -6, 4, 2, -34, 25, -32, 20, -20, -22, 8, -1, 48, 40, 0, -39, 8, 21, -35, -32, 9, 16, 14, -95, -24, 15, -11, -36, -26, -9, 40, -30, -8, -11, 0, 16, -17, 60, 8, 8, -73, -19, -17, -10, -13, -14, 39, 19, 41, -26, 24, 5, 35, -55, 17, -3, -58, -17, -59, -4, -13, 13, -7, 0, -26, -6, 4, -19, 15, 37, -45, 1, 57, 21, -31, 13, 27, 0, -19, 5, -4, 25, 40, 20, 1, -27, 65, 36, 48, -15, 21, -35, 69, 3, 33, -40, -17, 35, -11, -10, 51, 20, -41, 30, -22, -13, 3, 4, 20, 40, 10, -24, -38, -17, -34, -10, -18, 46, 21, -9, -10, -4, -21, 14, -56, -4, -35, 8, -48, -7, 7, 23, 23, -38, 15, -18, -4, 19, -37, -4, 9, 5, -10, 45, 71, 10, -24, 32, 23, 37, -7, 5, -38, 19, 9, 47, -5, -1, 33, -2, -7, 7, -16, 19, 51, 18, -1, 0, -18, 28, -3, 21, 14, 23, 8, 2, -38, 23, 11, 8, 17, 70, -54, 4, 21, 3, -46, -22, -21, 25, 0, -28, 17, -41, -39, 24, 25, 4, -34, -18, 20, 42, -58, 9, -42, 24, 22, 13, -8, 5, -29, -33, -57, 43, 21, 63, 11, 56, -14, -50, 0, -30, 35, -20, 5, 16, 7, -21, -10, -30, -27, -52, -28, -18, -21, 74, 34, 6, 6, 5, -9, -8, -5, 13, 0, 0, 35, 41, 37, 11, -10, 8, -13, 10, 0, 15, -13, 20, -66, -30, -10, 14, 10, -29, 40, -40, -16, -20, 0, 4, -33, 20, -31, 18, 9, 9, 12, 18, 29, 15, 62, -10, -5, -47, 15, -35, 33, -7, 8, -52, -29, -9, 5, -26, 68, -2, 0, 4, -4, -7, 38, 29, -2, -39, -53, -12, 42, 10, 31, -8, 14, -14, 46, -10, 8, -25, -28, 7, -30, -56, 60, -6, 4, 41, -7, 0, -5, 20, -8, -34, 6, 16, 4, 18, -12, -1, -42, 15, 34, -27, 24, 4, -13, 35, 12, 33, -69, -17, 63, -22, 49, 21, -3, -3, 12, -18, 1, -4, 20, 28, -54, -25, -19, 1, -15, -10, 14, 6, 7, 0, -28, -34, -29, -14, 47, 16, -11, 37, -9, -7, 28, -20, 20, 5, -62, -26, -6, 21, -55, -5, -58, -10, 0, 5, -33, -28, 2, -51, -19, 12, 34, -52, 12, 35, 18, 17, 28, 9, 28, 12, -13, 47, 36, -35, 39, 0, 24, 53, -17, 7, 24, -11, -35, -6, -5, 33, -7, -13, 0, 40, 2, 31, 13, 2, -61, 53, -26, -17, -19, 3, -4, -46, -30, -28, 30, -22, 22, -3, -26, 49, 4, -45, 73, -9, 7, -4, -22, 14, 46, -68, -19, -1, 54, 14, -10, 38, -42, 2, -18, 10, -8, 50, -2, -28, 5, 26, -17, -14, 17, 12, 14, -22, -40, 0, 7, 12, 55, 23, 33, 23, -1, -14, 31, -51, -30, 59, 28, -30, 54, 14, -40, -15, 18, 1, -21, -17, 35, 3, -12, 83, -7, 26, -1, -21, 21, -30, -24, 41, 43, -7, -20, -11, 5, -37, 43, -27, 17, 16, -17, 3, 11, 35, 38, 32, 28, 4, -3, -5, 2, -3, -9, -34, 6, 0, 3, -1, -14, 54, 3, -18, -48, -28, -15, -10, 9, 2, -26, -6, -11, -26, -4, 56, 30, -14, -40, -61, -52, 8, -17, -54, -2, 40, -13, 14, 7, -33, 3, -25, -26, 61, -11, 28, -9, -15, -38, -18, -24, -29, 0, 22, 27, -4, 40, 22, 44, 10, -4, -30, -17, -14, -11, -18, -21, -13, 16, -40, -20, 38, 87, -50, -3, -23, -3, 16, 36, 13, 5, -32, 47, -1, -36, 4, -14, -52, -4, -32, 6, -19, -15, -45, 43, 21, 21, -61, 51, 30, -19, -61, -40, 13, 18, 18, 1, 17, -71, 39, 11, -25, 42, -16, 17, 32 ]
Clark, J. Defendant was convicted of selling moonshine whisky. It is contended, on exceptions before sentence, that there is no evidence that the whisky received in evidence was sold by defendant. A witness testified that he bought whisky of defendant and gave it to the sheriff. The sheriff identified the whisky received in evidence as that furnished him by the witness. The contention is without merit. It is urged that evidence that a search of defendant’s place was made after the sale in question ought not to have been received. It was brought into the case by counsel for defendant on cross-examination of a witness for the people. That the prosecution later went into the matter will not be held, therefore, to be error. The trial judge rightly held that the verdict is not against the great weight of the evidence. Affirmed and remanded for judgment. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ -16, -9, 45, 6, -44, -19, 12, 46, -52, 102, 71, -1, 31, 24, 48, -25, 5, -4, 14, -69, 30, 10, -43, -5, 7, -27, -23, 12, -16, 57, -26, 34, 28, -48, 41, -8, -10, 0, 33, -35, 21, 26, 32, 24, -9, -7, -31, -49, 47, -2, 40, -28, -6, -29, 16, 10, 7, 10, 25, 48, 44, 17, -20, -22, 13, -35, -24, -40, -16, -19, -16, -4, -36, -10, 26, -8, 3, 8, -8, 52, 35, 11, 59, 32, 22, 31, -8, -42, -7, 10, 35, 9, -42, -43, -26, -17, 3, 4, 14, 1, -15, -5, -59, -11, 27, 14, -57, -25, -28, -6, 8, -23, 45, -20, 16, -36, -30, 0, -18, -27, 17, 41, 31, -31, -20, -56, 43, -21, -49, -31, 28, -18, -1, -39, -12, -21, -8, 37, -23, 0, 16, 56, 33, -15, -15, 24, 3, 5, -46, 15, -31, 14, -23, 21, 15, -21, 0, -57, 12, -49, -42, 54, -26, -13, -5, -11, -9, -3, -15, -31, -12, 1, 8, 55, 58, -5, 15, -14, -22, -24, -7, -8, 51, -13, 39, 11, -40, 1, -41, 4, -17, 8, -22, 0, -2, -16, 15, -16, 69, -24, -76, -22, -26, -16, 23, 20, 14, -25, -18, 0, -37, -15, 29, -90, 1, -35, -73, -45, -2, -30, -44, 20, 36, 3, -36, -25, -2, 35, -39, 31, -32, 34, 3, -12, 17, -24, -8, -3, 19, -1, -32, -22, -55, -26, 34, -16, -2, 43, 29, 46, 1, 4, -8, 17, -40, -26, 34, -4, -21, 11, -8, 52, -25, 19, -24, -22, 60, 12, -14, 68, -8, -4, 11, 18, -16, -56, -16, 33, 0, 70, 39, 50, 12, -26, -1, 33, -68, 49, 6, 19, 50, 7, -9, -23, 45, 45, 29, 42, -4, -8, 64, 12, -37, 25, -40, -2, 6, 20, -3, -10, 5, -28, -8, 29, 16, 14, -27, -45, 39, -19, -69, 1, 25, -42, 13, -15, 44, -61, 21, -14, 2, -13, 7, -21, -12, 2, 19, 2, 18, 58, -24, -19, -19, -23, -25, -8, -4, -6, 8, -25, 44, -4, 54, 45, 42, -39, -4, -15, 13, -34, 29, -34, -13, 34, 29, -25, -1, -5, -7, 19, 24, -21, -25, 17, -50, -30, 16, -18, -8, 28, -26, -27, 24, 12, -18, 12, -16, -33, -28, 13, 4, 13, -5, -14, -4, -20, -24, 11, 37, -32, -44, 45, 65, -50, -79, -3, -5, 4, 23, 8, -51, 13, -37, 7, -15, -33, 8, -1, 5, -34, 30, 7, 11, -7, 52, -45, -3, 20, 20, -5, -12, 15, -20, 4, -18, -11, -15, 29, 11, 12, -49, -55, -44, 8, 22, -14, -14, -2, 18, -29, 7, 17, -1, -21, -3, 67, 0, -38, 35, 0, 72, 14, -20, -55, 51, -5, -17, -72, 10, -38, 9, 49, 56, 1, -60, 28, 10, 41, -9, 8, 26, 51, 4, 7, 4, -23, -57, -45, 40, 25, 36, -7, 12, -5, -73, 16, 33, -9, -28, -13, -30, -20, -61, -27, 20, -2, 9, 24, 45, 34, -18, 15, -18, -45, -67, -20, -3, 29, 0, 46, 98, -38, -29, -26, -22, -6, -16, -33, 9, -35, 11, 47, 39, 11, 25, 29, 19, -16, 12, 13, -28, 1, 10, 19, 6, 32, 18, -25, -26, 18, 17, 50, -8, -2, -16, 0, 19, -2, -34, -18, -39, 5, 5, 1, 83, -34, -16, 17, 70, 3, 35, -6, 49, 18, 15, 11, 14, 45, -13, 40, 0, 28, 9, -20, -37, 9, 6, 12, -24, -2, -58, 24, 12, 11, -27, -37, -10, -46, -18, 16, 13, 23, 10, -3, 25, -29, -9, 22, -36, 14, 38, 14, 30, -10, -15, 5, -19, -32, -34, 23, 12, 16, -16, -20, -44, -2, -13, 3, 23, 0, -53, -48, -22, -25, 1, 41, -50, 21, -80, -64, 9, -17, -35, 19, 29, 9, 3, 43, -12, -18, 23, 16, 57, 2, -18, -5, 0, -27, -1, 0, 23, -14, -42, 11, 0, 17, -4, -3, -6, -4, -4, -30, -8, -17, 24, -2, 25, -20, -13, 19, 1, -39, 46, -52, 45, 39, -6, 23, 10, 16, -26, 46, 4, 0, -12, -21, 24, -20, 4, -33, 27, -15, 46, 30, 50, -32, -3, -17, 14, -5, -11, 44, 8, 29, -7, -9, -39, 36, 0, -19, -7, -19, 84, -28, 12, -38, -20, 38, 37, -34, 17, -42, 39, 23, 0, 21, -28, 22, -9, 17, -27, 24, -16, -28, 13, 17, 27, 6, -11, 38, 14, 27, 38, 31, 5, 30, 26, 27, -26, -56, 9, 12, -21, -43, -15, -11, -23, 1, 13, 15, -21, -49, 12, -16, -64, 62, -27, 21, 60, 4, -2, -27, -21, 22, -14, -28, -19, -18, -11, 22, 10, 32, -32, 23, 9, 6, -6, 17, -26, -8, -4, 7, 6, 15, 17, 8, 12, 25, -30, 23, 26, 27, 31, -46, 10, -6, -22, -50, 2, -23, 32, 0, -17, -14, 5, -14, -1, -28, -61, -1, -19, 30, 4, 25, 11, -3, -11, -51, -4, -17, -27, 75, 7, 45, 38, -1, -6, 15, -30, -5, 29, 10, -2, -36, -6, -12, -16, -12, -4, 49, -18, 24, -9, -57, 6, 18, 28, 18, 14, 16, 7, 16, -3, 4, -32, 29, -38, -11, -12, 29, 64, -35, 6, 14, 20, -24, 29, -17, 40, 10, 8, -21, 3, 0, -2, -10, 46, 6, 9, 4, -3, -25, -30, 55, 56, -78, 8, 7, 24, 6, -11, -18, 22, 0, 3, 0, -50, -7, 24, -9, 68, 51, -13, 14, -14, 23, -3, -35, -45, 2, -35, -13, 9, 24, -23, -13, -18, -46, 21, 14, -43, -36, -1, 41, 5, 23, -25, 18, 9, 7, -8, -23, -61, 44, -55, -2, -47, -14, -20, 11, -34, 41, -40, 14, 5, 56, -26, 37, -12, -4, 5, 8, 29, -31, 24, 11, 3, -4, -19, 2, 9, 0, -47, -23, 14, 16, 32, 20, -41, -4, -47, -4, 74, 17, -42, -6, -62, 20, -26, -61, -15, -15, -45, -8, 63, -6, -8, 45, -54, -65, -67, -49, 35, -2, -44, 16, 16, 14, -29, 21, -13, 53, 43, 36 ]
Sharpe, J. Plaintiff, as administratrix of the estate of her deceased child, Laverne, brings this action to recover the damages incident to her death, charging malpractice on the part of the defendant. The defendant attended the Palmer School of Chiropractic at Davenport, Iowa, for 14 months, and received a graduation diploma. After practicing for two years at Tipton, Iowa, he came to Grand Rapids. He did not comply with the law relative to registration of drugless healers in this State (2 Comp. Laws 1915, § 6726). Prior to May, 1922, he had administered treatment to the plaintiff personally on many occasions. Plaintiff’s daughter, Laverne, aged about 7 years, became ill about the first of May. Plaintiff testified that “she came down with an awful fever;” that she took her to defendant’s office; that he “told me she had a fever and I should put her to bed;” that she put her in a bed at defendant’s place, and later he took them home in his car. “That night he wanted to know if he should come and treat the child any more, if he was to come to the house to treat her. He did not say in particular what he would do or what treatment he would give her. * * * He came the next day. We had some further talk. He said he could cure — could treat the youngster — could help her. * * * About the fourth day after the child became sick I had further talk with him. The trouble was in the throat. I asked him if he was sure she didn’t have diphtheria. He said, ‘No,’ that she didn’t have it. He said she had a good case of tonsilitis. He thought he could pull it through. The Monday night that I called him over for the second time, I see that the child was breathing out of place. It wasn’t natural breathing. She hadn’t breathed natural for several days. That night I called him over and asked. him if he didn’t think there was something more seriously wrong with her than he had really thought. He said, ‘No, it is nothing but your nerves — you just imagine it,’ he said — ‘the child is all right.’ At that time the child was breathing in gasps. That condition got worse toward the last. Her muscles all seemed to twist and jerk. She had a temperature. Her talking was difficult. These conditions gradually grew worse.” The child died Tuesday morning at 5 o’clock. “He had been there the night before — it seems to me around 7 or 8. The last time he gave her a treatment he just adjusted the spine, as far as I know. I don’t know, of course, what he calls it — it seems as though he stretched her neck. * * * She had .quite a pain in her throat, didn’t eat anything. She was quiet a good share of the time. At last it was hard for her to breathe. I fanned her the whole Monday night before she died in order to keep her breathing.” On cross-examination she testified: “After treating her he told me she had a good case of tonsilitis. A few days later on he turned it into quinsy. * * * He said that in years to come, in a very short time, medical doctors would be entirely wiped off the map — they would all be chiropractors. I took it for granted that the chiropractor knew just as much as the medical doctor.” Plaintiff theretofore had lived at defendant’s home for five weeks and “became pretty familiar with his line of work and heard discussions about it in the home.” The defendant, called for cross-examination under the statute,, testified: “I gave an adjustment of the spinal column, one specific vertebra, which I adjusted, and nothing more and nothing less. By an adjustment I mean where one vertebra is out of alignment compared with the one above and the one below, I adjusted to put it in juxtaposition with the one above and the one below. “Q. And your theory is that by taking a pressure off of the nerve it will generate enough nerve supply to heal any injured or affected part of the body or overcome any disease? “A. We don’t claim any and every. We do not claim to cure. We adjust the cause, remove it, and the result follows. “Q. Is it part of your theory that by removing a nerve pressure you can overcome any infectious communicable disease? “A. Our contention is that when nerve pressure is relieved nature will take care of the rest. “Q. Just read my question, Mr. Reporter. (Read.) “A. We do not take care of those cases. “Q, Now, doctor, it these nine years, how many cases of diphtheria have you treated? “A. I have never taken care of any case of diphtheria. “Q. Did you ever study diphtheria? “A. I have as our study covers it, yes. “Q. Did you ever study the pathological or clinical evidences of the disease? “A. No; it is out of our line. “Q. Neither do you study nor practice any bacteriological examinations? “A. No, sir. “Q. So that the cell of a diphtheria germ, so far as you are concerned, would look exactly like a typhoid fever, wouldn’t it? “A. Yes, sir. . “Q. So far as your knowledge is concerned, what are the symptoms of diphtheria? “A. We do not study symptomology. “Q. You do not know the symptoms of diphtheria? “A. We confine ourselves to the spine. “Q. You didn’t know them on the 1st day of May, 1922? ■ “A. No. “Q. Do you know the symptoms of tonsilitis? “A. No. “Q. Or of quinsy? “A. No. I did not tell the mother that this little girl had tonsilitis and that it probably would get worse and result in quinsy. I didn’t call her trouble anything, I didn’t name the disease. “Q. What would you call it now? “A. I would call it an inco-ordination of the nerves. * * * When I first attended the child I did not take its temperature. “Q. Do you know what normal temperature is ? “A. 96.5. The only way a temperature of 104 is worse to me is that it is the result of some cause. We do not pay much attention to temperatures only as we locate it on the spine. I never took the temperature of this child. There was some slight elevation when I first treated her, but that did not increase to any extent. She had sore throat. “Q. Any difficulty in breathing at any time? “A. No, sir. * * * We do not call that condition by any name. It was nothing but nerve pressure, or subloxation interfering with nerve pressure. When we are called to treat a person we examine the spine. “Q. Diagnose the condition by the examination of the'spine? “A. We do not diagnose. “Q. You examine the spine, don’t you ? “A. I palpate the spine to find any abnormalities. “Q. You examine it, don’t you, with your eyes and with your fingers? “A. Yes. “Q. You form an opinion of what is wrong? “A. Of where the trouble lies. “Q. Then you proceed to treat it? “A. Adjust it; yes, sir. “Q. And that is just what you did in this case? “A. Yes, sir. “Q, Do you recognize such a thing as an infection? “A. Of what? “Q. Suppose you define ‘infection?’ “A. Infection is where inflammation has taken place, for instance, if I cut my finger, infection may set in. “Q. Just what do you mean by infection? “A. If it commences to fester. “Q. By fester, you mean what? “A. I think that term is very plain. “Q. By infection you mean that some foreign bod enters through the skin and you say fester produces an irritation and a pus, doesn’t it? “A. Yes. “Q. What is in the pus? “A. I don’t know. “Q. The medical schools say it is full of germs, don’t they? “A. Possibly. “Q. And that the germs are caused by reason of the foreign body or substance entering some break or abrasion in the skin? “A. I don’t recognize that. “Q. You don’t, but they do? “A. Possibly. “Q. When you have such a condition, can you cure that festering and that pus by rubbing the spine a little? “A. We don’t claim that we cure it. “Q.' If that pus is the result of something up here in the finger, it doesn’t get there from your back bone getting out of shape, does it? “A. A chiropractor has never claimed that. “Q. If you were called, if this child had had a festered finger or an infected boil, or something, you would treat it, wouldn’t you ? “A. I certainly would not. It is out of our line. We confine ourselves wholly to the spine. “Q. Why should you treat an infectious disease like diphtheria? “A. I did not. “Q. You maintain now that this was not diphtheria, don’t you? “A. As far as my knowledge of things is concerned, no. I have never studied diphtheria. We do not study it from a medical standpoint. I never treated a case, to my knowledge. I didn’t know anything about it. I didn’t give any treatment for it.” After the child’s death, an autopsy was performed by Dr. LeRoy, one of the coroners of the county. He testified that she died of diphtheria. Plaintiff’s counsel then sought to show by him what “the regular and ordinary treatment administered for diphtheria in this and similar communities” was. Defendant’s counsel objected. After considerable argument, the court intimated that the objection would be sustained, and that plaintiff could, not recover unless able to show that defendant had not exercised the care and skill in the treatment of the child prescribed by chiropractics. No further proof was submitted. A verdict for defendant was directed. Plaintiff reviews the judgment entered thereon by writ of error. Plaintiff's counsel insist that as defendant had no license to practice in this State, and yet held himself out to the public as competent to treat the bodily ailments of those patronizing him, he was practicing medicine within the meaning of our statutes relating thereto, and that his conduct in treating this child must be tested by the laws and rules applicable to licensed practitioners. While a failure to comply with the registration statute might subject the defendant to a criminal prosecution, such failure, coupled with a showing of treatment given, is not in itself sufficient on which to base a charge of malpractice. Tb maintain such an action, the plaintiff must show that the result complained of was due to negligence or unskilful treatment. ' While not registered, the defendant was a graduate of a chiropractic school. He but assumed to treat human ailments in accordance with the system taught in such school. This fact was well known to plaintiff. The burden was therefore cast upon her to show by competent evidence, not only that his treatment was injurious or not. effective, but that the requisite care and skill was not exercised by him in administering it. It necessarily follows that such proof must be made by one engaged in treatment by similar methods to those employed by defendant. With the merits of the several drugless systems of relieving human ailments the courts have no concern. It is sufficient to say that many of our citizens believe in their efficacy and secure the services of those engaged in practicing them. The treatment given by any one of such practitioners would probably be deemed improper and unskilful when judged by physicians who are taught to treat such ailments by the use of drugs and medicines. The unfairness of permitting the test as to whether a particular treatment was proper or skilful to be determined by. one who uses a different method, or follows the teaching of another system, must be manifest. This is the first time a malpractice case involving this question has come before this court. People v. Phippin, 70 Mich. 6, and Locke v. Ionia Circuit Judge, 184 Mich. 535, were criminal prosecutions for failure to comply with the laws relative to registration. In the following cases from other States, questions more or less similar to that here discussed were presented, and the conclusions reached were in harmony with the views we have expressed: Atkinson v. School of Osteopathy, 240 Mo. 338 (144 S. W. 816); Wilkins v. Brock, 81 Vt. 332 (70 Aid. 572); Patten v. Wiggin, 51 Me. 594 (81 Am. Dec. 593); Spead v. Tomlinson, 73 N. H. 46 (59 Atl. 376, 68 L. R. A. 432); McGraw v. Kerr, 23 Col. App. 163 (128 Pac. 870); Martin v. Courtney, 75 Minn. 255 (77 N. W. 813); Wilcox v. Carroll, 127 Wash. 1 (219 Pac. 34); Jaeger v. Stratton, 170 Wis. 579 (176 N. W. 61); Berkholz v. Benepe, 153 Minn. 335 (190 N. W. 800); State v. Johnson, 84 Kan. 411 (114 Pac. 390, 41 L. R. A. [N. S.] 539, and note thereto). The declaration alleges that the defendant knew, or should have known, that the child when brought to him was afflicted with diphtheria, and we think may fairly be said to charge malpractice by failure or neglect to ascertain the nature of .her ailment before treating her. The defendant maintained an office to which people were invited to come for the relief of human ailments. He admits that there were certain of such ailments which he did not profess to treat. It would seem to follow that he represented and held himself out to the public as possessing the necessary knowledge and skill to determine whether the ailment of the person brought to him was such an one as his treatment would probably relieve. If, as he testified, the class or practitioners to which he belongs does not assume to treat infectious communicable diseases, they may not be relieved of civil responsibility if they neglect to exercise reasonable care and skill to ascertain whether the person seeking their services is so afflicted. When this child was brought to him, he admits that she had a fever, and was suffering with a sore throat. While the plaintiff knew the nature of the treatment administered by the defendant, she did not know whether such treatment would be efficacious to relieve the ailment with which the child was afflicted. It was the duty of the defendant to use reasonable care and skill to so ascertain. While he insists that he and others of his school of practice do not diagnose cases or treat diseases, and says that he knows nothing about germs, or the symptoms of tonsilitis, quinsy or diphtheria, he does assume to relieve pain and suffering. The words used by him in defining that which he does, such as “palpate” and “adjust,” do not change the nature of the act he assumes to perform. The purpose of the mother in bringing her child to him was to secure relief to her from the fever and sore throat from which she was then suffering. When he undertook to administer treatment to her, he assumed the responsibility of determining whether the treatment he proposed to administer, and after-wards did administer, was such as might reasonably have been expected to afford relief. To so determine, it was incumbent on him to use reasonable care and skill to ascertain whether the ailments were of the class to which his treatment applied. If not, it was his duty to so advise plaintiff, in order that she might secure the services of one familiar with such ailments. He admits that he made no effort to do so, although informed of facts as to her condition which plainly imposed the duty upon him. He admits that there are infectious and communicable human ailments, while denying that the word “diseases” is applicable to them, and says he does not treat them. We may take judicial notice that diphtheria is an infectious, communicable disease. It is so recognized by the laws of this State. 1 Comp. Laws. 1915, §§ 5011, 5084, 5091; Comp. Laws Supp. 1922, § 5145. That this child died of diphtheria there can be no doubt. Her condition when brought to the defendant, as well as the inquiry made by her mother, rendered it imperative for him to use reasonable care and skill to ascertain whether or not the child was so afflicted. His neglect in this respect, if established to the satisfaction of the jury, would sustain the charge of malpractice made by plaintiff. As bearing on the result to the child of such neglect, we think the plaintiff was entitled to show, if possible, that there is a customary and well-known form of treatment used successfully by those of that particular profession who do profess to administer treatment to cure ailments of this nature, and that proper treatment by such a person would probably have afforded relief and saved the life of the child. Kuechler v. Volgmann, 31 A. L. R. 826 (180 Wis. 238, 192 N. W. 1015). The judgment is reversed and set aside and á new trial granted, with costs to appellant. McDonald, C. J., and Clark, Bird, Moore, Steere, and Fellows, JJ., concurred. Wiest, J., concurred in the result.	[ -40, 20, 0, 18, 3, -13, 6, -2, -25, -8, -35, -6, 32, 40, 41, -27, 20, -29, -6, -3, -35, 3, -9, 12, 23, -21, -2, -33, 2, 38, -25, 1, -2, 40, -61, 2, 52, -1, -25, -7, -17, 8, 14, 8, -3, 3, 24, 70, 14, 22, 58, 34, 3, -27, -52, -40, 92, 51, -28, 11, -23, 6, 17, -10, 7, 57, -25, 17, -25, 29, -23, -25, -21, 17, -21, 25, 0, -4, 20, 11, -22, 8, 33, 18, -32, 33, -33, -13, -29, 1, 20, 24, -40, -15, 11, 41, -45, 0, -9, 16, 97, 22, 23, 32, -12, -29, -11, -46, -19, -16, -78, 22, 17, 18, 38, -58, 20, 22, -40, 58, -13, -3, 22, -44, 79, 54, -24, -23, 54, 28, -15, -20, -5, -42, 20, -11, -69, -41, -29, -17, -27, 84, -8, 12, 36, 9, -39, -19, -14, -50, 12, -19, -31, 22, 51, 0, -58, -8, -18, 22, 45, -7, 26, -13, -36, -53, 6, 13, 16, 6, 36, 56, -7, -4, -31, 11, 0, -1, -70, 21, -19, 5, 57, -14, 7, -52, 28, -24, 41, 14, -30, -54, -37, 23, -39, 25, 6, -8, 32, -45, 43, 14, -24, -21, 29, 18, -19, -16, 17, 34, 6, 15, 18, -42, -37, -11, 5, -26, -40, -6, 39, 0, 58, 45, -35, 16, -27, 17, 14, -28, 0, 5, 17, 49, 17, -9, -41, 11, 29, -12, -35, 0, 40, -33, -36, 66, -19, -3, -70, 6, 0, 32, 27, 24, -9, 15, 26, 6, -15, 7, 12, 42, -61, 28, 35, -2, 19, 24, 42, -55, -18, -25, 30, -12, -53, -76, 4, 21, 45, 4, 39, -28, -60, -1, 23, -4, -33, 0, -25, 5, -32, 7, -11, -44, 52, -16, 23, -21, -25, 12, 5, -20, 54, 71, -18, 52, -46, 35, 4, -39, 8, 31, -13, 17, -1, -47, -34, -49, -10, 30, -15, 42, -51, 1, -42, 6, -13, -33, 25, 0, -19, -2, 10, -19, 13, -16, 32, 18, -6, -34, 35, 72, 31, -33, -5, -4, -1, 30, 14, -10, 10, -24, 90, 8, -54, -15, 37, -34, 27, 23, 0, -24, 23, -16, -40, -6, 55, 19, -62, 57, 17, 5, -29, -30, -9, -41, 14, 47, 13, 44, -9, -8, 39, -4, -44, 6, -48, -13, 28, 13, -10, 12, 48, 8, -38, -10, -46, 8, 6, -40, -40, 6, 38, 35, 6, 4, -51, 6, 59, -14, 12, 17, 46, -17, 4, -1, 20, 3, 2, 0, 4, 15, -31, -4, 11, -36, 9, 6, 21, -51, -18, 45, 11, -44, 42, -33, -11, 62, 30, -4, -54, -46, -11, 13, -17, -15, 11, 23, 64, -41, 31, -16, 77, 39, -34, -43, 25, 13, 0, 0, -32, -27, 16, -23, -5, -26, -2, -5, 10, -16, 8, 4, -41, -56, 66, 11, -12, 50, -8, -24, -11, -45, 7, -26, 0, 50, -48, -12, -12, -13, 31, -54, -33, -24, -50, 2, 1, 22, -24, -6, 19, -30, -14, -44, -12, -24, 6, 12, -37, -1, -17, 37, -20, 11, -20, -17, 19, 2, 15, 0, -26, 36, -15, 36, -22, -4, 28, -6, 1, -27, 10, 3, -39, 1, -13, -24, -2, -55, -38, -8, 0, 6, 0, -10, 18, -42, 4, 20, 30, 23, -13, -35, 11, 10, -8, 5, 26, -36, 3, 4, 13, -3, 11, 8, 47, 10, 34, 9, -22, -24, -2, 5, 39, 4, -55, -35, -11, 15, -38, -24, 1, -17, 6, -8, -62, 11, 46, 5, -1, -14, -12, -7, -7, 57, 17, -6, 5, -44, 59, -43, -39, -16, -8, -5, -48, 44, -13, 6, 45, -37, 28, 13, -43, -104, 1, -8, 12, 50, 34, 17, -2, 2, -9, 12, 34, 6, -20, -1, 4, -60, 15, -25, 24, 39, -34, -9, 33, 26, -25, -33, -38, 8, -12, 5, -27, 56, -21, -20, -45, 0, -22, -14, -14, 9, -42, -4, 17, 16, 0, 6, 4, 5, -37, 0, -16, 46, 80, 41, -38, -13, 3, 74, 31, -17, 11, -21, 12, 85, -12, -2, -14, -8, 100, -22, -19, 21, 18, 17, 31, -19, -7, 7, -4, -23, -35, -2, -42, 36, 44, -11, 11, 3, -48, 25, -26, -3, 7, -4, -38, -27, 7, -1, -22, -11, -27, 20, 28, 24, 1, -4, -35, -33, 0, -53, 45, 37, 13, 7, 5, -93, 2, -4, 5, 31, -23, -7, 44, -23, -19, 2, 30, 49, -68, -29, 2, -41, 15, -5, 11, -8, 0, 24, -43, -29, 2, -43, 53, -14, 9, 3, 1, 23, 22, -21, -13, 16, -10, 2, -36, 29, 9, 33, -8, -27, -13, -8, -73, -49, -49, -53, 19, -12, 6, -12, -41, -31, 31, 18, 28, 46, 33, -33, -42, 12, 29, -4, 18, -40, -12, -42, 90, 8, 16, 0, 17, 11, 3, -10, -29, 3, 24, 13, 9, -35, -70, -64, 5, 1, -42, 20, 47, 4, -8, 14, 35, 14, 0, 4, 0, -30, -32, -31, -6, 1, -29, 22, -2, -49, -33, -1, -17, 60, 23, 27, 63, -9, 81, -33, -1, -8, -12, -62, 6, -7, 16, -34, 13, -21, -27, 32, 7, -22, -18, -36, 13, 61, 13, 17, 42, -15, 2, -28, -49, -15, -46, 30, 13, 1, 27, 9, 23, -2, -87, 19, -32, 47, 8, -41, -18, -4, -7, 15, 59, -41, -43, 30, -59, 28, 13, -24, -55, -1, 7, 10, 8, -51, -3, 0, -28, -39, -18, -32, -35, 36, -22, 61, 50, -17, -24, -9, 11, -21, 38, -24, 10, -3, -16, 33, -17, 41, 16, -7, -32, 10, 53, -5, 21, -27, -4, -12, 58, 67, -8, 29, -4, -21, 25, -55, 24, 43, 47, -7, -16, 22, -94, -4, 14, 1, -25, 60, 55, 16, -49, 73, -21, -14, 23, 38, 9, -17, 2, 14, -10, -17, -6, -14, 25, -7, 64, -30, -21, -42, -32, 66, -7, 15, -39, 9, -54, -24, -12, 20, -36, 11, 4, 43, 7, -27, 35, -30, -37, 22, 3, 61, 0, -17, 11, -27, -14, 41, 28, 37, 23, -19, 23, 14, 23, -42, 10, -7, 51, 23, 8, -6 ]
Clark, J. Defendants, husband and wife, owned a house and lot as tenants by the entireties. Plaintiff, claiming to have furnished labor and materials for improving and repairing the dwelling and funds used to pay taxes, and to pay interest and principal of a mortgage covering the property, sued to recover. The declaration has an assumpsit count. Judgment in usual assumpsit form was entered against both defendants. Defendant Eva A. Black seeks review on error, without bill of exceptions, under Supreme Court Rule No. 11. Appellant raises two questions. The ■first, quoting: “The sole question of law involved here is, whether or not a married woman can be bound, by an oral promise, for materials furnished and services performed on property held by entireties.” The record does not show that this question was brought to the attention of the trial court. It cannot be raised here for the first time. The second, quoting: “Counsel contend that the form of the judgment, even if there was a joint liability in assumpsit, was not in manner and form as prescribed by statute. Act No. 158, Pub. Acts 1917, § 4 (Comp. Laws Supp. 1922, § 11488 [4]).” For the reason that the record does not show that the attention of the trial court was called to this matter, it mil not be considered here. Gill v. DeArmant, 90 Mich. 425; Miller v. Walker, 141 Mich. 433; Menery v. Backus, 107 Mich. 329; Kingsnorth v. Baker, 213 Mich. 294. Judgment affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ -25, 1, -51, 16, -23, -14, 8, 22, 53, 1, 48, -21, 51, -17, 17, -2, -5, -14, 9, 1, 12, -31, -53, -2, -11, 41, 56, 21, 8, 49, -2, 30, -50, 19, 0, 7, 41, 11, -4, -37, 0, -4, -11, -38, -27, 10, 0, -15, 21, -36, 0, -46, -8, 1, 0, 5, -63, 19, -38, -20, 33, -22, -27, 10, -12, -13, 17, 32, 6, -24, -8, 27, 4, -32, -34, -39, -11, 15, -33, 0, 16, -39, 40, 8, -1, -44, -23, -1, -9, -42, 8, 17, -32, 29, 0, 17, -19, 12, 23, 18, -8, 36, 0, 48, -43, 1, -44, -40, 0, 17, 53, -20, 13, -44, -38, 15, -6, -37, -47, -57, 26, 13, 2, -32, 11, 34, -7, -33, 15, 14, -2, 26, -43, -4, -51, 5, 47, 41, 22, 1, 43, -20, 5, -31, 37, 17, 33, -15, -7, -34, -19, 12, 18, 7, 20, 20, 5, -33, 14, -55, 27, 3, -68, 5, -21, -3, -15, 49, 24, -9, 36, -36, -35, -32, 2, 5, -19, -32, -10, -43, 0, 38, -5, -19, 32, -1, -5, -22, -12, -25, 9, -7, 31, 51, 22, 68, 10, 57, 2, -17, -7, -38, -7, -3, 0, -44, 19, -24, -45, -6, -21, 10, -34, -57, -35, -8, -2, -19, -22, 25, -13, 10, -30, 8, -41, -9, 0, -22, 40, 14, -25, -2, 32, -23, -34, -1, 36, -20, 47, 4, -22, 7, -34, 17, 12, -33, -57, 6, 7, -2, -28, 16, -33, 48, -9, -21, -3, 10, -27, 5, -33, 37, -43, 1, 17, -41, 41, -16, -35, 12, -1, 44, -31, 50, 21, 12, -58, 40, -46, 4, -4, 14, -38, -24, -21, 22, -11, 28, 23, -15, 26, -65, -4, -6, 42, 46, -15, -46, -3, 5, 5, -71, 13, 22, 27, -52, -21, 4, -9, -19, 9, 28, 23, -10, 39, 4, -15, 12, 6, -13, 30, -2, 11, 0, -10, -1, 19, -74, -17, 19, 0, -8, 1, 35, 7, -1, 27, -25, -52, -27, 15, -7, 45, -23, -2, 12, -24, -7, -23, 8, -13, -11, -44, 36, 6, 18, 14, -9, -26, 22, 27, 31, -2, -2, -30, 17, 2, -12, 57, 60, 50, 7, -52, -8, -8, 2, -7, -25, 2, 34, -23, -43, 21, 22, 11, 3, -29, -38, 7, 5, -56, -31, 28, -11, 16, -67, 3, -19, -37, -24, -34, 7, 39, -39, -24, 4, 5, -16, -34, 52, -1, 10, -28, -14, -15, -19, 26, -1, 10, 13, -16, -29, 32, 17, -3, -22, 4, -18, -9, 37, -19, 34, 4, 13, 34, -37, -38, -46, 17, 36, 5, 28, -24, 2, 24, 21, 0, 39, 17, -14, 28, 23, -10, -8, 29, 18, 60, -2, -20, -5, 40, -20, 33, 1, 45, -28, -16, -61, -11, -15, -37, -8, 40, 35, -8, 7, -40, 29, 12, 1, 23, 35, -3, -5, 8, 4, -29, -29, -7, -23, 28, -19, -5, 15, -10, -20, -15, -25, -39, 51, 2, 45, 1, -22, 23, 0, -4, 3, 15, 52, -28, 3, 57, 40, -14, -3, 74, -7, 18, 51, 4, 4, -51, -4, -22, 21, 9, 17, -26, 3, 38, 41, -20, 3, -10, 30, 25, -8, 48, -10, -32, 59, 0, 45, 6, 44, -15, 9, -31, 20, -59, -63, 10, 3, 9, 3, 16, 11, -6, -8, 3, -13, 17, -23, 58, -15, 18, -15, -5, -11, -50, -29, -11, -3, 2, -17, -39, -22, -3, -46, 8, 51, 3, -55, 18, 17, -27, 55, 25, 17, -8, -11, -11, -21, -21, -42, -8, -27, 13, 58, 10, -10, -24, -50, -29, -12, -41, 10, 22, -4, 45, -17, -25, -32, -7, 38, 6, -35, -1, 38, 35, 32, -2, -22, 34, -17, -1, 10, -14, -19, -7, 9, -14, 0, -28, 35, 17, 4, -14, -15, 31, 25, 4, 68, 34, -39, 2, -8, 21, -8, 15, 44, -15, -4, 21, -31, 18, -13, 32, -39, 25, -18, 2, 48, 3, 14, 44, 5, 4, 17, 31, -15, 43, 51, 46, 14, -27, -16, 36, -16, 4, -14, 38, 8, 5, -80, 18, -50, -18, -16, 2, 2, -2, 18, -12, 12, 24, 84, 33, 33, 6, -51, 5, -2, -6, 0, -25, 45, -11, -32, -15, 9, -31, 11, -11, 41, -34, 7, -3, -12, -3, -39, -16, -44, -29, -20, 19, -49, 16, 10, 26, 17, 4, 5, 43, 20, -13, 9, -18, 22, 29, 15, -60, -2, 3, -1, 14, 27, 21, 26, 20, 20, 36, 21, 2, 18, -35, -30, -39, 2, -28, 16, -50, 7, -5, -10, -45, -14, -3, -26, -15, 23, 31, -43, 1, 24, -13, 10, 22, -12, 56, -19, -23, 25, -37, -47, 40, -27, -8, 31, -9, -1, 6, -37, -8, 4, 29, 4, -8, -19, 25, 55, 21, 24, 31, 40, -81, 50, 8, 20, 4, -25, -7, -19, -12, 22, -5, 42, 33, -7, -20, 34, -24, -45, 8, 28, -21, -13, -47, 1, 46, -34, -2, 29, 11, 9, 33, 23, 4, 2, 3, -20, -41, -16, -19, 22, 15, 40, 21, 0, 10, -8, 44, 28, -32, 6, 0, 47, 16, 0, -5, -13, -51, 2, 31, -60, -24, 15, 29, 13, 18, -4, -34, -20, 38, -18, 12, -19, 23, 39, -8, 35, -1, 24, -31, 8, -6, -17, -29, 11, 44, 1, 48, 28, -16, -18, -8, -74, 10, -20, -3, 3, -10, 64, 17, 21, 14, 9, -33, 1, 40, 0, -8, -8, -1, 9, -14, -12, -1, 19, 7, -20, -34, -24, -36, -29, -10, 21, -38, 1, 0, -28, -22, 28, 26, -38, 26, -2, 20, -20, 8, -17, 10, -14, -36, 10, 0, -20, 11, 5, -59, 27, 57, 20, -37, 44, 0, -11, -49, 32, -43, 28, -8, -29, 9, -21, -37, 9, -4, -26, -13, -25, -28, -31, -36, 12, 35, 7, -25, -16, -7, -55, -16, 21, -24, 6, -5, -34, -54, -28, 50, 9, 33, 4, -40, -23, -10, -43, 16, -8, 4, -7, 72, 21, 1, -53, 23, 59, -4, -17, -33, 19, 70, 44, -2, 12, -71, 23, 21, 16, -19, -5, 0, 48 ]
Bird, J. Plaintiff filed her bill in the Macomb circuit court to cancel a mortgage of $15,000 she had theretofore givén to the defendant bank. She was denied relief in the trial court. It appears from the record that plaintiff’s husband, Harold N. Weller, was engaged in the canning and pickling business in Richmond, where defendant bank is located, and that he did business with the defendant bank under the name of H. N. Weller & Company. When the financial depression of 1920 came on he found himself badly involved. He owed the bank upwards of $30,000 of unsecured indebtedness. Defendant Hirt, who was cashier of the bank, and made the excessive loans to Weller, commenced to urge Weller to secure the same. The plant was already incumbered to the bank to secure loans. Weller finally suggested as a way out of his difficulties that his wife had a valuable equity in a manufacturing plant at Toledo, and possibly she would give a mortgage on that property to secure the bank. He explained to Hirt that he could, not induce her to give a mortgage, but that he, Hirt,' could come down to his home and see if he could induce her. Accordingly the note and mortgage were prepared and Mr. Hirt went to the Weller home in the early evening. After visiting Weller for a time Mrs. Weller was called from a sick child she was nursing into the living room. Mr. Hirt explained to her how badly her husband was involved with his loans at the bank, and that he was desirous of having her give a mortgage on the Toledo property to secure the loans. Just what took place previous to the signing of the mortgage is in dispute. She claims he said to her that he had made loans to her husband in excess of what the law allowed; that his board of directors was criticizing him for so doing, and that the banking department at Lansing was also criticizing him. That he was expecting the bank examiners any day, and that he did not know what they would do to him and Mr. Weller when they came; that it was a crime for him to make the excessive loans to Mr. Weller, and a crime for Mr. Weller to accept them, and that unless the matter could be arranged both he and Weller would be disgraced and ruined. That he had passed many sleepless nights thinking what might happen when the bank examiners arrived. Plaintiff told him she would not sign a mortgage on • her property because she had solemnly promised her father she would sign no papers without first consulting him. They talked further, Mr. Hirt impressing upon her how serious it was for both him and Mr. Weller. Some time after the refusal to sign the mortgage the suggestion was made that she sign a paper to tide the bank over the month, that during the coming month about $10,000 in accounts receivable was coming in and would be applied on the indebtedness, and that the other $5,000 could be taken care of in some other way, and that it would be only a temporary affair. After some further talk she yielded and signed the papers, but she says the room was dimly lighted, she did not have her glasses on and she did not read the paper, and did not know it was a mortgage she signed. Had she known it was a mortgage she would not have signed it. She further claims that Mr. Hirt said if the $10,000 did not come in as expected he would telephone her.' Mr. Hirt denies that he represented to her that it was a criminal matter. He admits, however, that he represented to her that the situation was serious for Mr. Weller and himself. He admits she was promised that any money coming in the coming month should be applied on the mortgage, but that the promise was made by Mr. Weller and not by him. He also denied that he promised to telephone plaintiff, if the money did not come in as expected. The parties whose testimony must decide this matter are vitally interested in the outcome. Mr. Hirt, the cashier, had advanced $10,000 of his own money to protect some of Weller’s loans. He had been severely criticized by his own board for the excessive loans. Mr. Ullrich and Mr. Lungerhausen, both directors, had protested vigorously. The banking commissioner had criticized his conduct and had written a letter to the board, criticizing the excessive loans, and had cited Mr. Hirt to appear before him at Lansing in regard to the matter. Hirt was badly worried. He had been deprived of his sleep in consequence of it. In this state of mind he made the evening visit at Weller’s house. The testimony shows he was very anxious and desperate and, therefore, his testimony as to what was said is not as reliable as it otherwise would be. Weller, plaintiff’s husband, was a witness, and corroborated the testimony of his wife. He is in the attitude of sitting by and allowing a fraud to be perpetrated on his wife, and saying nothing, if she tells the truth. He sat by and saw her deceived and said nothing. This testimony, to say the least, is not entitled to great credit. Mrs. Weller made a good witness. She is above the average woman in intelligence. She has a good education. She comes from a well-to-do family of business people. She has her own bank account and transacts her own business affairs. She appeared to be familiar with deeds, mortgages, leases and abstracts. She is 87 years of age with three children. Her testimony shows she is shrewd and quick-witted. She readily saw the point the lawyers were attempting to make. She says Mr. Hirt promised her not to record the paper. If he did, this would indicate she knew it was a paper subject of record. She says when they called for a witness to the mortgage “it just dawns on me after I signed the paper, Mr. Weller says we will have a witness, and both Mr. and Mrs. Jenkinson came into the room, and Mr. Hirt said one will do, and Mr. Jenkinson went back and Mrs. Jenkinson had been his bookkeeper, and he said ‘sign this, Daisy,’ and she said ‘where,’ and she signed and walked out, and it flashed on me when she signed that it was a ‘frame-up,’ and I said ‘Mr. Hirt, you will certainly telephone me if it don’t come in,’ and he said T surely will.’ ” Without going more into detail, we are impressed that if plaintiff were deceived and alarmed over the situation of her husband to the extent that she was under duress when she signed the mortgage and note, she has failed to establish it. The burden of proof was on her to establish the fact of duress, and we think her proofs failed to meet that burden. We are, however, of the opinion that she was induced to sign the mortgage and note by the statement that it was only a temporary matter, and that $10,000 was to be paid on the accounts receivable the coming month, and that it would be applied on the note, and that the $5,000 could be taken care of in some other way. As to this statement there is very little conflict, although Mr. Hirt says that he did not make the statement but Mr. Weller did make it. She says they both made it, and also Hirt denied that he promised to telephone her if the payments were not made as expected, but this phase of the matter is not very important. The uncontradicted testimony all shows that this promise was made to the plaintiff. At first she refused absolutely to sign the mortgage and note and gave her reasons for her refusal. Further talk took place, the seriousness of the situation was impressed upon her. She evidently felt that her husband was badly involved, she knew he was worried, and when this promise was made to her she yielded, and she did not yield until it was made. She was interested in this promise because she soon after inter viewed the bookkeeper to learn whether the statement was true that there would be $10,000 due and payable to the company the coming month. It is our opinion that this promise was the deciding factor with her. Our conclusion is that plaintiff knew that she was signing a mortgage and note; that when it was first suggested to her she refused and gave the reason for her refusal, and that she did not recede from this position until she was promised the accounts receivable by the company for the coming month should be ap-' plied on the note and mortgage. They led her to believe that it was a temporary affair, and, like all good wives, she was willing to lend a hand in the stress of weather. This promise having been made to her, it should be made good. It matters not whether Hirt or Weller made the promise, one of them made it, and the other sat by and by his silence impliedly gave his assent to it. An accounting should be taken by the trial court, if counsel cannot agree, as- to the amount of the accounts which was received for the 30 days after the mortgage and note were signed, and that amount, not to exceed $10,000, should be indorsed on the note and mortgage. The mortgage will stand as security for the balance when this is deducted. When this modification is made the decree will be affirmed. Plaintiff will recover her costs. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ 29, -2, 0, -4, 5, -33, 31, 27, 46, -39, -23, -26, 26, -40, 40, 20, 44, -31, 48, -19, -49, -88, -38, -10, -18, -4, 18, -18, -14, 23, 24, -47, -39, 29, -22, -37, 0, -20, 58, -18, 6, -34, 29, -35, 3, 6, 17, -36, 24, -27, -8, -69, 10, 34, -45, -16, -14, 15, -25, -17, 24, -16, 75, -42, -19, -9, 3, 24, -8, -12, -7, -14, 30, -25, -16, -35, 9, 2, -53, -13, -26, -34, 12, 0, -51, -20, -20, 35, -18, 21, -24, 76, 3, 67, 17, 6, -44, 62, -2, 45, -35, -61, 11, -3, -1, 13, -16, -18, -19, 7, -25, 12, 25, 4, 25, -54, -31, 16, -32, 7, -6, 11, -24, -19, 11, 27, -84, -2, -10, -2, -7, -20, -17, 57, -14, -16, 21, 15, -39, 31, -3, -29, -31, -31, -5, -39, 1, -4, 16, -2, -71, -21, 1, 54, 21, 15, -7, -21, 27, -8, -35, -50, 11, 31, -73, 19, -24, 65, -15, -65, 7, 72, -29, -40, 14, -34, 17, -22, 17, 0, 3, 31, -13, -7, 17, -58, 33, -34, 47, 6, 19, -92, -35, 36, -36, 39, -11, -35, 16, 13, 21, -37, -13, 5, 13, -71, 5, -73, -30, -13, 18, 40, -7, -7, -80, -7, -12, -18, 30, -4, 60, 24, 11, 20, -47, -46, 67, -44, 5, 11, -49, -56, 28, 10, -31, 17, 24, -26, 60, 34, -26, -21, 2, 2, -104, -3, -64, 1, -10, -5, 4, 41, -44, 57, -22, 87, 23, -42, -9, -2, -9, 46, -7, 5, 27, -26, -12, 59, 31, -15, 31, -32, 19, 37, -13, -46, -41, 24, -21, 1, 23, 15, -41, -3, 47, 18, 0, -19, -29, -32, 64, -11, -56, -29, 23, -11, -79, -15, -33, 33, -42, -59, -16, -47, 18, 24, -31, -39, -66, -41, 50, 27, -7, -3, 73, -31, -11, 16, 10, 20, 10, -30, -70, 25, -9, -9, 10, -20, -16, 15, 10, 16, -37, 70, -18, -19, 47, 39, 36, -18, -3, 22, -10, 40, -2, -5, -30, -38, -18, -3, -14, -4, -20, -1, -51, 35, 39, 18, -4, -16, -7, 5, -18, 0, 14, 32, 0, -26, 39, 52, 30, 22, -47, -24, -3, 8, -45, -9, -59, 14, 28, -10, 6, 32, -19, 10, 33, -5, -39, 34, -49, 6, 23, -13, 10, -52, 39, 14, -84, -10, 26, 7, -49, -1, -9, 2, 0, -24, 0, -20, 22, -30, 30, 34, 4, -6, 30, -11, 50, 2, 1, 9, 8, -7, 15, -26, 15, -8, -2, -3, 3, -15, 4, 16, 19, 32, 1, 23, 2, -3, 22, 25, -6, 23, 31, 41, -40, -35, 41, -7, 6, -13, 23, 47, 31, 4, 7, 22, -42, -5, -13, -20, 50, 14, 6, 6, 2, 20, 0, 39, -1, 3, 28, 32, 0, 1, 16, 4, -41, 31, -17, -1, 26, 35, -27, -14, -45, -52, -17, 9, 61, -13, -28, 24, 35, -3, -1, -30, 0, 20, -29, -17, 22, -26, -7, -24, 18, -46, 13, 71, -22, -45, -1, 72, -24, 17, -11, 5, 13, 35, -6, 25, -35, 7, -13, 51, 11, 29, 25, 0, -5, 41, -32, -5, 2, 13, 34, 44, -6, -25, -41, -2, 36, 8, -17, 23, -39, -62, 8, -32, -28, -31, 38, -4, -37, 50, -52, -21, 13, 18, -5, -21, -15, 1, -2, -33, 3, -22, 19, -15, 12, 9, 20, -4, -19, -14, 5, -27, -18, 5, 7, -32, 27, -46, -22, 39, 19, 32, -12, 29, 14, 11, -12, -17, 24, -15, 18, 15, 42, 53, -32, -69, -24, -5, -29, -13, -30, 56, 26, 1, -4, 29, -8, 30, 28, -4, -15, -12, -13, 28, 29, 14, 9, -35, -11, -7, 40, 24, 28, -5, 1, -24, 21, 7, -50, -6, 19, 22, -33, -30, -16, -5, -46, -1, 14, 3, -14, 14, -8, -20, 4, 28, -16, 7, -28, -43, 13, 16, 22, -30, -4, 3, 4, 38, -11, -25, 53, 37, 26, -4, 26, -10, 70, -25, 12, -7, -64, 88, 25, -29, -12, 6, 39, 60, 5, 18, 13, 3, -45, -29, 1, -32, -15, 23, 6, 12, -5, 20, -27, -22, 42, -4, -6, 13, 19, 39, -5, -58, -41, -1, 24, -5, 26, 12, -20, 26, 37, -24, -4, 17, -15, -21, -14, -24, -29, -13, 7, -39, -19, 1, 20, -46, -9, -12, 11, 33, 9, 9, -6, -19, -6, -6, -27, 2, -63, -67, -14, -20, 54, -18, -17, -20, -4, -10, -7, 17, -54, -37, -21, -9, -46, -15, 9, -56, -18, 63, 11, -31, 14, -29, 35, 10, -47, 9, 23, -3, 36, -36, 74, -1, 36, -25, 10, -18, 66, 27, 33, 42, 79, 3, -25, 0, -30, -38, -43, 65, 20, -25, 29, -16, -23, 41, 1, 27, 48, 7, -28, -2, 47, 23, -13, -5, 40, -59, 32, 66, 4, 19, -32, 25, -43, 40, 47, 7, -46, 12, -52, 6, -14, -3, 8, -37, 20, -8, 10, -8, 33, -19, -8, -5, 34, -18, -31, 3, 0, -31, 53, 7, 18, -28, 23, -32, -5, 1, -43, 3, -23, 16, -22, -37, 20, -16, -80, -29, 54, -15, -64, -22, 50, -6, -12, -5, -39, 17, -12, 28, 4, -38, -2, -5, -15, 59, 43, 37, -31, 38, 39, 0, -7, 66, 2, 74, -16, 13, -8, -1, -27, -59, 23, 7, 6, -21, 30, 30, -40, 8, 0, 28, 5, 82, -12, 12, -8, -46, -41, 50, 12, -2, -10, -4, -22, -27, -13, 16, -3, -8, 7, 24, -37, 36, 10, 0, 25, 5, -5, -19, 34, -10, 41, -39, 21, -11, -5, -7, 48, 11, 53, -56, 41, 67, -19, 37, -8, 42, -8, 11, 8, -4, 17, 15, -40, 5, -12, -54, 3, -36, 23, 48, 18, -11, -47, -7, -39, -60, -41, 19, 22, 37, 66, -53, 4, -15, -42, 77, -32, -26, 7, -10, -23, 42, 7, 0, 14, 49, 64, -37, 45, 3, 13, 2, 24, 0, 43, 27, 4, -59, -15, 26, -7, 17, -13, 23, 0, 43, 18, 7, -7, -50, 32, 53, 0, 17, -34, 25 ]
WlEST, J. The last of February, 1922, there was a heavy fall of snow in the city of Ironwood, followed by zero weather. On Pine street pedestrians made a foot path over the snow covered sidewalk, packing the snow where they walked. On March 1st the city snow plow, drawn by two horses, driven tandem, passed over the walk and in places, where the plow did not go down to the walk, the hoofs of the horses broke through the snow where it had been so packed by pedestrians, leaving holes from six inches to a foot in depth. The evening of March 2d, plaintiff, while passing over the walk, stepped into one of such holes and broke her left leg. She brought this suit to recover damages, claiming the city was negligent in leaving the holes in the walk and had verdict and judgment. Defendant is here by writ of error, insisting it is not liable and alleging error in rulings and in instructions given the jury. Twelve days after the accident the husband of plaintiff sent the following communication to the city council: “Take notice that on the 2nd day of March, A. D. 1922, my wife, Senja Nevala, sustained an injury to her left leg, resulting in the fracture of two bones in the leg. The injury took place about 9 p. m. of the above date at a point about 450 feet north of the intersection of Lin street and Pine street, on Pine street, at a point on said Pine street nearby opposite to the building numbered 445 E. Pine street and owned by Mr. Paul Wilson. My wife was returning from the bath house owned by Mr. Setula, about the time mentioned, and stepped in a hole in the snow on sidewalk along which she was walking, said holes being caused by horses which had dragged a snow plow over the walk, and which holes the city had subsequently failed to fill in. The lighting facilities at the point of accident are also very poor. Numerous complaints have been made concerning the lights and the condition of the walk previous to time of accident. My wife is now receiving medical attention for said fractures from Dr. A. EL Anderson of this city. “Due to the fact that the accident occurred due to ‘ the failure of the city to repair defects in walk which were caused by itself, I trust that you will examine the facts herein alleged and compensate me for damages that we will incur by virtue- of this accident. “I hereby make this claim for damages and trust that you will give it your earnest consideration. “Dated at Ironwood, Michigan, this 14th day of March, A. D. 1922.” This communication was referred to a committee to investigate and report. The committee reported: “We, your committee to whom was referred the claim of Mrs. Nevala for injuries sustained by her on Pine street, beg leave to report that we have given the same our consideration and feel ourselves constrained to report the disallowance of the claim.” The council adopted the recommendation. We are asked to hold that the notice given by plaintiff’s husband was not a notice given by her, for, if the city is liable, he has a cause of action for the loss of the services of his wife, and, therefore, the notice was not indicative of her claim and, besides, his authority to make claim in behalf of plaintiff does not appear in the notice. The notice is also said to be deficient in not naming the place of the accident, the nature of the defect claimed and the names of witnesses known to plaintiff. We hold that the notice acted upon by the council, by reference to a committee, with report by the committee and rejection of the claim, bars the city from now asserting want of notice. The council disallowed plaintiff’s claim. Had disallowance been made without any formal notice such action would have waived notice and the same result follows the action disallowing the claim even though the notice upon which final official action was planted was technically defective. The defendant is in no position to assert want of legal notice, for it assumed the right to and did disallow plaintiff’s claim upon the notice gfvem See Lindley v. City of Detroit, 131 Mich. 8, and cases there cited; Brown v. City of Owosso, 126 Mich. 91; Foster v. Village of Bellaire, 127 Mich. 13. Counsel for defendant contend that the cases mentioned do not apply to this case, because the husband gave the notice. It is sufficient answer to this to point to the action of the city council in disallowing the claim of plaintiff. The following cases, cited by counsel for defendant, do not apply. In Blumrich v. Village of Highland Park, 131 Mich. 209, the claim was presented orally to the council by the son of the plaintiff and no official action taken by the council. Waiver in the case at bar rests upon action taken and not upon failure to act. In Ridgeway v. City of Escanaba, 154 Mich. 68, and Chamberlain v. City of Saginaw, 135 Mich. 61, no official action was taken by the council. In Moulthrop v. City of Detroit, 218 Mich. 464, the question of waiver, arising out of rejection of the claim, was not involved. It is claimed, “Defendant did not have actual or constructive notice of the alleged condition of the walk in sufficient time to repair the same.” When the dangerous condition of a sidewalk is occasioned by persons, other than agents of the city, or by action of the elements or deterioration, liability does not attach until notice thereof comes to the city, or knowledge thereof would have come had reasonable care been exercised, and opportunity to repair has been afforded. The basis of such an action is negligence arising out of the failure to repair the defect after notice thereof. When, however, the dangerous condition is caused by agents of the city, in the prosecution of their employment, the rule of liability is not based on notice and failure to repair but upon the creation of a dangerous condition by the city. If holes several inches deep were punched by the horses’ hoofs through the snow left on the walk after the passage of the snow plow, and plaintiff stepped into one of such holes and broke her leg, defendant is liable to respond in damages. At the time of the accident plaintiff was pregnant with child, and she claims she suffered fear of miscarriage, worried over the possibility that the child might be deformed by the injury she received, and that the labor of childbirth was prolonged and rendered more difficult by her inability to move the broken leg. The declaration averred pregnancy of plaintiff but made no mention of such claimed mental anguish, and the claim made to the council did not set up any such element. There was no miscarriage and> no deformity occasioned the child by the injuries to plaintiff. At the trial defendant asked for the exclusion of this element of pain and suffering. The court admitted the testimony and instructed the jury with respect thereto, as follows: “She would not be entitled to recover for any pain or suffering, of course, which the injuries here complained of did not in whole or in part occasion, for instance, the ordinary pains of childbirth. But if the ordinary pains of childbirth were enhanced in consequence of the injuries, or if she suffered mentally for fear of a miscarriage or otherwise, as she says she did, those would be matters that you might take into consideration and allow her for in the assessment of damages.” If the pains of childbirth were enhanced in consequence of the injuries this would constitute a proper subject of compensation. Plaintiff’s apprehension of miscarriage or possibility of deformity of the child she was carrying at the time of the accident was not a subject for consideration of the jury in awarding compensation. In McGee v. Van Over, 148 Ky. 737 (147 S. W. 742, Ann. Cas. 1913E, 500), plaintiff therein claimed that an assault upon her by defendant led to her hav ing a miscarriage and consequent grief over the loss of offspring. It was held no recovery could be had for such grief. If grief over actual loss of offspring is too delicate a subject to be weighed by any scales the law has at its command, surely mere apprehensions, proven by time to have been borrowed trouble, are outside the realm of pecuniary compensation. For this error the judgment is reversed and a new trial granted, with costs to defendant. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred.	[ -23, 45, -30, -18, -8, 16, 35, 27, 36, 13, -35, 22, 84, 29, -1, -5, -44, -13, -8, 25, -100, -36, -57, -2, -31, 7, 8, -22, -27, 11, 39, 25, -17, 36, -33, 41, 1, 63, 2, 18, 26, -16, -22, -7, 23, -22, -1, 10, 22, -20, 21, -10, 13, -22, 18, 19, -13, 51, -55, -68, 12, -2, -23, 23, 49, -3, -15, 44, -15, -19, -9, 47, -5, -23, -36, 24, -17, 10, -30, 30, -33, -6, 27, 58, -14, 5, -25, 8, 23, -17, -32, -19, 5, 79, -51, 36, -43, -36, -26, 14, -27, 19, 34, 36, -27, -27, -17, -55, -1, 28, -48, 48, 11, 15, 53, -25, 57, -13, 27, -27, 19, 3, 10, -10, 6, -15, -27, 19, 29, -41, 14, -50, 20, 12, 21, 8, -35, 8, 11, 24, 46, 6, -30, 20, -2, 0, -30, -6, -53, -4, -15, 9, 35, -20, 0, -44, 1, -11, 70, -1, 56, 35, -22, -42, -2, -21, -17, 34, 11, 12, 76, 12, 6, -74, 25, -6, 3, -11, -22, 8, 12, 21, 26, -12, -26, -38, -5, -9, 15, 46, 77, -27, -26, -15, -17, -17, 5, -34, 5, -66, -13, -20, -54, -15, -21, 13, 0, 29, 29, 6, 8, -30, -38, -34, 47, 30, -15, -41, -30, -37, 11, 62, 24, 9, -38, -2, -8, -41, 45, -12, -5, 32, 9, -21, 16, -11, -8, 19, -12, -17, 38, 50, -37, 15, -16, -40, -93, -9, 21, 32, 5, -59, -36, 5, -44, -10, 23, -14, 23, 16, -18, 37, 18, 56, 51, -26, 7, 35, -30, -10, -13, 27, 35, -7, -33, -62, 14, -24, 30, 24, 12, -17, -10, -26, 0, 53, -14, 13, 3, -37, 24, -11, 0, -2, -11, -13, 39, -43, -54, -38, 14, -39, 2, 23, 25, 4, 13, -32, 25, 9, -3, -57, 30, -23, -3, 39, 13, 11, 3, -49, 5, 0, -2, 33, -7, 0, 17, -20, -34, 43, 35, 29, -15, 43, -3, -32, 21, 38, -83, -57, 11, 38, 3, 26, -41, 13, 13, 7, 19, 25, -86, -34, 51, -10, -61, -1, 34, -38, -4, 39, 23, -27, 1, 8, -13, -52, 18, -11, -20, 56, -38, -11, 6, -7, 11, -51, 18, 38, -1, 12, 70, -57, 18, 15, -16, -46, -28, -38, -45, -2, -16, 36, 42, 21, 45, 10, -20, -64, -78, -23, -32, 32, 54, 10, -60, -29, -10, -83, 16, -5, 16, -46, 33, -42, 8, -5, 1, -3, 11, 49, 44, 13, 23, 0, 0, -28, 4, -50, 19, -23, -3, 20, -21, 17, 66, -46, -45, -4, -51, -47, -11, 33, 36, -2, -20, 17, 22, 15, 21, -21, 45, -6, 8, -8, -1, -25, 40, 13, 58, -33, 17, -17, -21, -16, 32, -6, 5, -30, 1, 27, 11, 22, 18, 64, 6, -40, -16, -15, -31, -10, -28, 3, 16, -8, -7, -50, 51, 18, 2, -8, 68, 31, -50, -15, 3, 19, -47, -6, 4, -11, -77, -39, -42, -31, 29, -23, 28, 0, 9, 22, -32, -34, 4, -3, 6, 30, 16, -15, -28, -44, -14, -39, -32, 4, -17, -9, 55, 1, -7, -22, 7, -34, -39, -4, 12, 10, -28, 29, 0, 0, -25, 58, 34, 0, 17, -26, 45, 32, 21, 56, 44, -58, -2, 12, -5, -17, 6, -45, 39, 11, 34, 45, -18, -36, 38, 2, 23, 10, -25, -1, -8, -13, 6, 0, -44, 5, -50, 24, -28, 1, -17, -23, -18, 13, 41, 18, 53, -11, 0, 49, -33, 20, -2, 0, -33, -15, 0, 17, 11, -13, 4, -4, -33, -25, -8, -18, 26, -36, 0, 11, 3, -5, -28, -34, 22, -31, -5, 15, 45, 10, -61, -25, -35, 69, -7, -22, 25, 44, -40, -31, -9, 23, -18, -5, 7, -2, 37, 48, -19, 55, 11, -66, 36, -47, -41, -25, -59, -37, -27, -5, 24, 22, 21, -50, -14, 25, 35, 23, -47, 13, 10, 13, -41, 11, -28, 4, 8, 20, -44, 11, 31, 7, 21, -28, -15, -48, 44, 54, -41, -6, 34, -9, 53, -11, -47, 6, -10, 50, 44, -46, -88, -5, 15, 57, -36, 59, 72, -2, 29, 25, -1, 33, 0, 35, -4, -22, -4, -11, -10, -2, 26, 24, 16, 36, 10, 36, 36, 14, 22, -22, 22, -20, 19, -41, -8, -15, 57, 12, 22, 59, -6, 87, -19, -18, -13, -4, 3, 33, 13, -62, -3, -11, 4, 35, -32, -25, 47, -29, -61, -20, -32, 11, 3, -35, 14, -74, -21, 0, -23, -40, 34, -51, 84, 22, -10, -1, 23, -29, -12, -3, 47, 52, -34, -40, 26, 24, 5, -40, 56, 12, -20, -27, 25, 1, -3, -22, -2, -15, 41, -7, 14, 7, 15, -45, -63, 29, -48, -13, -15, -11, 4, -2, -41, 7, -13, -11, -6, 44, -8, 40, -25, -20, -1, -12, -27, 4, 3, 84, 6, -2, 4, -10, 22, 10, -13, 1, -9, -59, 49, -26, 14, -44, -27, 6, 19, 6, 14, -26, 16, 4, 0, 28, 53, 29, 50, -30, -57, 24, -17, -9, 0, -22, 52, 11, -36, 27, -25, -21, -23, -11, -44, -83, -59, -68, 3, -22, -24, -31, 10, 19, 19, 62, -61, 37, 43, 22, -1, -53, 23, -36, -5, 12, -22, -6, -39, 59, -2, -9, 26, 31, 8, 5, 15, 36, -47, 2, -59, 14, 14, 18, -17, 17, 26, -16, -85, -40, 4, -40, 4, 0, 8, -52, -26, -26, 21, 36, -49, 23, -44, 12, 14, 25, 33, 2, -46, 58, -5, 35, 1, 69, -9, 22, 30, -11, 3, 26, -27, -65, -15, 13, 41, 24, 15, -18, -30, -52, -6, 21, -20, 24, 67, 9, 13, 28, -32, -2, -28, 7, 29, 55, 19, 5, 21, -16, 38, 33, 33, -29, -17, -7, -30, -21, 23, -35, -1, -2, -12, 13, -1, -3, 17, 0, -4, 22, -31, -48, -9, -41, -40, 24, -42, -24, 40, -19, 12, -12, -34, -3, -26, -24, 3, -18, 0, 2, 49, 3, 77, 16, 23, 6, -41, -38, 42, -8, 5, 51, 24, -9, 27, 13, 12, 6, 72, 59 ]
Bird, J. In November, 1924, A. C. Trowbridge and other residents of Eaton county filed their bill in the Eaton circuit court complaining of the city of Lansing for the manner in which it disposed of its garbage on its 250-acre farm, and charging that the same resulted in a nuisance, and praying for an injunction to restrain the further maintenance of it. Issue was joined and the case went to a hearing in January, 1925. On February 16th the issue was determined in favor of plaintiffs, and defendant was given 30 days in which to abate the nuisance. The decree was settled on February 28th before this defendant, and on that day the time for abatement was extended to August 1st, in view of the fact that the city desired to take an appeal. A transcript of the testimony was obtained and a case prepared and presented to the attorneys for the plaintiffs on the 12th day of June, 1925. The same was examined and soon after returned to defendant without change. When pre sented to the judge for his signature plaintiffs’ attorneys objected to its being signed, alleging as a reason therefor that defendant’s attorneys had obtained no extension of time beyond the first 20-day period. After some discussion, whether the city attorney applied for further time, and whether the same was granted, the circuit judge declined to settle and sign the case. Defendant’s counsel then filed a motion showing that such further time was applied for and granted, and asked the court that an order extending the time to 60 days might be entered nunc pro tunc as of February 28,1925. This application was denied by the court. Defendant’s counsel now asks this court for a mandamus requiring defendant, in this proceeding, to comply with said request. On February 28th, the day on which the decree was signed, there were several questions discussed before the court. The decree was discussed, and the time fixed for- the abatement of the nuisance was discussed, together with the city attorney’s application for an extension of the time to August 1st, in order that the city might 'have the matter reviewed by this court. The question of getting the case on the calendar of this court for the June term was also> discussed. When that hearing ended, it appears to have been understood by the court and all of the counsel that the abatement would be extended to August 1st, and that the matter would be before this court in the June term, and the court and opposing counsel now concede that it was expected that an extension of time would have to be granted in which to prepare the case, but the point is made, and this is the only point in the case, that no application for the order of extension was applied for or made. At the hearing of the city’s motion to enter the order nunc pro tunc, considerable discussion was indulged in between court and counsel. This discussion was taken by the stenographer and is now embodied in the court’s return. This perhaps shows the mental attitude of the court better than can be stated: “The Court: Oh, I think it was commonly talked there that Mr. Smith could not get out the record within the 20 days, as far as that is concerned. That would be true, would it not, Mr. Sowers, and Mr. Peters? “Mr. Peters: I think that is true. “Mr. Sowers: Yes, I think so. “The Court: Now, wouldn’t this be a fair statement of this situation, that what was said and done on the occasion of that meeting with the court and counsel, that everything said and done at that time, while there may have been no specific mention of the entry of an order extending the time for settling this case, that notwithstanding that fact, everything said and done contemplated that such an order would be made, of course, in harmony with the other steps taken for the perfection of the appeal. Would that be a fair statement? Mr. Sowers: Well, I would hardly contemplate, if it was not mentioned at all, and nothing was said with regard to the order extending time. “The Court: Well, Mr. Sowers, wouldn’t an agreement that the preparation of the case be extended— so that it might be heard at the June term, some three months ahead — wouldn’t that at least contemplate that the necessary steps would be taken to perfect the appeal? “Mr. Sowers: Well— “The Court: It seems to me that would be a fair statement, that it contemplated that they would do it, otherwise we would not have been there considering the extension of the time for enforcement of the injunction to August 1, wouldn’t have been considering getting a hearing at the June term, if we hadn’t at least contemplated that the necessary steps would be taken to bring those things about. I am not saying that special mention was made of that fact, because I think, as Mr. Peters suggested, that it was not, and as you have said here. I don’t recall that there was specific mention, but I cannot see that it is an unfair statement to say that what was said and done contemplated that that would be done.” The petition and .affidavit of defendant in this proceeding show: “And said city of Lansing, petitioner herein, avers that on the 28th day of February, 1925, such order extending the time for settling said case on appeal was asked for and granted with the consent, acquiescence and understanding of attorneys for plaintiffs then and there present, and that the failure to actually enter said order was a mere inadvertence.” The affidavit of the city attorney is to the same effect. It is further shown, and not controverted, that on the 28th day of February the claim of appeal of the city was filed, the fee paid and the certificate of the stenographer was filed. The return shows that while the court is very strongly of the opinion that the city attorney asked for no order, and none was granted, he concedes it was understood he was to have further time, that there was no objection to granting further time, that he was willing to grant further time, and that the city attorney took the steps that were necessary to obtain further time. Plaintiff’s counsel in that litigation understood that defendant would have to have further time because the record was very long, containing nearly 1,400 pages. They co-operated with counsel in his effort to have the case heard at the June term, and noticed the case for hearing. In view of the fact that we have before us a petition in which it is positively alleged that an order was asked for and granted, and the answer does not expressly deny the fact, as required by Supreme Court Rule No. 13, but contains an element of doubt, which doubt is further increased by the admissions of the court, we think we should resolve this question in favor of the petitioner. The writ, if necessary, may issue directing that an order nunc pro tunc may be entered as prayed. No costs will be allowed either party. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ -44, 53, 30, 20, 5, 13, 8, -11, 1, 8, -21, -32, -4, -24, -9, -8, 17, -8, 1, 39, -8, 0, -9, -26, 2, -16, 0, -23, -30, -12, -15, -26, -8, 51, 27, 20, 3, 41, 44, -2, 0, -79, 14, -68, 15, -52, 36, 16, 5, -14, -36, 8, -38, -11, -74, -25, -32, 23, -2, 42, -16, 48, -41, -7, 33, 47, -58, 8, 36, -30, 2, -1, 22, -48, 29, -18, 23, -17, -2, 43, -5, 43, -23, -7, -37, -23, -1, -8, 43, -59, -36, -9, -8, 8, 28, 0, -48, 16, 23, -21, -46, -8, -19, 4, -19, 12, -23, -17, -20, -57, 21, 25, 56, -24, 39, -36, -27, -14, -33, 13, 41, 5, 30, 2, -31, -10, -47, 7, -7, 35, -17, -16, -7, -16, 0, 64, 29, -25, -41, -9, 49, 3, -14, -15, 8, 2, -26, 15, 1, 0, -44, -9, -28, 16, -42, 35, 16, -40, 66, 6, 12, 45, -14, -40, -27, -40, -22, -1, 28, 8, -31, 12, -6, 23, 40, -32, -27, 21, 19, 21, 7, -21, -33, -42, 4, -33, -15, 0, -13, -15, 47, -28, -24, -30, 17, 46, -17, 31, -5, 17, -30, -15, 18, -18, -41, -32, 21, -9, 20, 28, -17, -22, -16, 41, 15, -38, 52, 37, 10, 25, 24, -34, 5, 14, 4, 22, 24, 3, 15, 16, 7, -37, 82, 10, -15, 26, 42, 22, 39, -7, -2, 50, -24, -9, -13, 28, -15, -10, -1, 17, 14, -9, -15, 30, 25, 3, 4, -32, -14, -34, 34, 2, 35, -45, -9, -10, -27, 25, -13, 48, 17, 27, 25, 17, -32, -28, -27, -10, 40, -3, 0, -32, -37, -13, 38, 17, -21, -4, -66, 9, 6, 36, -63, -4, 9, 35, -10, 35, 4, 43, -46, 38, -51, -9, 14, -38, -13, -14, 30, -36, 38, -3, -34, 19, -5, -49, 12, 23, 33, 6, 14, 31, -58, 42, -29, 46, 23, 14, 3, -41, 13, -13, -29, 3, 15, 3, 28, -36, 3, -20, 70, -18, 2, 14, -2, 4, 8, -37, -16, 21, -35, 6, -53, 4, -9, -13, -41, -20, -37, 25, 9, 18, -7, 11, -4, 1, -6, -22, 43, 20, -7, -34, -19, 13, 41, 15, -15, -17, 1, 20, -10, -30, 23, 26, 20, 0, -33, 4, -16, 13, 16, -10, 14, -1, 39, -11, 5, 14, -51, 13, -35, 45, -47, 1, 25, 11, -7, -23, 64, 0, 6, -25, 11, 44, 5, 0, -12, 14, 37, -7, 16, 62, -9, -57, -3, 35, 53, -5, 14, 65, 34, 13, 27, 48, -5, 70, -9, -19, -55, 15, 17, 24, -7, -43, -28, -18, -30, 14, 13, 26, 28, 36, -18, -21, -24, 35, 0, -3, 11, 0, -22, -55, -40, 47, -4, -4, -19, -5, 46, 19, -25, 25, 1, -20, -36, -39, 10, 0, -26, 84, 16, 7, -12, 52, 21, 0, -8, -19, -5, 70, 17, -32, -54, 77, 24, -4, -25, -60, 45, 23, 34, 21, -12, -16, 64, -12, -10, -46, 7, 23, -36, -32, 7, -20, -35, 75, 55, -26, -8, -17, -33, 7, -27, 17, 10, 27, 37, -11, -5, -8, 14, -5, -29, -3, 16, -38, -34, 49, 27, -2, 16, -25, 55, 43, -31, -38, -2, -11, -12, -40, -25, 1, -14, -27, -29, 17, -80, 51, 12, 29, 4, 5, 31, -42, 31, 15, 44, 3, 23, 46, 33, -31, 19, 32, 37, 33, -3, -41, 10, 55, -13, -18, 3, 25, 46, -51, 4, 5, 15, 23, 8, 56, -58, -17, -30, -7, 50, -15, -6, 1, -18, -16, -11, 14, 11, 6, -4, 11, 26, -9, 17, 34, -71, 9, -22, 48, 4, -51, 1, -24, -33, -43, 29, -7, 6, -41, 57, 6, 17, 40, -44, -17, 40, 11, -10, -4, 34, 44, -6, -6, -48, -7, -12, -19, -22, 19, -6, -10, -48, 41, -20, 22, 28, -36, -2, -2, -8, -20, 31, 5, 10, -12, -23, -41, -46, -5, -19, 25, 24, 21, 50, -21, -5, -34, 11, -32, -10, 11, 50, -29, 15, 6, -6, -38, 26, -20, 4, 8, 10, -11, 24, -38, 31, 10, 47, 4, -4, 16, 32, 24, -35, 34, 82, -24, -26, 39, 5, -60, -24, -36, -11, -9, 15, -20, 28, 20, 39, 0, -10, 21, -38, 20, -55, -48, -7, -4, -15, -84, -2, -7, -10, 26, 22, -38, -32, 17, 11, -3, -34, -7, 1, -59, 9, -13, -45, -3, -3, -19, -47, -14, 8, -23, 30, -7, -29, -13, -14, 2, -66, -35, 71, -32, 40, -5, -37, -35, 64, -14, 18, -5, 1, 7, 35, -49, 65, -6, -38, -15, 30, -18, 40, -26, 0, -7, 13, -1, 12, 19, 28, -9, -44, -44, 31, -25, -8, 31, -30, 8, 2, -17, 25, 6, 54, 35, -13, 51, -25, -19, -61, 8, -5, 38, 16, -79, 19, -42, -24, 17, -9, 16, -41, 35, -18, -9, -16, 3, 14, -23, 29, -16, 32, -59, 8, 47, -12, 8, -10, 25, 24, 21, -23, -20, -14, -44, -49, 19, 28, 31, 4, -30, -14, 7, -63, -24, -1, -25, -18, -16, 12, -32, 21, 19, -17, -32, 4, 6, -53, -17, 27, -62, -2, -29, -36, -12, 1, -20, -36, -28, -36, -27, -10, -19, -20, -15, 14, 32, -34, -20, 35, 63, 33, 33, -4, 36, 37, 35, 4, 7, -7, 2, -17, -13, 76, 17, -42, -35, -67, -1, -39, 16, -1, -43, -36, -16, -23, -15, -52, 13, -11, -15, 21, 4, -21, -5, -28, 24, -9, 28, -19, 70, 5, -31, -7, -45, -6, 8, -18, -27, 47, -50, 0, 0, 42, -7, 44, -14, 15, -29, -16, 13, -30, 21, 11, 35, 24, 8, 35, 14, 41, -43, 11, -12, 11, -26, 16, 28, -2, 53, -11, 35, -29, -4, -14, -8, 0, 7, 4, -11, 41, 30, 4, -33, -8, -18, -21, 32, -3, -18, -14, 31, 17, 36, 10, -22, -13, -32, -25, -19, 7, -14, 35, 6, 37, 47, 43, -43, 13, 23, -5, 54, -55, 69, -31, 26, -21, 13, -17, -14, -16, -29, -22, 4, -21, 17 ]
Wiest, J. Defendant was convicted of the crime of rape upon a 12-year old girl residing at his home in the country, and prosecutes review by exceptions after sentence. The learned circuit judge endeavored to keep error out of the case but the prosecuting attorney succeeded in getting before the jury the very matters the judge, by rulings, excluded, and these were so prejudicial to the rights of defendant as to require us to grant a new trial. We had occasion in People v. Root, 281 Mich. 239, to notice somewhat similar, but not so flagrant, acts of the prosecutor, and there held the error was cured by rulings and instructions,. but in the case at bar the infractions were so persistent and successful in circumventing the rulings excluding incompetent testimony that we cannot let it pass. We state but one incident. At the trial character witnesses gave testimony in behalf of defendant. On cross-examination of defendant he was questioned about a bill for divorce, filed by his first wife 25 years before the offense here charged. We quote from the record: “My first wife filed a bill for divorce in this court against me. Her name was Gusta and her lawyer was Tom Horseman. “Q. Your lawyer was Jerome W. Turner? “A. I didn’t have no lawyer. “Q. Didn’t you appear in the case and contest the divorce? “A. No, sir. I did not have any lawyer. I did not appear in the case and contest the divorce. I was married the last time the 25th of December, 1899, by a minister named Spadock, pastor of the St. Johns Church. My wife’s name was Gage. Her first name was Edith. _ “Q. Have you changed your habits any from the time you were living with your first wife from what they are today? “A. Yes, sir. “Q. You are a better man than you were then? “A. I calculate to be. “Q. Just how much better? “Mr. Chandler: I object to that question. “The Court: I will sustain it. “Q. At that time, in regard to your habit of using intoxicating liquors? “A. Sometimes. It is different now than what it was then. I don’t touch anything. I did at that time. “Q. Your habit of running around with immoral women, how does that compare with what it was then? “A. That was falsely accusing. “Q. I ask for an answer to my question. “Mr. Chandler: That was fair. He asked how it was different. “Mr. Miner: Now than what it was then. “The Court: He said it was false. Proceed. “Q. She did accuse you at that time of running around with lewd and immoral women? “Mr. Chandler: I object to it as incompetent and immaterial. “The Court: I think what she accused him of would be— “Q. She alleged in her bill for divorce upon which a divorce was granted against you in this court, that you were running around with lewd and immoral women, did she not? “Mr. Chandler: I object to it as incompetent and immaterial. “The Court: What she alleged in her bill of com. plaint I don’t think would be competent. “Mr. Chandler: I take an exception to this, trying to force something in the record that is prejudicial. “Q. Were you present when she was sworn and got her divorce? “A. No, sir. “Mr. Miner: On the question of whether or not he had an attorney in this matter at the time this divorce — or I wish to offer in evidence part of file No. 3019. State of Michigan, county of Shiawassee, in chancery. In case of • Agusta Courts v. Edward Courts. Stipulation waiving notice filed October 4, 1898. J. H. Collins, deputy county clerk. “Mr. Chandler: As to that I object to it. He didn’t say he didn’t have an attorney. . I understood he said he had an attorney, told who it was. “The Court: No, he said he didn’t have an attorney. “Mr. Miner: I asked if Jerome W. Turner was his attorney, he said not. Here is a piece of paper signed by Jerome W. Turner, solicitor for defendant. “The Court: What materiality is it in this case whether he had an attorney or whether he didn’t? This is collateral matter as to this case. This is a very remote matter. It is 1898. • “Mr. Miner: Character witnesses went as far back as 25 or 80 years. They said they didn’t know anything against him, and said he had always been a good American citizen and the reputation was good. The purpose of the examination is to show at the time he was living with his first wife that she obtained a divorce from him and the grounds of divorce were set out in the bill of divorce, and that this decree was granted, and that he had an attorney, but did not contest the case. That is the purpose of this examination. “Mr. Chandler: Whether that was true, how would that affect it one way or the other? What has it got to do with it? “The Court: I will sustain it.” The defendant had a right to a trial in accordance with the rules of evidence, unhampered by a circumvention thereof under statements of improper offers, followed by endeavors to get the excluded matters before the jury, and successful' to a point beyond possible elimination by instructions to the jury. We think the virus of such prejudicial matter inoculated and the prejudice thereof ran its course regardless of remedies applied. The conviction is reversed and a new trial granted. The defendant is remanded to the custody of the sheriff of the county of Shiawassee to await such further proceedings as may be proper. McDonald, C. J., and Bird, Moore, Steere, and Fellows, JJ., concurred. Sharpe, J., concurred in the result. Clark, J., did not sit.	[ 4, -22, 3, 13, -23, -36, -20, -27, 2, -14, -7, -48, 26, -6, 8, -18, 8, 3, -37, -3, 11, -8, 2, 28, -15, -4, 45, 40, -11, -35, 28, 32, -40, -10, -16, -27, 58, 8, -1, -8, -4, -50, -20, 13, -47, 5, 1, -54, -22, -32, 6, -45, -15, 37, 18, -20, 54, 42, -11, -9, 1, 43, -110, -45, -46, -32, -38, 16, -31, 11, -33, -56, -33, -30, -37, -26, -19, 33, -9, 20, -33, -26, 30, 25, -23, 12, 15, -29, -11, 3, 28, 48, -53, -26, -18, -15, 19, -6, 10, -27, -28, 5, -51, -1, -26, 55, -15, -8, 18, 22, 27, 10, 60, 11, -10, -36, 0, -18, 11, -30, 33, 18, 25, -7, 22, -3, -72, 12, 4, -57, -17, 32, 11, -15, 10, -2, -29, -21, 24, 6, 59, -25, 10, 51, 47, -27, -50, 45, -10, 29, -24, -22, 36, -5, 17, -23, -38, -41, 14, -43, -36, 0, -39, 10, 14, -8, 12, -13, 21, 6, -11, 23, 33, 29, 45, -9, -18, -32, -37, -18, -12, 63, -2, -12, 18, -17, 40, 0, -60, 39, -14, 8, 18, -48, 70, 12, -28, 27, 26, -30, -3, -33, 0, 19, 26, 3, -1, 21, 7, -26, -15, -12, -7, -38, -13, -19, -24, -14, -21, 1, -20, 0, -5, -38, -49, -71, -12, 45, -9, 44, 0, 1, -2, 17, -25, -10, 7, 2, 27, 16, 9, 32, 11, 26, -18, 1, -45, 23, -53, 15, 26, 20, -12, 31, -44, -7, 21, -21, -33, -37, 9, 37, -19, -6, 9, 9, 22, 25, -5, -52, 36, -20, 13, -19, -27, 0, -36, -5, -58, 22, 25, 41, 28, 44, -7, -13, 0, 37, 29, -19, 33, -22, -48, -36, 40, 30, 21, 31, -21, -29, 2, -51, -7, 8, 9, -11, 16, 15, -2, -36, -24, -17, 20, 25, 26, 14, -20, 4, -9, -16, -60, -15, -44, -32, -11, -11, 4, -57, 6, 12, -43, 17, 11, 30, 26, -36, 18, -6, 4, 20, 18, -42, 1, -8, -20, 7, -1, -5, 8, -24, 14, -28, 31, -11, -52, -28, -37, -60, 33, -42, 4, -7, 6, 28, 15, 13, 8, 11, 46, 21, 20, -14, -23, 16, 48, -2, 67, 3, -23, 65, -21, 19, 7, 25, -7, 17, -29, -60, -42, 35, -12, 44, 2, -11, -30, 13, -6, 18, -6, -18, -7, 12, 70, 2, -4, 23, -18, 20, -3, -2, 12, 4, 66, 15, 31, -1, -28, -2, 43, 8, -23, 9, 32, 19, 9, 12, -28, -15, 49, -40, 12, 0, 16, 12, 12, -15, -10, 44, 4, 34, -41, 34, -14, 25, -13, 15, 1, -27, 12, -2, 30, 2, 12, -23, 29, 19, 12, -8, -28, 0, 14, -1, -23, -17, 47, -45, -55, -53, -41, -8, 36, 5, 4, 28, 0, 21, 32, 61, 10, -43, 75, 12, 15, 6, 28, -5, -40, -48, 15, -39, 8, -16, -3, -24, 5, -39, -24, -3, -46, 55, 14, 10, -8, -48, 2, -4, 15, 4, 32, 28, 0, 22, 15, 11, -22, -32, 34, 16, -20, 13, 31, -21, 39, 10, -54, 6, 11, -40, -55, -54, 29, 22, -61, -21, 38, 21, -22, -75, -16, -24, -12, -11, 40, 23, 2, -13, 0, -31, 12, 31, 3, -6, -13, -40, -25, 17, -21, -9, 0, -24, -12, -13, 38, -15, 23, 30, -36, -32, 14, 0, 19, 2, -25, 20, -46, 6, 5, 1, 13, 27, 43, 38, 5, -17, 5, -2, -13, 10, 13, 10, -9, 38, 22, -22, 26, -36, -20, 5, -3, 2, 10, -2, 12, 15, -6, 41, 8, 47, -11, 3, 71, 30, 0, 9, 12, 41, 9, -20, -41, 31, -9, 0, -25, -45, 19, -10, -5, -52, -17, -43, -15, -13, -17, 36, 14, 14, -24, 13, 24, 38, 27, 7, 13, -19, 20, 89, -18, 29, -20, -50, -13, 1, 23, -5, 16, -40, -47, -36, 27, 3, 15, -3, -48, 61, 5, 61, 25, -4, 0, -34, 27, -42, 49, 12, 16, -17, 1, 12, 4, -45, 3, 9, 5, 33, 7, -33, -31, -13, 32, -19, -15, 1, 19, 22, -25, 42, 32, 10, -32, -25, -1, -29, 26, -15, -8, 6, 1, -44, 3, -53, -18, 12, -55, 12, 1, 20, 19, -32, -41, 71, 1, 9, 17, -4, 28, 46, 9, 6, 19, -73, 56, -46, 40, 39, -15, 27, -35, 16, 27, 0, 35, -21, -71, -25, -40, -15, 3, -51, 33, -3, 12, 0, 44, -9, -43, 38, 42, -19, -44, -21, 5, 24, 5, -32, -41, 31, -1, -4, 4, 1, -39, -59, -2, -11, -46, 58, 25, 15, 11, -20, 3, 24, -76, 19, 21, -11, 60, -14, 40, 33, 14, 5, -27, 41, -20, 3, -25, -11, 27, -2, 20, 34, 3, -67, -25, 40, 5, -9, 2, 4, 29, 45, -9, -13, -21, -50, 29, -30, 15, 2, 10, 7, 2, -31, -24, -16, 11, -24, -25, -15, -27, -30, 5, 42, -2, 4, 11, 0, -30, 23, 19, 41, 6, 9, 37, -15, 69, -41, 28, 24, 31, -4, 6, -17, -63, 4, -2, 5, -4, 6, -26, -32, -15, -76, 0, -9, 6, -3, 42, -3, -12, -8, 59, -49, -24, 33, 52, -4, -27, 27, 11, 16, 1, 16, -38, 36, 5, -37, -52, -3, 18, -5, 39, -1, -12, -6, -41, -30, -31, -34, 27, -2, 12, 36, -15, -42, 13, 26, -1, -20, 19, 11, 12, 27, 13, 0, -42, 7, -4, -44, -23, 27, 37, 22, -15, -15, 8, -35, -17, 39, 1, -14, -38, -18, -50, 3, 34, 43, 25, 10, 0, -13, -9, -8, -31, 38, -16, -1, 9, 48, -55, 24, -8, 27, 9, 74, -24, 36, -16, 16, -7, 53, -4, -2, -17, -41, 13, 44, -2, 47, 13, -2, 13, -11, -19, 8, 0, 42, 2, -50, -53, -16, -14, 34, 5, 1, 18, 9, -36, 2, -27, 31, -47, 40, 12, -10, 25, -75, -65, 7, -28, 23, -9, 44, -19, 18, -13, 21, -44, -26, -19, -12, 46, -12, -8, 11, -1, -47, 21, 26, -30, 71, 16, 49 ]
Moore, J. This case was commenced October 2, 1912, by writ of capias ad respondendum. The affidavits of the plaintiff and three others were filed. A motion was made to quash the writ of capias for various reasons. This motion was denied. The record does not show that any effort was made to review this action of the trial judge. A declaration was filed claiming damages in the sum of .$1,000. October 28, 1912, the plea of the general issue was filed. The case was called before a jury in June, 1914. After the jury was sworn, a motion was made to quash the writ of capias, which motion was overruled. The defendant preferred seven written requests to charge. The record does not disclose that any of them were given. The trial judge gave a general charge to the jury which returned a verdict for $1,100 in favor of the plaintiff. A judgment was entered upon this verdict, for $1,000. The case is brought here by writ of error. So many of the assignments of error relate to the charge, or the failure of the court to charge, that we quote from it as follows: “Gentlemen of the Jury: The verdict in this case will be one of two, depending upon how you look upon the facts. You will find for the plaintiff in the sum of $1,000, with interest at the rate of 5 per cent, from the 18th day of April, 1912, until today, that is two years’ and two months’ interest at 5 per cent, bn $1,-000, or it will be. no cause of action. The theory of the plaintiff is, and he proceeds upon this theory, that he was swindled or overreached by the defendant. His claim is that the defendant some time in April, 1912, told him (the plaintiff) that the business that the defendant, Frank Du Val, was engaged in was a prosperous business; that the year preceding that year he had made out of it clear $12,000; and further that this business he could have sold to David Stott, a half interest in the business for $2,500, but that as David Stott was not going to take an active part in.the management of the business, that he would prefer to sell to the plaintiff, who would take an active interest in it, and preferred to sell to him for $1,000. Now there, gentlemen of the jury, are two statements of fact, that the business had yielded $12,000 the year previous to 1912, and the further statement of fact that David Stott had made an offer of $2,500 for a half interest in the business. The plaintiff contends that he relied upon these statements as being true, and that he trusted the defendant and believed him when he made those statements, and in reliance upon'the truth of those statements he gave him $1,000 in cash. There is no -denial that the $1,000 was paid, but the defendant states that he made no such statement as the plaintiff •claims that he did make, and therefore he says that -the plaintiff’s case must fall because he didn’t make the statement. So the first question that you will have to determine is whether or not the defendant actually made those statements, and then, if you find that he did not make those statements, the verdict will be for the defendant. If you find that he did make those statements, you will have to further find, before, the plaintiff can recover, that the statements were false, and, thirdly, that the statements were relied upon by the plaintiff when he parted with his money. There is the issue. It is entirely an issue of fact. The court cannot aid you at all because the determination of disputed questions of fact rests with the jury, and the responsibility of determining them must be assumed and carried out by the jury. Now this business, I was about to say unfortunate business, that they were engaged in, was, so far as I am advised, a regular business. It is a peculiar situation that is presented here. Here are two parties engaged in a business which foments lawsuits and brings cases into court and presents cases to the jury, and here these parties now are taking a dose of their own medicine. They are here today to have a jury determine in a matter of litigation of this kind whether or not the plaintiff was induced to enter into this business by fraudulent statements of the defendant. The case is here, and must be considered by you fairly and conscientiously, and if you find that these fraudulent statements were made, and if they worked their fraud by reason of being false, and if the plaintiff, was induced to part with his money by reason of reliance upon them, then the plaintiff is, entitled to get back his money. If you find the statements were not made, or if you find that they were made but were true, or further if you find that they were made but were not true, but that the defendant did not rely upon them, but relied upon something else when he paid over $1,000 to the defendant, then the defendant is entitled to a verdict of no cause of action. Your verdict must hinge and be determined entirely upon what you find the facts in the case to be, and you must find the facts from the evidence as it comes to you from the witness stand here.” It is said that the court erred in denying the motion to quash the writ of capias. We have recited the condition of the pleadings. We think it too late, in view of what was done, to raise the question now. See Baxter v. Woodward, ante, 379 (158 N. W. 137). A number of assignments or error relate to the rulings upon the admission of testimony. We have examined all of them. Without discussing them, we content ourselves with saying they are without merit. It is said a verdict should have been directed because plaintiff had worked for defendant and might have verified the truth of the statements made to him, both as to the value of the business and as to the offer of Mr. Stott, and that he knew the business was speculative. The statements alleged to have been made were not simply matters of opinion, but were statements of fact, and the plaintiff, if he believed them, was justified in acting upon them. Mr. Stott denied he had made any offer for the business. Defendant admitted that he did not do anywhere near $12,000 worth of business the year before, but denied he had made the statements plaintiff attributed to him. This presented an issue of fact for the jury. In relation to the errors assigned because of the refusal to give the requests to charge, it may be said that nearly all of them contained statements it would have been improper to give. As to the other request, it was fully covered by the charge. Error is assigned upon the part of the charge allowing interest. Inasmuch as the judgment was taken but for $1,000, the error, if there was one, was harmless. Judgment is affirmed. Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.	[ 17, 29, 30, -12, 9, -12, 38, -31, 51, 48, 54, 17, 3, 59, 14, -25, 44, -9, 5, -54, -13, -16, 8, -29, 11, -6, 7, -18, -16, 6, 0, 13, -18, 17, -2, 25, 1, -8, 16, -38, -20, 53, 27, 11, -24, -19, -18, -31, 12, 18, 20, -49, 44, 5, -23, -34, -23, 15, -21, -29, 27, -19, 27, -35, -1, -39, -25, -34, 5, 42, -40, -10, 24, -26, 0, -70, -35, -38, -35, -43, 2, -15, 38, 31, -62, 46, 0, -14, -11, 32, 5, 30, -41, 30, -3, 24, 86, 34, 28, 27, -24, -5, -66, -8, -23, 0, -44, -30, -18, -13, 19, 19, 18, -12, 2, -9, -28, -23, -14, -83, 2, 38, 36, 15, 0, 15, 6, -11, -32, 49, -6, -21, -48, 18, -50, -5, 23, -7, 22, -43, 20, 25, -9, -27, -39, 44, -27, -13, -3, 20, -26, -11, 28, 26, 16, -50, -12, 6, 43, -52, 20, 32, -4, -36, -2, -10, 22, -64, -22, -15, -20, 32, -33, 6, -2, 10, -5, -41, -47, -5, -14, 40, -5, 26, 5, -2, -7, -21, 19, 17, 19, 6, -1, 18, 11, -42, 19, -32, 66, 11, -7, 4, -22, -6, 16, 26, 21, 16, -17, 10, -2, -9, 32, -15, -2, 0, -60, -44, 41, -53, -64, -2, -39, 43, -36, -13, 42, -2, 5, 13, -48, 7, -22, -3, 34, -64, 32, -11, -24, 19, -86, 32, 11, -32, 2, -22, -9, -9, 33, 64, -17, 95, -53, -19, -46, -26, 9, 13, -30, 0, -15, 37, -18, -24, 52, -60, 28, 20, -10, 25, 14, -50, 20, 0, -27, -20, -20, 7, 7, -45, 18, -28, -22, -14, -29, 19, 46, -34, -4, 0, 19, 57, 10, 29, 35, 36, 60, 18, 18, 1, -38, -1, -35, -16, 14, 5, -33, -33, -57, -8, -2, -31, -4, 21, 11, -17, -10, -38, 2, -31, 13, 0, -12, -15, 4, 16, 75, -58, -28, 19, -14, 48, -13, -89, -80, -2, 7, 19, -32, -15, 21, -2, -8, 20, 0, 1, -5, -16, -44, 11, -111, -26, 11, 5, 61, -28, 11, 1, 0, 28, 46, -29, 25, 32, 51, 49, -17, 4, 17, 48, 5, 21, -12, -26, 6, -46, -42, 1, -27, 42, -23, -3, -13, -4, 16, -33, 18, -63, -24, 18, -46, 41, -16, 14, 19, 21, -13, -30, -34, -20, -19, 36, 13, -39, -48, -28, -3, -5, 29, 23, -15, -22, 16, -4, -7, -46, -4, -9, 31, 49, 67, 17, 10, -25, 46, -3, -9, -17, -5, -54, -51, 22, 16, -37, 0, -17, -1, 21, 20, -8, 2, 40, -38, 15, 13, -28, -30, -22, 38, 22, -16, 10, 5, 26, -17, -1, 37, -1, 32, -12, 49, 17, -6, 19, -3, 18, 0, -8, 5, 0, -7, 15, 4, -37, -52, 12, 19, 13, 8, -9, 11, 61, 23, -52, -23, 1, -21, 11, -67, 16, 39, 0, -3, -20, -41, 20, -18, 18, -18, 8, -9, 27, -21, -1, 0, 23, 35, -14, 0, 20, -36, -8, -4, 1, -20, 22, 0, 37, -10, 7, 30, -33, -11, 48, -15, 1, 37, 37, 4, -52, -17, -16, -13, -52, -26, 13, 20, -56, -1, 23, -60, 47, 42, 35, 15, 30, 14, -17, 40, 46, 62, 32, 32, 4, -29, 31, 10, -27, -1, -51, -25, 13, -38, 4, 60, -39, 18, 0, 6, -19, -16, -8, 16, 39, -36, 20, -42, 8, -2, 19, -26, -22, -3, 20, -20, 28, 16, 33, -28, 12, 26, 8, 2, -7, 31, -28, 23, -27, 7, 22, 1, -26, -28, -47, -23, 10, -10, 2, -24, -5, 13, 36, -7, 2, 47, 20, -5, -17, 34, 23, 45, -1, -34, 18, 17, 3, -26, -19, 15, 42, 20, -38, -4, 3, -28, 27, -32, 63, -9, -24, -22, 32, 29, -35, 1, 1, -11, -6, 23, -35, -44, 6, 27, 16, -12, -18, 26, -26, 0, -10, 8, 8, -23, 34, 24, 6, 27, 19, -32, 9, -19, -52, 90, -52, 42, -81, -22, 9, -31, 27, 41, 36, -15, -24, -38, 1, -1, -6, -3, 39, -44, 7, -31, -1, -19, 5, -11, -1, 7, -40, 8, -39, -30, 39, 19, 5, 34, 39, -10, -18, -9, -4, 9, -11, 6, -20, -2, -5, -23, -27, -2, -44, 86, 12, 37, 41, 59, 27, -5, -28, 28, -9, 0, -9, 12, 56, -2, -48, -47, -27, -43, -38, 7, -14, 49, 25, 10, 5, 9, 16, -26, 17, 38, -3, 26, 3, -22, 35, 12, -32, -38, 31, 15, -37, -32, 23, 17, -28, 18, 31, -24, -20, 23, -37, 3, 50, 91, -17, 32, 37, -50, 41, 4, 43, 38, -66, 12, -30, 28, 53, 39, -65, -53, 36, -32, -8, 9, -21, -5, -36, -25, -2, -11, 13, 51, -31, 43, 46, 1, -42, -30, 18, 1, 7, -12, -18, -17, -17, -2, 2, -10, -13, 28, 1, 17, -20, 1, 44, -28, 8, 44, -21, -52, 35, 16, 35, -4, -41, -49, 19, -9, -20, -4, 57, 102, -45, -12, 31, -56, -28, 11, -6, -16, -2, -62, -36, -3, -32, 43, -26, 41, -19, -13, 38, -16, -26, -24, 37, -8, -30, 23, 20, -17, 0, 6, 17, 9, -6, 18, 0, -21, -22, -42, 66, -10, -14, 43, -67, 6, 53, -5, -2, 40, -33, 46, -17, 10, -44, 43, -3, 11, 60, 33, 5, -5, -32, -24, -31, 42, 35, 32, -32, 0, -48, -35, 29, 18, 25, -33, 40, 22, 15, -35, 32, -10, -5, 7, 0, 30, 23, -13, 53, 4, -28, -55, 6, -20, -45, -13, 21, 10, -8, -38, -19, -25, -27, -18, 18, 12, 24, -35, -10, -43, 19, 21, -10, -73, -11, 2, 1, 1, 33, 1, 0, 4, -14, -16, 1, -1, -3, 48, -56, -23, -10, 16, -17, 14, -7, 43, 40, 18, 22, -43, 48, 31, -1, -3, 28, -10, -31, 7, 56, -36, 14, -22, -35, -44, 13, -27, -8, -25, -25, 15, 24, 15, -14, 36, 36, 17, 3, -42, -19, 23, 43, -31, 35, 10, -11, -16, -9, 19, 58, -9, 47 ]
Clark, J. Plaintiffs, by bill, asserted prescriptive right to use an alley, and sought to have decree establishing such right and protecting it by injunction. Defendants, owners of lots abutting on the alley, contested. The bill was dismissed. Plaintiffs have appealed. ■The block between Earl, Cherry, and Thornapple streets, as platted,' in Grand Rapids, is somewhat triangular in shape, Earl street lying along the base. From Earl street east the alley extends into the block toward the apex 200 feet, having four 50-foot lots abutting on each side, lots 5, 6, 7, 8, 9, 10, 11, 12, and ending at the side of lot 4, which extends across the block from street to street. The plat, recorded, recites that— “The alley in the rear of lots 5, 6, 7, 8, 9, 10, 11 and 12 is private property held in common for the use of said lots and is 20 feet wide by 200 (feet) long.” Plaintiffs, for about 20 years, have owned a part of lot 4, including the part that adjoins the easterly-end of the alley. It may be said that for practically all of this time they have resided on the property. It is their claim that during the first 15 years, approximately, there was a gate or gates at such end of the alley; that they used the alley freely, frequently as a foot path, as a way for horses and vehicles, as a way of ingress and egress, and that during the last 5 years, or nearly so, there was no gate, the way was open; that they used it just as freely as before, and that lately they built a garage on their lot, near and facing the end of the alley. Their testimony to such effect is supported by the testimony of a large number of witnesses, many of them disinterested. Defendants, on the other hand, claimed and testified that, during such first period, there was no gate at the said end of the alley; that there was a fence; that the fence along the west side of lot 4 stood and was maintained across such end of the alley; and they contradicted plaintiffs’ showing of use of the alley. Defendants likewise are supported by the testimony of a large number of witnesses, many of them disinterested. This sharp conflict in testimony was passed on by the trial judge. He found with defendants. If the facts are as claimed by defendants, it is hardly necessary to say that plaintiffs have no case. We have read the record carefully. The trial judge had the advantage of seeing these witnesses and hearing their testimony. We are not persuaded that his conclusion should be disturbed. It is therefore not required that we consider the question, well briefed by counsel, of whether the facts as claimed by plaintiffs are sufficient to establish prescriptive right. Decree affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ 0, 63, 7, 0, -19, -2, 12, 19, 1, 49, 46, 3, 18, 25, 0, 24, -44, -1, -10, 28, -16, -7, -6, -16, 22, 7, 42, -4, -3, 47, 36, -35, -31, 26, -4, 16, 38, -20, 4, 28, 14, 4, -18, -57, 62, -24, 46, 0, 66, 5, -49, 5, 6, 6, -40, -50, -44, 11, -40, 28, 13, 0, -20, 1, 29, 4, 13, 15, -6, -33, -19, 1, -37, -44, 17, -19, 41, 16, -11, -2, 1, -17, 31, 16, -25, 20, -16, -50, -35, -54, -36, -52, 18, 39, 43, 30, 46, -16, -5, -45, -13, 55, -36, 5, 25, -9, -44, -18, 31, -22, -21, -2, 21, 14, -8, -34, -12, 12, 16, 8, -18, -28, -12, 14, -44, -7, -51, -31, -48, -5, 12, 3, 2, -6, 10, 48, -20, 21, -8, 8, 11, 3, -6, -2, -17, 3, -67, 37, -2, -27, 2, -17, -25, 15, 6, 4, -16, 0, 51, 14, 31, -39, 15, -20, -19, 11, -49, 30, 15, 16, 49, -50, 7, -28, 1, -5, 10, 22, -34, -41, 38, 49, -4, 8, -18, -28, -27, -20, -36, 28, 25, 5, -13, -24, -14, 36, 9, 28, 1, -42, -25, -4, 22, -32, 22, -33, -20, 5, -8, -7, -42, -19, 1, -53, 97, -7, -8, -25, 21, 1, 14, 5, -18, 33, -37, -4, -7, -36, -3, -21, 13, -28, 6, 15, 5, 11, 14, 10, -13, 24, 5, 25, -66, -43, 1, 31, 0, 58, 60, 33, 2, 4, -37, -22, 7, -11, -3, -53, 16, 14, 44, 23, -12, -50, 51, 33, 5, 1, -46, 21, -34, 18, -5, 42, -30, -69, -26, 28, -35, -13, 13, -28, -13, 34, 5, 7, 33, 21, -11, -12, -11, 21, -39, 0, 5, 2, 12, 14, 34, 5, -39, -30, -27, -27, 23, -10, 11, -25, 69, 18, -6, 11, 53, -23, 15, 40, -5, 27, 33, -33, 45, 16, -19, -2, 12, 55, 36, -16, -12, 11, 11, 20, 20, 36, 12, 15, 3, -38, -27, 5, 64, -18, 10, -8, 63, 19, -12, 7, 27, -7, -22, -9, -31, -15, 2, -62, -2, -11, -56, 32, 46, 9, -8, -6, -3, -30, -45, -27, 12, 3, -46, -5, -8, 30, 21, -27, 36, -51, -1, 44, 10, -42, 41, 15, 70, -8, -18, -1, 1, 15, -55, -29, 10, 5, 47, -6, -33, 7, -10, -17, 2, 17, -7, -12, -44, 1, 26, 0, 49, -30, -11, -13, -4, -1, -28, 41, -40, -13, 34, 14, 24, 10, 6, 2, 7, -17, 9, -48, -47, 4, -38, 12, -5, -8, 20, 2, -65, -30, -60, -3, -43, -36, -34, 13, 29, -69, -27, 9, 9, -16, 40, 75, -31, 10, -47, -13, 23, 14, 24, -5, 15, -24, -48, -15, 8, -9, -42, -49, -6, -2, -10, 53, 9, -14, -8, -1, 25, 31, -49, 14, -19, 8, 31, -10, -21, -7, 46, 28, -4, 11, 39, 43, 56, 6, 25, -26, -10, 21, 3, 26, -6, 1, -66, -14, 39, -20, 26, 46, 14, 45, -17, 14, -8, -6, -29, 51, 17, -19, 11, -7, 23, -56, 3, -44, -18, 41, 29, 11, 2, -15, 19, -28, -29, 4, -9, 5, -20, 31, 18, 3, -25, 37, 47, 27, 1, 10, 20, -3, 37, -20, -18, 4, 0, -18, -10, 31, -25, -39, 10, 16, -44, 0, 12, -31, 55, -11, 44, -46, 13, 37, -33, -1, 40, -54, -47, -22, -9, 4, -32, 37, -35, 11, -28, 4, 22, 16, 2, 51, -12, 53, -32, -18, -16, -15, 0, -3, 5, 47, -1, 18, 45, -33, -18, -3, -13, -41, -20, -43, -12, -9, 14, 0, -31, 26, 40, 39, -12, -37, 70, 0, 24, -30, -29, -13, -24, -38, -25, 60, 0, 31, -69, 27, 44, 26, 60, 8, 43, 16, -30, 23, 24, 24, -11, 28, 26, 28, -4, 3, -44, -2, -68, 76, 57, -11, 26, -21, 37, -20, 31, -24, 9, 5, -12, -17, -26, -56, 14, -36, 5, 2, -27, 35, 33, 68, 50, -22, 11, 45, 43, 1, 21, -25, -21, -4, 52, 2, 0, -28, 40, 47, 30, -33, 0, 1, -15, -1, -11, -26, -10, 7, -14, -25, 36, 0, -26, 7, -16, -1, -14, -23, 16, -5, 39, -18, 5, 13, -26, 5, -15, -3, 45, -2, -37, -35, -4, -29, -16, -18, -15, 30, 3, 0, 12, -32, -64, 31, -14, 4, 35, -74, -15, -15, -23, 16, -36, -20, -21, 3, -37, 3, 7, 19, 5, 5, -19, -40, -16, 1, -29, -28, 18, -55, -12, -15, -38, -76, -3, 9, 47, -26, -29, 19, -37, -27, -60, 18, -1, -11, 22, -19, -22, -41, -6, -14, 23, 21, 11, -10, 16, 43, -1, -22, -18, -8, -19, 16, -6, -35, 8, -20, 1, 14, -2, 53, 25, -56, -42, 37, 19, -7, -16, -9, -24, -52, -8, 37, 14, 31, 36, 0, -26, 30, -2, -27, 9, -8, -2, -51, -1, 10, 70, -15, 21, 27, -4, -25, 25, 48, 20, 6, -17, 31, -42, 3, 7, -11, -3, 3, -18, -8, -24, 14, 27, -13, 15, 11, -19, -8, -1, 39, 84, -33, -18, -16, 15, 0, -4, -45, 24, 12, -18, 12, -4, -14, -5, -4, -41, -10, -6, 13, -14, 31, 0, 15, -9, -17, 42, -24, -2, 5, 18, 17, -11, -12, -28, 4, -25, -4, 30, -50, -63, -5, 3, 7, -33, 43, -6, 22, 10, -73, -22, -32, -21, 1, -4, -20, -47, 0, -7, -3, 2, 20, -7, -18, -51, -22, -28, 18, 9, 76, -34, -24, -24, -42, -29, 10, 36, -9, -34, -2, 0, 27, -3, 51, -2, -22, 1, 11, 7, 0, -23, 3, -7, 24, -2, -2, -73, -40, -28, 0, 13, 51, 8, -40, 28, -28, 61, 27, 12, 32, -55, -59, -21, 25, 4, -35, -36, 47, -20, -54, 45, -38, 27, 60, -10, 68, -25, -1, 14, 5, -40, 44, 7, 52, -20, 11, -73, 75, -33, -7, 1, 42, -6, 23, 29, 6, 30, 1, 17, -38, -62, -5, 65, 46, 49, 37, -27, 50, -11, -26, 13, -48, -21, 47 ]
Moore, J. The Concrete Products & Supply Company, a Michigan corporation, was, prior to the 18th day of August, 1922, the owner of real estate in the city of River Rouge. The business of the corporation was that of manufacturing cement blocks. On the 18th of August, 1922, a petition for voluntary dissolution was filed under sections 13568-13570, 3 Comp. Laws 1915, inclusive. On the 28th day of October, 1922, an ex parte order was entered appointing Albert R. Heuer, one of the defendants in this case, receiver of said corporation. On the 2d day of February, 1923, Mr. Heuer filed a petition for leave to sell all of the assets of the corporation. On March 1, 1923, Albert R. Heuer as receiver conveyed all of the real estate of the company to George V. Garner, another of the defendants in this case. The consideration was stated to be $4,800. At that time the property was subject to a mortgage in the process of foreclosure. This mortgage was owned by Albert L. Montie and his wife. The period of redemption on this foreclosure expired on March 2, 1923. On the 28th day of February, 1923, a quitclaim deed was executed by the mortgagees to Mr. Garner. A decree of dissolution was entered on the 20th day of December, 1923. Other proceedings were had which it is not necessary to recite here. The bill of complaint in the instant ease was filed for the purpose of setting aside all the proceedings had to dissolve said corporation, and also for the purpose of declaring null and void all of the doings of Albert R. Heuer as receiver of said corporation. It was further the purpose of the bill to regain for the corporation, for the benefit of the stockholders and creditors, the assets of the company and especially the real estate. The plaintiffs are stockholders and creditors of the Concrete Products & Supply Company and the principal defendants are Albert R. Heuer as receiver; Albert R. Heuer, individually; Herman Coldnitz and George Garner. The corporation was made a party defendant as well as the directors. The bill also asks for an accounting by Albert R. Heuer as receiver, and prays for the appointment of a temporary receiver to take charge of the property. The decree provided: (1) That the receiver’s deed from Albert Heuer, as receiver, to George V. Gamer be set aside and held null and void. (2) That the quitclaim deed from George V. Garner to Albert R. Heuer individually and Herman Goldnitz, be decreed' to be null and void. (3) That the quitclaim deed from Albert L. Montie and wife to George V. Garner be decreed to be in legal effect a discharge of the mortgage lien and efficacious for that purpose only. The sum of $2,435.65 was ordered to be paid by plaintiffs, the Concrete Products & Supply Company or its receiver to defendants Albert R. Heuer, George V. Garner and Herman Goldnitz, the same being for the sums expended by them on the real estate, less the amount of revenues derived therefrom while in their possession. The decree also gave said parties a lien on the real estate for that sum. It decreed the Concrete Products & Supply Company to have good title to said real estate in fee simple as against Heuer, Garner and Goldnitz. The ease is brought into this court by the appeal of Mr. Heuer, Mr. Goldnitz and Mr. Garner. The record discloses that, when Mr. Heuer was appointed receiver, the real estate was appraised as of the value of $7,000. One of the appraisers was the defendant Mr. Goldnitz. Upon the trial. Mr. Heuer, Mr. Goldnitz and Mr. Garner were called as witnesses under the statute. Mr. Heuer testified that a fair value of the real estate when it was sold was $7,000, that it was sold to the highest bidder, Mr. Garner, for $4,800. The bid was paid as follows: Mr. Heuer and Mr. Goldnitz gave their joint note to the Rouge State Bank for $3,000, and a cashier’s check was issued for the same amount payable to the order of A. R. Heuer, receiver. Mr. Heuer and Mr. Goldnitz were both stockholders in the bank. Mr. Goldnitz was a director. Mr. Goldnitz met Mr. Garner on the street and delivered to him the cashier’s check. Mr. Garner delivered the check to Mr. Heuer as a payment of $3,000 as a part payment of the bid for the land, and Mr. Heuer trusted Mr. Garner for the balance of $1,800, and deposited the $3,000 check in the bank, and it was deposited to his credit as receiver. A few days later Mr. Heuer as receiver drew his check of $2,820.25, which was delivered to Mr. Montie, who had foreclosed his mortgage, just a few days before the redemption period would expire, and on February 28, 1923, a quitclaim deed was made by Mr. and Mrs. Montie to Mr. Garner. On March 12, 1923, Mr. Gamer made a quitclaim deed to Mr. Heuer and Mr. Goldnitz. It is claimed by Mr. Heuer, Mr. Goldnitz and Mr. Garner that the consideration of the last mentioned deed was $5,500 and that Mr. Gamer made $700 by his part in the transaction. Mr. Heuer and Mr. Goldnitz were at this time partners in real estate deals,, and they both admit the real estate was worth $7,000, while disinterested real estate men testified it was worth from $13,200 to $14,000. It is the claim of Mr. Heuer, Mr. Garner and Mr. Goldnitz that Mr. Garner was the highest bidder, and that they all acted in good faith. Mr. Gamer testified he bought the property for himself, but admitted he told Mr. Bresnahan that he bought the property for Mr. Heuer. Another witness testified that he told him the same thing. It has already appeared that Mr. Garner never put a dollar of his own money into the transaction, but that the money was obtained from a bank in which Mr. Heuer and Mr. Goldnitz were stockholders upon their joint notes. To permit such ,a transaction to succeed would be a travesty upon justice. See 34 Gyc. p. 254, under title of Receivers, under the sub-title Personal Interest and Advantage. The decree is affirmed, with costs to the appellees. McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred.	[ 3, 57, 5, 38, -49, 47, -29, 16, 54, -19, 0, 20, -13, 4, -9, 13, 19, 0, -21, 10, 14, -9, -38, -76, -2, 2, -13, -28, -16, -3, -30, -58, -4, -36, 28, -1, -11, 17, 34, -13, -46, 37, -6, 1, 34, 11, 67, -6, 33, -8, 33, 4, 49, -21, 3, -24, -40, 16, -3, -11, -1, -33, 44, 2, 20, 22, -7, 40, 22, -8, -45, -33, 12, -24, 23, -8, 20, 2, -37, -88, -9, -17, 30, -64, -57, 26, -43, 58, -20, 25, -18, 8, -30, 24, 15, -14, -18, 41, -1, 10, 14, -32, -49, 44, 20, 4, -34, 5, 6, 5, -21, -18, 42, 18, 10, -16, -57, 19, -10, -15, 21, 6, -14, -39, 32, 40, 10, -7, -23, 39, -10, -17, -27, 16, -29, 2, -4, -17, 20, 20, -69, 48, -12, -23, -47, 96, 10, 0, 15, -20, -41, -68, 6, 23, 9, -32, 14, 23, 27, -7, -27, -72, 46, -20, -71, 15, -7, 11, -75, 0, -15, 1, -14, -58, -39, -9, 13, 9, -20, 26, 34, -4, 28, -3, 18, -40, 27, -11, 31, -31, 28, -26, -26, 13, -78, 15, -15, 31, 58, 22, -15, -41, -59, -36, -12, -10, -2, 14, -3, 22, 14, 42, 8, -32, -23, 9, -96, -22, 42, -9, 5, -30, -7, 34, 9, -32, 18, -15, -3, -28, -12, 7, 4, 18, 20, 25, 63, 1, 7, 30, -31, -17, -29, -12, -17, -28, -15, 6, -6, 11, -48, 10, -46, 28, -57, 2, -41, 0, 32, 15, 3, 39, -16, 47, 1, -19, 16, 34, -30, 57, 2, 16, -4, 0, -11, -14, 2, 52, -32, 4, 13, -61, -22, -21, 21, 30, 5, -17, -27, 7, 3, 32, 41, -16, -28, 14, -39, -68, 9, -1, -32, 14, -6, -18, 0, 18, -60, -29, 8, -30, 11, 0, 16, 0, 15, -2, 37, 75, 5, 9, 67, 52, -11, 33, -1, -13, 38, -41, -50, 32, -21, 24, 0, 5, -39, -3, 13, 0, -33, 18, -15, -4, 43, 14, 9, -6, -4, 28, 12, 5, -69, -12, 14, 18, 45, -2, 12, 23, -32, 0, 28, 10, 2, -7, 3, 59, -48, -18, 11, 8, -18, 64, -26, 45, 14, -12, -65, 16, -62, -12, -21, 0, 63, 11, 8, 11, 16, -3, 3, 11, -30, -25, 22, 10, -18, -49, -11, 15, -19, 21, -19, 49, -20, -28, -18, -13, 13, 23, -13, -12, 19, -28, 28, -10, -36, -33, 17, 17, 51, -12, 40, -1, -8, -35, 15, -25, 2, -3, -42, 1, -52, 33, -8, -41, -17, 25, 1, -14, 16, 0, -18, 5, -32, 8, 42, 18, -52, -27, 70, 4, -14, 18, 27, 20, 9, -4, -8, -21, 54, -6, 14, -15, 17, -59, -2, 21, 10, -12, -12, 26, -21, 10, 36, 11, -68, 5, 22, 30, -15, -19, -31, 45, -11, -7, -38, -16, 4, -23, -34, 2, 55, -31, 28, 26, 3, -7, -18, 3, 9, 4, 17, -17, 10, 31, -2, 6, 8, -4, -9, 42, -28, -9, -61, 25, 12, 13, -42, 31, 43, 55, -14, 16, -14, 26, -40, 62, 54, 80, 15, -37, 53, 9, -18, 0, -9, 53, -3, -32, -16, 4, -8, 6, -11, -31, 23, 39, -23, 3, -14, -14, 10, 10, -14, 19, 17, -52, 3, -22, -18, 3, -27, -33, -5, -39, 40, -57, -27, -46, -12, 22, -54, 4, 26, 4, 18, -5, -33, 5, -15, 10, 16, -8, -66, -40, 18, 46, 23, 8, -18, 28, 3, 25, 0, -36, 23, 23, 18, 47, 12, -6, -47, -6, -17, -14, -65, -49, -25, 9, 16, 0, -21, -28, -5, 5, 21, 3, 22, 19, 25, 54, -3, -5, 14, 23, 26, 16, 21, 35, -35, 67, 3, 10, -34, -22, 1, -6, 55, -28, -47, -41, -15, -12, 2, 5, -32, 11, 20, 0, 20, 21, -22, 15, 58, 6, -10, -29, 37, -50, 72, -44, 16, -22, -8, 2, 6, 3, 34, 14, -11, -22, -11, 28, 3, -36, 1, -27, -30, 1, 31, 93, 31, 27, -43, 31, 8, -4, 27, 0, -15, -31, -57, 8, -14, -28, -10, 26, 6, 30, 32, -36, -29, -7, 16, 63, -12, 56, -54, 14, 5, 1, 0, -72, -16, 24, -33, 67, 12, -14, -6, -20, -7, -48, 46, 2, 36, 0, 3, 4, -29, -8, -4, -8, -6, -17, 25, 44, -34, -6, -55, 0, 45, -42, -58, 2, 6, 0, 27, 47, 16, 10, -37, -26, 73, 12, 53, -7, -25, 10, -70, 0, -7, -3, 2, -25, 8, 38, 16, -27, 50, -35, -55, 8, -31, -30, 17, 8, -3, 15, 52, -13, -1, -26, 32, 19, -8, -43, 54, 35, 30, 7, 3, 3, -1, -3, -44, 60, 63, -30, 14, -21, 6, 6, -21, -8, 38, -13, -8, 1, 8, 33, 5, 17, 18, -32, 44, 13, -48, 7, 11, 14, -31, -14, -24, -21, -3, -22, -24, 58, 3, 14, 54, -32, -36, -3, 26, -3, 30, 17, 43, -59, -47, -22, 12, -18, 24, 19, -2, -15, -65, 50, 8, -16, -10, 5, -34, -5, -46, 5, -1, -26, 50, -8, -22, 13, -14, -20, -47, -11, 10, -44, 38, 50, -7, -44, -27, -31, 4, -16, -6, -48, -13, 12, 70, 2, -14, -1, 56, -6, -30, 86, -33, -10, 2, -26, -14, -34, 57, -2, 25, -26, -20, -13, 37, 48, 3, 31, 18, 58, 30, 4, -12, 4, -13, -19, -50, -3, 34, -26, 0, 3, -27, -30, -54, 12, -42, -30, -32, 69, 6, 30, 18, 0, -8, 17, 7, -38, -39, -38, 21, -21, 5, -11, -25, -10, 23, -3, 62, 11, -42, -10, 6, 12, 3, 38, 6, 13, -8, -16, -5, -44, -14, -49, -4, 0, 48, 18, -7, -28, 22, -14, 19, -13, -44, -19, -30, 10, 23, 1, 56, 26, 21, 8, 32, 34, 66, -60, 39, 19, -26, -27, -4, 27, 31, 33, -18, -62, 28, -8, 17, -35, -17, -13, 5, -16, 14, -31, 45, -36, 7, 42, -32, -5, -12, -3, -31, 6, -12, 67, -2, -23, -8, -17, -41, 53 ]
Clark, J. Plaintiff is a mutual fire insurance company. Defendant John G. Helli was a policy holder, his application stating: “I accept this insurance subject to the articles of association and the rules and regulations and by-laws of said company now in force or that may hereafter be in force.” A by-law provided: “The annual assessment of this company shall be due and payable on the first day of October, in each year. To all assessments not paid during the month of October, there shall be added ten per cent, for the month of November, and an additional five per cent, for each month thereafter until paid.” Defendant owed $14.40. He did not pay during October. His policy was canceled. Plaintiff sued in justice’s court claiming the amount of the assessment and the monthly additions provided by the bylaw. Defendant had judgment. Plaintiff appealed. Defendant prevailed in the circuit court. Plaintiff’s application for writ of error (Act No. 155, Pub. Acts 1928) was granted, it being thought that the question was on the validity of the quoted by-law. But that question is not presented. In the justice’s court, plaintiffs bill of particulars claimed the amount of the assessment and the monthly additions provided by the by-law. No claim was made in that court for legal interest. 2 Comp. Laws 1915, § 5997. Defendant tendered into court the amount of the assessment and all legal costs. Toward the close of the trial in the circuit court, plaintiff abandoned its claimed right to recover the said additions under the by-law and sought to add to the amount of its demand interest at the legal rate. Interest may be recovered although it is not claimed or demanded in the declaration. 38 C. J. p. 257. The contract was not usurious. State Mutual Rodded Fire Ins. Co. v. Randall, ante, 210, and authorities there cited. Defendant ought to have tendered in damages what he, on his own theory at least, rightfully owed, $14.40, and interest at 5 per cent, per annum from the due date, and plaintiff was entitled to judgment for that amount. Judgment reversed, with costs to plaintiff. New trial granted. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ -20, -20, -16, 0, 36, 24, 34, -56, 37, 35, 25, 47, 49, -15, -15, 2, -31, 8, 5, 25, 0, -47, -19, 10, -46, -25, 26, -16, 16, 17, 7, 3, -116, -42, -30, -1, -37, -26, -6, -1, 36, 13, 43, -74, 7, -29, -15, -36, 45, 23, 43, -15, -20, -16, -38, -1, -3, -34, -38, 4, -18, -11, 22, 26, -24, 36, -11, 30, 32, 16, 1, 35, -3, 48, -21, 6, -17, -50, -43, -15, -20, -27, -17, 22, 1, 25, -17, 6, -9, 7, 1, 0, -31, -25, -15, 9, -20, 7, -8, 53, 14, -19, 2, 5, -23, 12, 2, -65, -19, -11, -16, 43, 19, -21, 32, -30, -29, -16, 10, -32, 3, 20, 9, -44, -22, 28, 2, -3, -13, 25, -39, -22, 13, 17, 31, -19, -20, -33, -12, -10, 12, -37, -17, -11, -12, 53, 23, -54, -18, -3, -23, 22, 16, 10, -23, 37, -7, -9, 37, -108, 34, -22, -10, 20, 12, 13, -22, 25, -18, 11, 23, -49, -17, -8, 40, 49, 37, -86, -13, -24, -15, 9, -4, 15, 68, -11, 10, -32, 18, -70, 38, -53, -50, 17, -18, 19, 20, 53, 26, -29, -13, -25, -4, 2, 19, 0, 40, 10, -11, -10, -25, 3, -24, -51, -22, 63, -9, 0, -43, -55, -24, 29, -38, 8, -1, -36, -3, -23, -22, -11, -22, -21, 9, 12, -18, 20, 16, -30, 51, 36, 18, 16, -38, 6, 45, 30, 7, 0, 1, 15, -30, 7, -4, 28, -22, -37, -5, -28, -21, 15, -67, 40, -12, -40, -17, -29, 0, 2, 26, 11, -32, 20, 1, -33, 19, -73, -19, -18, -49, -20, 37, -11, -36, -24, -27, 15, 10, 28, -21, 3, 3, -27, 53, -30, 31, 46, -1, 11, 10, -50, 16, -24, 17, 28, -1, -3, -37, -30, -40, -20, -35, 8, -47, -1, 52, -60, 4, -9, -17, -54, 30, 15, -2, -16, 0, -7, 67, -26, -6, 18, -31, -34, 38, 12, 18, -15, -1, 31, -3, -6, 54, 27, -6, 2, -28, 78, -8, -5, -44, 20, -92, 30, -71, -1, -15, -10, 63, -38, -33, 32, 58, 1, 22, -26, 51, 17, -5, 18, 8, 22, 15, 8, -29, -67, -25, 6, -28, 50, -64, 43, 4, -26, -31, 18, 43, -16, -7, -12, -69, 0, -25, -5, 9, 21, 23, -39, -49, -4, -35, 18, 44, -2, -3, 11, -12, -1, -14, 14, -3, -25, -19, -14, -4, -56, -15, 26, 38, -3, 1, 31, 60, -30, 20, -24, -10, -57, 38, 2, -3, 1, 0, 18, -26, -17, 24, -10, -67, -36, -10, 14, 3, 18, -25, 11, 5, -82, -47, 3, 17, 3, 14, -11, 21, 12, -39, 53, -6, -4, 29, 1, 30, -24, -2, 29, 32, 0, 23, -4, 38, -9, -11, -7, -37, 7, -60, -2, -50, -41, -55, 34, 3, 29, 5, -20, -19, -6, 19, 37, -5, 36, 40, 0, -19, -11, -7, 6, -37, 12, -20, -58, -38, -13, -25, -23, 32, 12, -3, -19, 11, 31, -30, 36, 77, 28, 17, 47, 16, 24, 10, 2, -7, 5, -70, -5, -8, -32, -7, 29, 47, -2, 18, 21, 14, -45, -26, 50, 25, 29, -22, -15, -22, 29, 18, 20, -16, 12, 24, -21, -2, 14, -23, -41, 60, -15, -17, 43, 37, -3, 23, 42, 3, 7, -5, -29, -16, 0, 8, -9, -3, -61, -10, -17, -25, 0, -1, -1, -33, -18, 16, -13, -61, -9, 19, -67, -19, 38, 0, 13, -8, 23, -15, 43, -25, 28, 21, 7, 31, -25, 11, 32, -40, 26, -80, -22, 16, 35, 48, -14, -5, 9, 20, 2, -25, 13, 0, 12, 24, 9, 39, -9, 47, 20, 32, 25, -4, 9, 67, -11, 4, 29, 40, -30, 5, -17, -19, 6, 11, 63, -35, 44, -47, -12, 33, 23, 7, 25, -22, 31, -22, -62, 0, 45, -19, 40, -37, -15, -14, 6, -8, -40, -31, -20, -2, 37, 2, 10, 52, -22, 7, 33, 7, -10, 47, 35, 48, 30, -49, 53, 43, 60, -27, 4, 36, 39, -9, -20, -6, -13, 25, -3, 15, -7, -12, -8, 30, 21, -7, 30, 17, -36, -13, -7, -3, 19, -24, -5, -27, 12, 64, 2, 43, 0, 23, -10, -7, 21, 7, 33, -1, -21, 17, -75, 54, -29, 9, 19, -6, -2, 19, -22, -27, 10, 2, -31, -28, -10, 22, -17, 18, -24, 37, -18, 25, 4, -20, 18, -19, -5, 27, 14, -1, 13, -10, 7, 8, 12, -32, 0, 4, -31, 4, 0, -1, 1, -1, -20, 15, -12, 15, -58, -1, 42, 40, -56, 6, 25, 34, -27, -37, -1, 78, 35, 46, 19, -47, -29, 23, -24, -44, 7, 8, 36, 30, -46, -10, 25, -32, -5, -48, -25, 29, 21, -14, 29, 9, 26, -12, -14, 13, -49, -13, -27, 6, -34, -7, 8, -44, 6, -1, 15, -36, 47, -3, 28, 45, 0, -11, -22, -27, 14, -2, -25, -23, 8, 11, -44, 7, 25, -45, -18, 2, -10, -60, 43, 13, 15, -59, -16, -6, -4, 4, -30, 2, 39, 2, 7, 25, -20, 27, -19, 30, -22, -30, 13, 41, 13, -9, 13, -29, -16, -74, 31, -42, 19, -15, 19, -16, -9, 47, -17, -27, 41, 0, 33, -36, 0, -39, -14, -58, 97, 26, 17, 36, -15, -5, -11, -58, -18, 0, -9, -11, -6, 22, 20, -20, 41, 51, -37, -30, 47, -5, -17, -1, -1, -4, 51, 7, 3, -6, 33, -19, 1, -10, -31, -12, 13, 45, 48, 14, 23, -27, 25, -10, 81, 40, -20, 30, -69, -11, 57, -36, -35, 73, 22, 0, 1, 15, 15, 11, 28, -50, 42, -11, 56, -21, 0, -44, 49, -2, -7, 0, -29, -55, -17, 18, 2, 5, 15, -39, -63, -18, -38, 15, -27, -13, 21, 29, -33, -12, 0, -16, -47, -1, 3, -1, 14, -17, -41, 26, 11, 23, 3, 32, 19, 48, -42, 0, 32, 22, -28, 54, 12, 10, 1, -6, -18, -7, 46, 71, -21, 3, 39, 37, 5, 38, 27, -58, 24, -44, -31, 46, 56, 10, 11 ]
Beooke, J. (after stating the facts). There is only one disputed question of fact in the case, and that is as to whether, at the time the conveyances in question were made, the defendant Alexander Rodgers was in fact possessed of sufficient property aside from that covered by the deeds to satisfy his obligations. It is strongly urged by counsel for defendants that at the time said conveyances were made defendant Alexander Rodgers not only believed himself to be possessed of sufficient property, aside from his homestead, to satisfy his creditors, but that in fact he was solvent. Upon the hearing defendants introduced two trial balances of the business of the corporation, one dated March 31,1913, and the other April 30,1913. They appeared to have been made under the direction of Louis E. Conroy, who was secretary of the corporation and had been connected with the business from November, 1912, and who was himself the conduit through which the title to the house and lot in question passed. These balance sheets both show assets of the corporation largely in excess of liabilities, and the witness Conroy testified that he believed the values placed upon the several assets to have been fair and conservative. The total assets as shown by the trial balance of April '30, 1913, were $61,645.33, and liabilities at that time, aside from the capital stock liability of $50,000, were only $11,645.33. From these figures it is argued by counsel for appellants that the interest of defendant Alexander Rodgers in the corporation on the 4th day of April, 1913, was sufficient to satisfy his creditors and that therefore he had a right, under the law, to settle the house and lot upon himself and wife. Pressed upon cross-examination, the witness Conroy, who seems to have had an intimate knowledge of all matters in connection with the controversy, would not say that in his opinion the defendant Alexander Rodgers, at the time the deeds were made, was solvent. In the course of his examination the following occurred: “Q. Didn't you tell me that you were having a hard time — you were doing all you could to get Alex’s matters straightened out so that you could legally have this house transferred to Alex and his wife jointly? “A. I don’t recollect it. I might have made some such statement as that to you, because I had that in mind. The only reason that I didn’t deed it before I did was because I didn’t want it to appear as though I was deeding something away that — or doing something that might appear as though it wasn’t right. “Q. As though it was to defraud creditors? “A. Yes, sir; and I purposely left that, and it was delayed. “Q. Let me call your attention specifically. Sitting in the lobby of the Occidental Hotel one evening when we were talking this matter over, don’t you remember of talking with me in that place about it? “A. I do; yes, sir. “Q. Didn’t you tell me that you wanted more time— you wanted to do something; get a little more time — ■ and you were going to try to straighten out this whole matter and get Alex’s matters all straightened out so that you could deed, or have deeded, to Alex and his wife this house jointly? Have you no recollection of that at all? “A. I don’t remember of — I can’t remember that I ever did make a statement of that kind to you, and yet I don’t doubt that I probably did, too, because I had it in mind, and it would have been the most natural thing in the world to have mentioned that to you. I wouldn’t say that I didn’t make a statement of that kind. I had it in mind, and I wanted to get everything; I wanted to deed that house at that time and had wanted to. I wanted to get things straightened out so that they would look all right on the face of them before doing anything of that kind. * * * “Q. Didn’t you realize all the time that Alex Rodgers’ affairs were in a very bad way? “A. I did; yes, sir. “Q. And from the time you went there and looked into the business you knew that, didn’t you? “A. Yes; I did. That is one of the thoughts that undoubtedly governed me in my ideas, my wish to have that redeeded. I probably had it— “Q. That is what I thought. “A. It probably had its weight. “Q. You saw just as quick as you got into that business that it was only a question of what Alex could save out of the stock and save his home, wasn’t it? “A. It was; yes, sir. “Q. That is all there was to it? “A. Yes, sir.” While the fact that the entire assets, real and personal, of the corporation within five months of the date of the transfer sold for only $7,600 is not controlling, we are still of opinion that it is not without a legitimate bearing upon the fairness of the trial balance upon which so much stress is laid by counsel for appellants. That fact, taken in connection with the very frank testimony of the witness Conroy, convinces us that in the spring of 1913, when the transfer was made, the stock of the corporation had very little real value. It was held by defendant Alexander Rodgers himself to be of so little value that he gave $25,000 of it to Lincoln Rodgers for the purpose of securing an indorsement upon the corporation paper to the amount of $5,000, and this transaction was accomplished only about a month prior to the making of the deeds. Upon the facts as disclosed by the record, we have no hesitation in agreeing with the finding of the learned circuit judge that at the time the deeds were made the defendant Alexander Rodgers was not possessed of property, aside from that in question, sufficient to pay his debts. Under such circumstances the deeds must be set aside. Fellows v. Smith, 40 Mich. 689; Matson v. Melchor, 42 Mich. 477 (4 N. W. 200) ; Felker v. Chubb, 90 Mich. 24 (51 N. W. 110); Hackett v. Kenning, 170 Mich. 583 (136 N. W. 349). The decree is affirmed, with costs. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.	[ 46, 61, 24, 3, -6, -9, 36, 32, 23, -4, 33, -18, 71, -5, -6, 12, -9, 5, -13, -9, -24, -81, -24, 10, 6, -13, 27, -33, -2, -27, 53, -6, -43, 10, 17, 63, 15, -6, 5, -33, 1, 7, -17, -15, -5, -9, -49, -51, -5, -7, 37, -31, 41, -33, 17, -6, -22, 50, -18, -23, 33, -58, -16, -5, -15, 38, 29, -13, 22, -3, -35, -10, -10, 29, 24, -14, 1, -12, 26, -12, -2, -63, 4, 5, -60, -5, -4, 6, 3, 8, 15, 27, -2, 45, -7, 35, 8, 3, -9, 15, -33, -39, -16, 35, 36, 34, -61, -63, -27, 22, -45, -6, 52, -6, -7, -14, 21, -25, -32, -10, 4, 15, 16, 2, 5, -4, -52, 4, -40, 21, 34, -5, -66, -13, -25, -38, -3, -22, -38, -1, -1, -4, 11, -45, -32, 7, 17, -15, 0, -6, -22, 43, 17, 36, 20, -12, 2, -14, 28, -36, 30, -7, 18, -72, -29, 26, -10, 16, -5, 57, 30, 11, -67, -42, 22, -15, 1, -9, -38, -22, -22, 8, -17, 18, 30, -31, 24, -2, 13, 5, -1, 34, -26, 0, -26, 33, -3, 20, -5, -8, -27, -18, -18, -16, -2, 13, 60, -10, 29, -14, -30, 4, 1, -31, -39, 19, 0, -58, 19, -18, 6, 33, -14, 20, -9, 16, 49, -8, 5, 12, 2, 39, -16, 0, -52, 4, 4, -33, -50, -15, -20, 8, -21, -6, -12, -23, -26, 23, -23, 39, -38, -44, -11, 70, -23, 1, -12, 12, -12, -36, -2, 79, -52, 21, 22, -65, -11, 19, -1, 16, 16, 0, 16, 14, -31, -28, -17, -2, -14, -7, 4, -30, 14, 6, -20, -5, 25, 16, -19, -10, 43, -63, 9, -34, 20, 27, -8, 28, 5, -4, 0, -15, -7, -19, 1, 15, -15, -8, -39, -29, 39, -14, -18, -5, 63, 33, 0, 35, -5, -34, 38, 14, -19, -24, 46, 19, 39, -66, -8, 14, -37, -16, -12, -27, -27, 2, 52, 0, 19, 22, -8, -8, 0, -45, 42, 1, 6, -31, -12, 19, -25, -26, -16, 7, 8, -28, 32, 40, -27, 10, 34, 20, 18, 18, 5, -7, -42, -45, 18, 23, 51, 10, -28, 4, 10, 4, -36, -8, -19, 39, -6, -26, 51, -5, 13, 20, -30, 3, -43, 35, -17, 12, 10, 26, 45, -27, -30, -23, -33, -41, -8, 35, -46, 13, -49, -38, -17, -20, 13, 6, -9, -7, 30, -14, -4, -19, 7, 0, 16, 10, 25, -20, 8, 11, 28, 0, 0, 30, -82, -12, -15, 14, -8, -23, -4, 15, -10, 37, -13, -9, 31, 3, 10, 52, 24, 24, -14, -28, 74, 7, -17, 5, 18, 14, -25, -26, 86, -20, 51, 7, 34, -6, 44, 3, 43, -39, -9, -35, 43, 18, -10, 14, 5, -19, -5, 2, 20, 6, -48, -22, -16, -9, 15, 11, -26, -8, -55, -74, -10, 9, 28, 3, 2, -10, 8, -30, -15, -17, 0, -33, -10, 3, 35, -13, 12, -25, 24, -65, 19, 53, 5, -16, 18, 35, -36, -4, 19, -9, 34, 34, 50, -24, -39, -40, -21, 0, 20, 11, 48, -28, -12, 21, -26, -6, -9, -47, 22, -2, 7, -30, -52, 29, 41, 12, -32, 48, 14, 8, -17, 19, -43, -41, 45, 42, 17, -27, 2, -22, 19, 10, -28, -2, 35, -38, 27, -83, -3, -3, -17, -37, -34, -27, 50, 39, -11, 4, -15, -30, 32, 0, -1, 20, 16, -19, -4, 45, 5, 17, -18, 44, 25, 7, -33, -14, 5, -10, 14, 36, -15, 24, -23, -41, -34, -19, -16, 5, 10, 21, 8, 21, 20, 29, 39, 1, -11, 19, 9, -49, 31, 3, 7, -1, -16, -6, 30, -36, 27, 75, -40, 40, 1, -20, -18, 42, -25, 4, 16, -16, -15, -37, -3, -14, -48, 6, 19, -1, -44, 11, -1, -35, -40, -24, 10, 30, 27, 4, -5, 9, 26, -36, 81, -32, -10, -9, -17, 16, 38, -8, 6, 13, 21, -20, -4, 38, 4, -45, -27, -19, 40, 30, 37, -55, 25, 40, 42, 1, 16, -38, 26, 5, -12, -9, 5, 12, -42, 53, 31, -6, 34, 4, 4, -18, 20, 47, 9, 13, -15, 12, 1, -2, 18, -9, 1, 8, -17, 27, 49, 15, -18, 16, 10, -52, 22, -56, -1, 19, 21, -28, -38, -7, 20, 39, 8, 38, -19, 54, -38, -18, -10, -9, -7, -10, 14, -10, -22, -3, 54, 24, -7, -2, 31, 15, 58, 6, 7, -5, -42, 9, -51, -30, -6, 28, -30, 12, -45, 2, 15, -54, -1, -29, -71, 3, 0, -3, -6, 37, 28, 6, 49, -13, 23, -20, -10, -14, -4, -25, 8, 10, 41, 17, -12, 15, 7, -8, -53, 5, 29, -5, -27, -23, -9, 6, -6, 32, 19, -14, -33, 29, -5, 17, 0, -38, -6, -53, -15, -42, -4, -10, -21, -3, -29, -11, 49, -4, -11, 10, -7, -3, 0, 19, 17, -28, -19, 52, 4, -6, 51, -7, -18, -20, -11, 5, -53, 19, -5, 22, -40, 21, -11, -29, 6, -9, 8, 1, -38, -27, -9, 32, 43, -30, 27, 19, -21, -5, 19, -11, -23, 1, 40, 0, 45, 41, -28, -25, -3, -5, 8, 2, 34, 16, -44, 46, -20, 23, 13, 31, 30, -62, -30, 47, -38, 7, 2, -31, 0, -9, 30, -55, 10, -9, -6, 5, -28, -28, -5, -40, 37, 0, -3, 21, 15, -15, -23, -5, -38, 10, -19, -25, -21, 73, -16, -9, -30, -2, -30, -22, 52, 9, -19, 50, -15, 3, -22, -15, 14, -38, 11, -14, 33, -82, 53, -14, -19, 61, -43, 28, 14, -30, 33, 22, -44, 39, 23, 54, -8, 18, -33, -72, -16, -13, 1, -6, -24, 2, 55, 19, 23, 14, -11, -17, -3, -29, -27, -14, 23, -3, 63, -16, -6, -43, 36, 17, -41, 55, 19, -45, 48, -23, -15, -42, -17, 26, 24, 17, -23, -35, 43, 5, -32, -30, -17, -32, 30, -5, 26, -32, 47, 65, -9, -5, -25, -3, 15, 52, -31, 17, 7, 62, -11, 26, 19, -14, -7, 14 ]
Bird, J. Plaintiff recovered a judgment under the civil-damage act in the Ionia circuit court, against the defendant saloon keepers and their surety, the Michigan Bonding Company, for the unlawful acts of the saloon keepers in having contributed to the death of her husband on April 1, 1913, in the village of Lowell. Defendants have assigned error. Plaintiff’s husband, Ben Taylor, on April 1, 1913, drove a pair of horses from Saranac to Lowell, and arrived there at about 3 o’clock in the afternoon. Upon his arrival, he and his companion visited the saloons conducted by the defendants, and drank intoxicating liquor. About two hours later they entered their car riage to return to Saranac, but before doing so, Taylor drove up and down the main street so immoderately that he was arrested for fast driving, and locked up by the deputy sheriff in the village jail. At 7 o’clock a fire was discovered in the cell in which Taylor had been placed, and he Was so overcome by the smoke and fire that he died soon thereafter. The theory upon which plaintiff recovered was that her husband was a person in the habit of becoming intoxicated; that he became intoxicated' by liquor drunk at the saloons of the defendants, and when taken to jail he was intoxicated, and that such intoxication caused or contributed to his death. The testimony showed that the jail was heated with steam, lighted with electricity, and that there was no fire in or about the building, and plaintiff argued from this that Taylor was responsible for the fire which subsequently caused his death. 1. The appellants raise the question that the circuit court had no jurisdiction to render the judgment, because it never acquired jurisdiction of the parties defendant. Plaintiff resides in Ionia county, defendants Davarn, Hosley, and Gould reside in Kent county, and the principal office of the defendant bonding company is in Wayne county. Suit was commenced by summons in Ionia county, and was served on the bonding company by making service thereof on the commissioner of insurance in Ingham county. Return of this summons was duly made and filed after the return day, showing that the other defendants could not be found in Ionia county. An alias summons was then taken out with an indorsement thereon to the effect that the bonding company had been duly served, and the same was served on the other defendants in Kent county. Defendants thereupon appeared specially and moved to dismiss the suit, alleging a want of jurisdiction in the court. Subsequently, a plea in abatement was filed for the same purpose, but both motion and plea were overruled. Davarn and Hosley filed a plea to the merits, and defendants Gould and the bonding company were defaulted for'want of appearance. The point made is, that the service on the bonding company was invalid, and therefore was insufficient upon which to base service of the. other defendants in Kent county. Act No. 266, Pub. Acts 1895, as amended by Act No. 321, Pub. Acts 1907 (3 Comp. Laws 1915, § 12340, note), is the law authorizing surety companies to do business in this State. The proviso added by Act No. 321 provides: “That suits may be commenced in the circuit court in any county where the plaintiff resides, by declaration or writ, and service shall be made in such cases only upon the commissioner of insurance in like manner and with like effect as is provided for the service of process upon societies, orders or associations organized under the laws of any other State, province or territory and doing business in this State, and not having its principal office within this State, and for the purpose of service of process as herein provided such surety company shall appoint in writing the commissioner of insurance, or his successors in office, to be its true and lawful attorney.” If this proviso is valid, it authorized the plaintiff to commence suit in Ionia county where she resided. In considering the purpose of this proviso in People v. Fidelity & Deposit Co., 163 Mich. 94 (127 N. W. 765), Mr. Justice Stone observed that: “It is reasonable to suppose that this refers to cases upon that class of bonds referred to in the preceding provisos. It seems to refer to service of process upon a domestic corporation, for it provides that such service shall be with 'like effect as is provided for the service of process upon societies, orders, or associations organized under the laws of any other State, province or territory, and doing business in this State,’ etc. The entire purpose of the amendatory act seems to have been to provide for the execution of liquor bonds by domestic corporations, and proceedings in case of suit thereon.” Counsel argue that the legislation did not contemplate that the bonding company should be served with process in any county other than the one in which it resides, or in the county where the principal of the bond resides and does business. If such were the intention of the legislature, it was most unfortunate in the language which it chose to convey that intention. The words, “that suits may be commenced in the circuit court in any county where the plaintiff resides, etc., are not ambiguous, nor are they involved in doubt. We must hold that these words mean what they say, and that they authorized plaintiff to commence suit where she did. But counsel further argue that if the language will admit of no other construction, then that part of the act is unconstitutional, because there is nothing in the title of the act to indicate that there was to be any change in the jurisdiction of the courts of this State. In other words, that the object .of the act is not fairly expressed in its title. Counsel’s point and argument thereon are answered by this court in the case of People v. Fidelity & Deposit Co., supra, where the same question was raised and passed upon adversely to defendants’ contention. 2. Another question is raised in the briefs in this connection, namely, that the service of the summons on the commissioner of insurance by the sheriff of Ionia county was an invalid service. Act No. 225, § 1, Pub. Acts 1901 (3 Comp. Laws 1915, § 12430, note), points out with reasonable certainty as to how this process shall be served. If that statute is to be followed, and no other, in the making of service upon the insurance commissioner, it raises a very serious question as to the validity of the service made. Our attention, however, is called to the fact that this point was not raised in the lower court; that it was not included in the motion to dismiss, nor in the plea, and therefore, under the. rule, we cannot consider it. We shall refrain from passing upon it, as we think plaintiff’s objection is well taken. 3. Error is assigned because the trial court refused to direct a verdict for defendants on the ground that Taylor’s arrest and the failure to bring him forthwith before the justice was the intervention of a wrongful human agency, to which must be ascribed the proximate cause of death. Counsel argue this question at considerable length and cite many authorities defining and applying that general rule. In order to successfully apply that principle in this case, counsel are obliged to assume that Taylor was not intoxicated when he was arrested, and that his intoxication did not contribute to his death. Counsel attempt to show that as a matter of fact Taylor was not intoxicated. We cannot accept this conclusion. The testimony shows 'that Taylor drank at least five drinks of whisky in defendants’ places, and the inferences are very strong that he drank more. Whether he was intoxicated, and, if so, to what extent, the testimony was somewhat conflicting. It was, however, a question for the jury, and the testimony was sufficient to sustain their finding. To have directed a verdict on this ground would have been to ignore the claims of plaintiff. Plaintiff claimed and offered testimony in support thereof, that defendants sold liquor to Taylor, that he was in the habit of becoming intoxicated, and he was intoxicated when arrested, and that his intoxication was responsible for the fire which afterwards caused his death. The testimony was sufficient to send all of these questions to the jury. In order to justify such a direction as was asked, the court would have been obliged to find that Taylor was not intoxicated. This he could not do under the testimony, and if he could not find that fact, the motion to direct a verdict was properly refused. The rights of defendants under this phase of the case were amply protected by the charge of the court, that if Taylor was not intoxicated, or if intoxicated, and such intoxication did not cause nor contribute to his death, the plaintiff could not recover. 4. The defendants requested the submission of the following special question to the jury: “Was the plaintiff’s husband, Benjamin Taylor, intoxicated at the time he came to his death on the 1st day of April, 1913?” This request was complied with and the question was submitted with the usual instruction. After the jury had considered their verdict for several hours, they returned into court and requested further instructions with reference to the special question. The trial court then said to them: “As you -will recall from the instructions I gave you, in order to find for the plaintiff you must find that her husband, Benjamin Taylor, was intoxicated at the time he came to his death. So if you find for the plaintiff your answer to the question would be ‘Yes.’ If you should find for the defendant you would find that he was not intoxicated at the time he came to his death, and your answer therefore would be ‘No.’ * * * “A Juror: Nothing difficult, but if it has to be signed all ‘Yes’ or all ‘No.’ “The Court: Yes; all ‘Yes’ or all ‘No.’ If he was not intoxicated at the time he met his death the plaintiff cannot recover, as I told you. If he was intoxicated at the time he met his death the plaintiff may recover, the other conditions existing to which your attention was called in the general charge. If you should find for the plaintiff it would not be a difficult thing to find the necessary elements to entitle her to recover, namely, he was intoxicated, because, if you do not find he was intoxicated, your verdict cannot be for the plaintiff. If you should find he was not intoxicated at the time of his death, your verdict necessarily must be for the defendant. You may take the paper and retire to your jury room.” The jury were later called back and further instructed that: “The Court: Gentlemen, in the instructions I gave you a few moments ago relative to this special question I think perhaps I did not fully explain to you that there was another element in the case which should be considered in answering that question. “As I said to you in substance, that if you find for the plaintiff you must necessarily answer the question as to her husband’s intoxication ‘Yes.’ Now, on the other hand, if you should find for the defendants there are two elements that enter into the question. I instructed you, you will remember, that there were four elements necessary for the plaintiff to prove by a preponderance of evidence to entitle her to a verdict: “First: The sales of liquor to her husband by the defendants, or one of them. “Second: The habit of her husband of becoming intoxicated. ' . “Third: His intoxication at the time of his death. “Fourth: That that intoxication contributed to his death. “So in answering the questions, if you should find for the defendants, whether you should answer it ‘Yes’ or ‘No’ would be immaterial. If you should find that he was not intoxicated at the time of his death, your verdict then must necessarily be for the defendants. Still, if you should find that he was intoxicated, but that the intoxication did not contribute to his death, your verdict for the defendants would be justified under the instructions I have previously given you, and it is to correct the possibility of a misunderstanding of what I said a few moments ago I recalled you upon that point. “If the plaintiff recovers, the answer must be ‘Yes’ in any event.' If the defendants recover, the answer may be ‘Yes’ if you should find that the intoxication did not contribute to his death, or ‘No’ if you should find he was not intoxicated at all. Both elements are involved.” The objections raised to these instructions are that the tendency of them was to coerce a verdict, and be cause it instructed them what answer to make to the special question to make it consistent with their general verdict. We are of the opinion that the error is well assigned under the holdings of this court in the' cases of Cole v. Boyd, 47 Mich. 98 (10 N. W. 124); Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815, 18 N. W. 209); Beecher v. Galvin, 71 Mich. 391 (39 N. W. 469) ; Mechanics’ Bank v. Barnes, 86 Mich. 632 (49 N. W. 475); Brassel v. Railway Co., 101 Mich. 5 (59 N. W. 426). It was said in Maclean v. Scripps, supra, that: “The object of the statute (Comp. Laws 1871, § 6026; How. Ann. St. 1882, § 7606) requiring the jury to answer specifically questions giving their conclusions on the facts necessary to be found to entitle a party to recover, was to ascertain whether or not they had found sufficient facts from the evidence to support their general verdict under the law as given them by the court. It is the province of the jury to find these facts from the evidence, without aid or suggestion from the court, and this can never be done if the jury are told in advance what facts are necessary to be found to support the verdict, or what answers to the questions propounded will be consistent therewith, or what they must find in order to answer a question propounded in the negative or affirmative. This practice will make the general verdict control the findings, instead of the findings control the general verdict; and thereby the object of the framers of the statute will be defeated. This was the result of the practice indulged in this case. The effect is to make the court, and not the jury, decide the main issues in the case. Cole v. Boyd, 47 Mich. 98 [10 N. W. 124], The special findings of the jury were sufficient to support the general verdict, had the proceedings upon which th,ey were based not been erroneous.” ' The question submitted in this case was an important one. The question as to whether Taylor was intoxicated at the time of his death was the pith of plaintiff’s case. Unless plaintiff was able to establish that fact, the jury were instructed that no recovery could be had. In view of the importance of the question, the instruction that their answer to the special question, must be in harmony with their general verdict, and advising them what their answer should be under certain circumstances, was clearly error because it violated the rule laid down in the foregoing cases. We have not overlooked the case of People v. Murray, 52 Mich. 288, 291 (17 N. W. 848). In that case, however, the language of the trial court was construed to have reference to their general verdict. Evidently it was not intended by what was there said to overrule what had previously been said in Cole v. Boyd, supra. We are of the opinion that the purpose of the statute will be better conserved by following the cases cited. For this error the judgment must be reversed, and a new trial granted. Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred. The late Justice McAlvay took no part in this decision.	[ -17, 31, 0, 43, -44, -36, 11, -1, 25, 11, 9, -8, 38, 17, 9, -37, 0, 35, 17, 22, 8, -59, -49, 6, -22, -29, 21, 20, -53, 16, 1, 33, -16, 25, -29, 37, 20, -1, -12, -17, -26, -32, 26, -77, -22, -11, 23, -11, 9, -31, -18, -66, 8, -7, -29, -25, -12, 15, -8, 24, 0, -4, -21, 12, 12, -9, 16, 34, 13, -20, 56, 39, -40, -10, -21, 24, -10, -16, -29, -16, -65, 2, 22, 39, -22, -25, -48, 5, -15, 2, -2, -10, -51, 1, 25, 0, -71, -15, -6, -13, -17, -18, 23, 50, -22, 24, 4, -15, -1, -12, -19, 6, 28, -4, 23, -37, -2, -35, -4, 16, 33, -19, 40, -41, -13, -37, 12, -13, 25, 67, 12, -56, -17, -6, -32, -11, -33, 1, 7, -8, 67, -45, -9, 15, 11, -6, -6, -5, -31, 15, -50, 47, 47, 23, -9, 13, 49, 11, 8, 8, -10, -22, 2, 32, -24, -32, -5, 6, -17, -16, -26, 41, -2, 0, 52, 5, 2, -34, -69, 57, -43, -21, 26, -29, 12, -60, 0, -31, -36, 15, 35, -21, -58, -2, -17, 63, 2, -36, -6, 7, 43, -39, 3, -43, 2, -9, 61, 12, -3, -39, -42, -26, -26, -5, -50, 4, 15, -8, 1, -54, -5, 9, 0, 21, -77, -87, 18, -31, 11, -29, -2, 10, 67, -1, -38, 1, 19, -40, 36, 13, -2, 19, -56, -8, 11, -15, -19, -1, -52, 37, -2, 4, -23, 33, -3, 9, 49, -4, -26, 16, -11, 3, -36, 12, -3, -8, 31, 14, -35, -3, 0, -9, 74, -7, -5, -16, 1, 52, 30, 3, 57, -16, -72, -30, 26, 35, -20, 12, -34, -33, 22, 2, -34, -12, 12, 1, 25, -45, -35, -1, -8, 16, -19, 9, -34, -12, -24, -5, -35, -33, -12, 2, -18, 7, 41, -8, 19, -1, -4, -68, -21, -21, -16, 8, -28, 17, -14, 8, 7, 12, -13, 16, -23, 7, -26, -35, 9, 24, -21, 2, 23, -13, 23, 20, -23, 36, 16, -10, -10, -55, -46, -7, -7, 11, -17, 2, 33, -34, -31, 13, 4, -11, -10, 61, 21, -28, 11, -3, 9, 20, 50, 11, 16, -10, -31, 27, -2, 25, -36, 53, 69, -34, -16, -15, 15, 2, -30, -48, -86, -2, -4, -4, 19, 18, 17, 15, -14, -20, -12, -39, 21, 19, 9, -15, -17, -8, -35, 15, -4, 5, -10, -11, 22, -11, 9, 15, -7, 4, -36, -8, 47, -8, 32, -53, 44, -44, 61, 31, -25, 15, -11, 30, 14, 70, 23, -14, -20, -4, -3, -3, 12, 3, 34, -18, 26, 22, 20, 26, 38, 48, -4, 33, 6, 19, -32, 64, 35, -31, -23, -9, 13, -11, 22, -1, 23, -36, -18, -42, 16, -1, -19, -15, -28, 4, -25, -32, 52, -38, -31, 19, 21, 31, 3, -5, -24, -47, -18, -34, 19, 15, 43, 10, -4, 36, -12, 24, -47, 1, -16, -15, -8, 0, -70, 21, 15, 13, -27, -10, -27, 35, 1, 0, 40, 0, -5, 19, 61, -4, -21, 9, -5, 64, -22, 47, -4, 2, 6, -12, -6, -19, 0, -54, -25, 14, -1, -15, 10, 63, 1, -43, 5, 1, 43, 8, -23, -3, -19, 15, 21, -4, 3, -23, 11, -65, 12, 10, -19, -3, 8, 30, 41, -47, -16, -5, -4, 1, 5, -17, 24, -49, -10, 26, 1, 3, 19, 11, -33, -19, -16, -1, -11, -23, -4, -9, 5, 1, -1, 16, -20, 9, 0, 41, -9, 4, 38, 7, 42, -17, -1, 21, -11, -64, 12, 41, 63, 35, -13, 22, 21, 43, 27, -26, -27, -1, 0, 20, -5, -21, 12, 35, 29, -23, 8, 55, 22, -19, 0, -20, -14, -9, -73, -30, -23, -6, -42, 2, 14, 50, -24, 3, 1, -11, 29, 1, -7, -18, -54, 2, -19, -21, -36, -8, -6, 61, -33, -36, 0, 29, 26, -22, -12, 39, -40, 66, -26, -14, 47, -37, 6, 60, 48, -36, 0, 5, -6, -44, -21, 44, 41, 34, 24, -1, 26, -6, 22, 18, -47, 7, 15, -25, -46, 35, 0, 26, -1, 40, 2, 11, -12, -8, 0, 5, -13, -23, -58, 40, 15, -63, 12, -60, 14, 37, 75, 8, 12, 24, 10, 0, -38, 50, -44, -54, -15, -58, 1, -1, 4, -24, -2, -26, 21, 8, 0, -9, 20, -18, 30, 16, -38, -23, 0, -40, 16, 0, -5, -26, 34, -17, 55, 7, 31, 68, 5, 0, 9, -15, 6, -22, -46, -32, 28, -12, 26, -25, -37, 1, -14, -6, 11, -38, -11, 49, -3, -53, 8, 12, 36, -5, -6, -5, 42, -5, 9, -24, -14, -7, 1, 36, 20, -24, -23, -2, 31, -27, -41, 11, 46, 17, -47, 0, 11, 62, 2, 17, 4, 18, -24, 32, 0, 18, 4, 22, 26, -23, 11, 21, -18, 26, -27, 24, -43, 37, 18, -5, -18, -6, -5, -14, -26, -15, -25, -15, -37, -14, 26, 15, 39, -42, -38, -8, 14, 6, -1, 50, 3, -14, 40, 8, 11, 30, -30, 5, -10, 15, -27, -5, 17, -41, -5, 44, 4, -49, -42, -66, 1, -13, 8, -1, -28, 20, -34, 14, -26, 61, -27, 14, 15, -3, 23, 3, 26, -60, 13, 22, 2, 39, 2, -31, 34, 54, 0, -3, -32, 35, -21, 0, -38, 0, 12, -46, 29, -3, 5, 14, -34, -59, 17, -32, 40, 27, 7, -4, -44, -14, -8, 36, -35, 21, 20, 21, 8, -1, -13, 0, -42, 71, -10, 35, -11, 60, -19, -17, -16, -24, -16, -5, 21, -38, 31, 28, 3, -7, -5, -17, 15, 18, 24, 5, -3, 82, -15, 33, 15, 48, -29, 23, -13, -3, 31, 12, -26, 59, 25, 9, -4, 41, -34, -20, -5, -15, 23, -3, 3, -21, -32, -5, 49, 50, 20, -39, -6, -51, -5, 2, 23, -7, 2, -15, -51, 13, -23, -13, 2, 38, 44, 19, 10, 11, -20, -36, 43, -33, 28, 47, 59, -12, 16, 17, 17, 37, -45, -1, 42, 11, -31, 57, 9, 6, 8, 11, 31, 8, 8, 8 ]
Wiest, J. An employee of defendant received an injury in the course of his employment, having half of a thumb torn off by an emery wheel; another employee owned an automobile parked near the factory and volunteered to take the injured man to a hospital, with which defendant had a contract to care for its injured employees; defendant’s superintendent wanted the man so taken, accepted the tendered service and, by means thereof, the injured employee was conveyed to the hospital. The defendant had no conveyance of its own. On the way to the hospital the automobile struck plaintiff’s decedent, causing his death. Claiming death was caused by the negligent driving of the volunteer, while performing such accepted service for defendant, this suit was brought to recover damages. The trial judge directed a verdict in favor of defendant on the ground that the volunteer employee, while so engaged in conveying his injured fellow employee, was not acting within the scope of his em ployment, and the superintendent exceeded his authority in the premises and, therefore, defendant was not liable for the negligence, if any, of the driver of the automobile. Defendant employed many men, had an arrangement with the hospital to care for its injured employees, and maintained no conveniences, beyond first aid, for doing so itself. An emergency confronted defendant’s first aid man and its superintendent, need of hospital service for the injured employee was evidently deemed imperative and, instead of calling upon the hospital to send aid or a conveyance, they accepted the service volunteered by the other employee. It appears that the volunteer was in the employ of defendant as a millwright and his time went on while he was away from the plant on this trip. At the time of the accident defendant’s superintendent was in charge of the factory. Defendant’s vice-president and general manager testified he was not at the factory at the time of the accident; that Mr. McKittrick was superintendent of the plant in complete charge of the workmen; that the company had an arrangement with the Michigan Workmen’s Mutual Compensation Insurance Company to care for injured employees, under which the insurance company maintained a hospital to¡ which men, injured in the plant, were to be taken; that he wanted Mr. McKittrick to look after the injured employees as superintendent of the plant in accordance with the arrangement with the insurance company; that Mr. McKittrick was over Mr. Jensen (the volunteer driver) and “if Mr. McKittrick told him to go down there he was justified,” but qualified this by stating: “If Mr. McKittrick had followed instructions and done the things that he was supposed to do, and was unable to get results, I suppose then he would have had authority to do something else, but he must, of course, follow the instructions that were given him first.” The instructions by the insurance company, and adopted by defendant, were: “Do not call any outside physician unless so instructed by the hospital office, as an emergency surgeon is on duty throughout usual factory hours, and our ambulance will be dispatched instantly whenever required.” We think there was sufficient evidence for a finding that the superintendent was acting within the scope of his employment. The errand of the volunteer brought his automobile to the service of defendant, and the driver thereof, being its employee, was, at the time of the accident, acting for defendant, and defendant is liable under the rule of respondeat superior for his negligence. In conveying his injured fellow employee from the factory to the hospital, under contract to care for defendant’s injured workmen, the volunteer was not a stranger to defendant or its business, but was rendering a service in line with the purpose of defendant under its contract with the hospital, even though it can be said the superintendent disregarded instructions in sending the injured employee to the hospital instead of notifying the hospital to come and get him. The wage of the volunteer driver continued while he was on the trip. We had occasion in Loux v. Harris, 226 Mich. 315, to pass upon the question of- disregard of instructions by a servant while about the master’s business, and what we there said is applicable to the act of the superintendent in this case. The contract between the defendant and the hospital for care and conveyance of injured employees did not save it from liability to a third person, even though its superintendent should have requested such service instead of accepting that tendered by the volunteer. Counsel for defendant cite Szszatkowski v. Gas Light & Coke Co., 209 Ill. App. 460. We quote from the syllabus: “A chauffeur in the paymaster’s department of a gas company who volunteers to take the superintendent of another department home in his closed car because of danger to the health of the superintendent in riding in an open car, and gets the paymaster’s consent to the temporary exchange of cars by the respective departments, and injures a person upon his way back to the garage on the return trip, is not engaged in the operation of the car for his employer so as to render the latter liable for the chauffeur’s negligence.” In that case the superintendent in going home was in no way about the business or affairs of the company, neither was the driver in so taking him and in returning. The whole matter was but an accommodation to the superintendent, wholly apart from employment by or in behalf of the company. Viewing the evidence in the light most favorable to plaintiff, we think the case should have been submitted to the jury. The judgment is reversed and a new trial granted, with costs to plaintiff. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred.	[ -32, -7, -44, 13, -5, -8, 18, -58, 0, 8, -28, -12, 53, -17, -39, 0, 32, 13, -10, 0, 24, -51, -19, -17, -36, -16, 33, -47, 3, 0, -28, -6, -1, -20, -48, 7, 50, -14, -4, -24, 27, 11, 35, -13, 51, -11, 3, 4, 33, -49, 26, 4, -41, -18, 19, -33, 72, 6, -34, 37, -14, -31, 6, -63, -7, 22, -5, 8, -33, -1, -39, -19, -19, -19, 8, -10, -16, 52, -23, -20, 19, -33, 23, -23, -63, 81, -39, -29, -34, -21, -21, 10, -15, -21, -36, 49, -9, 32, -21, 3, -17, 34, -7, -1, -38, 6, 15, -34, -6, 51, -34, 46, 18, 29, 20, -19, 46, 1, 22, 103, 3, -12, 21, -7, 17, -44, -8, 30, -26, 5, 47, 18, -7, 11, 16, 6, -5, -41, 16, 53, 2, 50, -2, 26, -57, 13, -40, 36, -19, -18, -23, 14, 42, -55, 3, 20, -32, 39, 32, -11, -3, 10, 75, 26, -9, -17, 5, 0, -14, 39, 16, -18, 29, -62, 16, 39, 6, -19, -67, -9, -62, -10, 24, -1, -2, -12, 32, 1, 2, -4, 8, -16, -36, -10, 0, -3, 20, -13, 6, 18, 36, -47, -26, -52, 8, 30, 6, 27, 19, -28, 39, 23, -4, -48, -21, 25, -12, -23, -42, -91, -33, 52, 11, -53, -66, -38, -44, -6, 5, 12, 22, -5, 40, 52, -22, -32, -13, -49, 55, -20, 14, 1, -8, 3, -3, -39, 8, -9, -7, 23, 34, 32, 1, -14, -39, -23, 0, -30, -5, -2, 17, 57, -42, 87, 71, -14, -8, 25, 10, -30, -32, -6, 33, -52, -37, -43, 10, 21, 15, 11, -9, 7, -56, 5, 4, 13, 21, -31, -65, -8, 49, 0, 31, -9, 38, 17, 51, -15, -64, -1, -38, 16, -31, 27, 12, 44, -62, 7, 52, -4, -17, -52, -8, -17, 51, -4, -12, -6, -14, 0, -38, 53, -52, -21, -29, -25, -6, -43, 17, -13, 6, -5, 11, 32, -44, -56, 6, 31, 66, -22, 41, 30, 24, -16, -41, -11, 76, 29, 49, -46, 19, -16, 18, -32, -11, 35, 22, 5, -22, 19, 13, -49, -26, 35, -31, -45, -3, 37, -23, 60, 19, -22, -6, -5, -12, -25, 3, -5, -42, 54, 16, 11, 45, -38, -39, 19, -7, 8, -23, 21, -38, 16, 9, 66, -35, 32, 4, -3, -20, 9, 40, 28, 37, 2, -13, -45, 15, -6, 1, -24, -50, -16, 25, 2, 15, -12, 47, -17, 2, -25, 55, 19, -11, -49, 33, 23, 8, 15, -39, -58, 21, -54, 21, -2, 9, -26, -29, -15, 14, 30, -4, -35, -32, -25, 4, 28, -5, -14, 5, -7, 27, 34, 72, 51, 43, 26, -36, -7, 35, 3, -19, -59, 9, 1, 51, 6, 28, -35, 20, -1, 1, 3, -6, 23, 22, -46, -4, 10, 25, 16, -18, 8, 22, -38, -15, -11, -28, 26, -3, 31, 55, -11, 8, -18, 2, -11, -22, 44, -57, -24, -19, -17, -43, -21, 26, -60, -4, -66, -6, -34, -45, -1, 14, 27, 23, 17, -23, 9, 11, -29, -9, -8, -20, 34, -2, -24, -12, 15, -44, -79, 29, -48, 22, 16, 33, -41, -21, -45, -32, -53, 15, -19, 26, 1, 4, -46, -26, 8, 51, 35, -4, 13, -12, -7, 35, 10, 27, -1, 52, 20, -27, 31, 2, 7, 17, 1, -18, 39, 40, -26, -60, 32, -7, 19, -40, 13, -18, 7, -41, 1, 19, -11, 35, -10, -32, -3, -13, -23, -41, -3, 9, 31, -37, 22, 76, 32, 50, 25, -6, -23, -35, -8, -58, 30, -39, 11, -11, 7, 33, -22, -41, 35, 24, -26, -62, -19, -2, 29, 35, 17, 2, 26, 1, 23, -22, 7, 25, -10, -18, -40, -21, 6, -68, -35, -9, -5, -17, 61, 2, 18, 20, -31, 40, -4, -21, 0, 18, 26, -32, -35, -9, 17, 15, 25, -30, 0, 33, 19, -40, -11, -23, 9, -31, 11, -23, 22, 18, -45, -9, 3, 67, 44, 38, 9, 7, -17, -18, 30, -24, 31, 23, -14, 36, 69, 9, -22, 24, -14, 48, -77, -34, 60, 30, 0, 11, 12, 22, 5, -8, -34, -15, -3, -18, 29, 0, 31, -9, -35, -38, -11, 17, -33, -33, 25, 37, 74, 1, 0, -3, -15, 3, -31, 12, -42, 70, 56, -14, -24, -10, -32, 0, -64, 17, 33, -10, -14, -2, -2, 0, 1, 68, 25, 18, 35, -58, -4, -11, -6, 10, 18, -47, 21, 38, -34, -16, -27, 37, 45, -21, -1, 0, 17, 67, -2, 16, -16, -30, 11, 3, -28, -2, 44, 22, -51, -27, 36, 20, -40, -66, -10, -9, -18, 4, 39, -41, -32, -5, 33, 7, 4, -6, 13, 13, 0, -20, -13, -25, 44, 48, -16, 9, 27, -48, 10, -8, -10, 58, 42, 25, -15, 17, 35, 16, 0, 17, -13, 3, 17, -65, 44, -9, 36, -21, -67, 32, -37, 2, 14, -13, -13, -19, 2, -71, 22, -4, 53, 27, 10, 6, -5, 57, 3, 0, 66, 24, -47, 19, 26, 30, 24, -43, -39, -29, 9, -17, -13, 15, -57, 11, 3, -22, -37, -39, -5, -6, 4, -62, 0, -43, -41, 9, 22, 2, -60, -37, 8, -3, -11, 21, 48, 11, 32, 12, 44, -25, -1, -1, -23, -40, 53, -13, -11, -32, -24, 1, -43, -21, 22, 14, -38, 5, 47, 15, 58, 0, -19, 8, -10, -42, -16, -20, -18, 10, 17, -21, 52, -30, 40, -4, 31, -61, -6, 27, -14, -8, 0, 15, 4, 8, 18, -29, -47, 26, -17, 28, -18, 10, -42, -32, -7, 38, 35, -2, 16, -14, -55, 28, 22, 13, 75, 20, 20, -2, 2, 8, 47, -18, -10, 16, 13, 17, -31, 0, 59, 22, 0, -3, -16, -13, -26, 46, 20, 27, -21, 3, -4, -19, 25, -19, 10, -20, -44, -30, 62, -5, -9, -13, -68, -57, -15, -52, 71, -1, 46, -7, 21, -27, -7, 28, -26, 39, -12, -24, 42, 0, 38, 38, 29, -2, 13, 6, 25, -11, -43, 29, 34, -50, -13, -70, -1, 2, 0, 37, 25 ]
Moore, J. This is an action brought to recover a commission growing out of the following paper: “Pontiac, Mich. 1/12/21. “Messrs. Reed and Nagel : “I hereby agree to sell my farm of 630 acres located near Independence and Orion townships for the sum of sixty thousand ($60,000) dollars, a payment of five or ten thousand dollars down, or income property which is acceptable. I also agree to pay 5% commission. This price to remain in force for 30 days. (Signed) “Jas. I. Butcher.” After securing the writing, plaintiff and Reed commenced negotiations with one Houghton which resulted in an exchange of the properties of Mr. Butcher and Mr. Houghton, and Mr. Houghton took possession of the farm. Suit was brought by the plaintiff to recover one-half of the five per cent, commission', less a credit for money paid to' him by defendant. Defendant’s plea was the general issue with notice of the special defenses of abandonment, the statute of frauds, and failure of consideration. He also claimed that he was entitled to a set-off of $250 which he had paid to plaintiff. On the trial defendant admitted that he signed the writing sued on, but claimed that when it was proposed that Houghton’s contract equities be turned in in lieu of cash, he refused to go ahead on the commission basis outlined in the writing, and the writing was thereupon abandoned by mutual consent of all parties to it, and defendant entered into two separate oral undertakings with the plaintiff and Reed. Reed was to be paid $1,500 by cancellation of certain of Reed’s notes held by defendant and amounting to about $1,350. The difference was to be paid him in cash. Plaintiff was to receive $250 in cash, and $1,250 more if he could make it out of reselling the Houghton equities. The plaintiff denied any such agreement. At the close of the plaintiff’s case defendant’s counsel moved for a directed verdict, and the court reserved his decision. This motion was renewed at the close of the proofs, and the court denied it with the reservation of the right to enter a judgment non obstante veredicto. The court submitted the case to the jury. The jury rendered a verdict in favor of the plaintiff in the amount of $1,350. Defendant thereupon moved for a new trial, or a judgment non obstante veredicto, which motion was denied in its entirety, the court entering judgment on the verdict. The case is brought into this court by writ of error. 1. Defendant claims the plaintiff is not entitled to recover because he is not a proper party to institute this suit. It is stated that the writing sued upon, if it can be said to express any liability of the defendant, is his liability to the plaintiff and Reed jointly. The writing is addressed to “Messrs. Reed and Nagel,” and undertakes to pay them a real estate commission, and created, if anything, a joint interest in Reed and the plaintiff, and that they should both have sued. There is testimony to the effect that Reed and Nagel were real estate men, but had no business relations except as> to this one transaction, and that each expected to divide the commission on a fifty-fifty basis, and that defendant settled with Mr. Reed upon that basis. Before bringing suit the plaintiff placed hisi claim for $1,250 with an attorney, who is now dead, for collection. In reply to a letter written by him asking the payment of $1,250 Mr. Butcher wrote as follows: “Detroit, Mich., Nov. 18, 1921. “Henry C-. Rummel, “1326 Dime Bank Bldg., “Detroit, Michigan. “Dear Sir: I have your letter of the 12th inst. in regard to the account of Mr. Nagel, and will say that the amount of this account is correct and at the time I made the deal with Mr. Nagel it was thoroughly understood that he was to dispose of some of the houses in order to collect his commission, and I have paid him all the cash I agreed to, and in this connection will say that I will turn over one of the houses in Pontiac that I got in the deal to take care of this commission if he so wishes. “Sincerely, “Jas. I. Butcher.” The amount of the account to which reference is made with the interest added is the amount of the verdict. 2. It was the claim of the defendant that the writing sued on was abandoned before the farm was sold. This was denied by the plaintiff and made an issue of fact. 3. Defendant claims, we quote from the brief: “Because of his dual agency, the plaintiff is not entitled to recover. The law will not permit an agent to act in a dual capacity in which his interest conflicts with his duty without a full disclosure of the facts to his principal. Hogle v. Meyering, 161 Mich. 472; Leathers v. Canfield, 117 Mich. 277 (45 L. R. A. 33); Woods v. Palmer, 151 Mich. 30; Hutton v. Sherrard, 183 Mich. 356 (L. R. A. 1915E, 976); Kirby-Sorge-Felske Co. v. Doty, 190 Mich. 553. “Where plaintiff who negotiates a trade acts in a double capacity representing seller and purchaser, he should so advise his clients. Moore v. Meade, 213 Mich. 597.” We again quote from the brief: “4. The verdict is fatally defective because there was submitted to the jury a theory of plaintiff’s case at variance with the pleadings and the testimony. “It was error for the trial court to submit this case to the jury on the theory that the plaintiff was a mere middleman, and.it was consequently error to refuse a new trial when it was apparent that the verdict was based on such a theory.” In relation to defendant’s claims 3 and 4, plaintiff replied that he acted as a middleman; that defendant knew that plaintiff was also to get a commission from Mr. Houghton; and that it was lawful for him to do so when the defendant understood he was to do so. In his denial of the motion for judgment non obstante veredicto, the court said in part: “The court takes the view that most of the contentions raised by counsel for defendant, particularly those relating to partnership or joint adventures and also that dealing with defendant’s ignorance of plaintiff’s dual agency, are answered in defendant’s letter to Henry C. Rummel of November 18, 1921.” The decisive questions in the case were all questions of fact. Many of them were in dispute. The trial judge tried in a charge covering more than 14 pages of the printed record to cover every phase of the case. We find no reversible error. The judgment is affirmed, with costs to the appellee. McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred.	[ 1, 10, -39, 10, -4, 4, 68, -3, 14, 16, 48, 8, 12, 30, -4, 5, 31, -52, 18, -6, -15, -34, 11, 11, -7, -13, -12, -36, -8, 0, -43, 42, -54, 22, -1, -15, -35, 9, -32, 4, -19, 14, 14, 21, 15, -15, -2, -18, 18, 2, 31, 8, 6, -59, -27, -72, -9, 33, -12, -20, -30, -37, 6, -17, 2, -17, -42, 3, 14, 19, -26, -12, 13, 40, 42, -2, 24, -40, 0, -25, 23, 0, 39, -6, -37, 75, 42, -49, 19, 27, 3, 33, -37, 9, 11, 14, 24, 31, -5, 20, 5, 8, -87, -28, -8, -27, -35, -48, -37, 26, -10, -40, 22, -78, 27, -8, -49, 4, 49, -18, -11, -14, -24, 38, 6, 5, -11, 0, -24, 36, 34, -21, -35, 23, -29, -11, -28, -1, -2, -11, 33, 11, -38, 0, 9, 13, -25, -1, -32, 23, -44, -11, 0, 29, 21, -47, -15, 4, 25, 12, 40, 6, -39, -39, -38, -5, -7, -39, -19, 23, 3, 30, -7, -42, -18, -57, 22, 24, -9, 26, 3, 21, -2, -34, -27, -20, 77, 8, 2, 15, 44, 25, -8, 0, -32, 9, 16, 5, 34, 10, -29, -72, -8, -2, -1, -27, 60, 14, 34, 24, -34, -1, -4, -26, 0, 43, -5, 3, 40, -22, 50, -38, 2, 40, -40, -43, -4, -5, 0, -20, -38, 2, -1, 39, -4, -71, 14, 14, -9, 10, -42, -30, -2, -30, -4, -3, -51, -10, -17, 53, -10, 12, -70, -11, -24, 0, -31, -13, -20, 0, -17, 25, -58, 31, 22, -55, -16, 20, 8, 47, -16, -26, -32, 52, -74, -16, -17, 31, 22, -5, 68, -57, -30, 9, 10, 41, 7, 35, -42, -44, 18, 14, 21, -49, 0, 67, 10, -11, 45, 10, -12, -19, -22, -27, 32, -17, -16, -44, 30, -37, -16, -41, 3, -17, 32, -9, 24, -35, 6, -17, 31, 38, 16, 38, 47, -1, 61, -69, -13, 46, -8, 18, 11, -18, -31, -4, 29, -16, -56, -27, 12, 21, -5, 50, 6, -15, 25, -16, 1, -14, -37, -24, -5, 27, 9, 1, 15, -12, -65, 9, 38, 34, 0, 2, 18, 15, 7, 8, -27, 17, 19, 56, 27, -10, 14, 39, -7, -41, -51, -5, 7, 13, -19, 42, 29, -15, -25, 4, -47, 10, -53, -13, 16, 47, -14, 18, 13, -75, -25, -35, 54, 14, -11, 10, -47, -22, 26, 11, -22, 20, 33, -33, -1, 11, -2, -33, 7, 9, 49, 8, 73, 10, -4, -26, 53, -7, 36, -10, 0, 26, -8, -10, 18, -33, 66, 10, -37, 8, -21, 49, 12, 41, -29, 9, -9, -52, -23, 19, -4, 5, 3, 1, -11, -1, -10, 31, 16, -6, 12, -32, 10, -6, 17, -87, -5, 10, 49, 1, 31, 19, -27, 65, 54, -36, -15, -16, -4, -3, -14, 45, -35, -6, -14, -6, -31, -23, -21, 22, -12, 31, 34, -26, 33, 41, -23, 13, 15, -8, 52, 13, -3, -21, 41, -22, -9, 31, 31, -26, 14, -29, 20, -28, -9, -20, 11, 38, -23, -4, 40, 3, -33, -8, -3, -14, 53, 45, 34, 13, 17, -55, 54, -8, -54, -31, -6, -76, 0, 12, -4, 0, -14, 11, 22, 39, -11, 35, 4, 5, 7, 3, 3, -60, 15, 0, 25, 61, 0, -23, 47, -37, -9, 7, 4, -3, 78, -14, 4, 33, 26, 67, -23, -43, 60, 30, 26, -14, -22, -15, 2, 41, -66, -46, 5, -8, -11, -15, -5, 47, 28, 5, -15, -5, 10, -40, 17, -10, 57, -15, 10, 24, -35, 17, -87, -25, 19, -33, -37, 48, -9, 35, -1, 30, 10, 26, 70, 10, 24, -15, 11, 50, 23, -13, -33, -33, 38, 3, 48, -20, -7, 5, -10, -13, -13, 40, -41, -2, 40, 18, -71, -1, -44, 0, -33, -14, 13, -22, 16, -24, -8, -33, -15, -13, 24, -30, 24, -9, 41, 7, 4, -21, 74, -16, -5, 16, 14, -33, 50, 12, -5, 12, 17, -22, 41, -44, 25, -5, 28, 35, 21, 68, 46, 30, 17, -1, 13, 29, 34, 9, -41, 28, -14, 16, -48, 4, -40, -15, 19, 5, 7, -36, 9, 5, -38, 39, 17, 24, -28, 19, -6, -14, -10, 25, 11, 50, -9, 40, -21, 24, 1, -41, 0, -45, 47, -36, 33, -12, -2, 30, 0, -10, 23, 14, 8, -7, -28, 38, -6, -7, -51, -24, 9, -38, -61, -19, -17, 9, 43, 28, 2, -26, 5, 2, 4, 78, 53, -17, -7, 0, -71, 12, -6, 23, 9, 3, 11, 23, -7, -58, 45, 5, -32, 12, -64, 21, 28, 12, 23, -19, -3, -38, -22, -55, -12, -47, -39, -24, 31, -22, 104, 9, 4, -18, -10, -44, -57, 10, 63, 0, -4, -44, 1, -22, -3, 27, -39, -59, 8, 14, 7, 27, -29, 41, 11, -30, -4, -30, -45, -17, -20, 56, -10, -2, -15, -13, -14, -12, -10, -6, -33, 25, 27, -15, -9, 4, 20, 22, 7, 6, -47, 47, -28, -49, 15, -38, 77, 5, -12, 16, -67, -37, -34, -25, -1, -23, -70, 7, -22, 6, 23, -9, -17, -36, -46, 14, 43, -21, -14, -13, -24, -16, 8, 6, -50, -41, 32, -8, -12, -26, 56, -2, -28, -25, -44, 16, -43, 8, 12, -48, -20, 30, -5, -23, -30, 2, 64, -13, 6, -12, 24, 11, -1, 21, 25, 0, 3, -31, -19, -25, 10, 0, -2, -18, -54, -28, -61, 48, 26, -11, 7, 46, 29, -29, -59, 28, 22, 15, -3, -14, 5, 40, 16, 27, -58, -4, -9, -10, -11, -89, -12, 36, 42, 40, -4, -13, -37, -10, -11, -26, -3, 10, 20, -18, 56, 31, -18, -16, -39, 23, 8, -2, -1, 14, -5, -32, 22, -16, 24, 27, -48, -20, 56, -32, 3, -9, 21, 0, 39, 14, 14, -8, 2, -32, -71, 76, 2, 1, 38, 5, -21, -33, -2, 60, 34, 9, 11, -6, -14, 32, -14, -38, -27, 2, 9, 0, 31, -2, 28, 58, -11, -26, -21, 7, 29, -25, -32, 21, 6, 1, 8, -20, 32, 31, 12, 99 ]
Wiest, J. This is an action on Michigan standard insurance policies, issued by defendant to plaintiff, upon a stock of merchandise and fixtures, to recover loss and damage by fire. Defendant pleaded right to an appraisal as stipulated in the policy. Plaintiff asserted waiver. The issues of waiver and amount of loss were tried to a jury, with verdict for plain tiff. Motion for a directed verdict for defendant was reserved and denied along with a motion for judgment non obstante veredicto. The policy on the merchandise was for $2,000 and on the fixtures $200. Fifteen other insurance companies also carried risks on the merchandise. All of the policies totaled $16,200. Plaintiff claimed a total loss and recovered $362.45 upon defendant’s policy covering the merchandise, and $105.44 upon the policy covering the fixtures. Decision turns mainly upon whether the facts bring the issue of waiver within the rule stated in Rott v. Insurance Co., 218 Mich. 576. The fire occurred May 3, 1923. At the request of adjusters plaintiff prepared an inventory and, on May 22, 1923, three adjusters, representing the several insurance companies carrying the risk and acting in concert, appeared to view and ascertain the loss. Dispute between them and plaintiff at once arose, and plaintiff withdrew, .came back and withdrew again. The adjusters went on without him for a time and then, plaintiff claimed, informed him the companies would pay $3,200 and no more. This was denied by the adjusters, who claimed such sum was mentioned in an effort to reach an agreement. Upon refusal to accept the sum offered, the adjusters, the same day, served a demand for appraisers and, plaintiff not complying therewith, but, on July 3, 1923, commencing this suit, application was made to the circuit court and, July 9, 1923, the court appointed an umpire. The trial judge left the question of waiver to the jury. There was testimony supporting the finding of the jury that there was a waiver. No motion for a new trial was made and we must accept the verdict upon the question of waiver as final. Plaintiff testified that Mr. Griffin, one of the adjusters, said they would pay $3,200 and would not pay any more, and Mr. Anderson, a clerk in the employ of plaintiff, testified: “I was in the store on May 22d, when the three adjusters came there. * * * I heard them conversing' together in the store and talking with Mr. Maki. They were agreeing and acting together. They agreed to what each other said to Mr. Maki. They said to Mr. Maki, T will give you $3,200 and no more.’ Mr. Maki replied, ‘Is that all?’ The adjuster then said, ‘Yes, that is all.’ ” This was denied by the adjusters. Mr. Griffin, one of the adjusters, testified: “Q. What did Mr. Hansen (one of the adjusters) say to Mr. Maki in your presence? “A. Mr. Hansen stated to Mr. Maki that on behalf of himself and the other two of us he was willing to make a recommendation of $3,200 settlement for the loss and damage to the stock. The three of us agreed that that was the amount that we would offer Mr. Maki. Mr. Maki said that he wouldn’t take anything less than the total amount of his insurance, $16,200. Mr. Hansen stated that in view of these conditions it would be necessary for us to enter into an appraisal, and I then drew out the appraisal blanks and started to make up the appraisal blanks, because Mr. Maki had repeatedly told us that it was $16,200 and no less, and we didn’t believe that that was the amount of his loss.” Later in the day Mr. Maki and his attorney visited the adjusters at the hotel and it is claimed Mr. Griffin said to Mr. Maki that the companies would pay $3,200 and no more: “We won’t give you another cent.” And Mr. Maki then stated he would have to sue the companies, and Mr. Griffin replied: “Mr. Maki, go on and sue us. We will show you up. You won’t get one cent more than $3,200.” The adjusters, so acting in concert, representing their several companies, had authority to bind their companies by settlement with plaintiff, and authority to deny liability in whole or admit liability to a stated amount, and to assert no liability beyond such would be recognized, except by judgment in court, and sub mit their companies to the consequences of their declarations, including that of waiver of right to an appraisal. Right to have an appraisal rested upon efforts made in good faith to agree and failure to reach an agreement, and not upon a one-sided determination of what the insurers would pay and beyond which they would not submit to liability. A disagreement over the amount of a loss may be arbitrated and must go to appraisers under the policies in question, but a limit placed on liability by the insurers is an assumption of right of self-determination, admits of no arbitration and operates as a waiver of appraisers. If the adjusters declared to the insured that the insurers would pay $8,200 and no more, they thereby lost the right to an appraisal after rejection of their ultimatum. If, after such ultimatum, they demanded right of appraisal and, when plaintiff refused their demand, reasserted the ultimatum and stated that plaintiff might sue, and plaintiff took them at their word and did so (as he did), they estopped their companies from asserting the defense of right of arbitration before suit. The evidence brings the case within the rule stated in Rott v. Insurance Co., supra. The errors alleged in the instructions to the jury present no ground for reversal. The adjusters were in no sense arbiters of the rights of the insured and, if they set the limit of liability to be recognized by their companies, they usurped the power of appraisers without recognition of the rights of the insured, and the law will not let them try out such a method and, upon failure, fall back to the method they should have pursued in the first place, but in fact flouted. If there was a waiver of arbitration, then, of course, the appointment of an umpire by the circuit court thereafter was a nullity. The defendant was not entitled to a directed verdict or to judgment notwithstanding the verdict. We find no reversible error and the judgment is affirmed, with costs to plaintiff. McDonald, C. J., and Clark, Bird, Sharpe, Steere, and Fellows, JJ., concurred. Moore, J., did not sit.	[ -20, 5, 16, 42, 2, 18, 38, -60, -3, -5, -14, 29, 11, 13, -23, 22, 9, 30, -38, 0, -3, -16, -33, -11, -18, -36, 41, -50, 54, -7, -32, 20, -21, -9, -45, 6, -6, -17, -46, -28, 23, -20, 46, -35, -20, -2, 18, -42, 95, -5, 3, -9, -2, -20, -30, -34, 62, 22, 11, 17, 5, -33, 28, 7, -9, 0, -30, 19, 6, 16, 41, -15, -3, -13, -5, 14, -57, 40, -37, -14, 29, -46, 48, -43, -48, 68, -7, -18, -45, 6, -57, 1, -20, -50, -13, 11, 48, 49, -33, 10, -19, 31, -29, 7, -45, 48, 38, -24, -40, 21, -4, 6, 13, 34, 43, -9, 12, -14, 15, 53, 47, 28, -18, 25, 9, 59, 8, 8, -53, -28, -16, 21, 16, 77, 44, 10, 16, -54, -18, -12, 26, -10, -47, -19, -32, 30, 25, 18, -35, -30, -7, 4, 24, -9, -2, -11, 18, 1, 0, -63, 5, -33, 1, 38, -19, -30, 48, -12, -21, 9, 15, -48, 27, -12, 13, 46, 74, -53, -30, 21, -8, -19, 37, 14, 17, -35, 18, -24, -13, -8, 76, -65, -39, 16, -28, -7, 32, 50, 22, -8, 30, -36, -44, -33, 21, 29, 18, -19, 1, -24, -20, 28, -16, -29, 18, 39, -37, 22, -37, -77, -38, 44, 14, 4, -10, -81, -10, 44, 58, 0, -34, -2, 18, 46, 18, 15, 9, 6, 49, -5, 38, -31, -14, -5, 43, -37, -18, 0, 9, -7, 10, 33, 19, -7, -49, -16, -5, -29, -35, 24, -46, 4, -33, -9, 34, 8, -16, -4, 11, -11, -41, 4, 30, -52, -1, -41, -38, 3, -7, -9, -15, -25, -50, 17, -47, 40, 14, -7, -38, -28, 56, 2, 16, -34, 38, 1, -47, 4, 7, 0, -18, -22, -15, 7, -13, -24, -43, -39, 0, 11, -86, -6, 6, -12, 59, -26, 3, 14, -28, -7, 16, 50, -26, 27, -28, -37, -1, -14, 0, -40, -38, -18, 20, -9, -62, -13, -7, -45, 38, 21, 42, 15, 19, 21, -51, 5, 22, -3, -3, -7, -14, 0, -22, 3, -20, 12, 59, 43, -19, 59, 78, 45, 25, 25, 18, 55, -5, 24, 4, 16, -3, -2, 4, -7, 17, -17, -10, 23, -72, 15, -10, 3, 2, 17, 12, 16, 19, -8, -63, 13, -46, -9, 8, 71, -42, 35, -27, -25, -40, -2, 12, 25, 11, -8, -40, -31, 43, -50, -27, -13, -15, -15, -26, -52, 32, -6, 14, 16, 14, -18, 45, -35, -12, 10, 0, -57, 76, 33, -36, -22, -21, -17, -8, -37, -24, 1, -12, -15, -13, 32, -4, 21, -64, -6, 8, -15, -50, 2, 33, 15, 9, 38, 56, 12, -3, 69, -47, -29, 26, 38, 1, -19, -2, 10, 24, -3, 18, -7, 73, -44, 11, 37, -36, -23, -27, -4, -12, -40, -13, 19, 14, 75, 12, -42, -12, 17, -32, 10, 14, -13, 28, -28, 12, -26, -22, 5, -72, -5, 17, -30, -33, -26, 0, 2, 32, -1, -22, -38, 7, -17, 28, -13, 4, 20, 39, 50, -36, -10, -12, 14, -57, 12, -49, 5, 9, -30, -47, 28, 20, -7, 10, 7, 20, -53, -37, 29, 47, -19, -13, 11, 3, -13, 21, 11, -2, -6, 5, -20, 53, -1, 0, 1, -12, 21, 11, 61, 0, -13, 35, 10, -5, -11, 7, -11, 5, -15, -15, 3, 19, 25, -57, -14, 10, -19, 1, 26, -8, -1, -9, 36, -12, 10, 16, -56, -6, 8, -1, 20, -32, 0, 38, 19, -32, -4, 35, 9, 8, -9, -6, -7, -39, 20, -43, 15, -10, 9, -18, 5, 33, 10, 21, 22, 7, -20, 5, 27, 36, 27, 55, -11, 45, 23, 9, 18, 17, 22, 22, 3, -4, 34, 13, 3, 15, -66, 2, -8, 8, 33, -43, 21, -42, -6, 12, 4, -47, -11, -9, -18, -29, -57, -25, 13, 18, -6, 14, -11, 6, -16, 16, -47, -11, -15, -57, 45, -19, 17, 72, -37, 11, 11, 16, 9, 17, 16, -14, 7, -42, 94, -31, 80, 23, -3, -6, 64, 9, -6, 3, 9, 49, -45, -1, 26, -13, -45, 76, 14, 7, 5, 8, -61, -12, 1, -15, -20, -31, 26, -50, -51, 18, 11, -34, -2, -4, -19, 15, 35, 6, 17, -28, -29, -36, -62, 78, -48, 6, 22, 48, 17, 32, -25, -1, 3, 14, -13, -38, 18, -16, 31, 56, -3, 33, 8, 43, 12, -56, -19, 11, 1, 67, -31, -18, -3, 30, -19, 1, -3, -32, 9, -11, -3, -15, 41, -22, 4, -22, -8, 4, -49, 46, -57, -3, 3, -43, -63, -2, 1, 28, -31, 0, -11, 20, -7, -38, -6, -5, 9, 32, -9, 11, -20, -48, 16, 15, -12, -26, 48, 13, 8, -25, -20, -24, -6, 9, 27, -23, 25, -30, -19, -17, -39, -24, 4, 16, -59, 29, -8, 5, 0, -31, 73, -23, 56, -22, -17, 3, -38, 3, -22, -11, -8, -6, -27, -45, 7, 10, 4, 45, -15, -6, -27, 43, 3, -17, 53, 8, -50, -14, -19, 12, 54, -46, -29, 20, 53, -18, -13, -4, -37, 44, -7, -9, -18, -44, -5, 14, 32, -29, 32, -23, 27, -12, 33, -24, -87, -11, 10, -1, -14, 0, -6, -6, -19, 42, 5, -24, 22, 8, 4, -67, 65, 71, 5, -7, 70, 23, -42, -41, -31, 11, -32, 32, -28, 23, 53, 23, 45, 0, 15, -23, 0, -20, -20, 47, 3, -5, 44, -2, 9, -27, 43, -9, -24, -13, -66, -6, 10, 13, 19, 6, 53, -57, 12, -11, 26, -10, -64, 6, -51, -5, 31, -14, -10, -10, -32, -35, -4, 55, 24, 5, 53, 29, 30, 14, 53, -23, 24, -31, 26, -37, -10, -10, 24, 9, 12, 20, 16, 62, 30, 0, -3, -9, -11, 15, -24, -62, 6, -11, -6, -13, 16, -26, -30, -42, 18, 7, -22, -6, 26, 11, -43, 0, 55, -8, 11, -14, -21, 26, 69, -45, -5, 15, 28, 6, -14, -41, 53, 21, -19, 28, 13, -38, 36, -9, 1, 4, -15, -55, -7, -16, -37, 68, 38, 2, 64 ]
Brooke, J. This is the second time this case has been before the court. The opinion filed upon the first hearing will be found reported in 180 Mich., at page 208 (146 N; W. 670). As a result of the first hearing this court determined that plaintiff had been overcharged in the sum of $808.67. The case was thereupon remanded to the trial court “to compute the tax against plaintiff as above indicated and enter a judgment in his favor for the balance.” When the matter again came up in the circuit court, following the filing of a remittitur, a difference arose between counsel for plaintiff and counsel for defendant as to the correct method of computing the amount which the plaintiff should recover from defendants. Application was thereupon made to this court for a writ of mandamus, to compel the circuit judge to enter judgment according to the contention of plaintiff’s counsel. This application was denied by this court, and the parties proceeded to trial in the court below. The record made upon the earlier trial was introduced in evidence, and the facts as therein contained conceded to be true, and thereupon plaintiff’s counsel offered in evidence two exhibits. The first, Exhibit 2, dated April >30, 1910, is as follows: “Resolved: That the village treasurer be and he is hereby authorized and directed to proceed with the collection of the special assessments on the property formerly within the village of Fairview and now within the village of Grosse Pointe Park as the same appear on the special assessment rolls of said former village of Fairview, said rolls being: Roll No. 3 for the cost of the construction of the Jefferson avenue sewer; and roll No. 7 for defraying the cost of paving Jefferson avenue. Provided, however, that no interest be charged or collected from May 8, 1907, to May 8, 1910, by said treasurer on the amounts payable on said rolls; and provided further, that where the parties against whose property said assessments were made have paid the parts of the assessments due and payable before May 8, 1907, the time to pay the remaining parts of said assessment be and the same is hereby extended as follows: The time for paying the third part of the assessment for said payment is hereby extended to July 24, 1910. The time for paying, the fourth part of said paving assessment is hereby extended to July 24, 1911. The time for paying the fifth part of said paving assessment is hereby extended to July 24, 1912. The time for paying the fourth part of the' assessment for said sewer is hereby extended to July 24, 1910. The time for paying the fifth part of the assessment for said sewer is hereby extended to July 24, 1911. Interest on all unpaid assessments to run at the rate of six per cent. (6%) per annum to the time of payment, except for three years above stated. Provided further, that all assessments in default on June 1, 1910, be placed upon the general tax roll, as provided by law. And be it further resolved: That the village treasurer send notice by mail of this resolution to the parties whose names appear as owing on said assessment rolls.” A material part of Exhibit 3 is as follows: “The general assessment roll of the village of Grosse Pointe Park for 1910 contains the following assessments fob this payment: Pavement. Interest on Paving. Thomas W. Corby. All that part of P. C. 502 and 692 lying between Jefferson Ave. & Lake St. Clair.. $1,913 04 $358 69 Thomas W. Corby. All that part of P. C. 502 and 692 lying between Kercheval Ave. & Jefferson Ave.. 1,913 04 358 69.” These exhibits were excluded by the learned trial judge and a computation of the tax was made upon the theory that plaintiff, Corby, should be charged in the computation with all statutory interest and penalties. By the resolution of April 30, 1910, it will be noted that interest for three years, from May 8, 1907, to May 8, 1910, was remitted by the village council. A consideration of the whole matter leads us to the conclusion that this resolution resulted from a conviction on the part of the council that the chaotic condition of the affairs of the village, resulting from an abortive attempt to annex a portion of its territory to the city of Detroit, constituted a sufficient reason for plaintiff’s refusal to pay his tax until it was determined to whom he might legally make payment. We are of opinion that the second trial must be considered as a new trial in the light of our refusal to issue the writ of mandamus, and that the circuit judge should have admitted in evidence the two exhibits in question. We are further of the opinion that it was within the legal power of the village council to adjust its claims for interest in the way it did, and that such adjustment was, under the circumstances, no more than equitable, and, further, that it should now be estopped from claiming interest for the three years by that resolution remitted. Upon the question of the power of a municipality to make such adjustments, see Prout v. Fire District, 154 Mass. 450 (28 N. E. 679), and City of Shawneetown v. Baker, 85 Ill. 563. Assuming, therefore, that the exhibits should have been admitted, and, further, that they should have been made effective according to their tenor in computation of the tax, the account should be stated as follows: The original assessments against Mr. Corby’s lands were confirmed on July 24th, 1905, by the village council of Fairview village. One description was assessed.................$1,913 04 One description was assessed................. 1,913 04 Total .......................................$3,826 08 This court held in Corby v. Detroit et at., 180 Mich. 208, that there was an overcharge in the assessments of ........................ 808 67 The amount of proper tax on July 24, 1905, therefore, was ............................$3,017 41 This sum should bear interest at 6 per cent, from July 24, 1905, to May 8, 1907, time 1 year, 9 months, and 14 days................ 323 83 No interest under the provisions of Exhibit 2 should be charged from May 8, 1907, to May 8, 1910. Interest, however, should be charged at 6 per cent, from May 8, 1910, to October 24, 1910, when the tax was returned unpaid to the county treasurer, time 5 months and 16 days (Act 39, Pub. Acts 1899 [1 Comp. Laws 1915, § 2725]) ......................;........... 83 48 The county treasurer’s charges should be added, interest at 1 per cent, a month from October 24, 1910, to June 27, 1911, when Mr. Corby paid the tax, time 8 months and 3 days (Act 262, Pub. Acts 1899).................. 244 38 The county treasurer’s collection fee at 4 per cent..should be added...................... 120 69 This made Mr. Corby’s just tax due on June 27, 1911, when he paid the assessment under protest ....................................$3,789 79 He paid the sum of.......................... 4,906 94 The amount of his just tax was............... 3,789 79 The difference due plaintiff therefore was.... $1,117 15 This difference should bear interest at 5 per cent, from June 27, 1911, to December 31, 1915, time 4 years, 6 months, and 4 days.... $251 96 The total amount of plaintiff’s judgment should therefore be...............................$1,369 11 The case will be remanded to the circuit court, with instructions to enter judgment in plaintiff’s favor for the sum of $1,369.11. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.	[ -29, 79, -2, -7, -94, 7, 18, -28, 0, -3, -6, -13, 27, 29, -4, 28, -53, -43, 18, -4, -28, -16, 9, -23, -23, 44, 4, -43, 2, 21, 2, -1, -22, 48, -33, -6, 35, -1, 14, 21, 8, 9, -19, -49, -24, 10, -7, -31, 5, -21, -33, 12, 30, 17, -18, 1, -34, -7, -16, 9, -20, 15, -19, 23, -9, -17, -12, 0, 28, -26, -37, -19, 22, -19, 33, 5, -67, 14, -34, -2, -53, -42, -6, 31, -42, 21, -22, -57, 37, 6, 13, 21, 28, 15, 30, 21, 35, -3, 21, 15, 4, 1, 4, 50, 19, -20, -32, -36, -32, -17, 23, 22, 82, -21, -20, 3, -3, -19, -13, -38, 27, -31, 27, -11, 9, 17, -26, 24, -37, 4, -6, 2, -27, 5, -3, -13, 4, -47, 6, 44, 12, 26, -4, -17, 23, 13, 1, -3, 0, -2, -53, 16, 10, 16, 27, 12, 20, -57, 39, -11, 36, 5, 19, -34, -41, 15, -6, 34, -18, 2, 69, 16, -9, -29, 32, 6, -6, -19, -12, -26, 6, 7, 11, -26, -17, -38, 7, -27, -3, -21, 16, -15, -49, -29, -1, 41, 0, 5, -54, -17, 2, -5, 11, 0, -9, -3, 56, -10, 0, 34, 1, -7, -17, -4, 17, 8, 9, 3, 4, 35, 27, 23, 34, 20, -38, 7, -11, -2, 17, 2, -22, 11, -11, 21, -4, 5, 38, 47, -8, 6, -48, 20, 4, -36, -30, 12, -56, -1, -49, 24, -32, -7, -31, -23, -19, -28, -12, -2, 33, -6, 12, 51, 5, -19, -45, 1, 1, 20, -7, 14, -42, 52, 8, -1, 1, -16, -22, -19, -18, 98, -45, -73, 4, 37, 18, 4, -11, 42, 22, -6, 8, 19, 20, -13, -3, 1, -8, -23, -1, 48, -44, 9, -8, 30, 41, 7, 6, 19, 2, 21, 16, 30, 7, -6, 27, 20, -23, 0, 30, 11, 34, 17, -33, 4, -2, 19, 25, -8, -44, -60, -3, 31, 3, -9, 35, -24, 17, -26, 1, -5, 16, 30, -25, -15, 1, 0, -40, -11, 20, 25, -9, 24, 8, 46, 29, 8, -8, -48, 6, 30, 53, 31, 63, -41, -18, -22, -17, -1, 24, 54, 33, 10, -39, 17, -3, -21, 20, 6, -38, 40, 6, -60, -9, 18, 1, -6, 1, -23, 5, 17, -25, 6, 35, 20, -18, 12, -3, -33, -32, -40, -1, 38, 37, 13, -11, -3, 18, -27, 27, 24, -9, -34, 23, -46, 10, -40, 0, 8, -4, 0, 37, 39, 26, 6, 27, 6, -4, 14, 9, -18, -36, 22, -9, -64, 28, 0, -5, -33, -17, -24, -32, 50, 11, -34, 0, -50, -35, 13, 27, 25, -18, 13, 17, 18, -26, -26, -18, -57, 78, -45, 26, 14, -8, 8, -8, -22, -37, 2, 26, 43, -19, 34, -2, -52, 20, -9, 6, -12, 10, 36, -21, -70, 13, 33, -44, 26, 42, -13, -28, -5, 42, -14, 6, 24, 65, 9, -40, -13, 4, -11, -22, 3, 5, -39, 8, -21, 28, -10, -18, 11, -4, -19, 17, 20, -5, 28, 30, 6, 36, 57, -10, 7, -27, 0, -10, 38, 37, 5, 21, 10, 4, -9, -2, -5, -24, -54, 0, 6, -2, 10, 5, 24, 43, 20, 21, 20, -2, -20, 5, 2, -9, -7, -1, 43, -51, -53, -3, -36, -13, 0, -21, -22, -2, -49, 28, -20, 27, -49, 3, -52, -26, -9, 8, -21, -69, 19, -31, -48, 0, 13, 23, -6, -59, -35, 36, 42, 12, 28, 22, 46, -26, 10, -23, 29, -1, 23, -39, 6, -5, -7, 10, -23, -42, -42, -41, -11, -34, 16, 56, -9, 55, 25, 18, 31, 11, 54, 3, -40, -3, -4, 29, 22, 13, -17, -2, -12, -3, -14, -99, 62, 21, -7, 35, 69, -27, 0, 7, 23, 39, -10, -26, -16, -42, -25, -33, 41, -74, 12, -32, -3, -40, 44, 45, -1, 19, -18, 19, -17, -2, -41, 40, 12, 15, 66, -36, -3, -7, -9, 60, -14, 6, -45, 3, 6, -13, -78, -46, 56, 8, -21, 15, -13, -26, 32, -26, -31, -29, 31, 9, 17, -6, -32, -25, -18, -27, 3, 7, 16, -3, 18, -3, 4, 22, 24, -47, 25, 16, 28, -16, -49, 20, -12, 21, 9, -22, 37, 13, 19, -18, 13, 4, -71, 15, -25, 16, -18, -2, -32, -45, -12, -31, 38, -18, 28, -34, 27, -23, 2, -40, 6, 30, -37, -17, 7, -10, 30, 32, 33, -38, 52, -27, 41, 41, -21, 11, 42, 3, 16, -8, 61, 5, -3, 23, 46, 15, -13, 28, -5, -14, 20, -72, 26, -15, -38, 10, 29, -72, 4, -10, -32, -3, 30, 14, 12, -31, -69, 16, -8, 3, 11, -15, -46, 12, -16, -3, 23, 31, -9, 43, -22, 30, 49, 28, -16, 2, 39, -49, 25, -10, 25, -3, -36, -16, -39, 31, 11, -34, 28, 31, 13, -18, 35, -2, 1, 7, 28, 26, 12, 9, -4, 67, 0, -35, 9, 0, -34, -5, 12, -8, 13, -2, -17, -39, 13, -14, 27, -10, 7, -21, -6, -35, 18, 3, -8, -21, 31, -18, 29, -2, -2, 57, 20, -48, -5, -13, 43, -23, -38, -10, -42, 17, 38, -43, -34, 5, -9, 3, 14, -19, -78, -71, 20, 25, 13, -33, -28, 8, 21, 6, 38, 30, 58, 11, -8, -14, -18, -37, 25, -11, -30, -30, 20, 32, -8, -37, -27, -2, 28, -8, 36, -17, -48, -38, -39, -47, -22, -21, -30, -4, 23, 58, 35, -8, 18, -43, -10, 32, -20, -16, 24, -7, -7, 4, 14, 39, 36, 15, -49, -3, -10, 6, -74, 0, 24, 2, -16, -21, 29, 16, 21, 8, -22, 30, 52, 5, -54, -26, -42, 0, 8, 21, -30, 65, -12, 21, 25, 30, -4, 30, -20, -42, -38, -24, -41, -4, -2, -1, -38, -3, -28, 38, -8, 14, -5, -41, 21, 44, -14, 15, 4, 4, -41, 5, -19, -27, -23, -3, -24, 61, 4, -18, 2, 37, -26, 46, -28, 58, 37, -5, -13, -15, 55, 29, 6, 41, 13, 8, -4, -37, -58, 4, -23, -21, 10 ]
Bird, J. The plaintiff was employed by defendant Keene driving a team in the city of Battle Creek. On December 12, 1923, he fell from the wagon in which he was riding and suffered a fracture of the os calcis of his left foot, or, in other words, an injury to his left heel bone. An agreement for compensation was reached by the parties and approved by the depart ment of labor and industry, awarding to plaintiff $14 a week. This weekly allowance was paid until June 4, 1924, when defendant filed a petition toi have the same discontinued. A hearing followed, and plaintiff appeared by counsel and contested the petition before Deputy Commissioner Ravens. This hearing resulted in an order discontinuing the payments after June 11, 1924, and closing the case. No appeal was taken from this order. On August 23, 1924, plaintiff filed another petition for further compensation. This petition was heard by Deputy Commissioner Beattie. He made an order reopening the case and awarding plaintiff $10.50 a week, on the theory that plaintiff was disabled to the extent of 75 per cent. Defendant appealed from the order, but it was affirmed by the full board. It is from this order that defendant brings certiorari. The defense interposed by defendant at this hearing was that plaintiff, neither by his petition nor proofs, showed a change in his physical condition since the order was made discontinuing his weekly payments, and, therefore, the order made at that hearing is conclusive of his contention. An examination of the record with reference to this defense shows that no material change was shown in plaintiff’s physical condition, unless it shows a slight improvement. Upon the hearing to discontinue the payments plaintiff showed that his physical condition was unimproved, that he was not relieved of his injury, and was still unable to bear weight upon his left foot, and that he is incapacitated by reason of this injury from pursuing his work as a common laborer, in which he was employed at the time of the accident. Plaintiff’s petition to- reopen his case shows no material change after the previous hearing, neither do his proofs claim any material change. He showed that he had afterward attempted to work, but was obliged to abandon it, by reason of his injury. He then testified: “Q. How was your foot after you did that work? “A. It pained' me more. “Q. What did you quit for? “A. Could not stand on my foot. * * * “Q. Is your foot worse now than it was on the 30th of. June? “A. Not much difference. It swells up when I work. * * * “Q. At the last hearing here, June 30th, were you using a crutch or cane that day? “A. Cane. “Q. Are you getting along without a cane now? “A. I go slow and get along without one. “Q. Is your foot getting better? “A. It pains me a lot yet. “Q. Do you think your foot is getting any better? “A. A little bit, not much.” If plaintiff was in the condition he testified he was in at the hearing to discontinue the weekly payments, he should have appealed from the order of the commissioner to the full board. Taking no appeal, he accepted the decision of the commissioner on his then condition, and is now bound by it. After the order to discontinue, had he been able to show that his condition had changed for the worse, the board would have had jurisdiction to reconsider his condition. His failure in this respect deprives him of the right to have his case considered further by the board. Burley v. Central Paper Co., 221 Mich. 595, and cases cited. See, also, Anderson v. Ford Motor Co., ante, 500. The order of the commissioner discontinuing the weekly payments is res adjudicata on his condition at that time. The award made by the board will be set aside. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ 7, 17, -24, 32, 6, 13, 12, -16, 15, 15, -20, 2, 89, -56, 5, -10, 23, 3, 25, 17, -59, -38, 24, -6, -7, -34, -17, -33, -40, 0, 25, 5, -2, 8, -42, 10, 48, 3, -2, -2, 31, -26, -15, -44, -4, -37, -6, -14, 4, -45, 27, -39, -14, -22, 25, 37, 36, 24, -25, -9, -42, 1, 35, -22, 28, -6, 6, 15, -8, -14, -54, 38, 10, 9, -40, -11, -2, 30, -34, 22, 8, 19, 26, 5, -31, 56, -26, -17, 23, -44, -14, 15, -8, 44, 7, -2, -7, 37, 18, -15, -27, -7, 44, -14, -20, -13, -34, -21, -6, 38, -3, 26, 38, 31, 25, -34, 4, 1, -11, 9, 52, -48, -36, -17, -12, -14, -26, -6, -18, 19, 11, -5, -16, 17, 33, -1, 0, -41, -29, -2, 47, 49, -17, -8, -15, 17, -32, 27, -12, 12, 15, -4, 51, -1, 13, -1, 5, 8, 67, -4, 27, 25, -5, -2, -17, -2, -23, 29, 34, -12, 49, 19, 4, -49, 13, 13, 59, -5, -19, 36, -64, -5, 23, -42, -24, -60, -37, 2, 21, -3, 0, -19, -22, -20, 4, -31, 12, -33, 14, 7, 12, -16, -30, 23, -29, 4, 42, 0, 34, 32, -1, -21, 38, -60, -18, 38, 24, 7, -11, -24, 16, 41, 20, -32, -64, -23, 27, 10, 49, 0, -8, 33, 35, 11, 5, 18, 38, -7, 37, -13, -3, -15, -17, -30, -9, -6, -75, -50, 11, -15, 24, 25, -37, 14, -32, -22, 23, -4, -48, 2, -11, 44, 48, 52, 20, -42, 3, 51, 31, -17, 6, -43, 5, -11, -9, -27, -14, -22, 26, -1, -2, 4, -3, 6, -35, 15, -3, -19, -38, -10, 49, -66, 10, -5, 51, -15, 20, 29, -33, -13, 1, -44, -35, 3, 19, 28, -45, -21, 0, 2, -22, -10, 59, -10, 41, 31, 4, -22, 35, -60, -29, 45, -42, -33, -12, 8, -10, -42, -5, -46, -17, 11, -15, 51, -5, -15, 17, 17, 13, 15, 24, 37, 19, 11, -24, 28, -6, -25, 24, 22, 7, -2, 40, -40, -48, 3, 33, -53, -25, 8, 23, -41, -11, -6, -12, 16, -16, -7, -11, 35, 7, 1, 25, -38, -45, -41, 36, 20, -25, 16, 40, -6, 20, -30, -18, 10, -17, -24, -45, -15, -40, -30, 51, 33, -21, 38, 21, 14, -18, -18, -27, 8, -2, -3, 0, -26, 12, -21, -24, 1, 12, -18, -2, -26, 42, 6, 17, 3, -24, -23, 52, -4, -10, -20, 56, 12, -1, -9, -6, -36, 14, -7, 9, -37, 11, 2, 0, -13, -40, -4, 3, 13, -32, -10, 16, 8, -15, 28, 41, -22, 16, 8, -2, 55, -10, 0, 8, -7, 11, -11, -20, -19, -7, -3, 52, 1, -24, 8, 44, 16, 25, -16, 3, 12, 9, -14, -57, -37, 14, 14, -39, -7, 7, 42, -15, -27, -8, -7, 25, 49, 22, 12, -37, -23, -27, 30, -40, 0, -9, 0, -35, -26, -11, -26, 47, -52, 16, -73, 8, 17, -49, -6, -10, -11, 19, 41, 21, 5, -47, 3, 17, 36, -19, -14, 8, -10, -25, 24, 8, -31, 6, -21, -11, -34, 22, -3, 31, -5, -21, -43, -38, 19, 25, -27, -9, -49, -32, 47, 63, 5, 1, -11, 6, -8, -33, 19, 24, 1, 41, 26, 40, 3, 0, 15, 16, 37, 3, 35, 23, -16, -36, 18, 31, 5, -10, 16, -19, 26, -45, -2, -21, -10, -29, -2, -2, -35, 5, 35, -7, -22, -9, 3, 14, -6, 1, 0, 40, -1, 3, -22, -5, 16, -61, 34, 1, 15, -4, 29, 63, -13, -14, 44, -5, -40, 4, -5, -4, 0, 50, 42, -28, -1, 15, -32, -30, -15, -4, 9, -63, -14, 12, -16, 4, -22, -37, 32, 49, 55, -39, -20, 19, -3, 17, -27, -14, -42, -2, -8, -60, -34, -18, 29, 2, -15, 23, 8, 1, 28, -45, -6, -58, 14, -50, 3, -28, -11, 3, -8, 9, 19, 43, 8, 33, -16, 6, -23, -31, 21, 5, 4, 4, 1, 57, 12, -35, 8, 3, 11, 40, -28, -32, 45, -10, 5, -9, 15, 45, 12, 8, -30, -16, 30, -33, 32, 8, 13, -22, 4, 7, 24, 19, 1, -6, 5, 8, 45, 20, 15, -50, -59, 24, -9, 8, -20, 35, 59, 28, -23, -8, -43, 16, 42, -17, -31, -4, -10, -2, 38, -33, -4, 47, -14, 7, 31, -38, -24, 14, -22, -5, 8, -17, -13, 6, 10, 16, -2, -3, -22, -36, 0, 0, -33, 31, 17, -60, -1, 16, -29, 7, -11, 9, 9, 8, -39, 12, 18, 21, -15, -7, -6, 21, -22, 3, 18, -40, -9, -33, 35, -17, 28, -28, -36, -6, 1, 21, -11, 4, -19, -19, -14, -11, 20, -4, 39, 3, -4, 35, 20, 29, -4, -29, -9, -1, -13, 23, -11, 23, -1, -33, 23, 13, 59, -13, -37, 21, 0, -18, -35, 16, 6, 5, -67, -10, 15, -23, 37, 8, -8, -31, 9, 66, -21, -30, 5, 20, -11, -32, 40, -20, 10, 15, -33, -3, 32, -55, -30, -13, -12, -28, 5, 1, -17, -50, -19, 20, 21, -55, -3, 35, 1, 53, 20, -12, 4, -7, 29, 21, -4, 40, -19, 7, -22, -8, 14, -10, 47, 5, -19, 7, 39, -19, 27, -16, -45, 1, -43, -51, 34, 31, 7, 21, 38, 62, 25, -13, -21, -22, -15, -31, 41, -16, -18, -37, -41, 12, 54, -28, 48, 25, -10, 1, 50, -31, 8, 11, 19, -10, 12, -6, 39, 4, -14, 25, -18, 44, 8, 25, -59, -29, 0, 32, 38, -44, 15, -29, -55, 5, -10, 27, 81, 9, 29, 28, 26, -1, -18, -28, -3, 47, 20, 8, -17, 8, 0, 27, 44, 8, -43, -14, -7, 29, -17, -40, -53, 32, 38, 17, -12, 15, -15, 57, -23, -32, 8, -29, 5, -33, -30, -33, -23, -18, -14, -6, 33, 24, -35, 0, -9, -20, -13, -36, -28, -9, 49, -21, -15, 56, 17, -18, 9, 0, 44, -43, -11, 2, 76, -15, -18, -24, 0, 44, -7, 36, -9 ]
Brooke, J. (after stating the facts). In his charge to the jury the court used the following language: “Now, when a person has been defrauded in the purchase of either real or personal property, or in trading for it, he has two courses before him. In other words, as it has been stated, he has an election as to his remedy at law for the same. He may rescind the contract absolutely and restore the property to the party guilty of such fraud, and then sue for the consideration paid, or he may retain what he has received and bring an action to recover the damages occasioned by the fraud; but he cannot do both. He cannot take proceedings both in affirmance of the contract and also in rescission of the contract. In this case the plaintiffs affirm the contract and bring suit for damages alleged to have been sustained by them because of the alleged fraud. “They had a right to do this, just as much right to bring an action in affirmance of the contract as they had a right to bring an action in rescission of the contract. Sometimes it becomes impossible or impracticable to bring an action to rescind a contract because of fraud, because the property may have changed hands, changed ownership. For instance in this case, if either party had disposed of any of the property and had disposed of it to people who were innocent, and acquired any of the property for a valuable consideration, knowing nothing of any claim of fraud, they could not be disturbed, and it would be impossible, therefore, to put the parties in the shape they were originally in. So in such a case it would be impossible to rescind the contract, and the only alternative the plaintiffs would have left would be to bring the action that has been brought in this case; that is, a suit for the damages sustained by reason of the alleged fraudulent representations.” Error is assigned upon the latter portion of this excerpt commencing with the words “sometimes it becomes impossible.’ While it may be true that the portion of the charge of which complaint is made is not strictly a proper statement of the law, and that plaintiff may bring an action in rescission of the contract, even though defendant has disposed of the property received by him, in which event the value of the property so disposed of could be recovered (9 Cyc. p. 433; 20 Cyc. p. 87), we are of opinion that the section of the charge quoted, taken as a whole, is not erroneous, for the reason that, after all, it amounts only to the statement that the plaintiffs were properly in court under the form of action selected by them. Error is next assigned upon the charge of the court with relation to the measure of damages. Upon this point the court charged: “The amount of damages that plaintiffs will be entitled to recover, if they are entitled to recover anything, is the difference between the value of the property purchased, had it answered the representations relied on by plaintiffs, and its value as it actually was. “I will use figures altogether foreign to the figures used here, merely for the purpose of illustration. I fear that if I used the figures here you might think I intended to have you adopt them as correct. For instance, if I buy a piece of property in the city of Petoskey, and I, relying upon the representations of the vendor, believe that it is worth $20,000, when, as a matter of fact, it is worth only $10,000, then I am entitled to recover in an action brought of this kind, if I prove my facts in accordance with the rule laid down, the difference between $20,000 and $10,000, which would be $10,000, which I would be entitled to recover.” After the conclusion of the charge, questions weré asked by certain of the jurors with reference to the measure of damages, in the course of his answers to which the court said: “Now, it is a settled rule of law, in cases like this, the damages allowed the plaintiffs, if they are entitled to recover, is what, from the representations made, they believed the farm to be worth, and then subtract from that what the farm was actually worth, and there we have the damages.” Several assignments of error are based upon these instructions to the jury. The first statement of the court with reference to the measure of damages was correct. The illustration following that statement and the later statement contained in his answer to the jury are erroneous. In the late case of Haener v. McKenzie 188 Mich. 27 (154 N. W. 59), we said: “The measure of damages in such a case, where there is no rescission, is the difference between the value of the premises had they been as represented and what they were actually worth. Wegner v. Herkimer, 167 Mich. 593 (133 N. W. 623).” We are of opinion that the statement of the court that the measure of damages would be the amount of difference between what plaintiffs believed, from the alleged representations made, the farm to be worth, and what it actually was worth, was not only erroneous, but prejudicial. Assignments 5 and 6 are based upon the refusal of the court to charge as requested by defendant. We are of opinion that neither request as tendered should have been given. While it is true that a party defrauded is bound to make complaint of the fraud without unreasonable delay, we are of opinion that plaintiffs in the case at bar are not to be charged with laches. “We do not think that any delay within the statute of limitations can be urged in such a case as this. Dayton v. Monroe, 47 Mich. 193 (10 N. W. 196).” Wegner v. Herkimer, 167 Mich. 587 (133 N. W. 623). The remaining assignments of error refer to the rulings of the court with reference to the admission or exclusion of testimony. It is unnecessary to consider them seriatim. It is sufficient to say that, so far as the witness Kelly was permitted to give testimony tending to vary the terms of the written contract, it should have been excluded. Upon a new trial these questions are not likely to arise. For the error in.the charge with reference to the measure of damages, the case is reversed, and a new-trial ordered, with costs, to appellant. Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Person, JJ., concurred. Bird, J., did not sit.	[ -23, -56, -56, 11, 24, -20, 38, -34, -1, 76, 63, -14, 93, 1, -16, -1, -1, -31, -14, 17, -54, -53, -36, 9, 2, -13, -4, -35, -37, 4, -13, -16, -17, 34, -52, -20, -24, -9, -6, 12, 15, -27, 3, -33, 33, -7, -13, -55, -10, -12, 14, 0, 14, -14, 7, -19, -27, 16, 3, -18, -55, 2, 0, -2, -55, -13, 10, 4, -40, 22, -32, 22, 3, -21, -7, -53, -31, -14, 0, 7, 10, -58, 10, -45, 45, 23, 43, -34, -12, -32, -12, 0, 8, -3, -33, 25, 43, 36, 5, 24, -2, -3, -3, -3, -24, -12, -44, -57, 15, 14, 21, -13, 21, -70, -2, -34, 0, -39, -20, -59, 42, 12, 16, 10, 19, 48, 50, -29, -75, 40, 50, -2, -78, 13, -37, -45, -31, -13, -7, -13, 45, 6, 7, -25, -28, 11, 58, -7, -49, 26, 7, -56, -35, 0, -34, -6, 3, -57, 50, -45, 40, 1, -54, -8, 32, -6, -22, 3, 42, 8, -20, 4, -15, -15, 29, 12, 31, -51, -34, -72, 0, 46, 9, -13, 26, -67, -14, -7, -3, -12, -12, 7, -7, 32, 19, 29, -42, 21, 5, -55, -50, -52, -35, 14, -42, 37, 36, -9, 33, 64, -83, 40, -46, -58, -32, -38, 44, -4, -7, -7, 25, 4, -1, 37, -31, -8, 10, 17, 35, -3, -16, 2, 9, -20, -33, -41, 20, 38, 20, 1, -3, 38, -3, -27, -15, -24, -22, 37, -14, -6, -43, -35, 45, 29, -2, -13, -27, -5, -26, -22, 0, 79, -17, -13, 4, 7, 36, 47, 5, 6, 44, -3, -9, 61, 12, 13, -52, 19, 17, 33, -23, 21, 8, 23, -27, 1, -1, 62, 37, -1, 41, -40, 18, 16, 12, 7, 0, -22, -24, -34, 0, -37, 21, 42, 5, 36, -34, 11, -19, -67, 7, 30, 0, 7, 49, 8, -1, -9, 27, -51, 67, 3, 5, -20, -6, -48, 64, -41, -11, 23, -1, -12, -21, -34, 63, -19, 35, -58, -71, 13, 10, 20, -8, -61, 16, 17, 0, -46, -13, 46, -16, -15, -41, 24, 11, 3, -14, 0, -7, 44, 24, 37, -21, -34, 27, 6, 3, -20, -1, 34, -1, -30, -24, -5, -37, -51, -40, -23, -49, 42, -36, -50, 0, -2, 48, 12, -96, -40, -20, -11, -37, 18, 26, -7, -15, 22, -28, -63, -17, 10, -14, 57, -32, -39, -47, 0, 22, -18, -23, 7, 13, -22, -7, -19, -10, -1, 42, 4, 17, -5, 26, -53, 26, -17, 32, -55, 1, 29, -25, -17, -27, 22, 25, -68, 18, 4, -1, -41, -11, 10, -40, 15, -33, 9, 0, 4, -28, 16, -9, 6, -9, -1, 12, -21, 52, 20, -11, -17, 37, 26, 45, -46, 27, -40, 32, -48, -4, -27, -2, 52, 41, 13, 9, 24, -21, 10, -17, -15, -9, 53, -14, 25, 19, -33, -13, -25, 8, -40, 6, -50, -4, 15, 15, 49, -48, -22, 19, -2, -31, 23, 5, 63, -2, 8, 17, 12, -2, -38, 31, 59, -48, 49, 53, -11, 49, 7, 45, -2, 2, 21, 18, -7, -69, -16, -42, -10, -16, 41, 39, -16, -5, -3, 10, 4, -7, 31, 22, 0, 65, 28, -79, 90, 34, 34, 13, 52, -26, -2, 22, 30, 15, 11, 61, 59, -15, 17, 29, -13, 32, -21, -21, 30, 33, -7, 21, 0, 25, -51, 11, 38, -19, -60, 24, 44, -16, -16, 27, -17, 3, -9, -18, 13, 21, -16, 46, 30, -15, 7, 58, 16, 2, -19, 39, -46, -98, -22, 3, -36, -8, 56, -16, -7, -59, -9, 17, 11, -4, 29, -37, 35, 13, 7, -11, 0, 29, 20, -6, 1, 5, 57, 42, 12, 25, -22, 2, -5, 16, -19, -38, 21, -2, -7, 17, 33, -60, 12, 4, 5, -42, -28, 1, -11, -14, -26, 8, -4, -42, 16, -2, -49, -31, 19, 4, -1, 42, -7, 9, 25, 12, -17, 7, -16, -42, -24, -9, 14, 43, 5, 1, -11, 11, -31, 44, 7, 0, -27, 7, 8, -17, -20, 11, -25, 2, -8, -47, 20, 10, -50, 29, -21, -6, -55, -24, -45, 0, 43, 47, 41, 8, 5, -11, -49, 14, 4, -33, -1, 2, 30, 21, 15, 32, -6, -14, -23, 12, 12, -8, 11, -18, -11, 7, -15, 67, -26, 18, -6, 74, 28, 43, -15, 16, -30, 6, 6, -27, 71, 44, -54, -33, -18, -29, 8, 47, -43, 17, -1, 23, 36, 16, -37, 45, -12, 40, -13, -1, 1, -36, -2, -11, -23, -11, 26, -25, 16, 30, 21, -1, -22, -3, -14, -70, -27, 51, 15, 15, 32, 25, -20, 19, 24, 4, -7, -14, 32, 5, -64, 38, -21, 2, 41, 44, -39, -28, -11, -41, -34, 22, -24, 35, 0, -28, 3, -21, 22, 21, 32, -7, 5, -25, -63, 13, -19, -15, -8, 1, 5, 0, 27, -16, 10, 1, 13, -25, 8, -16, 35, -11, -25, -47, 29, 6, -49, -36, 33, 1, 12, -16, 11, 14, 18, -51, -37, -10, 59, 47, 15, -22, -8, -69, -40, -3, 11, -24, 13, -20, 0, -37, 5, 28, -9, 10, 38, 15, -17, 60, -20, -6, 14, -12, -46, 86, 25, -27, -23, 53, 40, 20, -27, -7, -7, 24, 0, -79, 29, 13, 13, 13, -56, -20, 87, 57, 25, 3, 35, -6, -21, 19, -7, 33, 1, 0, -18, -17, -30, 36, -45, 42, 19, -12, 35, 75, -46, 2, -26, 66, 4, 29, -20, 15, 21, 46, 31, -18, -40, -8, -11, 38, 21, 21, 7, 11, 21, -17, 10, 20, -25, -51, -23, -37, 0, 8, -31, 47, 2, -17, -35, -27, 29, 14, 34, -25, 17, 42, 34, 12, -64, 19, -48, -6, -67, 30, 31, 8, -51, 45, 42, -6, 8, -17, -3, 38, -13, -40, -53, -31, -15, 40, -50, -37, 33, 7, -50, -38, 17, 54, -21, -15, 2, -40, -29, 33, 24, 47, 5, -34, -7, 0, 4, 0, 16, -11, 11, 7, -33, 8, -10, 49, 34, 44, -28, -13, 14, 44, 80, -28, 4, -38, 50, -50, -50, 60, 39, 40, 40 ]
Ostrander, J. It is the contention of respondents, plaintiffs in certiorari, that the testimony fails to prove accidental injury. The testimony introduced on the part of claimant tended to prove that on January 22, 1915, while he assisted another in moving a gasoline engine weighing some 600 pounds, he suddenly had pain in his left groin, noticed a small swelling in the groin that night, consulted a physician, was advised that he had a hernia, and was operated upon for hernia. His claim is for compensation for time lost from February 6, 1915, to April 5, 1915, for medical attendance, hospital and ambulance fees, a total of $167.08. o This amount was allowed by arbitrators, and, upon appeal, the allowance was affirmed. Claimant had worked for the Original Gas Engine Company for about nine years, painting gasoline engines. For three years the conditions under which he worked and the method of doing the work were the same. Claimant described the injury, as well as the conditions, as follows: “Q. What happened, Mr. Robbins? “A. Well, in the course of painting the engines, we have to wash the grease off, and where we wash them there is a slope down to a drain, and pulling that engine up out of there, putting it where we are going to paint them, — a man takes hold of each side of the engine, on the shaft, pulls them up out of there. “Q. And the engine stuck? “A. Naturally, on the hump there. Two of us were working on the engine; Mr. Carr, the gentleman here, and myself. In order to move the engine, Mr. Carr would take hold of one shaft in a stooping position. On the 22d day of January, when we were pulling the engine up out of there, Mr. Carr had the long end of the shaft and I had the short end, gave him a little advantage, but we don’t look at that. Anyway, my side seemed to get behind, and I used extra effort to start it, and at that time I felt pain. “Q. Just describe, if you will, the position you were in, what doing, and where the pain was. “A. Well, we were stooping over, in a stooped position (indicating), pulling, and the pain shot up across my side of my body in the groin. As near as I can figure, the engine we were pulling weighed somewhere in the neighborhood of 600 pounds. I have never previously suffered similar pain in the region of my groin. I have never had any attacks similar to what developed after this pain. The pain I suffered was simply a pain, that shot around there, and I felt weak afterwards. I did not do anything concerning the pain immediately, but noticed it once in a while. I looked my body over that night to see whether there was any injury, and I noticed a small swelling in the left groin. This swelling was. not there when I went to work that morning. I do not know of anything that occurred to me that would have caused the swelling, except this strain and lifting the time I felt the pain. When I discovered the swelling, I was worried about it and consulted Dr. F. A. Jones; that would be on Saturday evening. He did not make any investigation of my body at that time, although I described the sense of pain that I had and the swelling. He did not see the swelling that night, neither did he prescribe anything for me. He said, I don’t remember the doctor’s exact words, something to the effect that a cold had settled in the glands and it would pass away in a day or two. 1 went back to the same doctor again on Monday after that Saturday night. I worked Saturday, and the following Monday I went back to the doctor because the swelling was larger. The doctor at that time made an examination and said that I had hernia.” On cross-examination he testified: “Prior to January 22, 1915, I did not have a hernia. I know what a hernia is, in a way. It is the breaking of the lining of the stomach, and, while I don’t really know whether I had a hernia before or not, I never had any pain or swelling down there. Never had any trouble there. “Q. You don’t know whether you had a hernia or not? “A. Well, according — if that is what I had, I never had one before. I have been employed with the Original Gas Engine Company for almost nine years. “Q. And how long had you been doing this particular class of work? “A. Ever since 1 have been there. “Q. The very same kind of work? “A. Exactly. The conditions of the factory during the nine-year period was not exactly the same as on January 22,1915, ’cause the Original Gas Engine Company have moved into these quarters about three_ years ago and previous to that time, of course we did not have the same floor to work on. “Q. Then for three years you had been doing the work in the exact manner you were doing the work under date of January 22d? “A. (Witness nods yes.) “Q. The engine weighed, you say, in the neighborhood of 300 to 600 pounds? ■ “A. Somewheres in the neighborhood of 600. “Q. You have been handling the same* make of engine right along? “A. Yes; of course, you understand these engines are not the same size. “Q. And when you were lifting the engine on this particular day, at this particular time, you merely felt a pain? “A. A sharp pain, yes. “Q. That was all out of the ordinary that happened at that time? “A. Yes. * * * “Q. You were doing the same class of work you had been doing for nine years? “A. Yes, sir. “Q. There was nothing whatever out of the ordinary that you did on that particular day? “A. No, sir.” And on redirect: “Q. Mr. Robbins, do you ever remember any other occasion where any engine weighed as much as this one stuck and you had to exert yourself as you did in this case to move it? “A. I couldn’t state any particular case, but there has been engines; it is a cement floor, and cast iron has a tendency to stick. “Q. Had it occurred before that day at all, that you remember? “A. Well, I presume there has been engines sticking down there, but I couldn’t name any particular time. “Q. Could you say for sure whether they stuck so you had to exert extra strength? “A. I couldn’t do it.” The history of the particular case excludes the idea of the use, with violence, of an instrument, or substance, puncturing or rending the abdomin'al wall. A physician, the one first consulted by claimant, testified that in his opinion the hernia was caused by the strain in moving the engine. He further testified that when he first examined claimant he was able to reduce the hernia with his finger; that there were no adhesions. In these circumstances he found support for his conclusion that this was a new and not an old hernia. The surgeon who operated upon claimant testified that in his opinion the hernia was produced by the exertion described by claimant. All the experts seem to agree that the visible evidence of the hernia is the protrusion through the inguinal ring of the peritoneum and its contents; “the hernia is the peritoneum going through, accompanied by the intestines or some other substance.” But the testimony for respondents is to the effect that the peritoneum is incapable of sudden, and is capable of very gradual, extension; that the sudden complete development of hernia in a pathological sense is impossible, but the hernia may be felt — the sudden projection of hernial contents into the preformed sáe —for the first time during a straining effort. Various medical authorities to which the court is referred appear to sustain the proposition that hernia is of slow formation and can never arise from a single augmentation of intra-abdominal tension, however great it may be. It may be said that the testimony of claimant’s experts does not deny this proposition; that they regarded the condition which they found — the condition they undertook to relieve — as caused by the strain and exertion of the claimant. They found a hernia, a protrusion, to be reduced, and found cause for it in the described strain and exertion of claimant. The Michigan law does not award compensation for all personal injuries suffered by an employee, but for accidental injuries only. Adams v. White Lead & Color Works, 182 Mich. 157 (148 N. W. 485, L. R. A. 1916A, 288). The vital question which the • Industrial Accident Board had to determine was not whether on January 22, 1915, it was discovered that claimant had hernia, but was whether claimant on that day suffered an accidental injury, arising out of and in the course of his employment. Accepting respondents’ proposition as true, it may be said that upon the occasion in question, by reason of a strain, or effort, of claimant, in performing his duties, an undiscovered and undiscoverable, but previously formed, sac was pushed' through the left inguinal ring and muscles. So much injury claimant then and there suffered, to alleviate, if not to cure, which medical attention and treatment were required. It is compensation for that injury which is claimed and was allowed. Was it an accidental injury within the meaning of the law? It has been said of the expressions “accident” and “accidental,” employed in an act having a purpose similar to ours, that they were used with their popular and ordinary meaning. Happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected. “If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.” United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 121 (9 Sup. Ct. 755, 762). This is a case relied upon by respondents. It has been held that death resulting from a ruptured artery was not accidental when the rupture occurred while the insured was reaching from a chair to close a window, did not slip or fall or lose his balance, and nothing unforeseen occurred except the bursting of the artery. Feder v. Traveling Men’s Ass’n, 107 Iowa, 538 (78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212). An examination of cases arising principally upon accident insurance policies, some of which are collected in a note to Lehman v. Accident Ass’n, 42 L. R. A. (N. S.) 562, discloses that in the opinions which seem to be best considered the distinction is observed between the means by which an injury is produced and the result of the producing cause or causes. It is not sufficient that there be an unusual and unanticipated result; the means must be accidental — involuntary and unintended. There must, too, be some proximate connection between accidental means and the injurious result. It is doubtful, however, if in applying our statute, its general purpose being considered, the court should exactly follow the rules suggested and applied in the cases referred to. The statute seems to contemplate that an accidental injury may result by mere mischance; that accidental injuries may be due to carelessness, not wilful, to fatigue, and to miscalculation of the effects of voluntary action. There is testimony in the record, although it is not very conclusive, to support a finding that claimant was suddenly, and accidentally, put at disadvantage by the act of his fellow workman and the sticking of the engine on the concrete floor, and that the rupture and immediate protrusion of the abdominal sac were caused by his efforts to retrieve his position and do his work. It is assumed that it was the first time the sac had been forced through the abdominal wall. If it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the injury he suffered. I decide only the particular case, and in doing so decline to hold, upon this record, that claimant suffered from disease and not from accidental injury. See Grove v. Paper Co., 184 Mich. 449 (151 N. W. 554). The method employed by the board to ascertain the amount of claimant’s wages is questioned. Claimant had been employed by the Original Gas Engine Works for nine years. During the period from February 6, 1914, to February 6, 1915, he worked the entire time except seven weeks — 42 working days. His wages were $19.50 per week. He earned and received $790.15 during the year. The average weekly wages actually earned during the year was $15.20, one-half of which is $7.60. But claimant was- awarded $8.76 a week, or an average weekly wage of $17.52. It was ruled that, having lost seven weeks, claimant had not worked substantially the whole year, in the same employment, immediately preceding his injury, and that 300 times the average daily wage was the average annual earning. The statute, so much of it as is material, provides (2 Comp. Laws 1915, § 5441): “Sec. 11. The term 'average weekly wages’ as used in this act is defined to be one fifty-second part of the average annual earnings of the employee. If the injured employee has not worked in the employment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed. If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed. In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.” Claimant had worked in the employment, that is, in the capacity and line of work in which he was working at the time of his injury, for many years — not only substantially, but wholly. It was therefore manifestly improper to employ the factor of average daily wages in determining the average weekly and annual wages. It is obvious, too, that the average annual wages of one employed for years in the same capacity and line of work cannot be determined except by comparing the wages of two or more years. A man may change his employment or the capacity in which he follows it. If he has done this at a time substantially less than a year before his injury, then the statute fixes 300 times his average daily wages as his average annual wages. For the man who works for years in the same employment and is injured, the statute fixes average weekly wages at 1/52 part of his average annual earnings. This is the rule which should be applied in this case. The record does not supply the information required to make a finding. It is assumed that the parties in interest can easily ascertain and agree about the annual earnings of claimant for a period of at least three years. It is, of course, possible that the award made is substantially a correct award; but, the rule applied being inapplicable, it must be set aside. Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.	[ -5, 24, -10, 35, 31, 5, 0, -31, 33, -12, 4, -39, 60, -37, 16, 6, 58, -22, -19, -17, -12, -76, -6, 6, -8, -43, 42, -25, -52, 36, 38, 1, 11, 6, -15, -3, 40, 20, 18, 21, 1, 28, 27, -71, 0, 13, 7, 23, 18, -15, 78, -11, 10, -27, 32, -18, 28, 25, -29, 1, 3, -17, 50, -68, 8, -2, 20, 28, -17, 24, -44, 7, 4, -42, -12, -13, -12, 98, -1, -32, 14, 0, 52, -12, -44, 64, -21, 14, 16, -49, 0, -37, 10, 29, -41, 0, -49, 51, -5, -2, -10, 11, -15, -35, -24, -12, -20, -46, 47, 14, -24, 35, 19, 22, 8, -35, 25, 1, -44, 27, -8, -26, -21, -12, -14, 31, -24, 4, -15, 41, -6, -10, -12, 17, 14, 11, -21, -33, -32, 14, -27, 43, -13, 24, -19, 9, 4, -5, 19, -21, 0, -11, -14, -67, -36, 19, -47, 5, 40, -5, 56, 0, 17, 34, 22, 24, 30, -1, 23, -16, 36, 2, -9, -61, 32, 27, 26, 4, -61, 41, -84, -48, 22, 16, 13, -12, -32, 64, 34, 3, 14, 30, -35, 21, -1, 0, -4, 11, 36, -20, 55, -5, 0, -48, -6, 28, -10, 12, 37, 4, 11, 19, 19, -39, -54, -11, 18, -18, -1, -29, 1, 13, 3, -36, -19, 4, -29, 18, 12, 6, -27, 36, 41, 6, 23, -53, 62, -30, 71, 19, 43, 8, 7, -11, -32, -23, -18, -44, 34, 0, 11, 8, -9, -12, -36, -16, 24, 22, -47, -39, 2, 45, -7, 33, 41, -39, -10, 32, 22, 17, -9, -50, 15, -21, -26, -23, -10, -2, 22, 3, -26, -2, -15, 31, -42, -36, -10, 24, -40, -47, 25, -63, 5, 0, 32, -9, 23, 2, 6, -18, 15, -43, 15, -17, 34, -5, -11, -8, -3, 6, -13, -40, 38, 22, 43, -19, 8, 34, 16, -5, -57, 23, -21, -37, -7, -5, 3, -12, 15, -10, -17, 40, -1, 84, -10, -28, -23, 15, 18, -10, 20, 32, 12, -27, -34, 30, -4, -36, 57, 12, 28, -31, 59, -16, -29, 56, 77, -25, -15, 33, 50, -35, -8, 13, -19, -21, -23, -36, 0, 60, -5, -44, -1, -16, -21, -25, 20, 26, -17, 28, -6, 17, -18, -84, -36, 28, 14, -41, -22, 25, -8, 24, 39, 19, -13, 3, 9, -14, -47, 31, -46, -25, 1, 0, 9, -48, 25, 6, -3, -37, 21, -1, 0, 14, 10, -21, 44, 18, -30, -54, 47, -17, -33, -16, 45, -9, 19, -18, -42, -50, 26, -60, 14, -27, -31, -28, -19, 10, -27, -6, -50, -2, 13, 17, 12, 62, 28, 50, 84, -11, 11, 18, 35, 48, 34, 45, 20, -7, 31, -9, -52, -21, 15, -14, 23, -32, -3, -64, 43, 2, 50, -16, -9, 22, 38, -3, 37, -26, -14, -48, -29, 6, 5, -39, -33, 10, -27, 38, 38, 9, -4, -20, -42, -36, -45, 27, -35, 15, 4, 0, -77, 6, -24, -10, 69, -37, 31, -58, 40, -24, -93, 12, 0, 7, 36, 1, -26, 5, -22, -4, -31, -16, -22, -13, -21, -70, -12, -6, -7, -64, 43, -36, 17, 21, -33, -25, 44, 10, -42, -64, -28, 29, 17, -14, 23, -35, -77, 26, 16, 68, 0, -9, 35, 35, 25, 2, 52, -49, 5, -5, -9, 30, 15, 34, 27, 8, 6, 2, 28, -39, -46, 31, 38, -7, -14, -20, -13, -14, -35, -3, -17, 16, -13, 19, -67, -48, -22, -5, 4, -16, -6, 2, 19, 47, 67, 19, -25, 12, 14, 8, -8, -48, -52, 10, 19, 30, -23, 34, 26, -20, -5, 42, 28, -44, -42, -29, -34, 14, 41, 24, 33, 25, 6, -19, -11, 4, -1, -33, -53, -71, -50, 51, -63, -9, -6, 36, 27, 26, -11, 23, 40, -41, 48, -8, -15, -38, 11, 29, -29, -65, -10, -35, -47, -16, 5, 25, -26, -6, -39, -11, -15, 13, 5, -11, -14, -3, 15, 10, -10, -20, -2, -2, 5, 10, 20, 1, -40, 9, 15, 16, 25, -23, 68, -10, -4, 0, 11, 0, 41, -37, -12, 10, 47, 25, -10, 53, 25, -22, -12, -28, -16, -10, -22, 47, 16, 17, 25, -17, 31, 17, -14, 32, -22, 6, 49, 31, 22, -10, -77, -51, 3, -29, -15, 13, 32, 39, 16, 9, -4, -37, 0, -36, -18, -7, -4, 13, 30, -11, 4, 2, 16, -6, 19, 11, -16, -27, -6, -36, 35, 13, -34, 6, 23, -1, 56, -30, -16, -28, -2, -40, 28, -4, 61, -9, -40, 3, -18, -18, -10, -24, 5, 22, 27, -46, 17, 16, 26, -35, 38, 22, 15, -56, -3, 52, -26, -19, -24, -9, 32, 10, 35, 12, 15, -38, -5, -24, -9, 2, -9, 2, -13, -9, -20, 16, 16, -62, 33, 11, 42, 13, -12, -40, -29, -11, -6, -25, 33, 22, 7, 26, -11, 73, 2, -57, 1, -16, -5, -32, 21, -32, 8, -44, -43, 54, 31, 23, 15, -16, -13, -6, 59, 24, -1, 50, 9, -58, -59, 39, -10, 36, -17, -31, 37, 52, -6, -19, -7, -42, -6, 7, -39, -23, -19, 10, 33, -3, -20, 54, 0, -19, 66, 2, -30, -53, -8, -3, -7, -15, 76, 23, 6, -82, -32, 1, 17, 7, -3, -51, 3, 39, 20, 37, 20, -22, -14, -30, 39, 34, 16, -15, -9, 47, 18, 42, -4, 16, -22, -50, -67, 9, 0, 0, -15, -31, 8, 39, 13, 26, 7, 13, -11, -18, 11, -24, -29, 17, -18, 23, -11, 33, 19, -38, 0, -8, 72, 28, -3, -54, -26, -17, 35, 18, -16, 81, -51, -83, -15, 11, 7, 56, 21, 42, 13, 6, -16, -7, -4, -13, -25, 7, 65, 13, -36, 22, 20, -3, -8, 33, -33, -38, 26, 36, -30, -18, 20, -29, 34, -1, -36, 38, 6, -33, -17, 38, -6, -19, -30, -41, -16, -8, -55, 38, -6, 34, -17, -66, -12, -26, 57, -22, -5, -24, -8, 39, 9, 11, 26, -32, 44, 4, -23, 41, -26, -55, 32, 37, -8, -38, 58, -15, 47, -20, 32, -28 ]
Hooker, J. The plaintiff’s action was brought to Tecover damages for the alleged negligent killing of three colts, which were run over by the defendant’s train. These colts were pastured upon premises of the plaintiff which were not fenced, and they strayed from these premises into the adjoining woods, and found their way, across lands of other proprietors, to the defendant’s railway, which was not fenced at the place where the colts approached it. They went upon the track, and were run down and killed. It was the claim of the defendant that it was not required to fence its track at this place, for the reason that it was used as a storing and loading place for ties, logs, and other forest products, which constituted the principal traffic of the road, the country being comparatively new. It is conceded that this was not a stopping place for passenger trains. The testimony of the civil engineer shows that, f’-om the station grounds at Copemish, the track is fenced for about a mile and a half south, and nearly to the point where the colts were killed. From that point there is a stretch of about eight miles, to a place called “Manistee Crossing,” or beyond, that there is no fence. At a distance of the length of 54= rails south of the place where the colts were killed, there is a switch for a side track, which runs north 27 rails or more. This switch, and the main track north from the switch towards the place where the colts were killed, and including the place at which they entered upon the right of way, were used as a piling and loading ground for forest products, and skids were constructed there to facilitate such loading; There are other such places, and the engineer testified that the company was in the habit of making them for persons who have timbered lands along the line of road, which the company' wishes to reach, and that it would not be feasible to do this if a fence were to be placed along the way at such points. It appears that the land adjoining the road, at the point in question, was owned by the Buckley & Douglas Lumber Company, but that the railroad company bought ties there from one Woolover, and that the State Lumber Company shipped some forest products from that point. Woolover obtained the ties from the Buckley & Douglas Lumber Company. It does not appear where the State Lumber Company obtained the products shipped by it. We think that the evidence fairly shows that the skid-ways and switch were placed there for the mutual convenience of the defendant and the Buckley & Douglas Lumber Company, which owned a large tract of timbered lands at that point, and that they had no other use, except, possibly, when one or more persons may have been permitted to draw products across the Buckley & Douglas lands for shipment from this switch. We find nothipg to indicate that the general public had access to this place, though it does not appear that they were forbidden. The learned circuit judge permitted the jury to find that this was a bona fide shipping point upon defendant’s road, necessary to its convenience and that of the public. The courts generally hold that statutes requiring railroad companies to fence their railways are not applicable to such portions of the roads as are devoted to the shipment or unloading of freight, or the taking on or discharging of passengers; and this exemption is not' limited to regular stations. It includes flag stations, and it extends to yards and switches, and so much of the main track contiguous thereto as is necessary to the safe, expeditious, and convenient handling of cars to be switched or handled at such point. A discussion of this subject, with numerous authorities, will be found in Elliott on Railways, at section 1194. Several cases in our own State recognize the doctrine. Thus, in Schneekloth v. Railway Co., 108 Mich. 1, a triangular piece of ground at the intersection of two country highways was exempted from fences and cattle-guards, although there was no building there, nor any agent, and trains stopped there merely when they had passengers or freight to deliver, or when some one displayed a signal erected for the purpose. The traffic at that place was probably much less than in the present case, and it' does not even appear that there was a switch. In the case of McDonald v. Railway Co., 113 Mich. 484, a spur track was built at a point remote from a station. This spur extended two miles, to the plant of a concern engaged in the manufacture of lime, and a part of this switch was used for switching passenger trains at times, and was not fenced. The court held that, although there was no public station there, the keeping open of this switch was necessary for het convenience of the public, and there was no obligation to fence it. See, also, Rabidon v. Railway Co., 115 Mich. 390 (39 L. R. A. 405). The evidence indicates that this railroad runs through a new and heavily timbered country, in which the principal industries relate to the removal of the timber. Upon these the railroad is largely dependent for its business. We may take judicial notice- that landed proprietors will seek the shortest possible route to the railroad with their products, and it is probable that it will be mutually beneficial for the railroad company to accept such freight upon the premises of large operators where this is feasible, as is done by all roads where manufacturing industries justify it. We do not find it necessary to say that a railroad company may safely omit to fence wherever it can find a little freight to be shipped. In this case the jury were permitted to find, and we think that the evidence clearly showed, that this loading place was one fully justified by the conditions, and the court might properly have so instructed the jury. He did not, however, and even left the question of good faith to the jury, which we think was unnecessary under the proof, but not injurious to the plaintiff. Inasmuch as the court might have charged the jury that this shipping point was not required to be fenced, the question of contributory negligence is entitled to consideration, in connection with the claim that the train was negligently managed. The court left this question to the jury, because, as he told the jury, there was testimony tending to show that the habit of horses was such that they would not be likely to attempt to pass from a cleared lot into or through, the woods. We think the course taken was as favorable to the plaintiff as he had a right to ask. The same may be said of the instructions in relation to the claim that the killing of the colts was wanton. The judge cautioned the jury against a popular prejudice against railroads. We are not prepared to say that such caution was improper. • It was coupled with an injunction to be impartial and to decide justly. We think the matter was within the discretion of the circuit judge, and that there was no just cause to complain of what was said in this connection. The judgment is affirmed. The other Justices concurred.	[ 13, 44, 63, -7, -49, 38, -1, 18, 11, 0, 4, -10, -11, 33, 31, 1, 0, -37, -23, 32, 24, -27, 23, -1, -36, -54, 22, 18, -50, 3, 7, 38, -6, -5, 15, 9, 15, 11, -9, 29, -1, -4, 41, -41, 52, 33, 11, -13, -5, -41, 45, 0, -12, -54, -7, 39, 21, -3, -42, 9, 30, -49, 11, -3, 7, 2, 0, -6, -4, 0, 4, 7, -55, 3, 49, -13, -9, -5, -32, 33, 22, 38, 32, 2, -9, -9, -25, -49, 3, 20, -12, -23, -40, -4, 26, 27, -23, -13, -18, -14, 8, 19, 12, -40, 13, -10, -13, -55, -26, 29, 9, 14, -13, 10, -1, -44, -25, -68, 9, 41, -15, -34, -15, 25, -37, 10, -16, 37, -42, 31, -8, -46, 15, 21, 55, -2, -39, -44, 17, -14, -18, 50, -19, 12, 19, -61, 0, 23, -10, 7, -35, 28, 34, -57, 33, 16, 35, -6, 30, -7, 30, 14, 16, -8, -60, 14, -8, -6, -49, 56, 0, 18, -6, -9, 53, 17, -31, 31, -47, 17, -8, -19, 31, 7, -27, -14, 58, -3, -26, 38, 42, 0, -7, -91, -30, 26, 13, -33, 19, 59, 4, -22, -44, -20, -42, -20, -25, -23, -6, -22, 18, 39, -49, -1, 12, 31, -30, -18, 30, -36, 24, 28, 0, -17, -20, -34, -23, 12, -5, -12, 6, -23, 19, -20, -15, -37, 9, -19, 20, -10, 39, -13, -46, -15, 3, -23, -18, -35, -3, 27, -16, -19, -49, -23, -5, -17, 25, -31, -43, -21, 23, 13, -29, 33, 31, -15, -21, 9, -28, -7, -15, -14, 45, 17, -10, -17, 29, 18, -22, 5, 59, 4, 0, 8, -43, 10, -39, -21, 0, 27, 30, -30, 12, 1, 12, 35, 39, 2, 32, -17, -2, 8, -17, -24, 29, 68, -38, 6, 15, 2, -18, -17, 37, -10, 21, 21, 22, -10, 0, -80, -26, -24, 12, -10, 34, 12, 15, -12, -3, 39, 33, 27, -2, 47, -33, -33, -9, -21, 0, 3, 8, 35, 16, 0, -45, -17, -6, -4, 10, -9, -1, -8, 40, -46, -14, -7, 13, -6, 20, 36, 38, -29, 6, 19, 22, -72, -44, -47, -7, -16, 47, -15, 54, 8, 43, -10, 21, 62, 15, 41, 22, -17, 17, -12, 6, -12, -35, -21, -80, 63, -38, -6, 16, 44, 11, 15, -23, 48, -2, -33, -32, 6, 19, 5, -4, -9, 15, 4, 0, 16, -2, -39, 52, -16, 9, -1, 12, 18, -32, -24, 53, 20, 69, -25, 12, -17, 27, -38, -57, -13, 19, -21, 37, 26, -16, 36, -5, 3, -39, -44, -42, -4, 22, 1, -30, 5, -22, 71, 34, -37, 12, -26, -16, 9, -39, 32, -4, -40, 57, 8, 14, 5, 48, 0, 41, -2, 12, -38, 72, 29, 6, 13, -26, 24, -8, -63, 56, 13, -12, 2, -18, -8, 11, 42, -21, -48, 21, -44, 70, 51, 30, 51, 0, -49, 14, 12, 9, -8, 33, 50, -59, -53, 32, -27, 10, 13, -6, -1, -19, 43, 41, 10, 20, -34, 0, 44, -46, -2, 6, -27, 21, -24, -39, -44, -2, 20, 22, -37, -12, -52, 31, -3, -15, -22, 40, -33, 7, -5, 2, -13, -16, -4, 19, -16, -9, -43, 40, -29, 16, 22, -17, 9, -7, -57, 4, 16, -84, -52, 5, -1, -14, -38, 4, -35, 28, 7, -18, 10, 59, -18, 2, 43, 46, -18, 12, 54, 3, 5, -22, 26, 2, -31, -57, 2, 24, -18, -10, -4, -45, 58, -41, 5, -14, 10, 14, -16, 23, 36, 11, -2, 15, -17, -16, 29, 16, -23, -32, 44, 15, 69, 3, -28, -2, 17, -42, 37, -4, -36, 32, -21, -13, -3, -49, -14, -35, -4, 31, 32, 8, 2, -45, 6, -9, 59, -11, -11, 10, 18, -24, 17, -16, -47, -47, -41, -25, -17, -77, 13, -17, 15, -30, -8, 36, -22, -13, 14, 17, 32, -27, -27, 34, -3, 12, 34, -40, -10, -13, -31, 0, 4, 72, -32, -10, 1, -2, -33, -6, 26, 27, 62, 40, -13, 42, -32, 37, -1, -17, 43, 3, 2, -15, 17, 37, 18, -4, -16, 10, -29, -34, -55, 17, 35, 16, 41, 38, -9, 4, -57, 5, 46, 49, 11, 32, 12, -16, 3, -21, 14, -18, -40, 40, -7, -24, -28, -6, 2, -4, -30, -23, 13, 2, 28, -35, -1, -26, 9, -40, -32, -30, -25, -16, -40, -2, 32, -45, 0, 55, 14, -10, 20, 30, 23, 43, -11, 27, -65, 7, -3, -32, -78, 52, -24, -53, -13, -40, 10, -7, -25, 22, -5, -4, 6, -48, -35, 48, 44, -34, -12, -20, 15, 0, -16, -19, 28, -7, 26, -26, -6, 7, -11, 16, -12, -6, 3, -29, -6, -24, 36, -6, 22, 2, -18, -47, 0, -18, -53, 13, -8, -22, 19, -24, 1, -25, -50, 2, 13, 15, -2, -18, 39, -11, 65, -6, -12, 10, 7, 20, -33, 75, 2, 35, -19, -55, -15, 19, 6, -6, -25, -13, 24, 1, 15, -23, -11, 42, 19, -12, 26, -15, 34, -16, 29, 2, -22, -28, -28, -4, 0, -27, 21, 6, 0, -68, -59, -34, -7, 17, -39, -42, 11, -14, 28, 7, 13, -38, 0, 6, -24, 17, 0, -17, -38, 43, 27, -4, -26, 7, -5, 98, 15, -2, -14, -12, 34, 16, -55, -32, 10, 43, 29, 0, 53, 15, 14, -1, -70, 6, -33, 17, 17, 2, -44, -5, -12, -57, 0, -72, 39, -12, 4, 5, -13, 43, 36, -40, 59, 0, 6, 1, 59, -29, -59, 13, -52, 27, 27, 14, -51, 31, -3, 17, 37, -35, 21, -10, -8, -22, 13, 1, 13, 9, -5, 20, 61, -10, 10, -40, 13, 19, -15, 0, 19, 20, -3, 5, 23, 32, -12, -3, -13, 0, -7, 10, -30, 63, -11, 2, 52, -18, -43, 40, -36, 6, 56, 20, -21, 9, -23, -41, 38, -56, 16, 29, -14, -11, 34, -21, 14, -55, -66, 3, -50, -51, 48, 21, 16, 13, 32, -15, -41, -73, 14, 1, 52, 42, 55, 3, -4, -5, -23, 21, 14, 37, 52 ]
Grant, C. J. Plaintiff brought suit in assumpsit against the defendants, declaring upon the common counts. A bill of particulars being demanded, he furnished one, declaring his demand to be upon a promissory note dated November 3, 1894, for J>150, due one year from date thereof, with interest at 8 per cent., and signed by defendants. Blanchard was an accommodation maker. The defense was that plaintiff had extended the time of payment without the consent of Blanchard, and had thereby released him from liability. The case was tried without a jury, and the court made a finding of facts and law, and rendered judgment for the plaintiff. It is urged that the court erred in receiving the note in evidence, because an alteration appeared upon its face, which required explanation before it was entitled to be admitted. It was claimed that the word “one” had been changed to “two,” making it read payable in two years instead of one. No exception was taken to the ruling of the court admitting it, and therefore this objection cannot be considered. It was conceded that the word “two” and the word “one” had been written in the note. It was a question which was written first. The note was written by Johnson’s wife. Johnson procured the signature of Blanchard, and then delivered the note to plaintiff, and received the money. The testimony on the part of plaintiff was direct and positive that the note was in the same condition when received by him as when produced upon the trial. The defendants gave evidence tending strongly to show that it had been changed. Both parties conceded that it was executed and delivered as a note for one year. The court found as follows: “The note, when produced in court, bore upon its face a blot or smear, which the court finds by examination of the said note to consist of a blurred ‘two,’ over which there is written the word ‘one,’ and that this condition existed at the time that the note was delivered to the plaintiff.” It is urged as error that the judge, after the submission of the case, made a microscopical examination, in order to determine which word was written first. Whether the court made such examination does not appear. If he did, he committed no error. Judges and jurors have the right to the most critical examination in such cases, and to use magnifying glasses for that purpose. The testimony as to the extension of time was- in direct conflict, and will not be reviewed by this court. Johnson paid a year’s interest towards the end of the year, but this did not operate to extend the time. Plaintiff testified that nothing was said between them about extending the time, and that he made no such agreement. The judgment is affirmed. The other Justices concurred.	[ 0, 8, 39, 33, -18, -17, 44, -2, 4, 50, -15, -21, 21, 0, -2, -9, 16, -18, 2, -77, -44, -36, -29, -31, 6, 28, 5, 20, -5, 20, 4, -1, -18, 19, -46, 30, 76, -9, -18, -1, 26, -43, 31, 0, -32, 4, -3, -17, 0, -11, 4, -56, 21, -30, -30, -32, -2, -71, -17, -6, -44, -49, 30, -44, -27, -37, 3, 6, -9, -52, -19, 21, 28, -18, -48, -99, -10, -21, -47, 0, 7, -25, -6, 4, -24, -53, 24, -40, 59, 29, -19, -11, -31, -31, -16, -16, 38, 8, 52, 21, 0, -6, -39, 20, -17, 46, -22, -6, -42, -25, 9, 26, 19, 1, -53, -30, -15, 23, -29, -50, 0, 39, 37, -10, -41, 33, -3, 9, 2, 53, 30, -8, -71, 35, -1, -14, 0, -31, 10, -41, -3, 34, -24, -1, -49, 40, 10, -12, -24, -5, -13, 8, -34, 38, -40, 11, -20, -70, 47, -27, 31, 42, 14, -40, 3, 7, -18, 13, 51, -22, 3, 21, -60, 2, 3, 57, -1, -39, 12, -17, 1, 39, -44, -16, 30, 24, -20, 31, 23, 25, -1, -30, -54, 26, -15, 3, -39, 2, 58, -36, -11, -12, 14, -11, -6, -15, 22, -73, -9, 52, 6, 9, -8, 8, -3, -15, 30, -30, 0, 40, -67, -23, -30, -3, -25, -13, 26, -4, 20, 0, -34, 48, -23, 12, 29, 8, 41, -4, 4, 6, -46, 18, 12, 1, 14, 18, -57, -27, -1, 42, 6, 44, -5, 27, -3, -22, 39, 14, 17, -8, -5, 13, 6, -76, 55, -26, 10, 12, -5, 31, -15, -62, -2, -20, 5, -12, 10, -13, -8, 33, -34, -10, -83, 17, -18, 16, 13, 18, -38, 21, 1, -22, 38, -46, 41, 43, 28, 17, -32, -13, -33, -19, -1, -31, 17, -28, -7, -20, -41, -51, -23, 33, -40, -9, -9, -15, -34, 8, 23, -30, 13, 38, -20, -16, -7, 20, 18, -13, -8, 43, -18, 3, 0, -42, -9, -2, 24, 2, -2, -28, 7, -7, -38, 25, 18, 47, -33, -34, -28, 37, -29, -29, 1, 17, 23, 31, 5, -31, -14, 34, 11, -3, 7, -48, 39, -8, -11, 28, 18, 15, -32, 10, -9, -60, -30, 18, 49, -39, -4, 33, -29, -8, -38, 4, 20, 11, -64, 0, 8, 30, -61, 7, 19, 18, 28, -1, 12, 8, -42, 14, -7, 27, 28, -22, -59, 46, -17, 20, 15, 36, 25, 15, 23, -36, 17, 2, 50, 14, 5, 5, 25, 3, -41, -11, 27, -3, 65, 6, 15, -9, -22, 32, 43, -13, 42, -21, -58, 11, 16, 8, 4, 13, -47, 39, 9, 17, 31, -2, -12, 19, 24, -29, 17, 83, -15, 35, 57, 11, -23, 3, 16, 21, -30, 25, 3, 30, 3, -18, -31, -11, 5, -25, 28, -1, -35, 27, -6, 12, 6, 13, 21, 23, -21, 2, -2, 32, -6, -32, -45, 12, -10, 14, 2, 35, -3, 11, -31, -6, -50, 5, 1, 2, -5, 33, 56, 16, -9, -6, 15, 23, -34, -3, 2, -32, -11, -7, 60, 26, -20, 71, 39, -12, -17, 39, -37, -7, 20, 37, 4, -6, 34, 40, 12, -30, -16, 5, 24, -27, -10, -23, -57, 24, 32, 47, -12, 15, -34, 11, -11, 27, 29, 24, 54, 30, -56, 27, 70, 45, -11, -28, 0, 22, 20, 3, 46, -21, 62, 19, 31, -23, -8, -31, 5, 16, -5, -2, -40, -28, -25, 22, -12, 19, -23, -21, -18, 6, 13, 25, 0, 49, 17, 14, -40, -8, -9, 13, -27, -44, 25, 37, 46, -5, -34, 4, 36, 7, -59, -14, -23, -63, 16, 15, 3, 17, 11, -47, -19, -104, -7, 13, 39, -46, 37, 0, -4, 11, -11, -23, 10, -29, 40, -49, 33, 27, -15, 72, 5, 20, -4, -13, 25, 33, -9, 20, -1, 38, 7, 10, 52, -51, 28, 6, 35, -19, -3, -2, 46, 6, -2, 15, -1, -22, -22, -9, 12, 9, 4, 5, -14, -8, 13, -17, -5, 24, 22, -28, -9, -15, 38, -25, 6, 36, 9, 25, 12, 12, -31, -32, -10, 4, -23, 6, -55, -14, -12, -7, 13, -19, -31, 12, -12, -22, 20, 17, 12, -19, -12, 52, 39, 0, 41, -30, 3, -11, 18, -5, 0, 31, -23, -31, 7, -45, 29, 7, -25, 14, 5, 17, -9, 21, 0, -22, -44, 29, 18, 29, 8, -21, 20, -35, -34, -2, 1, 6, -15, -19, 32, 9, -11, 57, 45, -3, -1, -7, -59, 11, -28, 6, 0, -34, 24, 4, -14, -72, -36, 6, -6, -5, 3, 3, 10, -29, 30, -56, -37, 17, 8, -40, 24, 6, 6, -10, 7, 54, 57, -23, 0, -39, -3, 63, -5, -61, -28, -34, -17, -55, -37, -18, 8, -14, -7, 2, 21, 47, 17, 28, -9, 7, -17, -46, -34, 19, -4, -8, -22, -3, -11, -5, 27, -11, -14, 25, 24, 31, 41, 3, -43, 30, -33, -8, 49, -24, 5, 12, 2, 27, -4, -12, 8, 6, 21, -7, -2, 49, 7, -27, -32, 58, 19, -61, 12, 39, -23, 8, -21, -26, 20, -8, 46, 26, -13, -25, -4, 11, 40, -26, 0, 0, 22, -18, 28, -16, -23, 17, 0, 25, 23, -42, 33, -20, -41, -22, -34, -31, -12, -49, 21, -9, -21, -31, 17, 2, -1, -25, 9, -20, 33, -29, 15, 29, -16, 10, 17, 2, 38, -20, -10, -39, 2, 42, 36, -27, 24, -31, -28, 31, 23, 29, 28, 15, 40, 35, -8, 12, 32, -14, 13, 31, -18, 28, 6, -7, -8, -14, 13, 19, -9, -69, 14, -26, 20, -36, -14, 31, -9, -9, -19, -17, 3, -22, -45, 30, -8, 43, -6, -28, -10, -9, -25, -10, -7, 22, 1, 5, -9, 19, 47, -29, -8, -20, -18, -25, -49, -24, -24, 14, 57, 6, 19, -6, 4, -36, -19, -13, 25, 48, 11, -18, -40, 4, 31, 55, -35, -19, 1, -46, 42, -23, 26, 12, -12, 8, -4, 31, 2, -29, 40, 2, -40, 0, -2, -5, 25, 17, 31, 20, -26, -47, 7, 6, 11, 5, 15, 12 ]
Long, J. This case was before this court at the April term, 1895, in a mandamus proceeding, and is reported as Fowler v. Wayne Circuit Judge, 105 Mich. 90. The action is in replevin. It appears that March 10, 1888, the property in controversy was owned by Mary A. Closs and Mary H. Saunders, doing business as Closs & Co. The property consisted of horses, carriages, harnesses, furnishings, etc., being the stock in a livery stable owned by Closs & Co., and the business carried on by them. On the above date, Closs & Co. gave to Patrick Blake a chattel mortgage covering all of said property, for the sum of $1,000; the condition being that Closs & Co. should pay or cause to be paid to Blake the debt aforesaid, with interest, and should ‘ ‘ discharge, take up, satisfy, and pay each and every note or obligation which the said Blake may hold against the said first parties, or hereafter make or sign for their accommodation, on or before the 10th day of March, 1889.” On January 21, 1891, Blake assigned this mortgage to plaintiff, George W. Saunders. In the meantime, and on August 17, 1888, Closs & Co. gave a bill of sale of all this property, and conveyed the. title, to Mary H. Saunders; the consideration being $3,500. To secure this payment, Mary H. Saunders gave a chattel mortgage upon the same property to Mary A. Closs for the sum of $3,500, payable in 35 equal monthly installments. Subsequently Mary H. Saunders conveyed the property to Saunders & Co., composed of Mary H. Saunders and William H. Saunders, Jr. Saunders & Co., on April 18, 1889, gave to Hincks & Johnson a chattel mortgage on all this property and other property for $3,600. This mortgage is, in terms, subject to the mortgage made by Mrs. Saunders to Mrs. Closs, but makes no reference to the Blake mortgage. The mortgage given by Mary H. Saunders to Mary A. Closs for $3,500 was assigned to Caleb EL Closs, the father-in-law of Mrs. Closs. The situation in January, 1891, as claimed by plaintiff, was that there remained due on the Blake mortgage, which had been assigned to plaintiff, the sum of $425. Nothing had been paid on the Closs mortgage. The Hinclcs & Johnson mortgage had been reduced to about $1,700. February 28, 1891, John J. Closs, son of Caleb H. Closs, claiming to have become assignee of the Closs mortgage, undertook to foreclose the said mortgage, and took the property from the plaintiff, who was in possession, and advertised it for sale. The notice of sale in this foreclosure proceeding was signed, “John J. Closs, Assignee of Mortgage, by George H. Fowler, His Agent.” This sale was to take place March 7, 1891. Plaintiff, claiming to have acquired the title to the property, on that day brought replevin, and took all of it on his writ,— Snow, Brooke, and Haigh becoming sureties on his replevin bond; and, to secure them against loss, the property was turned over to them. In July, 1891, these sureties caused it to be returned to Closs; and he agreed to release them from all claims on their bond, and that the suit should be discontinued. The plaintiff was in Ohio, but his written assent to this arrangement was procured. This stipulation for surrender and settlement contained a proviso .as follows: “It is understood that, if said Fowler should be found to have held said goods in any other capacity than as my [Gloss’] agent, this release shall not affect any right that he may have.” It appears that Hincks & Johnson had entered into an arrangement with John J. Closs to foreclose the Closs mortgage. Charles B. Lothrop was acting as attorney for John J. Closs; and Bowen, Douglas & Whiting, together with George H. Fowler, were acting as attorneys for Hincks & Johnson; and Mr. Fowler, as we have seen, had signed the notice of sale as agent for Closs. It was at this stage of the proceedings that the property was replevied by the plaintiff. Before the property had been turned over to Closs, it appears that .Atkinson, Carpenter, Brooké & Haigh, as attorneys for George W. Saunders, opened negotiations for a settlement of the matter; and the sureties on the bond to Closs made a written proposition, without conceding or denying the validity of the claims, to pay $1,600 in cash, give a joint note for $1,700, with interest at 7 per cent.,' payable in sums of $100 or more at any time, the whole to be paid in one year, and to give a mortgage on all the property for $2,000, with interest at 7 per cent., payable in installments of $100 or more per month; payments to commence as soon as they had been reimbursed for advancements and liabilities assumed, but the whole to be paid in one year from September 10th. George W. Saunders, by his attorney, approved this agreement. Mr. Murray, of the firm of Hincks & Johnson, testified that he met these parties, and then told them that his firm had an interest in the property taken on the writ of replevin, by reason of the agreement made by his firm with John J. Closs; that he then showed them a copy of this agreement. This arrangement for the payment of the money and the giving of the note and mortgage seems not to have been completed, and the property was turned over to Closs. The attorneys for the sureties on the bond then wrote Bowen, Douglas & Whiting that the property had been returned to Closs, and that he had released them from their obligations on the replevin bond. Haigh had requested Fowler to discontinue the replevin suit, and the sheriff to surrender the bond; and Fowler had declined to do so, on the ground that he held the property for the joint benefit of Closs and Hincks & Johnson, and he would iook to the bond to make good his interest and the interest of Hincks & Johnson. It may as well be stated here that the plaintiff claimed that a foreclosure had been had under the Blake mortgage, and the property bid in by the plaintiff, and that, even if the foreclosure of that mortgage was irregular, there was still due upon it the sum of $425 and interest. This claim was disputed, and defendants on the trial gave testimony tending to show that the Blake mortgage had been fully paid, and in fact that the assignment of that mortgage by Blake to the plaintiff was for the purpose of making a pretended foreclosure to cut off the other mortgages, by the plaintiff’s bidding in the property in his own name. It was also contended by defendants that the property had largely depreciated in value after it came into plaintiff’s hands, and before it was surrendered to Gloss. It also appears that on February 26, 1891, and before Closs took the property back from Saunders, a written agreement was entered into between Closs and Hincks & Johnson that Hincks & Johnson, who held the third mortgage, might foreclose his (Gloss’) mortgage in his name, purchase in the property under the foreclosure, and apply the proceeds — First, to the payment of any and all expenses connected with the foreclosure and of the action of replevin; second, to pay expenses of litigation growing out of the foreclosure; third, balance of proceeds to be equally divided. Hincks & Johnson had notice of the surrender of the property to Closs, and Closs offered, after receiving it, to divide with Hincks & Johnson. Closs foreclosed the mortgage, bidding in the property, and offered to divide it with Hincks & Johnson, or resell it and divide the proceeds. When the replevin case was called, plaintiff asked to discontinue under the stipulation made with Closs. This was denied, and the cause came on for trial, resulting in a verdict by which the jury found that plaintiff was the general owner of the property, and that the defendants did not unlawfully detain it; and, the defendants having waived a return, they found the lien of Fowler, as agent for Hincks & Johnson, to be, with interest, $2,275. Judgment was entered upon this verdict, and plaintiff brings error. It is contended by counsel for plaintiff that the settlement made by his sureties with Closs, and assented to by the plaintiff, is binding upon all the parties, and that his request made to discontinue the suit should have been granted. The argument is that this settlement was made in good faith, and that under it the plaintiff was induced to change his own position, in that he surrendered the rights which he had under the Blake mortgage, and at a later date, supposing the cause to be settled, bought the property back from Closs, and paid him $1,250 therefor. It is also contended that there is nothing in the agreement between Closs and' Hincks & Johnson which made it improper for the plaintiff or his sureties to deal with Closs, and surrender the property to him; that the most that can be claimed under this agreement is that it made Hincks & Johnson co-owners of the Closs mortgage; that the plaintiff could surrender the property to any of the owners; that the owner of an undivided share is, as to strangers, entitled to possession, and may even maintain replevin. It is also contended that Closs was the proper person to deal with; that Hincks & Johnson, having by their agreement obtained the right to foreclose the Closs mortgage, undertook to do it in Closs’ name, caused it to be advertised for sale in his name by Mr. Fowler as his agent, and in this way asserted that the proceeding was his (Closs’), and that he had a right to control it; that, having asserted Closs’ ownership, and the plaintiff having acted upon this assertion, and having commenced his action of replevin against Closs, and having thereafter settled with Closs, the defendants cannot now assert that some one else really owned the mortgage. It is also contended that Hincks & Johnson, as well as Closs, are estopped from questioning this settlement; for, as soon as Hincks & Johnson received notice of it, they put themselves in negotiation with Closs and his attorney, Mr. Lothrop, and came to an understanding with them that the property should be sold under the Closs mortgage, and the proceeds divided in accordance with their agreement; that the property was sold, and bid in by Closs, who then offered to divide the proceeds or make a resale; that thus Hincks & Johnson had ample opportunity to protect themselves, but, instead of doing so, allowed Closs to go on and sell the property, and plaintiff to make a new investment. The contention that the court should have granted the motion for a discontinuance of the suit, under these circumstances, cannot be sustained. As was held in Fowler v. Wayne Circuit Judge, supra, the circuit court could not dispose of the case summarily upon this motion. That was the very point in controversy when the case was here on mandamus, and that ruling must be adhered to. Counsel for plaintiff, by the same argument, contends that the court was in error in refusing to give his request in charge to the jury as follows: “If, after the surrender of the property to Closs, the defendants had full opportunity to protect'themselves by taking the pro’perty under the agreement with Closs, and neglected to do so, the jury should find for the plaintiff.” When the court’s attention was called to this request, he remarked: “I think I have covered that in my general chai’ge. ” In the general charge upon this subject, the court said: “If the jury find from the evidence that the plaintiff, in ignorance of the agreement between Hincks & Johnson and Closs, and believing that the Closs mortgage was being foreclosed in Closs’ right, although for the joint benefit of himself and Hincks & Johnson, entered into the arrangement for the discontinuance, and in pursuance of such arrangement waived his alleged right under the Blake mortgage, and surrendered up the property taken on the writ to Closs, and all this was done in good faith, and that Closs actually offered to carry out the agreement between himself and Hincks & Johnson so far as to the division of the property or its proceeds, and that the property had not deteriorated in value so far but that it was ample to satisfy both mortgages, then the plaintiff is entitled to have a judgment entered in accordance with, the stipulation. If you believe from the evidence in this case that the plaintiff was not informed of the nature of the contract between Hincks & Johnson, and that he believed that Fowler was acting only as the agent of John J. Closs in the foreclosure of the Closs mortgage, and that his (Gloss’) actions and doings were such as to lead an ordinarily prudent person to believe, — that is, Fowler’s actions and doings were such as to lead an ordinarily prudent person to so believe, — and that nothing was done by Hincks & Johnson, or their attorneys, that would ordinarily put a person in the position of the plaintiff or his attorneys upon inquiry as to any other rights which Fowler might have in the premises, and that the plaintiff acted in good faith in attempting to make a settlement with John J. Closs, whom he believed to be the only party in interest, then the verdict of the jury should be in accordance with the stipulation entered into between the plaintiff and John J. Closs.” It will be seen that the court did not give the request in the words in which it was framed, but did so substantially, adding that if the plaintiff was ignorant of the agreement between Hincks & Johnson and Closs, and the property had not deteriorated in value so far but that it was ample to satisfy both mortgages, then plaintiff would be entitled to a judgment to be entered in accordance with the stipulation; that is, to have the case discontinued. We think the court was not in error in this addition to the charge as requested. There was some evidence in the case that the plaintiff had notice of the claim made by Hincks & Johnson before the property was turned back to Gloss. The agreement itself to release the sureties of plaintiff contained a clause that has before been noticed; that is, that, if Fowler should be found to have held said goods in any other capacity than as agent for Closs, the release should not affect any rights he might have. No effort, as it appears, was made by plaintiff to settle with Fowler until after the property was returned to Closs. Defendants also offered proofs tending to show that the plaintiff and his sureties knew of the Hincks & Johnson and Closs agreement before this time. Testimony was also given by the defendants tending to show that the property, at the time of the seizure by plaintiff on his writ of replevin, was worth some $3,500, and that when it was turned back to Closs it had greatly depreciated in value. The court very properly left these questions to the jury, and we think it was not error to couple them with the above proposition made by counsel for plaintiff; for, if the plaintiff knew of the agreement between Closs and Hincks & Johnson, and it was a fact that the property had greatly depreciated in value at the time Closs took it back, then Hincks & Johnson, through Fowler, acting as their agent in the premises, and who is made a party defendant in the replevin suit, had a right to show the value of their interest in the property ; and that interest could not be cut off by the agreement made by Closs with the plaintiff’s sureties, and Fowler, as defendant, would not be estopped from showing it. It is contended that the plaintiff was entitled to judgment under the Blake mortgage; that there was 1425 still due upon it. The Blake mortgage had been renewed from year to year, and had been foreclosed by plaintiff, and the property bid in by him. Counsel for plaintiff asked the court to instruct the jury that: 5‘ The evidence is undisputed that the Blake mortgage had before that time been assigned by the mortgagee to the plaintiff, and by him foreclosed, and that at the foreclosure sale the property was bid in for the plaintiff. And if the jury believe that at that time there was a balance due on this mortgage of $425, and that the goods were sold for the amount of this balance, then the plaintiff got a title which was good as against the defendants; and, unless the settlement alleged is carried out, the plaintiff is entitled to a verdict.” This was refused, and the court charged the jury upon this subject as follows: “ If the jury believe that whatever money had been loaned by Patrick Blake in 1888, and whatever indorsements he had made prior to March 10, 1889, had been paid, then the said Blake mortgage became and was paid and void. If the jury believe from the evidence in this case — from the admissions of plaintiff or otherwise — that plaintiff never became the owner of the Blake mortgage, but that the transfer was a cover to defeat creditors, then it would not be legally enforceable in this case in plaintiff’s behalf, as against the defendants. If the jury are not satisfied that there was any honest foreclosure of the Blake mortgage, then the plaintiff could not recover in this action under the claim of a foreclosure of such mortgage. The jury are the sole judges of the facts as to whether the sale from Blake to the plaintiff was of a valid mortgage, or one that had been paid, or whether it was assigned for anything but a cover, or whether it was-fairly foreclosed, and whether there was a sale or not; and, bearing upon those questions, they may consider the action of the elder William H. Saunders in renewing it after the claimed foreclosure. You may also consider in that connection the claim-made by the plaintiff that it was for the purpose of estopping any possible question as to the legality of such foreclosure. * * * I will say that, generally, if the amount -of money loaned or liability assumed by Patrick Blake prior to March 10, 1889, was paid prior to March 10, 1889, then the so-called Blake mortgage, so far as it affects this suit, was discharged; and the fact that the plaintiff may or may not have procured an assignment of it, and undertaken to foreclose it, should not be taken into consideration by you in arriving at a verdict, as a foreclosure under such circumstances could not affect the holders of the so-called Oloss and Hineks & Johnson mortgage. “The undisputed evidence shows that there was $1,000 loaned on the Blake mortgage at the time it was made, and that there were subsequent advances made by Mr. Blake to the mortgagors and those claiming under them, of considerable amount. The fact that the mortgagors and those claiming under them repaid -Mr. Blake more than $1,000, so long as it was understood between them that such repayment should not cancel the mortgage, but that the balance due should remain secured by it, would not have the effect of discharging the mortgage, and in such case the plaintiff would be entitled to possession under the mortgage as against the Hineks & Johnson and Gloss mortgages, whether the foreclosure was valid or not. I will further add, in relation to this Blake mortgage, that if, after this mortgage was made to Blake, they made payments upon that mortgage, and it was understood by them and by Mr. Blake that they made those payments to apply upon that mortgage, then every payment that was so made should be so applied; and, if there were sufficient of such payments to cancel that mortgage, then the mortgage would be canceled. But if, on the other hand, there was a running account between Blake and these parties, as well as this mortgage dealing between them, and he loaned them money at various times, and they repaid the money at various times, then their repayments of the money advanced, besides that mortgage, would have no effect upon the mortgage, and would be applied only as they themselves agreed upon. ” It is contended that by this charge questions were raised which were not in the case; that there was no testimony tending to show that the transfer from Blake to plaintiff was to defeat creditors, or to show any admissions of the plaintiff; that it was equally mischievous to leave it to the jury to say whether there was any honest foreclosure of the Blake mortgage. It is further contended that the assignment of the Blake mortgage could not have the effect to defeat creditors; that Blake’s creditors were in no way concerned, and the transfer to plaintiff could not affect them injuriously; that the defendants were not creditors, either of plaintiff or Blake. As we have seen, the Blake mortgage was given by Closs & Co., composed of Mary H. Saunders and Mary A. Closs. It was the first mortgage upon the property. It was transferred to plaintiff before he became the owner of the property, and, unless paid, was a valid lien in his hands for the amount remaining unpaid, and was entitled to priority over the other two mortgages. It was put on file in the proper office, and had been renewed as the statute requires. The only question upon it open for discussion was whether it had been paid; for, if the foreclosure was invalid, yet plaintiff would have the right to assert a lien thereunder, as such lien had been kept alive by the renewals. The court was therefore in error in submitting to the jury the question whether the transfer of the Blake mortgage was a cover to defeat creditors of Blake, or whether there was an honest foreclosure of it, so far as affecting the lien which plaintiff claimed thereunder ; and he, being in possession of the property, would be protected to the amount of his lien. It is also contended that defendants showed no right to recover under the Closs mortgage, for the reason that it had never been assigned to John J. Closs, one of the defendants here. The mortgage was given to Mary A. Closs, and by her assigned to Caleb H. Closs, and it remained unassigned by him up to March 23, 1892, when it was assigned to the plaintiff in consideration of the sum of $000. This assignment was made by J. J. Closs as agent for Caleb H. Closs. On the trial, defendant Closs testified that there was no formal assignment of this mortgage by Caleb H. to him; but, as stated in the record, “he had a letter which was identified and marked, but not introduced in evidence.” The court, however, charged the jury that: “The claim of John J. Closs, as you will remember, to the right under this Closs mortgage, was under a verbal assignment. If John J. Closs was not authorized to foreclose the Closs mortgage in his own name, and if Fowler did not hold the propex’ty under the Hincks & Johnson mortgage, then your verdict will be for plaintiff.” The coxxrt’s attention was then called to the fact that there was no claim of any verbal contract of assignment, and he said: “What I mean is, it was not a formal assignment. If it was that which would amount to an assignment, and if he was appointed for the purpose of foreclosing it in his own name, — I will leave these questions to the jxxry.” We find no evidence whatever in the record that the mortgage was ever assigned to John J. Closs, or that he was ever axxthorized by Caleb H. to foreclose it. But, inasmuch as the record does not purport to contain all the evidence, we cannot say that xxo such testimony was given on the trial. For the error pointed out, the judgment below must be reversed, and a^new trial awarded. The other Justices concurred.	[ 23, 2, 48, -21, 8, 12, 16, -6, 44, -58, 40, -35, 16, -50, 58, 18, 38, 14, -8, 19, -12, -17, -55, 38, 18, 19, 29, -31, -6, -10, 21, 17, 12, 81, -29, 19, -18, 22, -30, -42, -6, 19, 29, -10, 4, 43, 34, -36, -8, -34, -23, -4, 28, -12, -8, -5, -3, 17, -13, 28, 19, -53, 15, 16, -7, 20, 11, 21, 53, 13, 22, -35, 10, 0, 9, -20, 24, 42, -33, -10, -7, -76, 26, -47, 4, -31, -25, -29, -41, 23, -28, 42, 9, 5, 17, 21, -8, 8, -26, 39, -24, -51, -14, 43, -3, -6, -47, -6, -22, 21, -21, -27, 67, 2, 15, -16, -55, -5, -18, -1, -16, -26, 27, -6, -7, 38, -32, -26, -43, -4, 33, -21, -23, -6, -7, -34, 11, -9, -20, -23, 64, 16, -35, -61, 9, 2, 13, 0, 12, -27, -39, 36, 23, 42, 39, -51, 18, -19, 34, -19, 45, -6, -1, -31, -44, -12, -7, -28, 2, 47, 57, 37, -43, -58, -8, -20, 34, -31, 6, -28, 18, 6, -6, 9, -29, -9, 37, 19, -8, 39, 41, 2, 2, 5, -32, 18, -1, -9, 28, 0, -7, -39, 5, 6, 48, -10, 5, 0, -22, -41, -5, -22, 5, 23, -11, -1, 9, -11, 5, -17, 51, 0, -10, 64, -40, -42, 0, -42, 20, 20, -34, 38, 51, 11, -39, 11, -72, -19, -16, 22, -23, -11, 6, -26, 2, -36, -37, 8, 21, 73, -19, 13, -9, 55, 34, 42, 9, -21, 6, 26, 29, 26, -65, 0, 76, -17, 7, 12, 26, 24, 33, -32, -6, 34, -55, -21, -21, 11, -12, -46, 63, -33, -3, -4, 7, -1, -28, 7, -20, 36, 2, 6, -19, 1, 1, 35, -11, -2, -4, -8, 24, -11, 44, 2, 8, -23, -31, 13, 0, -31, -18, -32, 52, -32, 18, 33, -15, 45, 22, -35, 22, -38, -34, 23, 45, 5, 58, -36, -46, 41, 2, -42, -18, 12, -34, 0, 70, -13, 14, 4, -4, 14, 15, -3, 8, -41, -18, -62, -7, 3, -48, -10, -14, 44, -60, 12, -16, -25, -29, 46, 11, 17, -2, 30, -1, -37, -45, -35, 26, 29, 54, 56, -24, -22, 21, -1, -49, 18, -20, 46, 11, -29, 20, 37, 37, 0, -38, -62, -16, 7, -19, 19, 11, 3, 3, 15, 19, -35, -85, -52, -4, 5, -23, 4, -16, -14, 0, -5, -14, 41, -6, 13, 7, -4, 9, 15, 19, -13, 35, 56, 5, 23, 22, -6, 79, -18, 85, -7, -42, 25, -16, -7, 32, 14, 40, -30, -25, -4, -26, 36, 35, 23, -17, 61, -21, 15, 0, 13, 57, 30, 48, -13, -17, -11, -31, -30, 21, -29, 5, -4, 89, -11, 18, 16, 13, 4, 0, -13, 15, 14, -56, -17, 16, -50, -39, -3, 49, 4, -4, 31, -61, 10, -18, 12, -23, -28, -96, -71, 16, 34, 73, -58, -18, -44, 36, 16, -18, -52, 0, 15, 20, 13, 55, 10, -10, -7, -15, -21, 14, 43, -17, -64, 7, 47, -25, -16, 5, 6, 10, 34, 44, -14, -11, -25, -22, 2, 65, -3, 12, -3, 1, 4, -36, -14, 10, -26, 26, 8, 2, -11, -8, 29, 26, 32, -55, 2, 63, -39, 24, 10, -15, -67, -3, 8, 6, 25, -15, -22, -2, -10, -49, 2, 6, -33, 58, -49, 28, -28, -7, 21, -26, -23, 0, -10, -23, 0, -6, -6, -53, 13, -4, -19, 0, -11, -11, 44, 4, 11, -5, -1, -27, 18, 0, -3, 36, -35, 0, 45, 5, 38, -16, 18, -10, -4, -7, 6, -33, 55, -35, 6, -16, 0, -9, 31, -15, -5, -37, 21, 0, -20, -14, 15, -56, 7, 8, -15, -6, 38, 1, 31, 18, -40, -15, 55, -22, 25, -13, 4, -22, -48, -46, -7, -31, -42, -51, 20, -47, -21, 33, -28, -53, 41, 18, -16, -7, -2, 26, -12, -95, -8, 59, -36, -34, 25, 35, -56, 20, 20, -35, -32, 18, 4, 50, -10, 60, -13, -21, 45, 47, -10, 18, 12, 50, -26, 34, -30, 23, 6, -10, 5, 24, -23, -37, -12, 38, 13, 3, 0, -38, 15, 23, -1, 19, 51, 26, 29, -4, -25, -37, -23, 35, 8, -16, 4, -3, 10, 0, 5, 8, -15, 3, 8, 5, -69, -5, -4, -29, -9, 1, -3, -5, 18, -35, 21, -16, 43, -16, 31, -75, -53, -32, 19, 3, 14, -27, -16, -37, 27, -6, 26, 40, 50, -19, 0, 22, -23, -26, -34, -20, -53, -44, 83, 17, 37, -13, 73, -31, -30, -8, -32, -2, 34, -45, -45, 55, -47, 13, -3, 4, -35, 28, -61, 20, 10, 0, -14, 75, -17, 47, -11, 11, -48, -19, -44, -79, -19, 40, 13, 17, -22, -15, 11, -8, 17, 21, -8, -16, -44, -23, -4, -60, -27, -15, -51, 0, 12, -6, 15, -14, -13, -71, 8, 13, 26, 29, -15, -32, 18, -16, 17, 19, -40, -6, -27, 24, -12, 24, 22, 15, 4, -38, 17, -32, -6, 46, 18, 8, 5, -10, -28, 15, -42, -56, -18, -75, -53, -45, 15, 1, -15, -17, 4, -28, 25, 17, -45, 13, 22, -40, -4, -18, -19, -40, -33, 21, -20, 30, -15, -4, 36, -47, -6, 0, 42, 3, 22, 11, -12, 18, 26, -25, -10, 5, 19, 39, -33, 33, -47, 57, -25, -55, 20, 12, -7, 17, -17, -15, 14, 21, 37, 9, -12, -14, -24, -32, 13, 19, 20, -13, 8, 56, 35, -41, 5, -48, 38, 64, -3, -22, 48, -33, 17, -4, -2, 5, -35, 18, -14, 15, -45, 64, 14, -4, 47, -34, 7, 16, -7, 31, 43, -20, 35, 31, 56, -35, -41, -42, 1, 3, -13, 8, 3, 40, 4, 24, 1, 53, 11, 11, 30, -31, -36, 38, -34, -18, 31, 11, 19, 39, -41, 6, -42, -52, 79, -4, -29, 1, 20, -14, -20, 20, 0, 23, -3, -11, -28, -17, 28, -10, -4, 15, -23, -7, 22, -2, -65, 3, 44, -3, -19, -10, -3, -6, 10, -4, 26, 18, 7, 42, -41, 34, 18, -22, 51 ]
Grant, C. J. The electors of the relator, acting under the authority of Act No. 352, Local Acts 1893, voted $60,000 for the purpose of raising money to construct public sewers. The respondents, the president and clerk of the village, refused to issue the bonds. The relator thereupon applied to the circuit court of "Wayne county for the writ of mandamus to compel execution. That court granted the writ, and the case is now before us on certiorari. Two questions are presented: 1. "Was the special act of 1893 repealed by the general village act of 1895 ? The relator was incorporated by a special act in 1889 (Act No. 371, Local Acts 1889), which provided that it should in all things, not in said act otherwise provided, be governed, and its powers and duties defined, by Act No. 62, Pub. Acts 1875. Act No. 3, Pub. Acts 1895, provides for the incorporation of villages. Section 7, chap. 14, provides: “All villages heretofore incorporated under any general or special law of this State are hereby reincorporated under and made subject to the provisions of this act, such reincorporation to take effect on the twenty-fifth day of February, A. D. eighteen hundred ninety-five, and all general or special laws by virtue of which such villages have been incorporated are hereby repealed from and after the said twenty-fifth day of February, A. D. eighteen hundred ninety-five.” The village authorities took no action under the special act of 1893 till 1897, when, upon the assumption that that act was still in force, the common council, at the general election, submitted the question of the issuance of these bonds. Section 7, above quoted, does not expressly repeal the special act of 1893. It in express terms confines the repealing clause to general or special laws incorporating villages. The last section of the act of 1895 has no general repealing clause, but expressly repeals certain acts, naming them. Section 22, chap. 9, is as follows: “Should any greater amount be required in any year for the purchase of grounds for erecting public buildings, or for other necessary corporate purposes, than can be raised by the council under the foregoing provisions of this chapter, such amount may be raised by tax or loan, or partly by tax and partly by loan, if authorized by a two-thirds vote of the electors voting upon the question at an annual or special village election. The amount that may be voted or raised in any year, under the provisions of this section, shall not exceed two per cent, of the assessed valuation of the property in the village, as shown by the last preceding tax roll made therein.” The act of 1875 controlled the action of the village in raising money, and contained the same limitation as ife found in section 22 of the act of 1895. The assessed valuation of the village was about $1,000,000. The purpose of the act of 1893 was to authorize the village to raise money beyond the 2 per cent, limitation. We need not cite authorities to the rule that repeals by implication are not favored, and that only when two acts are so incompatible that both cannot stand does the latter repeal the former. There is nothing incompatible in the two acts, and nothing in the latter to indicate an intention to repeal the former. Suth. Stat. Const. § 158; End. Interp. Stat. § 233; Regents of University v. Auditor General, 109 Mich. 134. 2. Was the requisite notice given to the electors? It is urged by the respondents that section 23, chap. 9, Act No. 3, Pub. Acts 1895, controls the notices to be given in such cases, and that requires notices to be posted in six of the most public places, at least two weeks before the election at which the vote is to be taken. As already stated, the vote was taken at the general election, and the same notice was given as is required by law for that election. The notice was given under section 4, chap. 3, which reads as follows: “Notice of the time and place of holding any election, and of the officers to be elected, and the questions to be voted upon, shall, except as herein otherwise provided, be given by the clerk, at least eight days before such election, by posting such notices in three public places in the village, and by publishing a copy thereof in a newspaper in the village, if any is published therein, the same length of time before the election; and in case of a special elec tion, the notice shall set forth the purpose and object of the election as fully as the same are required to he set forth in the resolution appointing such election.” The notices to be given under section 23 relate exclusively to the provisions of section 22, above quoted. It does not refer to the notice under this special act of 1893. That act does not define what notice shall be given. Where the law is silent as, to the notice, the common council possesses the authority to prescribe the method of notifying the electors. The council gave the notice required for the general election, and it must be held sufficient. The judgment is'affirmed. Hooker, Moore, and Long, JJ., concurred. Montgomery, J., took no part in the decision.	[ 47, 51, 21, -8, -54, 0, 14, -20, 11, -20, -35, -4, -18, 25, -7, 27, 4, -28, 1, 22, -9, -27, -19, 11, -25, 1, 36, 34, -51, -28, 17, -40, -65, 47, 5, -25, -1, 23, 20, -27, -56, 3, 5, -31, -20, 84, 0, -62, -10, -21, -24, 4, -27, 76, 23, 2, -16, -40, -36, -24, -55, -5, -26, 15, -18, -36, 28, 10, 26, -2, 36, -56, 14, -52, 39, 8, 26, 13, -5, 0, -28, -52, 14, -46, -75, -39, 6, -13, -18, 22, 14, -48, 6, 27, 11, 20, 47, -16, -5, 2, 39, 10, 18, 19, 23, -5, -20, -20, -2, 11, -8, 5, 22, -3, -20, 28, -47, -16, 19, -19, -5, -27, 25, -10, -1, 10, -76, -2, -60, -38, -7, -33, 3, 17, 26, -67, -33, 17, 69, 24, -12, 33, -26, -49, 18, -22, -10, -8, 0, -20, -16, -2, 8, 14, -39, 15, 8, -44, 21, 9, 29, 19, -6, -2, -50, -3, -36, -12, -8, 6, 19, 60, -51, 30, 4, -48, -1, -10, 0, 39, 6, 32, -25, 24, 55, -39, 20, -3, 22, 34, 70, -18, -35, 3, -2, 23, -21, 6, 22, 30, -36, 18, -31, -3, 6, 0, -17, 40, -13, 36, -13, -43, -17, 11, 37, 0, -14, 21, 63, 45, 44, 40, -24, 51, -42, -17, 3, -14, -16, 2, 13, 5, -17, 14, -19, 16, -54, 46, -48, 40, -33, 26, 34, -2, -35, 1, 34, -45, -10, 39, -4, -11, -1, 42, -13, 31, -37, 9, 14, -47, 50, 24, 6, -67, -10, -28, 17, 15, -6, 45, -5, -6, 57, -23, -6, 18, 37, -42, -50, 0, -36, -58, 6, 39, 54, 43, -80, 20, -56, 11, 27, 25, 7, 25, -28, 45, 13, -19, 26, -47, -18, 36, -24, 26, 55, -2, -31, 15, 10, -15, 5, 39, 19, 43, -18, 7, 17, 24, 26, -20, -7, -6, -21, -47, 11, 8, 3, -10, -45, 2, -21, -24, -4, 44, 9, 28, 46, -25, -18, -28, 47, -21, 8, -20, -9, 13, -46, -9, 26, 1, 0, -25, -3, 17, -23, 1, -13, -6, -17, 7, 0, 56, -44, -22, 2, 11, -15, -1, 1, 1, 6, 34, -36, 29, 43, 23, -2, 20, -47, 48, -9, 5, 40, 9, 27, 0, -9, -28, -53, 4, -33, -8, -70, -46, 2, 25, 12, -44, -79, -11, -4, 11, 11, 35, -5, -9, -20, 35, 42, 23, 12, -43, 30, -103, 51, -20, -31, -58, 57, -3, 49, -3, -4, -52, -39, -6, 2, -10, -4, 33, -4, 26, 25, 12, 24, -41, -52, 27, -43, -27, -40, 13, 58, 54, 2, -36, -33, 5, 2, -31, 35, -1, -62, 24, 26, 38, -40, -26, 63, 14, 1, 27, -41, 15, 20, 50, -26, 7, 0, 1, -61, 20, -35, -55, -19, -11, 37, 16, 38, 29, 63, -14, -16, 5, -44, -20, 18, 33, -23, 0, 8, -6, 20, 39, 34, 7, 25, -18, 9, 43, 51, 34, -25, -31, -37, 77, 5, -17, -7, 10, -21, -41, -6, 66, 28, 35, 2, -3, 19, 43, -35, 0, -53, -53, -2, 67, -6, 53, 8, -23, 5, -9, -29, 27, -6, 0, -1, 58, 0, -38, 4, 19, 1, 53, -5, -47, -28, -27, -19, 9, -49, -21, -32, -36, -9, 7, -27, -27, -7, -6, -26, -67, 35, -15, -12, -50, 60, -58, -35, -4, 0, -34, -55, -15, 16, 7, -2, -57, 40, 50, -12, 0, -27, -18, 85, -9, -64, 7, -11, 19, -8, 40, -77, 15, -12, 2, -47, 53, 27, -2, -9, -3, 19, -32, 21, 8, -24, 1, 15, 20, 5, -23, 12, 54, 44, 35, 11, 20, -35, -3, -15, 6, -4, -83, -8, -43, 7, 8, 7, 62, -6, 11, -18, 34, -25, 20, 63, 45, 42, -22, -58, -72, -63, -52, -27, 17, -47, 34, 2, 40, -21, 15, 15, -35, -4, -5, 10, -9, 48, -29, 8, 0, 51, 3, 39, 8, -14, 51, -23, -62, 3, -65, 12, 21, 14, -23, -44, 22, 12, 35, 4, 5, -65, 2, 3, -30, -25, 14, -20, 7, 65, 5, -61, 14, 2, -3, -1, 14, 24, 25, 9, 3, 5, 33, -65, -3, 5, 2, -5, -66, -1, -72, 31, 7, -10, -7, 58, 4, 4, 23, -40, -36, -75, 7, -52, 6, -24, -47, -43, 24, -27, -16, -15, -17, -36, 24, -20, 44, 30, -34, 27, -29, -67, 54, -16, 34, -24, 22, -26, 27, 1, -6, -37, 22, 4, -7, -31, 48, -24, 33, 6, 37, -38, 21, -7, -23, 1, -43, 27, 9, -6, 31, -31, -18, 21, -41, -7, 21, 4, -24, -18, -3, 3, 35, -5, -50, 33, -37, 0, 4, -27, -13, 42, 26, -33, -21, 33, 10, 47, 14, -25, 22, -42, 17, 25, -2, -31, 47, -1, -19, -28, 17, 10, -35, 26, 6, 2, 38, 17, -60, -19, -13, 30, -40, -1, 65, 14, 49, -10, 37, 62, 47, -18, -27, -14, -40, 16, 12, 8, -33, -56, 20, 6, -25, 0, 17, 0, 9, -9, 34, -2, -12, -8, -15, -22, 23, 2, -1, -5, 51, 55, 28, 5, -45, 7, -50, 0, -51, -18, 24, 23, -40, 1, 24, -12, 7, 10, 2, -16, -47, -50, 48, 23, -27, -37, 30, 37, -3, 57, 11, 42, 52, -10, 31, 36, -38, 1, -21, -33, -33, -33, -19, 1, 11, -23, -71, -12, 18, 32, 32, -7, -10, 43, -34, -42, -38, -12, -45, -16, 15, 37, 34, 19, -11, -55, -26, -2, 19, -15, 35, 36, 16, -40, 43, 39, 0, 57, 0, 48, 4, 9, -18, 15, 20, -2, 4, 26, 6, 11, -40, -71, 0, 56, 20, -19, -19, -10, 73, 16, 2, 31, 53, 18, 44, -41, 4, -13, -20, 6, -38, -9, 50, 8, 33, 9, 51, 11, -21, 5, 44, 25, -13, 80, 55, 7, 15, 45, -21, 0, -27, 40, -31, 20, -13, -36, -39, -54, -41, -14, -21, 38, 4, 43, 37, 5, -21, -13, -2, 26, -18, -18, 0, 44, 46, 22, 46, -13, 25, -9, -39, -3, -15, -31, -11 ]
Montgomery, J. The bill in this case was filed to compel the removal of a building erected upon land claimed by complainant to be an alley abutting complainant’s property, and to restrain defendant from obstructing such alley, or interfering with complainant’s rights therein. The locus in quo is a strip of land 40 by 20 feet in the rear of lot 60 of section 3, Governor and Judges’ plan of Detroit. It appears that on the 27th of April, 1807, a plan of this section was made, showing an alley or cul de sac of the dimensions stated, in the rear of lot 60, and terminating at the side of lot 59, now owned by complainant. This plat did not show the names of the streets, but was apparently accurate in other respects. It was not, however, recorded until the 23d of December, 1848, when it was placed of record, pursuant to a resolution of the common council of the city, sitting as a land board, adopted December 12, 1848. A map of Detroit was made by John Farmer in 1831, which shows this alley. In 1835 another map was made by Mr. Farmer, which shows lot 60 with the rear 20 feet separated from the front portion by a dotted line. Numerous other maps were introduced, — one made by Eugene Robinson in 1879, one by the same publisher in 1885, and still another in 1889; also a map approved by the board of public works in 1886, — none of which show the alley in question. Some testimony was also introduced to show that the dotted lines in the maps of 1831 and 1835 indicated only a proposed alley. As to the map of 1831, this testimony is not persuasive, in view of the fact that in the marginal annotation on that map appears the following: “The dotted lines exhibit the boundaries of certain lots and alleys according to the recorded plan.” One A. E. Hathon made a map of the city of Detroit, the date of which does not appear. The copy which is recorded bears date of 1856. After the Governor and Judges’ plan was made, a conveyance was made of both lots 59 and 60 to "William Brown, describing the lots as 100 feet in depth, which description included the land appearing as an alley on the map. Similar descriptions were contained in the chain of title until 1848, when the title was vested in Albert Crane. March 30, 1848, Albert Crane deeded an undivided one-half to Daniel C. Waterman, describing the property as the undivided one-half of lots 59 and 60 in section 3, corner of Woodbridge and Griswold streets. On May 29, 1849, Waterman conveyed to Crane lot 59 in section 3, Governor and Judges’ plan of Detroit. Complainant derives title through mesne conveyances from Crane. On the 8th of August, 1848, Crane and Waterman conveyed to Charles J. Trombley “lot 60 in section 3, Governor and Judges’ plan, according to A. E. Hathon’s map of Detroit, being 80 feet deep and 40 feet wide, more or less, and bounded in front by Griswold street, on one side by lot 59, and on the other side by an alley, and in the rear by an alley.” One Robert Dermont apparently held title to lot 59 at one time, and complainant’s grantor, by mortgage foreclosure, acquired title. On the 1st of November, 1856, Dermont, as owner of lot 59, and Trombley, as owner of lot 60, entered into a pa^-wall agreement, which recited that “said Dermont is desirous * * * to extend the present wall from its present terminus to the alley in the rear, ” and contains a grant to Dermont of the right to construct a party wall along the line “to the alley in the rear of said lot.” Trombley conveyed to Rahaley, and Rahaley to Seberon E. Tolsma. In each conveyance lot 60 is described as bounded in the rear by an alley. On the 11th of October, 1894, Seberon F. Tolsma procured a quitclaim deed from Trombley, purporting to convey the locus in quo. The title of defendant was derived through this latter conveyance. Defendant thereupon erected the structure complained of. A large mass of oral testimony was taken bearing upon the question of the existence of an alley by prescription. The circuit judge dismissed the bill, and complainant appeals. Defendant contends that, under the authority given to the governor and judges to make a plan, they could not divest title, and that the plan proposed by them was a tentative plan, as evidenced by their subsequent conveyance of the locus in quo as a part of lots 59 and 60, and that, in the absence of any express acceptance of the dedication by the public, the complainant has no standing. There would be force in this contention if there were no evidence of prescriptive right. It is also urged that an estoppel does not arise in favor of the complainant by a conveyance to defendant’s grantors, describing the locus in quo as an alley. This is by no means so clear, as the conveyance to Trombley was made by Crane, he (Crane) reserving title in lot 59; but we do not care to rest our conclusion on the effect of this conveyance. We are all well satisfied that complainant has shown herself entitled, as against defendant and his grantors, to claim an easement in the locus in quo, acquired by user, under a claim of right, not only acquiesced in, but affirmatively recognized, by the grantors of defendant, for much more than the statutory period. The terms of the conveyance under which defendant’s grantors held may not estop defendant, but they are most persuasive evidence that the tenants of lot No. 60 held in recognition of the right of complainant and her grantors. The fact that sheds were built in this alley to shelter teams is by no means conclusive evidence that the space was not used for all the purposes of an alley. The chief use of an alley, and particularly of a cul de sac, is that made by the abutting owners. Paul v. City of Detroit, 32 Mich. 108; Bagley v. People, 43 Mich. 355 (38 Am. Rep. 192); Horton v. Williams, 99 Mich. 423. We are satisfied that the occupants of complainant’s premises have had the uninterrupted use of these premises ever since their building was constructed, and that this occupancy has been with the recognition and consent of the owners of lot 60. This case is quite unlike Dexter v. Tree, 117 Ill. 532, cited by defendant’s counsel. In that case the question was whether a prescriptive right had been acquired in an alley when the instrument creating it described it as a private alley for the sole and exclusive use of the named parties. It was held that the mere permissive use of the alley by a third person, under no claim of right, could not ripen into a right by prescription. In this case the complainant’s and defendant’s grantors all understood that the use of this alley by complainant’s grantors was not merely permissive, but under a claim of right; not only this, but a claim of right recognized by defendant’s grantors. The decree below will be reversed, and a decree entered granting the relief prayed, with costs of both courts to complainant. The other Justices concurred.	[ -16, 50, 45, -73, -4, 16, 14, -20, 4, 1, -7, -22, -13, -7, 58, -9, -2, 16, -32, 32, 3, 4, -43, -85, 56, 60, 63, -1, -1, -23, 37, -42, -23, 82, 2, -3, 17, -6, 52, -35, -21, 12, -55, -12, 53, -20, 2, -7, 46, -6, -79, 20, 8, 25, -56, -57, -29, 25, -26, 41, -14, -19, 16, 13, -6, -7, 23, -10, -10, -25, 14, -16, 19, -17, 8, -12, 14, -63, 4, 3, 2, -15, 25, 2, 3, -3, 13, 3, -11, -7, 2, -45, 13, 50, 29, 17, 30, 56, -2, 2, -4, 71, -45, 23, -5, -67, -3, -9, 73, -30, 54, -13, 26, 20, 18, -24, -18, -42, 40, -10, -23, -45, -27, 25, -24, 19, -52, -26, -8, -5, -7, -18, 5, -23, 28, 33, -31, 29, -4, 57, 14, 27, -12, 12, 14, 53, -62, 26, 5, -58, 26, 34, -22, 20, -6, -24, -13, 0, 27, 64, 32, 6, 47, -19, -69, 39, -60, 4, 1, 32, 17, -27, -5, -37, -11, -36, -44, -19, -23, -46, 50, -17, 15, -14, 9, -6, 15, -1, 1, 4, 51, -19, -30, 13, 6, 35, 0, -25, 8, -20, -27, -23, -11, -58, -31, 4, -54, 30, -17, 0, -20, -45, -17, 53, 67, 19, 66, 0, 32, 18, 9, 26, -26, 29, -44, -12, -6, 37, 32, 30, 19, -9, 1, -24, -13, -21, -55, 35, -17, 36, -6, 37, 1, -21, 41, 22, 63, 43, 16, 16, -31, -4, -6, -75, -7, 16, -16, -19, 27, 13, 29, 4, 42, -8, 66, 29, 53, -38, -17, 28, -54, 21, -14, 3, -38, -47, -37, 34, -14, -5, -49, -21, -79, 3, 24, 3, 27, -2, -62, 50, -43, -21, -31, 8, -44, -20, 20, 2, 61, -9, -30, 36, -13, -5, -14, -48, 10, -20, 61, -13, -12, 0, -9, 5, 34, 36, 39, 61, 22, -18, 43, 18, -15, -18, 5, 26, 46, -21, -43, -5, 47, 23, 49, 64, -49, 54, 14, -18, 7, -32, -8, -11, 12, -12, 54, 41, -25, 7, 19, -20, -57, 20, -37, -31, 8, -35, 1, 0, -11, -21, 8, 29, 46, 2, -3, -82, -74, -22, -35, 7, -42, 29, -30, 56, 12, -18, 20, -57, -70, 46, 0, -35, 1, 0, 32, -9, 7, -36, 33, 11, -54, -1, -8, 24, 1, -35, 33, 11, -32, 3, 44, 43, -18, 32, 0, 46, 31, 12, 23, -5, -4, -1, 81, -21, 5, 11, -61, -67, 27, 34, -41, 34, -20, -22, -13, -30, 14, 0, -7, -9, -44, -19, 55, 44, 37, 29, -38, -21, -11, -36, -23, 10, -46, 29, -2, 7, -52, 27, -15, 14, 51, 46, -43, 0, -15, -14, 30, -37, 39, 20, -11, -13, -78, 22, -47, 1, -48, 21, -14, 2, -35, 4, -20, -54, 32, -13, 23, 36, -23, -28, -7, -1, 29, 5, -56, 22, -14, -17, -72, -20, 46, -20, 71, -5, 29, -25, -1, 20, 33, 48, 24, 56, -60, -21, -37, -6, -37, 33, 34, 3, 3, -51, 4, -10, -8, 50, -20, -44, 53, -37, 12, -52, 23, -27, 76, 59, 27, 28, 24, -11, -1, -37, 12, 44, -27, -13, 17, 34, -24, -1, -7, 4, 47, 30, -12, 26, 9, 9, 21, -20, 30, -22, 4, -65, -29, 36, -24, -31, -24, 43, -67, 4, 42, -11, 10, 9, 47, -6, -11, 36, -45, 40, 37, -66, -12, 21, 4, -20, -14, 8, -22, -38, 10, -16, 35, 34, 19, -29, -30, 17, 4, 9, -69, 8, 41, 29, 5, 99, -39, -9, 62, -51, -3, -25, -41, -21, -11, -31, -11, -43, -5, -17, -7, 24, -13, 91, -54, 0, 30, 6, -2, 19, -35, -18, -2, -48, 33, 12, -40, 71, -10, -5, -16, 23, 31, -1, 39, -5, 28, -14, -30, 34, -41, -12, -25, 90, 5, 34, 0, -23, -71, 16, 29, -30, 27, -34, 69, -8, 51, 1, 17, 16, 32, 26, -20, -39, -24, -49, -1, -23, -5, 56, -24, 6, 20, -6, -16, 72, 41, 37, 20, -4, -81, 28, 97, -11, -54, -29, 0, 66, 41, -32, 7, -41, 13, -20, -10, -46, 30, 15, -6, 0, 69, 11, 10, 18, 12, 7, 17, -95, 78, -41, 8, -8, -28, -11, -31, 15, -9, -22, 49, 28, -21, -9, -29, -7, -32, -24, -33, -24, -10, -26, 6, -34, 10, 44, 16, -16, -10, -76, -26, -5, -34, 4, -53, -52, -11, 28, -52, 19, -22, 18, -7, 12, 15, -53, -3, -3, -3, -25, -18, 12, -32, 8, -23, -9, -12, 1, 40, 33, 7, 18, -49, -42, -19, 13, 17, -5, -19, -37, -34, -38, 0, -15, 15, 25, -28, 2, 56, -7, -16, -34, -44, -17, -10, -45, -18, -62, -20, -7, -43, -11, 18, -8, 10, 12, -39, 16, -4, -3, -33, 4, -12, -38, -1, -5, -27, 10, 9, -58, -20, 30, 11, -5, 52, -20, 18, 2, 2, 19, 54, -14, 2, 19, 6, -22, 10, 50, -13, -6, -19, -28, -9, -8, -34, -17, -43, 51, -12, 35, -67, 35, -16, -19, 36, -13, 18, -15, 35, 26, 60, -9, 13, 8, -16, -15, -11, -41, 16, -26, -7, 7, 8, -30, 19, 9, -7, -3, -18, -10, -15, -43, 15, -21, -28, -14, 15, -46, -40, 24, 44, -32, -13, 16, -52, 27, -33, 18, 16, -35, -84, 0, 1, -1, 52, -5, -3, 65, 14, -70, 21, -32, -61, 9, 9, -50, -59, 41, -15, 16, 27, 35, -5, 8, -16, 22, -6, 59, 0, 53, 14, 10, 13, -55, -35, 7, 25, -21, -4, 1, 52, -49, -29, 21, 7, -22, 36, -9, 5, -19, -10, -10, -25, 40, -3, 45, -66, -3, -7, -32, 18, 50, 8, -3, 11, 10, 26, -11, 4, 55, -46, -30, -8, -5, 16, 64, -51, 30, 18, -41, -3, -19, 31, 20, -8, 12, 70, 12, -6, -31, -21, 20, -75, 13, -22, -19, 5, 34, -6, 30, 17, 35, 10, 0, -9, 1, 15, -8, 31, 15, -15, 18, 46, 30, 18, 38, -68, 44, 0, -52, 39, -3, -52, 36 ]
Moore, J. Plaintiff sued George Minkler by capias. Defendants became special bail therein. Plaintiff recovered judgment against Minkler of $4,000 and costs. Execution was issued, and returned nulla bona. A ca. sa. was then issued, and returned unsatisfied, for the reason that Minkler could not be found within the county. This action was then commenced upon the bail bond by declaration filed February 27,1897, and served on both defendants on March 18th. Defendants pleaded the general issue, and gave notice that defendants had surrendered Minkler in exoneration of his bail on March 24,1897, and were discharged from their liability as bail on March 30, 1897, by Lewis Severence, a commissioner of said court. In support of their contention, they offered and the court received in evidence, against plaintiff’s objection, the proceedings taken in reference to such surrender and discharge, and the court directed a verdict for defendants. Plaintiff appeals. Six days after the declaration was served upon the defendants, they appeared before one of the circuit court-commissioners with Mr. Minkler and the sheriff, with two copies of the bail piece, each of which was sworn by Mr. Jenison to be a true copy of the original bail piece delivered to him upon his signing the bail bond. The original bail piece was in the form given in the statute. Upon one of these copies the following indorsement was made: “Let the defendant in this cause be committed to the custody of the sheriff of the county of Clinton in exoneration of his bail at the suit of the plaintiff in the plea within mentioned. “Dated March 24, 1897. “Lewis Severenoe, “Circuit Court Commissioner for Clinton County.” The sheriff took Mr. Minkler into custody. On the other copy of the bail piece the following entries were made: “I hereby certify that George Minkler, the above-named defendant, has been committed to and remains in my custody by virtue of a committitur of him in exoneration of his bail at the suit of the plaintiff in the plea within mentioned. [Signed] “Alonzo E. Dunn, “Sheriff of Clinton County.” “State oe Michigan, ) County of Clinton, j “On this 24th day of March, 1897, before me, the subscriber, a circuit court commissioner in and for said county, personally appeared Alonzo E. Dunn, to me known to be the sheriff of said county and the person whose name is attached to and who made the above certificate, and who acknowledged the same to be true. [Signed] “Lewis Severence, “Circuit Court Commissioner for Clinton County.” And the circuit court commissioner made the following order: ‘ ‘ In the Circuit Court for the County of Clinton. “William W. Morgan v. George Minkler. “Due proof having been made before me that the defendant in this cause has been committed to, and remains in the custody of, the sheriff of the county of Clinton, let the plaintiff show cause before me, at my office in the village of St. Johns, in said county of Clinton, on the 30th day of March, 1897, at 9 o’clock in the forenoon, why the bail of the said defendant should not be exonerated from their liabilities. “ Dated this 24th day of March, 1897. “Lewis Severence, “Circuit Court Commissioner in and for Said County of Clinton.” A copy of this order was served upon one of the attorneys for the plaintiff March 25th, at his office. The copy was signed in typewriting. Neither the plaintiff nor his attorney appeared before the commissioner at the hearing, and the commissioner made the following order: “The Circuit Court for the County of Clinton. “William W. Morgan v. George Minkler. “The defendant having been, on his own prayer, and by his bail, and in exoneration of his bail, committed to the custody of the sheriff of the county of Clinton at the suit of the plaintiff in the plea within mentioned, and the said sheriff having certified that the said defendant remained in his custody by virtue of such order of commitment, which certificate was duly acknowledged by the said sheriff, an order was thereupon granted that the plaintiff show cause before me at chambers why the bail of the said defendant should not be exonerated from their liabilities; and the plaintiff not having appeared, and proof of the due service of such order on the said plaintiff’s attorneys being produced to me, I do hereby declare that the bail of the said defendant are discharged from all liability as such bail, in the suit in which the within-mentioned bail piece was taken. “Dated the 30th day of March, 1897. [Signed] “Lewis Severence, “Circuit Court Commissioner in and for the County of Clinton.” It is now said these papers ought not to be received in evidence, because the copies of the bail piece, produced before the commissioner, were not certified by the clerk to be copies/and therefore the commissioner got no jurisdiction to act. The proceedings were under 2 How. Stat. § 7338. This section provides that there shall be produced to the officer authorized to accept the surrender two copies of the bail piece. The statute does not require them to be certified copies, and we think the copies produced, sworn by one of the signers of the bail bond to be true copies of the original, were a sufficient compliance with the statute. It is said that the certificate made by the sheriff does not show that Minkler was in the sheriff’s custody by virtue of a committitur of him in exoneration of his bail, made by the commissioner before whom he was brought for the purpose of surrender. "When we take into account the papers upon which this certificate was written, the order of commitment made by the commissioner, and the sheriff’s acknowledgment of his certificate made before the commissioner, we are led to say the objection is not well taken. We have considered the other objections to the reception of these papers in evidence, but we do not think it necessary to discuss them. The plaintiff paid no attention to the proceedings before the commissioner, but noticed the case for hearing. No costs had been paid by defendants. When the proofs were all in, the trial court inquired how much plaintiff’s costs were when defendants’ plea was filed. It was agreed that they amounted to $14. The court directed the defendants to pay this amount forthwith, which was done, and the court directed a verdict in favor of defendants. This is said to be error. Plaintiff claims that because defendants, when they undertook to surrender Mr. Minkler, did not pay the costs incurred by plaintiff to that date, the proceedings were a nullity; citing Mayell v. Follett, 7 Wend. 507; Bank of Geneva v. Reynolds, 20 How. Prac. 18; Cozine v. Walter, 55 N. Y. 304. None of these cases disposes of the question involved here. The case of Mayell v. Follett was one where plaintiff took judgment against the bail before the time had expired in which he might surrender his principal, and the court stayed the proceedings, and said that the bail might surrender the principal, and that on his doing so, and paying the costs of suit, the judgment and execution would be set aside. In Cozine v. Walter the defendant was a sheriff, who was sued by the bail for a false return. He •sought to justify upon the ground that the bail had not paid him his fees when the principal was surrendered. It was held that he could not do so, under the facts of that case. In Bank of Geneva v. Reynolds the bail applied, some months after the time had expired in which they could surrender their principal, for leave to do so. It will be seen that this was an appeal to the favor of the court, and it was held that, under the showing made, the bail should be allowed to surrender the principal on payment of the costs of the action, unless it was shown that they had been indemnified by the principal. In 2 Burrill, Prac. 230, it is said: “If a suit should have been commenced on the recognizance, notice of the surrender having been made should be given to the plaintiff or his attorney, which will operate as a stay of proceedings, provided the render' be made within the time allowed for that purpose by the statute; otherwise, the plaintiff may treat it as a nullity. If the plaintiff proceed in the action after notice of the render, because no tender was made to him of the costs already incurred, nor any rule obtained to stay the proceedings, the subsequent proceedings will be irregular, the statute of itself operating as a stay of proceedings. 3 East, 306.” The plaintiff, though notified of the proceedings before the commissioner, did not appear before him; and no objection was made to the order made by the commissioner upon the ground that the costs had not been paid, nor was the attention of the circuit court called to this fact before the trial began. There is nothing to indicate that plaintiff made any suggestion to the defendants about the costs, or that the defendants had any knowledge of the amount thereof until it was stated in court. The statute providing for the surrender of the principal is silent in relation to the question of costs'. 2 How. Stat. § 7338, subd. 4. We think the trial judge made a proper disposition of the case. Judgment is affirmed. The other Justices concurred.	[ 30, 7, -1, 60, -32, -24, 9, 2, 15, -9, 8, -45, -45, 18, -3, -6, 4, -41, 23, -58, -24, -8, -9, -27, -16, -25, -64, -3, -4, -71, 2, 77, -52, 11, 28, -7, 6, -43, -9, 44, -21, -12, 28, -21, -31, -37, 4, 7, 28, -34, 2, 19, -7, 19, 33, 1, 1, 30, -5, -4, -23, 2, -3, -15, -29, 15, -19, -14, -18, -4, 34, 19, 32, 24, 16, -1, 0, -38, 0, 39, 3, -36, -25, 11, -22, -13, -10, -8, -30, 28, -9, 0, -31, 4, 55, -39, -21, 19, 5, 28, -3, -23, -42, 18, 17, 25, -27, -68, -15, 30, -44, 38, 48, -13, -52, -54, -5, -27, 68, 0, 9, -30, 38, 23, 24, -18, -48, -2, 45, 18, 17, -8, -4, -3, -5, 19, 15, 41, 10, -14, -19, 23, 21, -74, 18, 6, 11, 25, -6, -9, -60, 54, 32, 40, 2, 44, 50, -20, -26, -43, 2, -41, 1, -32, -24, -58, 4, 35, -25, 25, -13, 10, 16, 29, 0, 32, -67, 6, -11, 39, 12, 22, 22, -14, 56, -3, 6, 0, -2, 55, 41, -2, -55, -9, -18, 31, 17, -16, -14, 8, 15, -5, 20, -16, 14, 2, 51, 3, -22, -17, -34, -38, 2, -18, -25, 42, 18, -33, 33, -16, -5, 23, -20, 68, -14, -34, 9, 5, -63, -43, 21, -35, 15, 50, -38, 23, -24, 25, -35, 4, -35, -41, -38, -34, 87, 19, 11, 9, -27, 40, -18, 27, -33, -27, -4, 6, 38, -48, -1, 16, -4, 0, -16, 25, -51, 25, 24, 13, -1, 40, -28, -7, 57, -43, -32, -49, -1, 14, 32, -14, 68, -26, -34, -16, 18, -31, -19, 20, -39, -2, 3, -10, -4, -35, 5, 43, -18, -56, 75, 5, 22, 8, 40, 8, -7, -3, -40, 12, -31, -29, -61, 34, -22, -19, 18, 14, 47, 29, 47, -50, 7, 59, -71, -44, -1, 20, -26, 47, -30, 18, -63, 1, -42, -54, -33, 21, 13, 6, 17, 0, 27, -20, -56, 41, 4, 36, 12, 10, -33, -59, -22, -27, 14, -7, -62, 11, -21, -35, 34, 15, -13, 7, -37, 29, 28, -47, -51, -8, -9, -3, 37, -2, -1, -24, -24, 32, 11, -26, -55, 45, 10, 47, -34, -17, 46, 18, 20, 3, 6, -32, -55, -11, -19, -31, -21, 6, 0, -41, -17, -9, 27, 39, 52, -34, -24, -1, 12, 19, 13, -14, 4, -4, 21, 19, 12, -26, -16, -6, -1, 7, 55, 7, 10, -71, 38, -4, -3, 17, 6, 5, 11, 88, 62, 6, 36, 19, -81, 55, 8, -24, -15, 22, 7, 5, 14, -43, -18, 25, 45, -5, 42, -5, 22, 21, -37, 32, -27, -19, 40, 11, -27, -32, 0, -24, 5, -24, -15, 1, -22, 7, -18, 20, -13, -89, 2, 2, 44, 2, 23, 14, -18, 24, -34, -11, -46, 4, 3, -23, 29, -49, 0, 0, 14, 0, 2, 30, 4, 10, -7, 2, -37, -40, -30, -5, 10, 2, 41, -5, 19, 1, 10, 8, -11, 4, -8, 8, 2, -4, -1, 1, -55, 0, -27, 31, 5, 64, 28, -36, 17, 10, -27, -40, -53, 0, 9, 8, 9, -4, -28, -18, 15, -4, 61, -19, 43, 2, -31, 10, -21, -13, 46, 11, -20, -33, -41, -4, -61, -7, 32, -22, 38, -55, -33, 13, -15, -2, 12, -67, -38, -29, 59, 31, -9, 14, -5, -23, -1, -23, 36, -15, 36, -11, 4, -20, -7, 18, 45, -10, -71, 47, -13, 18, 15, 17, 12, 10, 12, 25, 11, 1, -18, 15, 21, -18, 22, 6, -24, 22, 41, 17, 5, 10, 9, 15, -19, 10, -10, -29, -81, 26, 3, 0, 17, -25, -27, 21, -5, -72, -12, 0, -22, -13, -48, 9, -57, 24, 25, 25, -49, 15, -30, 14, -24, -9, 47, 13, -27, -25, 15, 0, -59, 42, -5, 13, 0, -38, 30, 26, 18, -6, -9, 14, -22, 20, -18, 20, 25, 6, 15, -12, 63, -66, 11, 0, 10, -57, 0, 51, 27, 36, 33, 37, 37, 2, 27, 11, -42, 10, -8, -24, -31, 46, 16, -7, -6, -13, 2, -11, 8, 9, 10, 15, -17, -43, -20, -11, -10, -35, 28, -22, 4, 18, 20, 4, -28, 13, 8, -2, -28, 13, -50, -9, -20, 0, 6, -11, -42, -13, -5, -7, 34, 41, 20, -6, -24, 40, -20, -6, -44, 15, 0, -31, -8, 27, -41, 13, 16, -4, 16, -18, 43, 59, 54, 14, 52, 6, 6, 3, -64, 25, 0, 29, 2, -46, -67, -12, 23, -26, 25, -16, -28, 9, -30, -29, -24, -19, 29, 10, -20, -32, 16, -11, -58, -28, 29, -7, 36, 21, -3, -25, -22, -39, -8, -14, -13, 11, 73, 4, -55, -30, -3, 12, 46, 35, 24, 0, 54, 30, 10, 16, 28, 47, 15, -17, 4, 57, -47, -23, 18, 18, -45, -15, -2, -10, -23, 26, 8, 1, -41, 15, 48, -4, 13, -8, 35, -27, 58, 0, -50, 11, -57, -40, 6, 4, -13, -17, 51, 16, 18, -29, 14, -10, -46, -13, -27, -2, 62, -24, 9, -13, 79, 6, -30, -76, 8, 10, 69, -49, -57, 12, 57, -17, -15, 37, -32, 29, -12, 28, 46, 0, -6, -45, 52, 6, -10, 22, 58, -43, -8, 24, 4, -5, 1, 22, -33, -12, -63, -23, -28, -41, 31, -2, 18, -11, 54, -19, 50, -16, -9, 51, 20, -2, -50, 8, -60, -36, -1, 19, 10, -30, -5, 0, -12, 28, -37, 46, 17, 19, -4, 49, -42, -32, -36, -32, -3, 53, 27, 8, 31, 9, 24, 49, -53, 15, -8, 78, 31, -12, -45, 54, -11, 1, 63, 48, 2, 22, -29, -28, 45, -38, -2, -1, 12, -2, 17, 22, 16, 18, 44, -3, 16, -2, -17, -23, 30, 24, 7, -6, 17, -57, 20, -2, -33, 15, 14, -26, 3, -9, -66, 18, -11, 11, -2, 44, 41, 12, -15, -18, -13, -55, -3, 19, 3, 66, 23, -27, -6, 51, 12, 20, -4, 9, 33, -16, -7, 22, -34, 36, -13, -30, -17, 9, -39, 21 ]
Grant, C. J. This suit is brought to recover treble damages, under section 8306, 2 How. Stat. Defendant failed to pay rent when due. Notice to quit was served September 4th. He did not surrender possession. Plaintiffs on September 12th commenced summary proceedings to eject him. Summons was issued on the 12th, returnable the 17th. The officer, being unable to find the defendant, served the summons on Thursday, the 13th, by leaving a true copy of the same at his usual place of abode, in the manner provided by the statute, and made his return the same day. Defendant did not appear on the return day, and judgment for restitution was rendered. On the 17th and 18th of September, defendant removed his goods from the store, but did not surrender possession till the 27th. The court rendered judgment for the defendant. Sunday intervened between the day of service and the day for appearance. The statute requires that the summons be served “at least two days before the time of appearance mentioned therein.” 2 How. Stat. § 8298. The service was void, and gave the commissioner no jurisdiction. Chaddock v. Barry, 93 Mich. 542 (18 L. R. A. 337). The language of the statute in the two cases is identical. Both parties concede that Sunday, the 16th, is to be excluded from the computation. Substituted service could not have been made till the 14th. Judgment affirmed. The other Justices concurred.	[ -20, 20, -5, -7, -2, -5, 30, 17, 14, 79, 13, 10, -9, 1, 26, -40, 17, 5, -13, -31, 20, -13, 13, -11, 5, -15, -33, -1, -16, -6, -38, -9, 9, -14, 18, 8, 17, -63, 24, 20, 0, -15, 12, -11, 4, -40, -42, 6, 41, -51, 21, -19, -36, -5, 31, -12, -23, 0, 45, -10, 18, -7, -8, -2, -36, 4, -38, 15, 2, 14, 5, 21, 64, 12, 39, -26, -10, -19, -15, 32, 49, 15, 14, 15, -38, -28, 37, -46, 37, -65, -40, 45, -51, -2, 15, -25, 21, -23, 4, -31, -24, -11, -36, -5, -33, -17, 8, -21, -89, -14, 30, -15, 82, -22, -2, 28, 12, -41, 30, -36, 90, -15, 36, -45, 39, -11, -4, -30, 15, 72, 27, 7, -15, 9, 5, -14, -3, 45, -44, -22, 76, 1, -12, 15, -21, -16, 60, 54, -33, 47, -25, 54, -7, 45, 1, 35, 30, -30, 6, -38, 9, 4, -19, -28, 23, -5, -16, 17, -14, -8, 18, -59, -4, -1, 14, 16, -1, -14, -7, -27, -33, -31, -23, -27, 82, 0, -8, -49, 6, -18, 25, -6, 4, 45, -30, 27, 30, 25, -13, -57, -43, -19, -12, 19, 25, -4, 82, -22, 10, 2, 0, -4, -62, -38, -19, -20, 28, -18, 4, -3, -52, -20, -44, 22, -48, -36, -5, 23, 22, 13, -32, 7, 46, -19, 17, -25, 27, 24, -1, 16, 0, 13, -29, -3, -27, 12, -23, -16, 1, 63, 17, -13, -18, 25, -36, -49, -2, 10, 2, 33, 18, 26, 32, -31, -1, -59, 16, 17, -3, 6, -22, 0, -24, -24, 35, -12, -46, 29, 44, 9, 1, -17, -2, -25, -25, 22, 24, -1, 13, 1, -8, 22, 12, 47, 0, 4, 12, 33, -14, 25, 11, 6, -12, 15, -26, -1, 1, -3, -3, -22, -23, 11, -13, -24, 37, -28, 10, -6, 13, -36, 0, 8, 18, 38, -69, -34, 24, -2, -9, -41, 13, 5, -12, -15, -33, 42, 29, -69, 9, -1, 12, -11, -47, 21, 28, 29, 19, 4, -26, 35, -40, -22, 5, 39, 50, 23, 5, -28, 3, 79, 70, -42, -63, -25, 27, 36, -8, 14, 14, 41, 12, -49, 3, 36, -49, -3, 6, -76, -32, 23, 28, -64, -39, -51, 5, 1, -50, -14, 16, 2, -50, 1, 33, -36, 46, -12, -23, -23, 10, 31, -9, -13, 0, 10, -29, -28, -24, -33, 27, 2, 23, -30, -2, 36, -12, -11, -28, -21, -11, -11, 24, 10, -35, -63, 25, -36, 8, 46, 10, 46, 30, 13, 14, -30, 23, 47, -71, -70, -17, -2, 6, 20, -38, 29, 55, 59, -5, 5, 9, 41, 23, 36, 58, 27, 10, 15, 34, 51, 16, -8, 65, -60, -70, 16, -14, 6, 5, -2, -21, 25, -28, 13, 2, 25, -17, 31, -45, -10, 24, 18, 25, 32, 26, -26, -21, 13, -31, -46, -15, 7, 6, 6, 7, 63, -1, -32, -52, 11, -40, 34, -3, -9, -16, 59, 18, 0, -26, 4, -10, -3, -9, 34, 18, -22, 43, 29, -27, 17, 34, -15, -21, -18, -54, -20, -11, 43, 0, 14, -8, -47, 28, -34, 35, -54, -8, 9, 33, -18, 5, 19, 9, 75, 11, 13, -6, 31, -42, 2, 12, 12, -12, 10, -18, -50, -33, 0, 8, 19, 59, 0, -5, -17, 45, 17, 12, -6, 4, 34, -38, 3, -15, -27, -3, 25, 14, 31, -25, -67, 24, -55, -16, 39, 42, -48, 12, -16, 4, -25, 22, 15, -20, 8, -13, -6, -2, -14, -40, -12, 7, 32, 49, -19, -33, -1, 25, -14, -27, 17, -30, 5, 26, 61, 16, -35, -5, -7, 25, -3, 11, 31, 23, -33, -14, 39, -46, -47, 39, -22, 25, -15, 6, 15, 60, -26, -14, 38, 28, -21, -44, 32, -32, 34, -25, -15, -18, -12, -36, -47, -2, -2, -2, 20, -5, 18, 29, -29, 26, -28, 19, -37, -20, -12, -22, 46, 48, -4, -5, -50, 11, 0, 10, -13, 26, 39, 5, -14, -6, -28, -10, 0, -35, 17, 7, 17, -58, -22, 15, -48, 24, -68, -26, -9, 0, 40, 26, 46, -9, 60, -5, -4, -10, 13, -18, 34, -27, 31, -10, 15, 32, 8, -52, 9, 39, 15, 57, 0, 0, 38, -37, 23, 34, 29, 41, -27, 0, -23, 21, -32, 0, -13, 30, 38, -28, 8, -44, -9, -13, -13, -36, 36, -21, 7, 50, -23, -11, -27, 23, 19, 0, 24, 14, -32, 1, 30, 21, 21, -2, -32, -81, 34, 0, 33, 6, 0, 26, 10, -3, -25, 32, -26, -48, 3, 8, 2, 30, 12, 3, -5, 45, -34, -6, -1, 0, -1, 2, -25, 22, -21, -31, 8, 20, -71, -22, -78, -19, 2, 51, 8, -14, -36, -23, 10, 62, -38, 11, 53, -18, 29, -17, -42, -41, -26, -15, 4, 22, -19, 9, 22, -12, 5, 42, 11, 0, -41, -15, 31, -81, -33, -9, -10, 3, -44, 13, 0, -30, 16, 17, -20, 20, 0, -55, -12, 6, -22, -18, 22, 14, -15, -9, -33, -3, 15, -49, -12, 6, 30, -8, -13, 12, -35, -12, 24, -13, -30, 18, -15, -12, -39, 21, 3, 25, -5, -17, 41, -18, -8, 13, -9, 4, -36, 28, -25, -3, -28, 2, -4, 0, -12, -68, 41, 58, 12, 1, 45, 35, -7, -1, -53, -15, -8, 41, -23, 0, -8, 15, -20, -7, -14, -12, 7, 15, -11, -46, -26, 16, -31, -4, -25, 66, 0, 7, 26, 28, -12, 39, -21, 25, -8, -18, 11, -51, -1, -72, -14, 31, -47, 44, -11, 6, 14, -40, -20, 2, -10, -37, -9, 42, 13, 12, -20, -36, 46, 42, 5, -19, 42, 0, -31, -21, 15, 14, -10, 31, -3, 39, 37, 32, -26, -70, -12, 16, -16, -25, 21, -5, 6, 10, 10, 24, 60, -13, -39, -17, -42, -13, 13, -7, 10, -53, -15, 18, -3, 24, 3, 0, -4, -40, 3, 12, 6, -13, -3, 2, 3, 23, -21, 62, 14, -19, -29, -23, 11, -2, 65, -5, 24, -46, 49, -31, 26, 41, 18, -33, 41 ]
Grant, C. J. (after stating the facts). Plaintiff’s wife is not before the court complaining of the transaction. It is. obvious that he cannot recover in his own right for any damages she may have suffered in parting with her property. He had no homestead right apart from hers, and cannot maintain a separate action for damages, even if she had been fraudulently induced to sell the homestead. Whether a husband, when his wife owns the title to a homestead, has, by virtue of the marital relation, such an interest as entitles him to damages when she has by fraud been induced to part with it, — quaere. But, if he has, both must join in the suit to recover the damages. It would seem that the sole remedy ought to be in the one who owns the title. In any event, the law does not tolerate a suit by each. Under plaintiff’s own theory his wife was a necessary party. The proposition that a husband is entitled to damages because, through his “impaired mental condition,” he was “induced and persuaded to cause and procure his wife to trade and sell her land for certain other lands,” does not merit discussion. She alone is interested in such a transaction, and entitled to damages on account of any fraud. Plaintiff had not been adjudged incompetent at the time of this transaction, nor has he yet, for this suit is brought in his own name. The declaration does not allege any fraudulent representations. It does not allege such incompetency as is recognized by the statute of this -State as a cause for the appointment of a guardian. The ■statute requires that he should be “mentally incompetent to have the charge and management of his property.” 2 How. Stat. § 6314. The allegation in the declaration is that plaintiff was “ mentally incapable of reasonably and properly managing and conducting his own business affairs.” Many men lack business ability, judgment, and discernment, but their contracts cannot, for that reason, be set aside. In order to avoid a deed, the party must show that the grantor had not sufficient capacity to understand the nature and consequences of his own act. Jones,, Real Prop. § 48. Were plaintiff before a court of chancery, seeking to set his deed aside, and offering to place the defendants in statu quo, relief would not be granted him by showing that he was “mentally incapable of reasonably and properly managing and conducting his business affairs.” When he seeks in a court of law to ratify his deed and contract, keep what he has, and have a court or jury decide how much more he ought to have had, he must hoth allege and show, in the absence of fraudulent representations, that his mental incompetency was such as would avoid a deed. No such degree of incompetency is alleged. The judgment is affirmed. The other Justices concurred,	[ 3, 9, -20, 2, -21, -14, 26, 49, 31, 26, 10, -37, 83, 36, 0, -16, -14, -31, -13, 16, -13, -42, -35, 58, -9, -36, 7, -6, -6, 3, 31, 5, -51, 49, -16, 45, -14, -48, -11, 13, 19, 0, 17, -1, -13, 16, -14, -41, -1, -26, 26, -29, 33, -3, 43, -32, -30, 24, -16, -73, 8, -19, -11, -13, 13, 55, 32, -32, -12, -38, -42, 17, 3, -12, -17, -40, 9, 12, 15, -6, 29, -45, 40, -40, 29, -6, -4, 47, -66, -28, -12, -6, 32, 12, 4, 12, 35, 29, 28, 49, -58, 1, 45, -6, -27, -30, -14, -45, 44, -21, 37, -3, 5, -10, -38, -15, -16, -57, -55, -25, 36, -17, 14, -5, 35, 24, -8, -33, 6, 2, 37, -13, -34, 8, -22, -23, -21, -16, 4, -33, 0, -21, -5, -46, 0, 9, 41, -36, -38, -6, -21, 35, -18, 1, 1, 3, 19, 10, 35, -29, 53, 28, -33, 8, 3, -19, 24, -27, 13, 23, 49, 38, -62, -20, -6, -21, 34, 17, -32, -22, 9, 13, 37, 15, -10, -52, 12, -1, -37, 11, -6, 4, 6, 48, 39, 56, -30, 23, 16, -44, -6, -32, -47, 57, 62, -12, 14, -40, -8, -19, -43, 41, -6, -76, -30, -40, 38, -32, -20, -18, 83, 46, 12, 40, -31, -38, -3, -54, 33, -3, 6, -16, 8, -26, -26, 1, 33, -23, 14, -19, -12, 25, 11, -27, -16, -31, -8, 30, -35, 19, -29, 3, -38, 30, 22, 19, 12, 42, -16, -43, -14, 9, -17, 8, 16, -19, -11, 34, 0, -13, 34, -21, 14, 54, -2, 16, -48, 62, -15, -1, 50, 9, 31, 20, -50, 11, -1, 9, 24, -17, 53, -44, -4, -21, 27, 44, -1, -34, 13, 20, -20, -15, 10, 32, 59, -21, -1, -11, 0, -38, 25, 24, -4, -3, -9, 12, -42, -7, -40, -32, 13, -9, -12, -40, -2, -51, 10, -57, -38, 73, -13, -7, -31, -27, 48, 2, -4, -45, -68, -22, 43, -52, 33, 0, 32, -19, 6, -21, -26, 41, -30, -15, -24, -5, 58, 1, 24, -33, -32, -15, 7, 22, -16, -33, 0, 18, 14, -42, 39, 25, 12, 14, 19, -19, -33, -43, -4, 5, -3, 14, 21, -5, 49, 23, 10, 42, -94, -9, -20, 44, -26, -32, 51, 13, -4, -40, -44, -9, -34, -21, 6, -8, -49, 6, -63, -27, 18, -24, -24, 12, 0, 22, 46, 3, -2, 3, 104, 34, 9, 40, -19, -31, 4, -34, -28, -35, -8, -26, 5, 15, 17, 7, 53, 10, 100, -45, -40, 2, -16, 68, 26, -25, 19, 34, -9, 18, -14, -24, 39, -5, -17, -5, -40, 48, 29, -8, 61, 27, -21, -57, 30, -5, 37, 3, 40, -61, 8, -55, -29, -7, 13, 13, 28, 37, -12, 39, -43, 37, 10, -10, -19, 56, 25, -44, -22, 22, -35, 16, -11, -51, 42, -39, 14, 7, -23, -69, 2, 25, -20, -14, 61, 27, 12, 25, 51, 20, -52, -7, -6, 50, -46, -43, 53, 31, 13, -20, 29, -22, -21, 33, -44, -41, -68, -33, 3, -18, 8, 42, 37, -11, -4, -11, 12, 21, 2, 39, -5, 16, 51, -37, -47, 70, -17, 32, 30, 43, 20, -3, 46, 20, -20, -40, 9, 20, 17, 27, 13, 18, 45, -16, 16, -2, 9, -12, 25, -14, 26, -23, -21, 54, -15, -66, -2, 21, 10, -3, 0, -2, 36, -18, -35, -9, -4, -43, -30, 6, -41, 6, 24, -39, 10, 3, -8, -13, -33, -45, 11, -25, -14, 64, -30, -45, -48, -34, 28, 6, 43, 2, -4, -17, -13, 5, 56, -50, 3, 23, 7, -44, -5, 58, 46, 15, 44, -20, 0, -31, 39, 22, -4, -28, -3, -2, 30, -5, -26, 43, -30, -32, 8, 13, 2, 16, -24, 33, 32, -15, 0, -4, 5, -48, -37, 29, -88, -9, 40, 2, -19, 11, -14, -11, 19, -53, -7, 20, 29, 51, 13, 13, -35, -17, 7, -19, 19, 58, 44, 10, -2, 13, -21, -24, -32, -54, 49, -18, -21, -7, -12, -46, -13, 2, -38, -9, 8, 21, -18, -13, -6, 56, 22, 19, -4, -7, -48, 51, 12, 29, -42, -16, -48, -56, 26, 33, -47, -36, -8, -12, 5, -63, -23, -1, -31, -45, -37, -46, 18, 1, 62, 0, 17, 7, 50, 9, -19, 3, -32, 16, 35, -1, 39, -4, 0, 46, 13, 10, 31, 18, -32, 3, 70, 5, 15, 0, 23, -13, -16, -66, -36, 0, -9, -15, -16, 43, -44, -41, -19, 45, -24, -44, -14, 11, -51, 1, 13, -6, -11, -22, 53, -14, 51, -17, -14, -50, -16, 29, -2, -11, 53, -38, 38, 27, 9, -17, -21, 0, -24, -10, 24, -6, -16, -20, -13, 3, 0, 16, 29, 48, -20, 66, -21, -22, 46, -52, 0, 49, -16, -25, 35, 38, 11, -6, 11, -18, -29, -25, -24, 0, 70, -21, -85, 21, -9, -85, -18, 62, 3, 0, 40, -51, 1, -7, 3, -47, -36, 3, 104, -24, -59, -55, -2, -9, 32, -51, 3, 4, -29, -68, -20, 23, 23, -3, 13, -8, -29, -49, 1, -30, 6, 27, 17, 10, 10, 16, 5, 35, 4, 31, 2, -22, 28, 4, -9, -17, -70, 59, -77, 29, -1, -10, -31, 18, 21, -13, -6, 74, -11, -30, -38, -16, 2, -5, 15, 31, -37, -1, -13, 5, 25, 44, 37, 9, 49, -50, -57, -13, 18, 28, 22, -26, 2, 37, 14, -1, -39, -45, -29, -40, -1, 28, -8, 0, -7, 5, -23, -7, 72, -21, -29, 1, -39, -25, 54, 20, 1, -3, -51, -10, 37, -7, 22, 1, -18, 42, 52, 21, 1, -2, -9, -11, -3, 47, -16, 28, -46, -14, 32, 2, 69, 25, -32, -20, 44, -56, -17, -25, 13, 30, 12, 13, -8, 0, -20, -46, -18, 46, 65, -2, 13, -41, -56, -51, 19, 55, 12, 37, 0, 23, -15, 16, 47, 0, 9, -32, 22, 2, 56, -9, 34, 53, 57, -55, -52, -7, 101, 17, -70, 9, -23, 46, -11, -17, -17, 36, 19, 61 ]
Grant, C. J. The relator and one Cyrus Johnston entered into an agreement of arbitration, under chapter 292, 2 How. Stat. Three arbitrators were chosen. The proceedings were regular, and an award was duly and legally made. Relator moved for a confirmation. Johns ton moved to vacate the award, upon the ground that the arbitrators exceeded their powers. Upon the hearing of the two motions, the former was denied, and the letter granted. The grounds upon which such award may be vacated are defined in the statute (2 How. Stat. § 8482). Johnston claimed before the arbitrators that he should be allowed an item of $500. . This was contested by the relator. The testimony was conflicting, and the arbitrators decided in his favor. The circuit judge reviewed this evidence, and reversed the decision of the arbitrators. The vacation of the award involved an examination into the testimony 'iipon which the arbitrators based it. Courts do not possess this power, under the statute. Chicago, etc., R. Co. v. Hughes, 28 Mich. 186. The circuit judge was in error in holding that it was in his power to vacate the award if, in his opinion, the ends of justice required it. The award is conclusive, and the court can only refuse to enter judgment confirming it for one of the reasons specified in the statute. Neither of these reasons existed. The circuit judge, and not the arbitrators, exceeded his powers. He should have confirmed the award. The writ will issue as prayed. The other Justices concurred.	[ 1, -22, -14, 50, 2, -26, 59, 20, -30, 58, 8, 10, 14, -38, -21, -26, 16, -2, 4, -33, -28, -42, 9, 14, 31, -13, -4, 11, 11, 33, -36, -56, -21, 27, -23, -31, 5, -12, -6, -28, 41, -29, -16, 64, -60, 38, -12, -30, 41, -57, 0, 28, 6, 27, 12, 29, -5, 30, 0, -5, 14, 21, -9, 31, 17, 0, -7, -11, -16, 14, -20, -38, 19, -2, -25, -3, 7, 4, -14, 6, 63, 24, -1, 12, 6, 15, 33, -44, 51, -38, -21, 4, -15, -49, -14, -8, 39, 25, 23, 24, -31, -28, 0, 19, -21, -1, 28, 6, 48, 24, 21, 14, 10, 18, -47, 51, -9, -45, -10, -54, 0, -43, -2, 42, 20, 6, -13, -32, -9, -6, 7, 0, -44, 5, 8, -38, -2, 15, 9, -37, 18, 35, 29, -58, 11, 6, 32, 25, -83, -15, -6, 23, 9, 62, -5, -44, 27, -38, 9, -24, 60, 48, -33, 29, -16, -32, 13, -31, 37, 12, 12, 0, 11, -38, 0, -5, 17, -11, -36, 25, 0, 35, 10, -13, 56, -7, 0, 35, 2, -24, -17, -26, -27, 15, 2, -9, -11, 29, 22, 52, 4, 11, -24, 25, -22, -38, 37, -28, -6, 37, -5, -6, -37, -90, 14, -34, 38, 10, 22, -13, 29, 9, -2, 76, -44, -75, -10, 20, -15, 8, -30, 50, -8, 8, 108, -17, 28, 28, 46, -31, -12, 32, -32, 11, 2, -19, -91, -25, 10, 6, -37, 26, -3, 57, -41, -69, -42, 5, -73, -7, -13, 9, -51, -25, -30, 30, -34, -13, 30, 15, -39, -49, -21, 4, 22, -29, -2, -28, -23, -9, -12, 38, 12, 8, -95, 52, -20, 20, -1, 21, 81, -16, 2, 18, 27, 23, 24, 35, 15, 7, -27, 3, 14, 29, -4, -30, -24, -20, -6, -8, -1, -35, 15, 43, 18, -31, -39, -27, 51, -52, -18, 45, 5, -50, 9, -18, 10, 6, -4, -26, 20, 48, -15, 41, 37, 17, 11, 17, -7, 36, 26, -29, -29, -53, 20, -7, 6, -20, 34, 33, -4, -26, -47, 2, 32, 8, 18, 5, 20, 21, 18, 22, -20, -44, 6, 43, -1, 6, -18, -11, 24, 23, 44, -3, -7, -3, 11, -57, 0, 9, -50, 17, -11, -17, 34, 6, -45, 7, -24, -12, -43, -50, -36, 33, -17, 114, 40, -4, 30, -19, 20, 3, -9, -1, -40, -4, 12, -29, -48, -16, 61, 16, 4, -20, 56, -17, 4, 48, 25, -50, -21, -14, -3, -13, -44, -27, 35, 13, 6, -8, -18, 8, 7, -47, -16, -8, -3, -18, -83, 57, -22, 14, -25, 1, -17, 11, -33, 28, -43, 55, 14, 19, 0, 59, -9, -3, -33, 0, 43, 11, 3, -11, 30, 42, 18, -63, 15, 66, -9, -3, -25, 0, -21, 38, 3, -1, -43, -21, 7, 3, -10, 43, -31, 24, -10, 63, -6, -5, 22, 47, -26, 21, -12, -11, -35, 0, 16, 9, -20, 5, -11, 22, 24, -65, 45, -20, -40, -78, 23, -6, -30, -11, -21, 38, 23, -3, -22, 14, -54, 12, 26, -46, -42, -34, -20, -3, -68, -7, -3, 10, 3, 46, 52, -70, -4, 20, 1, 18, 25, 11, -26, 4, 6, 21, -32, 28, -75, 3, 51, 34, 18, -40, 13, -41, -27, 20, 37, -22, -13, -34, 6, 16, -4, 23, -18, 16, 6, -28, 71, 81, 30, -32, 41, 8, -30, -32, -9, 17, -37, 27, -31, 7, -56, -46, 36, -21, 23, -8, 5, 6, -18, 38, -24, -35, -12, -9, -18, 24, 43, 26, 39, 33, -56, -6, 31, -35, 18, 23, -20, -13, -5, 52, -24, -7, -37, 47, 44, 11, 29, 40, -1, 56, 4, -88, -25, 13, 23, 16, -15, -13, 35, 13, -16, 11, -23, 20, -26, 6, -28, 0, -10, 25, -15, -38, -5, 5, -16, 10, -18, -10, 21, 17, 31, -18, 39, 3, 31, -3, -12, 0, 15, -23, 12, 16, -29, 10, 33, 32, 9, 24, 40, -14, 65, -1, 17, 20, 13, 9, -29, 77, 12, 0, -23, -7, 9, 43, -31, -32, -10, 81, 8, 26, 0, -1, 39, -30, -6, 52, -22, -17, -15, -7, -4, 7, -5, -16, -14, 25, 27, 54, -14, -4, -31, 53, -30, 31, 27, -21, -74, 10, -19, -10, 0, -41, 10, 32, 49, 14, 32, -33, 13, -29, -9, -3, -22, -19, -18, -36, 12, 11, -40, 43, 51, 20, -40, 16, 20, 70, -27, -25, 24, -64, -19, 7, -12, 19, -8, -25, 27, 14, 0, 1, -63, -27, -40, -12, 36, -18, 43, 31, -16, -83, -1, 37, -3, -26, -5, 5, -27, -39, -13, -16, -8, 23, -13, -47, 28, -75, -37, 46, 25, -49, -10, 23, 3, -33, -37, -19, -34, -29, -48, -10, -15, 16, 1, 2, 13, 22, 31, -35, -2, -23, -2, -45, 29, -6, -14, -13, 9, -2, 39, -15, -18, -43, 13, -7, 10, -6, -26, 50, 6, -58, -16, 45, 42, 16, -8, -32, 31, -15, 50, -8, -26, 16, -15, -5, -34, 31, -46, -4, 8, -37, -40, 25, 13, -48, -2, -35, 56, -15, -12, 42, 0, -78, 20, 1, -5, 71, 27, -21, 47, -36, 40, 22, -61, 5, 9, -20, -44, -13, -6, -15, -7, -2, -11, 29, -10, -12, -42, 41, 22, -11, -12, 47, 3, -27, -14, -62, 9, 18, 4, 10, 24, -12, 58, 10, -16, 27, 35, 40, 26, -7, -28, -69, -28, -15, -8, 0, -6, -11, 24, 31, -56, -32, 28, -6, 24, 15, -42, 22, 4, 1, 6, -9, 57, 31, -58, 19, -52, -20, -6, -33, 22, 14, -45, -49, -3, -21, -66, 13, -18, 8, -3, -6, -5, -24, 17, -10, -41, -46, -2, -10, 23, 44, 23, 62, -19, 21, -30, -6, 11, -10, -21, 28, 6, 19, 30, -18, 0, -34, 13, 15, 0, 42, -11, 12, -14, 40, -37, -18, -7, -1, 6, -25, 12, -7, -3, 5, 28, 8, -14, -23, 4, -44, 7, -22, 23, -16, 18, 6, -11, 19, 46, 53, 31, 74, 5, -49, -3, -31, 14, -35, 3, -24 ]
Montgomery, J. This is an action of ejectment. On the trial the plaintiff showed title derived from the United States, and showed in addition that the defendants held possession under a land contract made by plaintiff to-defendant Fannie J. Shepard, who is the wife of her co-defendant, that the defendants are long in arrears on this contract, and that the plaintiff had given them notice to quit. This contract bore date of February 19, 1889, and contained an agreement by Mrs. Shepard to pay all taxes then unpaid or thereafter assessed. Defendants offered to show that one Kimbark had acquired a title to' the premises on a sale 'of the lands for taxes for the years 1889, 1890, and 1891, and defendant Elisha H. Shepard testified that he had recognized the right of Kimbark. There was, however, no surrender of possession to Kim-bark by Mrs. Shepard, and no actual possession taken by Kimbark. The circuit judge ruled out the evidence of the Kimbark title, and directed a verdict for the plaintiff, and defendants bring error. The only questions presented by brief of defendants’ counsel, and therefore the only ones we need discuss, are, first, whether, in this action of ejectment, Mrs. Shepard is estopped from showing title in Kimbark; and, second, if she is, whether the estoppel applies as well to the defendant Elisha H. Shepard. Defendants’ counsel admits that the general rule is that a tenant or contract purchaser cannot dispute his landlord’s title, but insists that this rule of estoppel is limited to cases which involve possession merely, and that where the title in fee is claimed, as in ejectment, the tenant may show that the plaintiff has no greater right than that of possession. Counsel cites Jochen v. Tibbells, 50 Mich. 33, and Shaw v. Hill, 83 Mich. 324 (21 Am. St. Rep. 607). These cases deal with an estoppel arising from the relation of landlord and tenant, or purchaser and vendor, and sustain the defendants’ view, that the limit of an estoppel arising from such relations alone is as claimed by defendants’ counsel in this case; but counsel seems not to-have discriminated between an estoppel arising out of that relation simply, and such an estoppel as, in our judgment, should be held to exist in this case. The doctrine of estoppel rests upon the inequity of permitting one to allege the existence of facts which by his own conduct he has induced another to believe do not exist. While there are cases in which an application of this rule works a seeming hardship, and while for this reason the courts are careful to see that all the elements of estoppel exist in a given case, there can be no occasion for hesitancy in applying the doctrine where one attempts to set up a title which can only have an existence because of his own default. In this case it was the duty of defendants to pay the taxes for the years 1889, 1890, and 1891; and yet they attempt here to assert that they did not do so, and that, therefore, a third party has acquired title through their default, which they now seek to assert to defeat plaintiff’s title. The circuit judge was right in holding that Mrs. Shepard could not do this. Dubois v. Campau, 24 Mich. 360, and cases cited in note to annotated edition. Nor do we think that Elisha H. Shepard is in any better position in this respect than his wife. Ward v. Nestell, 113 Mich. 185. His possession was in the right of his wife, and there is no showing that Mrs. Shepard ever yielded her right of possession to him. Judgment affirmed, with costs. The other Justices concurred.	[ -18, 0, 18, 15, 1, -2, 18, -14, 1, 27, 0, 23, 7, 37, 58, 12, 50, 15, -3, 1, 11, -26, -79, 6, 26, -20, 66, -6, 27, 50, -1, 33, -23, 41, 7, 7, 39, -6, 1, -3, -7, 49, -41, -19, 33, 13, -9, -18, 28, 34, 12, -2, -7, -5, -47, -3, 4, -18, -29, 9, -6, -33, -9, 13, -22, 2, -17, 5, 12, -48, 4, -8, -21, -42, -33, -19, 20, 11, 40, 5, 10, -5, 36, -51, 2, 50, 5, -19, 35, 0, -14, 4, -39, 25, -1, 39, 30, 8, -20, -19, -14, -13, -51, 32, 9, 0, -16, 0, 12, -1, 14, -2, 44, -23, -7, -35, -23, -8, 3, -5, 37, 13, 14, -2, 20, -2, -47, -17, 12, 31, 13, -14, 6, -24, -48, 42, 36, 32, -18, 0, -13, -11, -31, -41, 16, 45, 2, -4, -59, -42, -33, 23, 28, 30, 21, -20, 60, -12, 16, 6, 3, -10, -9, -19, -24, -45, 11, -21, -13, -7, -1, 12, -23, -22, 36, 51, 28, 26, -28, 0, 29, 25, -17, -11, -38, -47, -22, -2, -8, -6, 6, 0, -5, 11, -24, 65, -48, 39, -16, -8, -1, -7, -2, -36, -6, -19, 47, -33, 28, 16, -45, 21, -23, -24, -24, 15, 54, -26, -49, 1, 23, 12, -24, 12, -46, -70, 9, 18, 7, 13, 12, -22, -5, 39, -12, -8, 34, 4, -30, -15, -30, -16, -19, -29, -2, 0, -13, 27, -13, 17, -55, -21, -35, 71, 18, 23, -16, -32, -30, -5, -27, 32, 6, -35, -25, 12, 7, -44, -17, -23, -6, 35, -4, 80, 8, -33, -47, 9, -43, -39, 41, 0, -15, -24, -79, 27, -7, 50, 7, 0, 0, -20, -40, -9, -7, 69, 18, -24, 43, 32, -8, -38, 35, -6, 34, -20, 18, 2, -8, -38, 21, -16, -30, -37, -3, -16, 7, -11, -16, -26, -6, 2, 32, -3, -17, 19, 5, -12, -36, 66, 17, 8, 8, 15, 23, 9, -31, -26, -20, -3, 15, 5, -6, -12, 17, 24, -7, -8, -28, -19, -24, -20, -31, 70, 28, 12, 17, -16, 23, 26, 31, 13, 10, -33, 17, -14, -24, -24, 14, -12, 23, 8, 1, -7, -44, -14, 15, -25, -38, 33, 0, -35, -5, 14, 28, 1, 40, -54, -33, -11, -19, 14, 31, 21, 1, -21, 16, -13, -27, -50, 7, 1, 23, -41, -46, -30, 14, -3, -10, 35, 26, -8, 24, -13, 11, 33, -2, 0, 45, 20, -17, -19, 35, -13, 2, -33, 36, -4, 18, -17, -36, 35, 28, -11, 47, -7, -22, -27, -7, 44, -6, 42, -29, 33, -20, -23, 6, 20, -12, -45, 19, -21, -2, 4, 27, -10, 39, -8, 45, -1, 31, 12, 66, -3, -16, -52, -24, -25, -28, 24, 10, -12, 34, -8, -31, 0, -2, -1, -33, -16, -14, -23, 0, -17, -8, -12, -64, -49, 21, -5, 34, -23, 27, -2, -3, -48, -20, 8, -14, 51, 33, 22, 45, 3, 5, -36, -29, -34, 21, 61, -15, -22, 34, 19, 17, -6, 23, 7, 68, 59, 8, 8, -9, -4, 30, -22, 44, 43, -7, -12, 33, 35, -47, 24, 0, -12, 34, 1, -72, -26, 3, 6, -15, 12, -40, 62, 22, 9, -11, 31, -38, -51, -33, 17, -5, -20, 26, -21, -23, 8, -7, -20, -2, -47, 5, -14, -9, -53, 7, 7, 8, -4, 35, -31, 11, -3, -6, -23, 44, -27, -49, -37, 61, -78, 1, 1, 7, 52, 9, -12, -11, -38, 23, -2, 27, -41, 25, 32, -6, 13, -42, 40, -42, 0, 36, 0, -8, 15, 22, -9, 52, 68, 2, 39, -24, 29, 25, -62, 12, 7, 52, 18, -25, -17, -10, -38, -3, -3, 19, -19, -17, -18, -8, -14, -9, 10, 0, -7, 20, -13, -21, 10, -38, -8, -12, 20, 15, -26, 65, -28, -43, 12, 19, -5, 24, -18, -8, -25, 23, -3, 39, -38, -13, 54, 41, -24, 41, -1, -11, 31, 37, -10, 38, 21, 23, 24, 25, 7, 51, 52, 31, -17, 37, 10, -8, -13, 31, 16, -24, 0, -5, 5, 8, -8, -20, -9, 5, 23, 23, 27, 68, -10, 14, 26, -25, -16, -22, 34, 7, 23, 21, 15, 47, -8, 2, 28, 34, -23, -39, -19, 30, 0, 11, -41, 23, 21, 38, -18, 15, -33, 6, 37, 8, 0, -19, 8, 2, 10, -54, -40, -7, 30, -29, 9, -31, -25, 7, 3, 4, 0, 0, 20, 18, 12, 44, 13, -8, -28, -24, -27, -8, 6, -6, 18, -22, 13, -69, -30, 19, -20, -18, 25, -9, -52, 38, 4, 1, -22, -12, -1, 50, -53, -46, -7, -10, -27, 47, 1, -7, 1, -2, -8, 3, -54, -63, 1, 8, 9, -43, -9, -1, 42, -1, 21, -29, 19, 0, 18, -34, -15, -19, -55, -3, -27, 15, 12, 8, 14, 5, -20, -8, 30, -35, 5, -20, 15, 30, -16, -44, 30, 9, -50, -20, 11, 31, -39, 5, 14, -13, -24, -37, -61, 0, 4, 27, -9, 3, 4, -30, -8, -28, 13, 14, -32, -34, -43, 1, 17, 8, 18, 35, -2, 5, 9, -2, -21, 2, 29, 7, 13, 10, 8, -26, 6, -20, 4, -11, -39, 56, 45, -36, -1, -40, 37, -39, 6, 10, -22, -39, 39, 4, -1, 29, 22, -16, 11, 16, -35, 17, -35, 0, 31, 37, -18, 27, -27, -4, 8, 11, 6, 13, 26, -12, -6, -13, -17, -30, -14, 9, -1, 17, -15, -49, 17, -15, -9, 0, 9, 5, 37, 0, 6, -34, 37, 16, -11, -3, -39, 26, -16, -23, -3, -30, -16, -31, 38, 18, -63, -6, 25, -48, 83, 34, 33, -28, 7, -45, -15, -79, -26, -12, -11, 1, -49, 22, -3, 84, -7, 2, -25, -3, -36, -32, -23, 8, -1, 27, 21, -10, -5, 15, -4, -105, 15, 24, -5, 6, 7, -42, -1, 17, 27, 56, 19, 25, 6, 3, -10, 21, -42, -2, -38, 31, -36, -9, -47, 59, 35, 8, -63, -49, -25, 44, 6, -40, 46, -63, 35, 23, 0, 13, -15, -28, 36 ]
Montgomery, J. This case comes up for review on a special finding of facts by the trial judge. As the evidence is not before us, the only question which we can consider is whether the finding supports the judgment. The substance of the finding may be stated briefly:' The defendant is a corporation engaged in the manufacture, purchase, and sale of burial cases, caskets, and undertakers’ goods and supplies. The articles of association of said corporation provide that the stock, property, affairs, and business of the corporation shall be managed by four directors, to be chosen annually by the stockholders, and that the directors shall choose one of their number to be president, one to be vice president, and one to be secretary and treasurer, and that the board of directors shall have power to employ such superintendents, clerks, agents, and other employés as they shall deem proper, and shall manage and direct the entire business affairs of the corporation. The by-laws of the corporation provide that the board of directors shall appoint and employ and have power to remove clerks, superintendents, agents, and other employés necessary or proper, in their judgment, for the best interests of the corporation, and prescribe rules for the government of the business and employés, and fix their compensation. They also provide that all notes, obligations, and contracts of the corporation shall be signed by the president, and countersigned by the secretary and treasurer. On the 13th of June, 1895, the plaintiff had an interview with William E. Cox, secretary and treasurer of defendant, in the presence of Joseph H. Walker, president of the defendant. It was proposed that defendant employ the plaintiff as a resident buyer in New York, paying him $25 a month as retainer, and 1 per cent, on goods purchased; it being understood that the plaintiff was to be employed by several others in a like capacity, the scheme being to secure, by co-operation, better prices. The plaintiff was informed by Mr. Cox that he was willing, so far as he was concerned, to enter into such a contract, but, before it could go into operation, it would be necessary to have it approved by defendant’s stockholders or board of directors. A contract to go into effect July 1, 1895, and continue to January 1, 1897, was thereupon drawn up, and signed, on behalf of defendant, by Mr. Cox, as secretary and treasurer, and also signed by plaintiff. At the same time the plaintiff gave back to Mr. Cox a memorandum as follows: ‘ ‘ If, at a meeting of the stockholders, they decide it is not best to enter into the contract with me, the contract is null and void, and to be returned to me to destroy. “ Contract signed June 13th.” Plaintiff was informed by Mr. Cox, in the presence of Mr. Walker, that the stockholders would meet before July 1, 1895. No meeting was in fact held until September following. On June 24, 1895, without the knowledge or approval of any director or stockholder, Mr. Cox wrote plaintiff as follows: “We have further considered the matter of entering into an arrangement with you, such as indicated by contract,' and decided to allow our contract to remain in force. ” This was signed in the defendant’s name, by William E. Cox, treasurer. Plaintiff made arrangements to carryout the contract with defendant and others, and incurred some obligations in so doing. Defendant also sent one or two orders to plaintiff to be filled. This service was performed by plaintiff. On the 27th of September, 1895, a meeting of the stockholders was held, and the contract with plaintiff was disapproved, and similar action was taken on the same day by the board of directors. This action was advised by Mr. Cox after having taken the opinion of a lawyer as to the binding effect of the contract with plaintiff, and as to the steps necessary to disapprove it, and avoid liability thereunder. The finding shows that the board of directors met only at intervals of several months, the dates being January 30, 1894; January 29, 1895; March 4, 1895; April 20, 1895; September 27, 1895; December 13, 1895; January 28, 1896. It was further found: “Mr. Cox has been the secretary and-treasurer of the defendant from several years before 1895,’up to the time of the trial. The financial matters of defendant have during this time been under his control, but in important matters he always consulted Mr. Walker, the president. Mr. Cox, during the time aforesaid, had charge of the buying for defendant, except the buying of machinery, lumber, and general factory supplies. This, Mr. Walker attended to. In important purchases in Mr. Cox’s depart ment, if it was anything extraordinary, he consulted with Mr. Walker, and Mr. Walker conferred with him about purchases in his (Walker’s) department. * * * The matter of the employment of men on the road, or the purchase or selling of goods, did not come before the board. The only salaried members of the board of directors were Messrs. Walker and Cox. After the death of Mr. William H. Powers, Messrs. Walker and Cox carried on the business of defendant; i. e., the manufacturing, buying, and selling, and hiring traveling men, and fixing their salaries, except as to the matters acted on by the board of directors, as above stated. Mr. Cox bought thousands of dollars worth of goods for defendant without consulting the board of directors. The traveling men were hired for no specific time, and were subject to discharge at any time. Neither Mr. Walker nor Mr. Cox ever entered into a written contract on behalf of defendant, except letters and orders for goods, without first having a vote of the stockholders or of the board of directors authorizing it.” The circuit judge found as a conclusion of law that— “Inasmuch as the agreement sued upon was never approved by the stockholders of defendant, but was disapproved by them, and also by the board of directors, the agreement never became operative, and plaintiff has no right of action.” The finding undoubtedly established such a course of dealing on the part of Mr. Cox as would, to one having knowledge of such dealing, be evidence of extended power, and as to one cognizant of the continued exercise of such authority, and with no knowledge of the restrictions placed upon him by the by-laws of the company, the course of dealing was such as to constitute a holding out of Mr. Cox as one authorized to transact most of the affairs of the corporation, so far as they concerned the purchase and sale of wares or the means of accomplishing either. But in this case there is no finding that the plaintiff had any previous dealing with the defendant, or that he knew of the several acts of authority exercised by Mr. Cox. On the contrary, the finding is that he was informed by Mr. Cox that, before the contract could go into operation, it would be necessary to have it approved by the de-' fendant’s stockholders or board of directors. It is also a fact that the by-laws of the company did confer the power upon the board of directors. With this finding of fact binding upon this court, we must hold that the plaintiff is not in a position to rely upon a holding out of the agent as having authority in excess of that which he in fact possessed*. Plaintiff, having notice of the limitations on Mr. Cox’s authority, was bound to see to it that those having authority had assented to this contract. Rice v. Peninsular Club, 52 Mich. 87; 4 Thomp. Corp. § 4887. It is true, as contended by plaintiff, that by-laws of a corporation do not ordinarily bind third persons. 2 Beach, Mod. Cont. § 999; Union Mutual Life Ins. Co. v. White, 106 Ill. 67. But the reason why this is so is that persons dealing with the agents of corporations are justified in assuming that they possess such power as their employment would generally indicate, and are not bound to take notice of limitations of such power fixed by the by-laws. When, however, the third person dealing with an agent has direct notice of limitations placed upon his authority, it would be perversion of that salutary rule to hold that he may ignore such notice, and fall back upon what would otherwise have been apparent authority. The judgment will be affirmed. The other Justices concurred.	[ 72, 15, 41, -10, -3, 35, 4, -36, 42, -7, 59, 4, 15, 49, 19, -28, 27, -19, 15, -19, 39, 0, -32, -51, -9, 6, 15, -6, 14, -12, -15, 23, 22, -12, -33, 37, 33, -14, 17, -6, 14, 67, 26, -6, -27, 0, 48, -32, 20, -6, 25, -14, 21, -12, 21, -18, 18, 34, 3, 28, 0, -64, 63, -1, 15, 8, 5, 0, 3, -14, -35, -23, 0, 8, 27, -70, 17, -65, -21, -25, -3, -45, 46, -49, -79, 26, -14, 0, 16, 14, 0, 17, 4, -13, -14, 13, 55, -25, 23, 9, -23, -46, -23, 12, 16, 37, -30, -30, 11, 37, 4, 10, 37, -5, -35, -32, 19, -18, 22, -14, 30, 6, 5, 23, 1, 19, 11, 26, -28, 38, 7, -18, -46, -32, -19, -13, 0, -19, -22, 18, 14, 60, -35, -17, -65, 50, -45, 25, -65, -17, 26, -6, 28, -2, 33, -55, -54, -22, 57, -22, 7, 8, 36, 0, -17, 11, 5, 0, -71, 20, -44, 31, -26, -22, -4, 23, -4, -4, -15, -24, 19, -9, -12, 31, 0, 7, 33, -7, 42, 5, 5, -11, -48, -36, -8, -6, 11, -32, 13, 28, -55, -11, -35, -37, -41, 7, -5, -10, -45, 14, 9, 17, 24, -5, -15, 34, -30, -35, -31, 5, -15, 21, -33, 53, -54, -20, 34, 18, -16, -5, 9, -3, 23, -2, -17, -14, -43, 0, -4, -37, -43, -39, -1, 1, 40, -56, -18, -18, 2, 16, 14, 42, 42, 27, -29, -28, -50, 12, 8, -35, -1, 45, -63, 34, 14, -55, 37, 2, -31, 0, -43, -50, 69, 28, 42, -10, -1, 23, -26, -48, -31, -33, -29, -81, -54, -24, -26, 6, -71, 12, 23, 65, 25, 13, 46, 8, 24, 28, 14, -28, -34, -5, 28, 22, 10, 37, -69, 19, 16, -31, -19, -42, -8, -8, 27, 37, -25, 54, 39, -18, 1, 28, -4, 15, 66, -12, 40, -71, -16, -3, 19, 8, 26, -32, -66, 17, 12, -10, -7, 24, -23, 0, 23, -45, -21, 16, -20, 0, -18, -9, -18, -27, -36, -9, 61, -2, 39, -20, -15, 41, 31, -10, 17, -8, 0, -16, -43, 5, -9, 33, 28, 32, -54, -9, -9, -47, -4, -27, -40, 68, -29, 0, 14, -21, 18, 25, 6, -9, -10, 26, -34, 28, -17, 73, -51, 11, -60, -31, -21, -28, -48, 74, -25, -10, -21, -17, 2, -40, -2, 30, -71, 24, 39, -13, -1, -18, 4, -51, 34, -2, 22, -37, 8, 10, 40, -32, 4, -3, -50, -62, -50, -19, 22, -23, 0, -15, -15, 3, 26, -13, -11, -19, -16, 25, 30, -17, 27, 23, 52, 19, 80, 0, -25, 45, -5, 47, -16, -10, 68, 20, 23, 11, 27, 1, 26, 31, 6, 18, 2, -4, -12, -24, 12, -46, -18, -45, 30, -6, -13, 19, 3, 50, -1, 37, -22, 14, -32, -27, -6, -9, 23, 2, 11, -9, -15, 37, -35, 2, 8, -4, -29, -6, 27, -38, -71, 15, 6, -46, -4, 18, -5, 13, 0, 13, 35, 22, -17, 40, 11, 76, 75, -10, -60, 55, -6, 42, 3, 7, 29, -47, -17, 26, 7, 66, 46, -19, 14, -17, 11, -34, -28, 10, 37, 2, -7, 4, 32, 10, 33, 1, 24, -36, -16, -22, 43, -2, 39, 27, 21, 25, -57, -8, 3, -3, 60, -15, -13, -21, 34, -14, -15, 9, -28, 57, 7, -31, 38, 15, 9, -36, 38, -32, -4, -27, 14, 33, 12, 8, -32, -34, -30, -21, -14, -6, 41, 9, 24, 7, -2, -11, -7, 37, -28, -58, -68, -37, -19, 32, -6, 2, -24, -78, 24, -45, -39, -15, -18, 9, -44, 17, -7, -1, -38, -41, 35, 7, 7, 30, 9, 28, 27, -30, 15, 23, -9, 23, 9, -18, -51, -30, -12, -19, 12, -19, -22, -29, -34, 55, 32, 7, -11, -23, 39, 9, -9, 5, 44, 5, -3, -16, 36, -33, -11, 26, 52, 7, -11, 2, -23, -21, 40, -18, 4, 15, 13, -2, 13, 11, -25, 52, 5, 7, -43, 6, 14, 38, 3, -9, -7, -24, -17, -3, 8, -34, 12, 24, 63, -30, 19, -18, -20, -20, -27, 66, 75, 24, -21, 44, 10, -50, 13, -38, -2, 19, -26, 47, 3, 25, 6, -36, 23, -37, 11, 3, -3, 66, 19, 11, -15, -82, -3, 2, -49, 29, 6, 27, 1, -81, -33, -13, 24, 22, -7, -21, 3, 20, -19, -6, -27, 43, 2, 54, 9, 5, 43, 3, 6, 0, -28, 3, -22, 34, 36, 23, -19, 26, 2, 15, -12, -4, -41, 16, 2, -8, 9, 4, 14, 16, -23, -14, 54, -10, -9, 61, -14, -43, -21, 7, -18, 26, 17, -25, 25, 18, -1, -4, -6, 32, 4, -29, -29, 19, -31, 28, -1, -21, 49, 26, 25, -8, -14, -40, -6, -52, -10, -3, -30, -32, -8, -10, -15, -15, -1, -26, 25, -59, 21, 13, -2, 19, 18, -23, -61, 40, 26, 36, 19, -8, 3, -65, -15, -6, -3, 31, 30, -7, -54, 48, -55, 41, -17, 23, -48, -10, 16, -86, 0, -23, -1, 25, 40, 13, -41, 16, -22, 5, -48, -23, 7, -67, -26, 47, -38, -34, -24, 19, -5, -3, 3, 22, -27, -25, 66, 13, -33, 16, 65, 0, 29, 32, 4, -68, 16, 20, 8, -34, 26, 14, 23, 9, -20, 11, 23, 23, 41, 14, 28, -43, 9, 7, 50, 3, 3, 43, -33, 38, 11, 1, -5, 40, -8, -16, 20, 32, -15, 3, 23, 5, 0, 16, 7, -45, 33, -16, -6, -30, -16, -54, -2, 1, 29, -31, -16, -44, 3, -23, 7, 4, 24, -23, -23, 24, 11, 24, 0, -24, -31, -17, -7, 0, -50, 40, 9, 42, 59, 8, -40, -36, 19, -42, 41, -55, -20, -72, 9, 7, 33, -20, 3, -12, 4, -12, -48, 51, 14, 3, 25, -9, 20, -14, -6, -27, 26, 1, -39, -14, -14, -21, 5, -26, 11, -10, 7, 45, -40, 4, 5, 32, 3, -28, -1, -12, 29, 43, -19, 30, 2, 5, -9, -4, -29, -3, -61, 20 ]
Moore, J. January 19, 1892, complainants filed their bill of complaint against the defendants. The appearance of defendants, by their solicitors, was entered in February of the same year. In June, 1893, a stipulation was signed by the solicitors for the taking of the testimony, the submission of the case, and the taking of a decree. June 12, 1893,. a decree was entered in said cause. In March, 1896, defendants filed a petition asking for leave to file a bill of review. This application was denied by the circuit judge, and the case is appealed to this court by the defendants. The record shows the litigation to be in relation to which faction of the church of the United Brethren is entitled to hold the church property of the Olive Branch Church at Galien. Between the filing of the bill of complaint and the making of the stipulation, a decision had been rendered in Ohio and one in Indiana which tended to sustain the claim of complainants, and it was doubtless to save further litigation and costs that defendants consented that a decree might be taken in favor of complainants, but without costs against defendants. In December, 1893, the case of Bear v. Heasley, 98 Mich. 279, was decided in this court. In July, 1894, application for rehearing in that case was denied. It is now claimed by defendants that the decree entered in this cause is contrary to Bear v. Heasley, and therefore the decree made in 1893 by consent ought to be set aside. It will be noticed that this petition for leave to file a bill of review was not filed until 20 months after the final disposition of Bear v. Heasley. There is no claim that any fraud was practiced in procuring the decree, and no adequate excuse is shown for the delay in filing this petition. The time for taking an appeal had long since expired. The parties to the controversy knew all ábout the taking of the decree, and for three years were apparently satisfied with it. We can see no better reason for disturbing this decree than would exist for setting aside judgments taken and acquiesced in by the parties thereto, because, in some opinion rendered later by the Supreme Court, the law might be announced in like cases contrary to what the learned counsel employed in the case and the parties thereto supposed it to be when they consented that judgment might be entered. We think the learned judge properly'denied the prayer of the petitioners. The other Justices concurred.	[ -1, -16, 49, 10, -21, 48, 30, -22, -12, 13, 14, -43, 8, 11, 10, -22, 1, 3, 10, -45, -8, 3, 30, 7, 2, -29, 0, -2, -14, 16, 9, -19, -36, 6, 13, -40, 36, -8, 44, 7, -25, 2, -12, -10, -21, -24, 15, 24, 23, -13, 27, -46, -27, 2, -15, -24, -16, -26, 7, 0, -13, 53, 76, 14, 2, -26, -13, -5, -23, 10, -1, 26, -7, 0, -22, -55, -5, -51, -14, -9, -6, -26, 46, -61, 14, 33, 6, 28, 10, 36, -32, -15, -49, -23, 21, 36, 7, -2, 44, 28, 5, 1, -72, 24, -5, 14, -46, 19, 0, -3, 0, 7, 12, 19, -23, -59, -61, 15, 1, -56, 18, 28, 7, 18, -14, 21, 12, -61, -19, 32, -30, -16, -21, -9, 8, 8, 36, -68, 5, -43, -13, 9, -10, -46, -24, 1, -55, 56, 31, -20, 10, 44, 57, 50, -16, -20, -14, -65, 37, 4, 38, 43, -44, -16, 0, 12, -25, -40, 6, -24, -23, 38, -37, 21, 9, -18, 12, -6, -57, 9, -35, 52, 26, -21, 25, -5, -20, 2, -30, -29, -24, -33, -7, -10, 9, -17, -21, -26, 35, 0, -24, -16, -7, 42, -17, 0, 41, 12, 13, 16, -2, 23, -7, 14, -10, 33, 18, -29, -19, 13, -10, 13, -37, 21, -53, -31, 61, 13, -5, -50, -55, 41, 21, 5, 6, -6, 4, 4, -20, 22, -13, -18, -23, -24, -10, 1, 17, 12, 21, 2, 43, 49, -22, 13, -19, -53, -26, -13, -7, -23, -33, -5, 12, 17, -5, -53, 39, -8, 59, 13, 40, -1, 43, 28, 43, 10, -29, -32, 7, -17, -11, 12, 44, 41, 3, 9, 11, -21, 3, 40, -20, 1, -18, 11, 46, 48, -23, 31, 7, -74, 25, -24, -24, -43, -22, 9, -64, -42, 27, -49, -43, 31, -33, -23, 25, 33, -17, -1, 56, -17, 14, -12, -14, 0, -5, 42, 89, 18, -14, 47, 11, 22, 38, 14, -35, 29, 38, -48, -30, 17, 22, -3, -22, 10, -4, 9, -8, -51, -1, 11, -10, 13, -69, 5, 36, 4, -6, -40, -50, 48, -16, 35, 35, -23, 54, 10, -35, -42, 7, 0, -32, -10, -9, -3, -22, 23, -12, 21, -23, 33, -22, 11, -11, 18, 24, -14, -26, 28, -3, 0, -15, 5, 24, 9, -24, -21, 4, 7, -5, 29, -10, 15, -43, 18, -17, 12, 7, 55, -30, 27, 59, 8, -7, 5, 2, 9, -36, -28, 54, -4, 18, 13, -17, -12, -25, -17, 9, 30, -8, 22, -35, -2, 17, -10, -6, 9, -20, -29, -44, -13, -38, 56, -22, 16, -9, -8, -10, 39, 39, 20, 25, -24, 1, -36, 0, 2, 11, -16, 26, -15, 21, 37, -43, 9, -17, 12, -12, 19, 27, 16, -29, 25, -2, 14, -19, -24, 15, 0, 0, 5, 27, 17, 12, 20, -41, 3, -12, -12, -31, -27, 16, 6, 22, 12, -26, 37, -45, -66, -51, 27, 12, 44, 43, -23, 34, 44, 11, -3, 0, 22, -38, 12, 23, -19, 0, 7, 32, 61, -10, -52, -11, -20, 28, -32, -35, 20, 44, 9, 15, -48, -2, 49, -25, 49, -16, 51, -28, 12, -5, -24, -41, 25, 53, 22, 62, -9, -9, -31, 36, -17, 44, -13, 7, -37, -2, -25, -2, 3, -11, 21, 22, -39, -4, -32, 8, 21, 25, 2, 12, 1, 31, 46, 16, 7, 0, 22, 5, 9, 37, -20, -2, -40, -33, -45, 31, -23, -2, 20, -7, -19, 32, -2, 8, -3, 53, 2, 9, 1, 121, 89, -5, -16, -8, -7, 3, 30, -74, 46, -8, 2, 19, -3, -12, 3, -18, 58, -30, -8, 11, -11, -79, -34, 22, -38, -2, -12, 20, 19, 50, -33, -7, 27, -26, 15, -2, 33, 16, 33, 21, 26, -17, 18, 11, -9, -1, 29, -14, 13, 15, -16, 34, 28, 42, -7, -47, -30, 56, -49, 25, 2, 42, -57, -20, 24, -29, -10, -13, 0, -1, 12, 3, -8, 63, 7, -1, -66, -47, 50, -17, 3, -19, -1, 13, -9, -4, 4, -6, 16, -33, -32, 36, -29, -1, -6, -15, -11, 15, -4, 30, -20, -3, -22, 38, -3, -6, -21, -37, 27, 20, -14, -11, -21, -27, -12, -12, 23, -1, -4, 0, -46, 30, 53, 24, 11, -33, 34, 56, 7, 40, -9, -19, 27, -11, -13, -14, 6, -10, -10, 6, 18, 12, -4, -73, -3, 56, 14, 20, -23, -3, -8, 31, -25, -5, 17, -5, -15, -52, -36, -4, -36, 52, 14, 41, -77, -5, -27, 5, -6, -15, 40, 38, -28, -16, -27, -1, -10, 13, -12, 44, -24, -21, -21, -53, 2, 23, -55, 57, -15, -21, 23, 18, -43, -6, -14, 14, 8, -17, -44, -26, -10, -23, -16, 10, -9, -44, 3, -21, 29, 18, 20, -12, 20, -38, -68, -71, -23, -26, -36, 27, -40, -24, 4, 5, 29, 37, -7, -10, -4, -8, -8, 3, -41, -42, -14, 44, -5, 7, 13, -9, 2, -10, -13, 16, -13, 27, 46, -17, 0, -28, 0, -8, -41, 5, 23, -49, -69, 14, -31, 2, 20, 18, -39, 24, -54, 0, 11, 33, 20, 45, -8, -26, -1, -46, 14, -73, -14, 30, 0, 28, -4, 22, -45, 12, -4, 14, 32, 68, 20, -24, -16, -6, -13, 44, 32, -8, 22, -34, -18, -32, -9, -6, 21, 33, 28, 37, -19, -27, 3, -15, 6, 20, -27, -43, -20, 25, -21, 12, 10, 14, -26, 53, -25, -35, 27, -38, 8, 25, 27, 18, 20, 39, 9, 4, -40, -7, -5, -11, -13, 22, -16, 9, 2, 9, -18, -4, -4, 12, -28, -25, -13, -23, -14, -12, 16, 0, 30, -48, -2, -13, -45, -25, -11, 6, -11, 14, 11, 21, 9, -20, 7, 0, 8, -23, 0, 19, 21, -21, -8, 20, 29, 31, -32, -3, 10, 27, 37, 29, -34, -65, -1, 33, 65, 1, -9, 2, -37, -41, -7, -16, -11, -23, 27, 16, 11, -12, -55, -18, 24, 24, -15, -10, -2, 37, 61, 7, 19, -10, -18, -6, -27, 40, -35, -8, 50 ]
Montgomery, J. This case presents the same questions as are found in No. 11 of the April term, of the same title (Hauser v. Burbank, ante, 463); and one additional question is raised, which is that the names of two owners of land traversed by the proposed drain were omitted from the application to the probate court. The return to the certiorari shows that the survey was made at a time of high water, and that, as the thread of the stream was then located, the line of the proposed ditch did not traverse the land of these parties. The commissioner returns that he does not know that the lands of the parties were traversed, but that a release has been given him by the adjoining owner of a sufficient quantity of land to accommodate the entire ditch and the deposits of earth therefrom. The parties who are alleged to be owners of the land traversed are not complaining, and it is apparent that a right of way has been acquired substantially on the line surveyed. We think the plaintiff in certiorari is not therefore in position to complain. The judgment of the circuit court is reversed, with costs of both courts to defendant in certiorari. The other Justices concurred.-	[ -16, 56, 46, -43, -29, 27, 15, 26, 7, 42, 25, -30, 17, 37, 5, -70, 20, -26, 10, -11, -3, -14, 8, 34, 1, 0, 65, 6, -10, 44, 2, 12, -52, 31, 38, 23, 19, 31, 34, 19, -35, 7, 1, -72, 29, 15, -1, 7, -41, 1, -11, 3, -5, -35, -29, -29, -31, -15, -19, -42, -26, 28, 11, 24, -26, 39, 19, -51, 49, -26, -43, 22, -33, -26, 79, 1, 36, 21, 0, -32, -13, 52, 35, -5, 17, -39, -8, -38, 60, 16, 8, -36, -20, -27, 0, 18, 38, 10, -7, 24, 41, -1, 10, 21, -21, -12, -70, -13, 21, -31, 69, 16, -9, -53, -20, -11, 14, -39, -6, -33, -23, 36, 17, 47, -89, -13, 0, -4, -84, 51, 4, -40, -41, -29, 33, -9, -15, 2, -37, 38, 17, -21, 4, -31, -3, 53, 48, -4, 5, -31, 16, 8, -20, -42, 5, -1, 25, -50, 30, 20, 11, 20, -27, -33, -60, 15, 41, -14, 1, -37, 60, 43, 17, 9, 6, -55, 18, 19, 16, 25, 42, -44, 7, 17, -52, 0, -7, -7, -25, -25, 3, -11, 32, 50, -1, 54, -16, 59, 8, 31, -15, -2, -13, 5, -43, 28, -22, -1, -4, -16, 6, 1, 1, -32, 12, -11, 72, -23, -16, -12, 23, 4, 24, -70, -36, 2, 0, 8, 25, -18, 27, -32, 19, 6, 25, 2, 3, 8, -7, -16, 19, 20, -44, -64, 1, 12, 2, -1, -2, 40, -36, -87, -40, 30, 25, -18, -10, 2, -34, -47, 27, 72, 28, -34, -19, -12, 20, -39, 8, -9, 0, 22, -17, -8, -4, -30, -28, 35, -63, 14, 43, 8, -7, 11, -68, 13, -17, 6, 27, 74, -19, -15, -22, 10, -31, 17, 5, -22, 15, -44, 42, -20, 11, -19, 39, 8, -15, 33, 17, 2, -13, 57, -9, 9, -15, 73, 26, -41, -4, 7, -18, 7, 59, -34, -4, 18, 75, 3, -11, 33, 7, 30, 14, 33, 53, -53, 1, -31, -14, 19, 37, -34, 19, -13, 17, -36, -30, 42, 5, -11, -20, 37, -41, 48, -2, -67, -1, -29, -13, 20, 22, 32, -8, -22, 12, -32, -14, -12, 34, 3, -34, -9, -13, 34, -12, 2, 35, 21, -56, -7, -16, -3, 38, -2, 20, 25, -14, -20, -45, 44, 13, -26, 4, 10, -39, 44, 22, 20, -25, -14, -34, 21, -38, 0, -31, 55, -8, -8, -45, -10, -1, -14, 52, 7, -26, 48, 26, 11, 16, 8, 3, -23, -17, -9, -48, -38, 62, 32, 14, 0, -45, 14, 29, -69, 8, 5, -12, -1, -27, 43, -59, -3, -11, -16, -23, -5, 33, 24, 25, -21, 11, 22, -40, 8, -32, 13, 31, -48, 16, -6, -23, 19, 29, -27, -23, -23, -36, 0, -9, -16, 16, 33, 41, 18, -51, 32, 2, 33, -18, 1, 65, -45, -40, -26, -48, -37, -37, 6, 20, 9, 13, -24, 1, -64, 13, -23, -12, -38, -21, 30, 60, 55, -18, -44, 11, -15, -9, 32, 6, 22, 13, -5, 39, -13, -55, 23, 22, 18, 17, -14, 42, -78, -49, -64, -20, 24, 5, 19, 44, -12, 39, 11, -69, -50, -86, -7, -37, -33, 20, 2, -14, 51, 7, 1, -50, 65, 14, -23, -43, -23, -47, -51, 10, -14, 7, 14, -34, -82, -16, -16, 32, 9, 0, -39, 30, -6, 33, 20, 16, -24, 16, 37, 2, -40, -12, 16, -36, 9, 26, 28, -47, -21, -36, -58, -22, 74, -6, -4, 4, -24, -46, 4, -25, -31, -1, -32, 52, 4, 15, 43, -9, 13, -28, 24, 20, 6, 9, 10, -42, -5, 11, -10, 17, 35, 28, 3, -7, -64, 8, -22, -34, 40, -34, 12, -9, -15, -12, 88, -19, 1, 20, 0, -11, 1, 6, -16, 12, -11, -13, 18, 31, -48, -31, -19, -21, -28, 26, 10, 7, -22, -12, 57, 34, 3, 46, -4, -39, -52, 11, -4, 46, 2, 14, 41, 16, 25, -37, 29, -7, 7, 20, -12, 6, 7, 16, -24, 68, 65, 6, 47, 18, -30, 14, -36, 24, 56, 31, 31, 17, -1, 22, -13, 6, -30, -21, -15, 58, 19, -17, 16, 9, 10, 41, 19, 0, 8, 14, 8, -3, -8, -9, 41, 2, 5, -13, 1, -10, -2, -27, -8, 65, -26, -50, -19, -23, 39, 15, -24, -18, 4, -17, 25, 30, -16, 3, 15, 28, -8, -28, -53, -5, 12, -3, 5, 13, 7, 12, 9, -48, 42, -2, -26, -14, -14, 5, -6, -2, 4, -39, -19, 1, 14, -54, -9, -34, -5, -17, -34, 0, 41, 13, -25, 21, -39, -11, 25, -18, 1, 23, -2, -37, -18, -11, 19, 0, -46, -17, -35, 19, 7, 22, 5, -6, 6, 20, 60, 2, 42, -16, 16, 7, 34, 24, 23, 33, -8, -1, 2, 21, -2, -4, -24, 22, -19, 6, -39, -2, 65, 36, -65, -45, 38, 27, -23, 4, 64, 47, -24, 42, -1, 23, -24, -9, 17, 49, -23, 0, 28, -28, -70, -52, -8, 2, -55, 23, 25, -61, 1, 2, 54, -28, -10, 62, -7, 23, 2, -53, 12, -10, 14, 37, 5, 14, 4, 39, -18, 48, 26, -6, -5, -37, 29, -28, -1, -21, -19, -36, -17, -2, 37, -36, 6, -32, 12, -31, -30, -29, 18, -15, 40, 31, -26, 1, 65, -48, -20, -32, 11, 22, 6, -14, 0, -18, 12, -41, -10, -10, 4, -8, 41, 21, 7, -51, -28, -11, -32, 35, -34, -40, 49, 26, 7, 11, -22, -34, 8, -16, -1, -38, 41, -20, -18, 20, 6, 20, -2, 44, -20, -14, -43, -4, -32, -36, 29, 1, 3, 7, 31, 17, 20, 4, 16, 48, 15, 11, 13, -59, -7, -21, -54, -54, -35, -55, -22, 0, 21, 20, 2, -67, 47, 11, -26, -11, -39, 37, -37, 20, 21, 12, -17, -19, -30, 6, 26, -30, 3, -11, -37, -36, -30, 19, 31, 79, -18, -21, -13, -78, 4, -35, -22, 3, 22, 15, -3, 26, -6, 25, 20, 40, -49, -42, 14, 24, 26, -24, 12, -45, 37, 13, -15, 21, 11, -10, 18 ]
Per Curiam. Plaintiff brought suit against one George* Smith under the log-lien law, and attached certain logs and poles, which were the property of the defendant, Lillie. Lillie was a nonresident, and was doing business under the title of the Lillie Lumber Company. One Huebel was his agent. The writ of attachment was personally served on Smith, and on the return day the deputy sheriff returned that he ‘ ‘ had seized the property described, and that he had served a copy of the writ and inventory upon the Lillie Lumber Company, who claim interest or ownership in said property, by delivering to Huebel, the agent of said company, certified copies of said writ and inventory attached thereto; that none of said company resided in this State, and none could be found by him.” Neither the principal defendant nor Lillie, the log owner, appeared. On the return day, which was April 10th, after waiting one hour, the justice adjourned the case until April 16th, and sent a registered letter directed to the Lillie Lumber Company, notifying them that the case had been adjourned until the 16th, at 1 o’clock p. m. On the 16th, plaintiff appeared, and, after waiting one hour, the defendant not appearing, the justice took the evidence, and rendered judgment for $108.65. The present suit was commenced September 11, 1896, personal service being had upon the defendant. The defendant did not appear, and subsequently took a special appeal to the circuit court. The court overruled the special causes, and thereupon trial was had upon the merits before the court, without a jury, and judgment rendered against the defendant for the amount of the judgment which had been rendered against Smith. The case is before this court upon a case made. The case is ruled by Brabant v. Lillie, ante, 167, and is reversed.	[ 11, 36, 32, 30, 1, 28, 42, 25, 11, 42, -7, -13, 11, 6, -10, -29, -14, -38, 35, 16, 8, -17, -11, 14, -5, 5, -44, 11, -13, 81, 16, 15, -47, -11, -40, 23, -42, 11, -25, -3, -28, -3, 61, -25, 17, 9, -2, 10, 62, 4, 1, -12, -27, 6, -26, -33, -18, -5, 19, 50, 18, -68, 13, 44, 33, -18, 7, 30, 12, -22, 0, 76, -11, 31, 42, 0, -47, -14, -17, 57, -15, -23, 25, -23, 5, -39, -66, -18, 17, 21, -49, -20, -71, -7, -10, 9, -11, 19, -23, -4, 43, 24, -7, -1, -33, -38, -14, -46, -19, 51, -20, 19, -15, 17, -64, -39, 13, -38, 59, -28, 3, 17, 26, -1, -8, -1, 4, -23, 15, -12, -15, 10, -2, -9, 19, 17, 16, -45, 8, -12, 42, 23, -17, -2, -11, 22, 72, -29, -45, -2, -9, 96, 16, 29, -18, 13, 51, -14, 39, -78, 42, 12, -18, -64, 11, -17, 8, -12, -25, 8, -36, 26, -25, -2, 28, 38, 37, -19, 21, -2, -13, -17, 9, 5, 20, 27, 38, 1, 12, 43, 35, 19, 16, 7, -35, 9, -17, -1, -23, 8, -2, -20, -21, 14, 29, 11, 56, 43, 2, 0, -1, -1, -52, -34, -16, 72, -48, -6, -12, -35, -12, 41, -18, -18, -38, -67, 41, -23, 87, -18, -24, -9, -25, -35, -40, 8, 33, -35, 13, -38, 2, -5, -75, -39, 57, -54, -57, 19, -2, 9, -46, -39, 31, 26, 23, -8, 20, 13, -4, -7, -21, 0, -7, -14, 14, -7, 37, 31, 5, 51, -15, 1, 71, -17, 3, -33, 17, 19, 12, -39, -8, 7, -2, -21, -51, -27, 23, 21, 1, -8, 1, 50, 25, -28, 29, 50, -2, -46, 11, 44, 12, 10, -3, -19, 2, 31, -23, -30, -5, 7, -93, -35, -28, -60, 17, 32, 25, -10, -20, -47, -13, 20, -8, 38, 69, 31, 8, 25, -12, 18, 4, -18, -12, -28, -51, -1, 52, -14, -18, -24, 21, 26, -68, 60, -39, 17, 47, 7, 20, 7, -36, -16, -44, 9, -47, 0, -12, -30, -3, 38, -2, -13, 50, 18, 7, -47, -21, 2, 19, -9, -27, -13, 35, -56, -8, -32, -63, -9, -46, 5, 20, 1, 17, 7, 27, -21, -21, -31, -36, 7, -22, 1, -6, 39, -23, -23, -28, -22, 9, 1, 25, 34, -5, 15, -60, -12, -19, -29, 4, 9, 7, 2, -2, 11, -13, -46, 5, -2, 39, 7, 85, -17, 0, -19, -9, -25, 21, 44, 24, -13, -13, -19, 9, -10, 47, -23, -2, -17, -26, 14, 6, 18, -12, -18, 20, -71, -12, 35, 42, -54, -32, 0, -18, -40, 0, 25, 11, -51, 18, 36, 23, 26, -21, 60, 8, 21, 22, -6, -31, 31, -16, -9, 38, -25, -23, 21, -7, 6, 9, 47, 4, 48, 47, -23, -35, -11, 28, -9, -11, 2, 12, 59, -11, 3, -62, 37, -96, -13, 9, 45, -23, 4, -18, -14, 30, 5, 25, 82, -17, 57, -7, -57, 40, -1, 9, 25, -12, 48, -12, -32, -6, -8, -60, 28, -27, 42, 25, 8, 13, -8, 7, -22, -21, -6, 7, 30, -37, -13, -49, 4, -24, 60, 16, -8, 8, 3, -5, -6, 15, -24, -5, -18, 6, 2, -9, 28, 3, -14, -15, -15, 56, 20, -5, -44, 49, -27, -6, 10, 12, -8, 3, -42, -25, 21, -5, 17, -53, 46, 38, -15, -44, -55, -32, -14, 14, -25, -14, 15, -19, -6, -42, -19, -42, -18, -40, -33, 5, 18, 39, -22, -29, 34, -40, -1, 30, 4, 7, 52, 38, 11, 29, -29, 0, 45, 29, -2, 26, -17, 17, 39, 2, -19, -23, 25, -7, -35, -33, 4, -5, 15, 3, 23, 20, 25, -14, 53, 40, 53, -28, 17, -2, -36, 22, -24, -10, 31, -4, 6, -6, -5, 20, 16, 44, 58, -34, 6, 37, 9, -19, -16, 20, -4, -46, 18, -1, 20, -70, 12, 0, 20, 40, -52, -7, 9, -8, -30, 20, 21, 22, 10, 16, -37, 43, -28, -21, 53, 21, 21, -8, -25, 3, 21, 33, 14, -47, 34, -16, 27, 4, 9, -9, 19, 13, 23, -24, 0, -30, -37, -11, -22, 30, -31, 35, 29, -9, 29, -10, -46, 21, -86, -3, -29, 0, -33, 13, -5, 28, 31, -31, -27, 29, 60, -34, -11, 8, -32, -5, 19, -44, -18, 32, -54, 11, 25, -15, 54, -4, -4, -32, -2, 59, 13, 21, 6, -17, -30, -7, -16, -23, -2, 14, 17, -5, 34, -27, 24, -97, -56, -23, -27, -31, 58, -29, -35, 28, 17, 24, 32, 35, 41, 9, -51, -28, -1, -20, -43, 61, -30, 17, 18, 12, -69, 43, 4, -48, -13, -28, -38, -7, 1, -31, 9, -5, 25, -18, 69, 2, 66, -18, 13, 11, -26, -41, -34, -10, 9, -5, 37, -8, 28, -44, -36, 4, -25, 36, 7, 15, -14, -7, 15, 53, -48, -66, -49, 28, -28, 10, -18, -18, -38, -12, 14, 9, -19, 32, -11, -9, 13, -22, -45, 12, -15, -13, -19, -55, -50, 30, -10, 16, 25, 10, -53, -8, -32, 4, -9, 41, -17, -19, 21, -15, 6, 20, 29, 18, 9, -3, 5, 38, 22, -19, 0, 12, 46, -26, -9, -3, -1, 12, 13, -16, -12, -26, 31, -4, -13, 14, -41, -52, -29, -43, 43, 32, 33, -12, 3, 19, -31, -31, -23, 38, -44, 3, 26, -52, 19, -27, 45, -13, 33, 46, -4, -39, 27, -17, 57, 49, 25, -12, 34, -48, -8, 18, 7, -5, -6, -3, -80, -24, 17, -18, 39, 29, -21, -4, -5, 36, 14, -15, 9, -16, 15, 51, 43, -46, -18, -58, -10, -3, 5, -18, -25, 7, 20, -4, 14, 24, -11, -14, -70, 4, 3, 17, -23, 1, 6, 22, 9, 0, -19, 30, -34, -11, 4, 38, 19, -74, -6, -22, -23, 39, -9, 68, 11, 29, 17, -38, 1, -20, 27, 8, -30, -13, 49, 46, -11, 23, 50, 7, -11, -70, -59, 32, 5, 60, 28, -71, 25, 10, -22, 35, -3, -22, 52 ]
Per Curiam. The relator brought an action for libel against the Evening News Association, the publication of which was February 6, 1895. The original declaration was filed in February, 1897. It set forth the libelous article in full, and claimed general damages. Issue was duly joined, and the case was ready for trial, .when, on January 24, 1898, plaintiff asked leave to file an amended declaration setting forth special damages, and by innuendoes defining the meaning of the language in the alleged libelous publication. The court refused to allow the amendment; apparently basing his decision upon the ground that it introduced a new cause of action, barred by the statute of limitations. We think it did not introduce a new cause of action, and that it was within the discretion of the court to allow or disallow. We will not interfere with that discretion, when it is exercised. We assume that the judge will exercise his discretion upon this intimation, and we will not, therefore, direct the issuing of the writ of mandamus.	[ 6, -7, 2, 66, 7, 29, 16, -30, 5, 13, -9, -21, 20, 6, 20, -29, -5, -21, 9, 4, -37, -39, -33, 3, -20, 0, -1, 32, -2, 17, 39, 11, -32, -12, -10, -45, -25, -3, -27, -30, 16, -49, 90, 32, -21, -6, -13, -15, 6, -19, 12, -3, 4, 38, -24, 7, -7, -5, -13, 14, -19, 22, -60, -69, -3, 9, 5, -8, 3, 9, 23, 0, 47, -1, -6, -45, -28, -21, -58, 30, -60, -71, 25, -7, -7, 22, 17, 8, -3, -1, 10, -55, -34, -41, -58, 41, -4, -32, 16, 12, -23, -83, -11, 8, -10, 5, -27, -32, 20, 8, -17, 64, -1, -6, 7, -13, 6, 34, 16, -57, 7, 19, 41, 5, -21, 18, -24, 33, -20, -25, -31, 33, 29, 14, 63, 16, 24, -16, 26, -78, -15, -30, 6, -15, 9, 18, 5, 24, -24, 14, -12, 49, 9, 60, -61, -8, 9, -62, 39, 8, 1, 0, -3, 6, 8, 54, -19, -41, -4, 19, -6, -10, -17, 24, -44, 31, -15, -7, -8, 8, -9, 74, 20, 24, 12, -42, -6, -6, 13, 0, 13, -29, -15, 32, 31, -15, 1, 12, 71, -34, 5, 3, -55, 62, 2, -1, -17, -4, -29, 35, -21, 26, -57, -29, 21, -38, -7, -1, -13, 36, -24, -1, 38, 35, 7, -42, 19, -14, -45, -3, 11, 10, -32, 11, -8, 25, -18, 32, 3, -13, -42, 53, -16, 33, 38, 36, 23, -14, 49, 44, 33, -3, 60, 20, 11, -48, -17, -1, -14, -43, 20, 62, -59, 0, 19, -44, -9, 40, -8, -6, 14, 19, 21, -42, -42, -42, 6, -50, -3, -11, 0, 35, -24, -12, -62, 0, 15, -5, 27, 28, 26, -5, -6, 17, 30, 46, 18, 7, -5, -27, 10, -32, 21, -19, 13, -56, -28, -16, 28, -52, -67, 55, -20, 22, -34, -4, -29, 84, 23, -78, -38, -8, 5, 1, 12, -67, 81, -3, -37, 9, 22, 12, 0, 21, 33, 10, 27, 38, -6, 10, 76, 11, -39, 3, -30, 22, -17, -19, -10, 22, -12, -19, 16, 5, 0, -29, -11, -41, 5, -7, 32, 60, -13, -45, 35, 4, 15, -9, -8, 34, -13, -38, -18, -41, -11, 5, 54, 34, 4, 58, -8, -24, 0, -29, 5, -2, -25, -2, 9, -49, -59, -41, -1, 48, 6, 24, -3, 33, 2, 8, 43, -16, 28, 1, -21, 13, -33, 26, 4, 66, 54, 42, 58, 6, -20, 15, 9, -7, 66, 3, -3, -15, 27, -19, -16, -50, 29, -1, 0, -32, 15, -13, -4, -28, -19, 38, -6, 10, 8, 1, -23, 20, 3, 12, 8, -37, 16, -13, 6, -26, 24, 26, -7, -21, -38, 13, -20, 6, 51, 60, -13, -7, -25, 37, -4, -15, -40, -37, -24, -19, -4, -38, -43, 57, -36, 14, -41, 34, -6, -16, 15, -11, -23, -47, -12, 0, 67, 32, 21, -37, 31, 20, -29, -12, -45, 20, -35, -34, -65, 55, 4, 17, -5, -37, -14, 9, 20, -27, 54, 28, 17, -10, -2, 12, 34, 1, 37, -24, -69, -7, -26, -7, -30, -14, -54, 0, 20, -17, 26, -16, 42, -44, -4, -41, -19, 45, -2, -12, -5, 18, 14, 43, 45, 45, -2, -31, 4, -9, 13, 41, -14, -32, -4, -14, -12, -4, -3, -13, 12, -27, 34, 0, 38, -5, -5, 20, -9, -14, -11, 21, 1, -46, -6, 11, -29, 0, 35, 9, 20, 17, -22, 9, -38, 35, 17, -77, 13, -38, -5, -16, -42, 8, -15, -26, 61, 24, -48, -20, 10, 17, -21, 17, 29, -24, 32, 53, 10, -38, 19, 26, 22, 31, -36, 23, -8, -32, -12, 37, 16, 0, -3, -3, 17, -4, 11, -20, -4, -21, -40, -24, -12, -7, 27, -9, -40, 14, -2, 52, -12, 30, -2, -7, 34, 5, 12, 64, 22, 61, 14, 16, 12, 0, -5, -69, -54, -4, -3, 3, -18, -10, -26, -31, -52, -26, 31, 43, 24, 40, -23, -22, 63, -29, 46, 20, 74, -18, 4, 3, 48, -7, -28, 13, 10, -8, 14, 25, -30, -18, -25, 48, 25, 4, -4, 51, 33, 59, 25, 23, 3, -13, -32, 18, -3, 34, 7, -52, -2, -20, 55, -14, -17, -42, 12, -8, -10, -6, 44, -8, -9, -57, 22, 8, 11, -33, -23, 43, 26, 37, 7, -9, 8, 8, 1, -3, -11, 35, 5, -10, 53, -5, -5, 0, 1, 0, -27, -3, -1, 26, -27, 77, 5, -5, -1, -33, 1, -3, -27, 42, 0, -41, 37, 10, 10, -12, -54, -5, -8, 6, 16, -11, -6, -50, 48, -25, 7, 29, 29, 26, 11, -4, -6, -18, -27, 0, 39, -10, 21, -47, 34, 0, 17, -5, 3, -29, -8, 22, 8, -52, 14, -6, 31, -10, -1, 14, -42, 52, -35, 22, -36, -61, 15, -3, -66, 0, -65, -3, -17, 24, -14, -67, 20, -15, 4, 51, 82, 6, -6, 13, 17, 32, 62, -53, -41, 43, 1, 12, -21, -18, -38, 8, 1, -20, -5, 38, -12, 18, -8, 17, -9, -16, 6, 7, -28, -2, 16, -15, -23, -57, 40, 5, 15, 5, -24, -77, 4, 7, 5, 35, 17, 11, -8, -14, 42, -13, -41, 1, -19, -46, 0, -45, -28, 37, -10, 4, -27, 1, -44, -15, -12, 7, 85, -6, -17, 30, 14, -30, -29, 13, -31, -16, -30, 42, 75, 37, 5, -19, 21, -40, 3, -39, 28, -31, 21, -4, 13, 29, -4, 34, -19, -10, 42, 63, 6, -15, -13, 18, 22, -15, -38, 12, 12, 2, -10, -30, -7, 0, 23, -44, 9, 43, -45, -16, 48, -7, -23, -6, -25, -41, -4, -41, -31, -18, 21, -8, -32, 0, 0, 41, -21, -28, -16, 2, 9, -12, -29, -15, -25, -12, -11, -16, 0, -33, 24, 14, -55, -3, -1, 19, -8, 8, -1, -42, -10, 5, -19, -4, -3, -3, 0, -57, 32, 0, 24, 1, -18, 3, -44, 9, 22, 19, 14, 36, 28, -25, -19, -23, 26, 2, -26, -35, -18, 17, 30, 22, 49, 37, -22, -9, -11, -7, -2, 42, -49, -39 ]
Grant, C. J. {after stating the facts). The learned counsel for the plaintiffs state their claims under the two counts of the declaration, as follows: “ The first count is based upon the theory that the Davis Mining Company was not a legally organized corporation, and was designed to permit recovery by plaintiffs in case it should be found there was no such legally authorized incorporation, but only an association of individuals (themselves) under a corporate name. The second count is based upon the theory that the Davis Mining Company was a corporation, at least de facto, all the capital stock of which was owned' by the four plaintiffs. Under each count the bargain claimed to have been made and carried •out by actual delivery (the second count including the capital stock) was the same. ” There is nothing in the record to sustain the theory that the Davis Mining Company was not a legally organized corporation, or that plaintiffs were doing business as tenants, partners, or in any other capacity than that of corpora-tors. They had only the powers and rights of stockholders. The company was duly incorporated, and had a president, secretary and treasurer, and board of directors. It carried on its entire business and kept its books and records as a corporation. It was not only a de facto, but a de jure, corporation. The act of the legislature above referred to recognizes such a corporation as valid, and only declares its contracts void when made in this State before it has complied with the provisions of the law; The court below was therefore right in holding that there could be no recovery under the first count. Under the second count, it becomes necessary to. determine what the contract was and with whom it was made. The offer stated in the letter of December 19th, and the telegram accepting it, constitute the contract. Its terms are clear and unmistakable. All prior conversations and negotiations, whether written or verbal, cannot be invoked to change the letter of the contract. The defendant offered to buy “the Davis Mine, and all the property, machinery, etc., belonging thereto.” It was not an offer to buy the stock of the individual stockholders. This is further made clear by the proposed terms of payment, to wit, to pay all the debts of the mining company and $3,000 to the stockholders. It meant a purchase of the franchise of the corporation, with all its rights and property. The letter was written to the president of the company. There is nothing in the record to indicate that the parties understood that the one was selling and the other was buying the stock of the plaintiffs. Their conduct at the time and subsequently clearly shows that they understood that they were acting in a corporate capacity, and not as individual stockholders. They retained their certificates of stock. They had previously attempted to sell defendant 13,000 shares of it, but he refused to purchase. They made no tender of the certificates until the close of the trial. The original declaration was filed March 26, 1896, and was upon the common counts alone. Nothing .further appears to have been done in the case until July 6, 1896, when plaintiffs filed an amended declaration containing a special count setting forth that they were the owners of the property, and describing it, and that they had sold it to the defendant for $26,000. To this amended declaration the defendant pleaded the general issue. Subsequently, by the permission of the court, he filed an amended plea, giving the special matters in defense as stated in his letter of January 31, 1896. Plaintiffs, by leave of the court, on March 20, 1897, filed a second amended declaration, in which for the first time they alleged a sale of the stock. There was no corporate action taken by the stockholders or by the directors authorizing the transaction. The assignment of the lease was made by the president and secretary in behalf of the corporation, and on the face of it was a corporate act. Stockholders do not own the corporate property, and cannot mortgage, sell, or convey it. The title is in the artificial being called the corporation, not in the stockholders. Such property is not under the control of its stockholders, whether they act separately or collectively. The laws under which these corporations are organized provide the agencies and methods by which their property can be sold and transferred. Randall v. Dudley, 111 Mich. 437; Humphreys v. McKissock, 140 U. S. 304; Fitzgerald v. Railway Co., 45 Fed. 812; England v. Dearborn, 141 Mass. 590; Button v. Hoffman, 61 Wis. 20 (50 Am. Rep. 131); Baldwin v. Canfield, 26 Minn. 43; Gashwiler v. Willis, 33 Cal. 11 (91 Am. Dec. 607). In Smith v. Hurd, 12 Metc. (Mass.) 371 (46 Am. Dec. 690), Chief Justice Shaw said: “The individual members of a corporation, whether they should all join, or each act severally, have no right or power to intermeddle with the property or concerns of the bank, or call any officer, agent, or servant to account, or discharge them from any liability.. Should all the stockholders join in a power of attorney to any one, he could not take possession of any real or personal estate, any security or chose in action; could not collect a debt, or discharge a claim, or release damage arising from any default; simply because they are not the legal owners of the property, and damage done to such property is not an injury to them. Their rights and their powers are limited and well defined.” In Button v. Hoffman the court say: “These general principles sufficiently establish the doctrine that the owner of all the capital stock of a corporation does not, therefore, own its property, or any of it, and does not himself become the corporation, as a natural person, to own its property and do its business in his own name. While the corporation exists he is a mere stockholder of it, and nothing else.” The artificial being known as the Davis Mining Company was still in existence after the alleged sale and transfer to defendant. The transfer of the stock-book to him, either individually or as secretary of the company, did-not operate to cancel the stock standing in the names of these plaintiffs. They might have sold the stock to an innocent purchaser, who would take a good title. Such certificates, in the absence of some provision of law to the contrary, stand upon the same basis as commercial paper, and innocent purchasers and pledgees take title by assignment and delivery. McLean v. Charles Wright Medicine Co., 96 Mich. 479, and authorities there cited. We are forced to the conclusion from this record that this was a corporate contract, and void under the law above cited. While the corporation might be estopped to plead such a contract in its defense, it cannot maintain an action upon it without annulling the law. Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430, 55 Am. St Rep. 457); People’s Mut. Ben. Society v. Lester, 105 Mich. 716; People v. Hawkins, 106 Mich. 482. If, however, all the stockholders of the corporation could by unanimous action contract, instead of the corporation, acting through its properly authorized officers, it would not aid the plaintiffs. What such a corporation could not do in its corporate capacity all its stockholders acting together could not do for it. If the act or contract of the corporation is void under the law, so, also, is the joint act or contract of all the stockholders, designed to accomplish the same purpose, and thus evade the law. The judgment is affirmed. The other Justices concurred.	[ 50, 1, 5, 17, 4, 18, 22, 6, 14, 59, 47, 13, 66, -13, -34, -13, 4, 9, -1, 1, -26, -3, -17, 10, -9, -41, 6, 12, 5, 35, 4, 0, -35, -42, 0, 74, -14, 17, 1, -11, -18, 32, 54, 29, -13, 0, -10, -72, -16, -44, 62, -14, 46, -19, 48, -28, -22, 11, 8, -20, -23, -58, 53, 25, -25, -13, 3, 2, 27, -25, -44, 30, 17, 7, 10, -45, 3, -28, -29, -10, 3, -29, 45, -33, -3, 34, 41, -26, 35, 10, 29, 7, -24, 11, 10, 9, 12, 3, -3, 30, -6, -48, -9, 0, 6, 1, -12, -31, 51, 11, -46, -12, -10, -27, -49, 0, -2, -22, -4, -42, 4, -13, -9, 13, -43, -12, -15, -23, -41, 0, 0, -35, -62, 29, 6, -24, -32, -36, -9, 1, -54, 58, -31, -43, -39, 45, -13, 34, -39, 10, 0, -29, 19, 23, -63, -8, 7, 0, 23, -57, 57, 27, 39, -10, -50, 9, -18, -26, -23, 26, 8, -11, -76, -15, 37, -4, -19, -18, -30, -53, -33, -8, -22, 12, 18, 0, 9, 8, 3, 30, -7, -5, -2, 22, -42, 19, -14, 34, 40, -55, -25, -8, -64, 36, -18, 3, 27, 31, 30, 23, 13, 46, 0, -47, -14, 8, -16, -71, 27, -42, 23, 5, -30, 23, -20, -40, 40, -21, -44, -13, -24, 50, -24, -1, -2, -26, 64, -8, 46, -11, -32, -30, -37, -49, 4, -35, -53, -35, 17, 62, -16, -14, 4, 75, -28, -46, 1, 45, -29, -19, -12, 29, -41, -19, 12, -47, -57, -7, -6, 56, 8, -52, -15, -2, -26, -19, -4, 29, -38, -45, -7, 1, -12, -5, -28, 32, -45, 7, -24, 2, 66, 14, 48, -8, 71, -50, 59, -4, 20, 4, -9, -3, 23, -15, 32, 49, -32, 11, -20, -41, 36, 9, -25, -19, 38, -14, 24, 25, 40, -46, 30, 62, 10, -46, 66, -35, 41, -42, 22, 10, -30, -14, -9, -55, -15, 19, 19, -2, -28, 14, -35, -2, 1, -23, 1, 1, -59, -42, -33, 30, -38, -29, -13, 6, 17, -3, 10, 2, -19, -26, 22, -41, -3, -2, 0, 9, 4, 0, 43, 27, -23, 52, -15, -20, 10, -30, 21, -15, -71, 16, -9, -14, 52, 3, 77, 7, 4, 27, -35, -37, -23, -24, -27, 36, -6, -24, 10, -14, -4, -4, -42, 33, -32, -8, -69, -16, 9, 22, 5, 19, -19, 9, 13, -3, -45, -14, 46, 16, 52, 68, 6, -32, -44, -41, -3, -61, 30, 4, -38, -3, -39, 19, 25, -25, -35, -34, -33, 0, -82, 5, 9, 7, 2, 32, -2, -16, 8, -26, 21, 0, -17, 39, -55, 26, -29, 66, 32, -36, 18, 10, 41, -2, 67, 4, 19, 3, 41, -28, -14, 23, 15, 33, 18, 11, 19, 10, -25, 22, -12, -13, 2, 83, 0, -20, -15, -1, -10, 8, 22, 2, 7, 33, 38, -38, -54, 17, -14, -9, -1, 0, -14, 2, 9, 12, 17, 81, 7, -27, -8, 67, -20, 7, 24, 16, -3, 56, 11, 11, -60, 13, 31, -26, -48, -7, -12, -9, 23, -9, 62, -16, 12, -28, 13, -23, 4, 27, -29, 2, -12, -21, -41, -11, -12, 41, -24, 23, 24, 27, 39, -5, -39, 4, 7, 32, 17, 35, 14, -9, 25, 12, -68, 13, 36, -59, 51, -7, 6, 35, -9, 15, -32, 7, -3, 58, 32, -47, -5, -14, -16, 43, 2, -10, 35, -19, -30, 13, 9, 6, -16, -16, -40, -14, -39, -3, -43, -33, 29, -36, -1, 26, -19, 19, -47, -52, -18, -41, 30, -25, -56, -17, -29, -28, 31, 1, 17, -18, 9, -24, 26, 28, 18, 1, -18, -37, 13, 25, 1, 8, -19, 31, -16, -25, -8, 44, -5, 17, 14, 30, -23, 4, 20, 14, -9, -33, 4, -3, 0, 39, 39, 19, -18, -4, 52, -51, -5, 24, -20, 5, 5, -48, 37, 3, 20, 1, 8, -32, 0, 55, 54, -34, -4, -13, 38, 1, 49, 8, 36, 0, -8, 7, -21, 16, 33, -49, 50, 21, 7, 0, -50, -5, -2, -4, 0, 16, -26, -25, 19, 35, 0, -14, -26, -3, -22, 49, 6, -10, -35, 15, 28, 2, 52, -38, -24, -34, -34, 0, -4, 62, -48, -64, 32, -55, 56, -12, -12, 38, 21, 6, 7, -30, 47, -39, -34, 28, 5, 7, -14, -24, -11, -21, -3, 7, -1, 34, 0, 41, 25, -11, -27, 40, 32, -27, -27, 43, -3, 6, -58, 27, -11, -43, -26, -14, -21, -32, -32, 8, -57, -46, 13, -22, 24, -17, -6, 46, -4, -15, 74, 43, 24, 40, -13, 10, 2, 48, -15, -98, 2, -13, 9, 53, 23, 8, 33, 0, 1, 15, 13, -13, -33, 3, -40, -24, -29, 44, 42, -1, 13, 13, 33, -21, -24, -29, 27, 8, 1, -11, -35, -12, -19, -45, -14, -51, 12, -23, -1, 33, -1, 27, -12, -19, 9, 4, -40, 11, 19, 29, 7, -7, 17, -5, -15, -44, -21, 12, 49, -25, -85, 26, -29, -47, -3, 26, -31, 24, -35, -22, 3, -7, -3, 0, 30, 50, -35, 32, 17, -36, 17, 44, 0, -9, 3, 15, -8, 26, -6, 25, 15, -21, 2, -11, -34, 25, -21, 18, -2, -18, 27, -13, 17, 40, 5, -40, -33, 1, 38, -16, 46, -33, -2, -1, 4, 25, -21, 29, 20, 43, 35, -4, 13, 61, 41, -21, -12, -36, -21, 56, 51, -3, 9, 24, 54, 29, -12, -28, 18, 6, -5, 93, 12, 39, -25, 43, -20, -23, 23, 3, -14, -14, -30, -15, -15, -22, 5, 0, -12, -50, -6, -18, 11, -24, 26, 15, 78, -1, -8, -15, -41, 37, -1, -64, -18, 24, 4, 34, -8, -1, -15, 12, -10, -45, 50, 1, -11, -16, 15, 8, 29, -32, 6, -25, 58, -13, -19, 28, 2, 33, -8, 2, -13, 12, 48, 4, -16, 33, 40, -36, 13, -12, -2, -29, 21, -29, -10, 18, 2, -15, 23, -19, 40, -21, -53, -43, 51, 31, 3, 33, -17, 15, -17, 4, 24, 24, -7, 30 ]
Per Curiam. April 12, 1898, relator caused a writ of garnishment to issue out of the Muskegon circuit court. The writ was personally served on the garnishee defendants, who answered, denying all liability, and thereupon moved the court to dismiss the writ for the reasons (1) that the affidavit for the writ was made and sworn to on April 11th, one day before'the writ issued; (2) that the affidavit is contradictory, in that it states that “ said cause is a personal action, arising upon an implied contract, upon which defendant is indebted to plaintiff in the sum of $26,-250,” and in the next paragraph it states: “ Said sum of $26,250 is due said plaintiff from said defendant on a certain judgment rendered against said defendant, Amazon Hosiery Company, 'by the circuit court of Cook county, in the State of Illinois, said court being a court of record and of general jurisdiction, in a suit wherein the said Union National Bank of Chicago is plaintiff and the said Amazon Hosiery Company is defendant.” This motion was granted by the court, and the writ of garnishment dismissed. The record.shows that the date of April 11th in the affidavit is an error, as no suit was in fact commenced until April 12th. An amendment of the date should have been permitted. Millard v. Lenawee Circuit Judge, 107 Mich. 134; People, ex rel. Dickinson, v. Simondson, 25 Mich. 113. See, also, Wattles v. Wayne Circuit Judge, ante, 662. The affidavit for the writ is not contradictory in its terms. While the action is upon a foreign judgment, it is upon contract, within the meaning of the statute. Wattles v. Wayne Circuit Judge, supra, and cases there cited. The order quashing the writ of garnishment must be reversed, and the writ reinstated, with costs in favor of relator.	[ -3, -18, -35, 12, 24, 51, 96, -30, 23, 23, -20, -58, -9, 15, -6, 2, 32, -13, 39, -5, 8, -1, 21, -29, -3, 14, -13, -3, 46, -18, -45, 13, -4, 17, 11, -62, -47, 20, 0, -14, -30, -1, 11, 19, 8, -18, -13, -27, -8, -44, -12, -47, -58, 59, -8, 31, -31, -35, -59, -11, -3, -31, 20, -23, -33, 7, -6, 32, 41, 25, 18, 19, 36, -2, -50, -43, -41, -13, -24, 41, -2, -29, -31, 36, -20, -10, -8, 11, 33, -12, -9, 14, -81, 16, -7, 10, 19, 19, 8, 39, -2, 21, -16, 49, 6, -27, -7, -84, -27, 19, -12, -6, 41, -36, -14, -5, -15, -18, 38, -36, 7, -7, 55, 41, 15, 19, -9, 7, -6, 40, 37, 48, 0, 1, 35, -10, 10, 17, 0, -59, 18, -41, -5, 19, -22, 17, 57, -8, -54, -14, -46, 22, 8, 26, -28, 9, 49, -43, 7, 0, 32, 18, -21, -27, -7, -32, -26, -7, 35, -37, -26, -5, -8, -22, 12, 5, -14, -73, 0, -4, -15, 33, -39, -36, 31, -31, -8, -33, 40, -36, -28, 18, -1, 47, 32, 50, -20, 9, -6, -28, 52, -19, -14, 5, -26, -10, 44, -43, -27, 53, -21, 10, -10, -27, 3, -33, -9, -9, -16, 30, -23, 0, 16, 34, 10, -19, 39, -36, -9, 33, -11, -23, -1, -11, 1, -12, 2, 43, 47, -3, -14, 23, 18, -23, 42, -11, -44, -28, -6, -2, -33, 0, 37, 27, -39, -37, -8, 17, 0, -5, 11, 48, -38, 1, -23, -24, -3, 60, -12, 4, -39, -7, 22, 11, 59, -11, -47, 4, 25, -2, -43, -1, -43, -28, -45, 12, 30, -16, -2, 39, 40, -6, -36, 21, -22, 60, -5, -11, 20, 22, -4, -17, 51, 7, -32, -16, 5, -24, -18, -42, -12, 13, -9, 32, -14, 2, -17, -1, 25, -60, -15, 22, -8, -17, 27, -41, 13, -29, -16, 7, -35, -42, -29, 22, 38, -27, 27, -19, -13, -31, -4, 28, -41, 22, -57, 57, 31, 16, 1, 27, -6, -5, -9, 40, 18, -10, -33, -7, -6, 27, -2, 27, 1, -58, 53, 56, -31, -29, -1, 72, -27, -12, -2, -6, -45, -59, -55, -9, -22, 36, -2, -89, 14, 12, -8, -19, -41, -16, -10, 3, -47, 5, 32, 24, -17, -36, -27, -28, -50, 19, -12, 22, 30, -1, -7, -24, -26, -8, -7, -15, 37, -11, -16, -2, -3, -57, -4, 16, 49, -8, 30, -26, -17, -34, -27, -18, 11, 2, 11, -8, 18, 56, 20, -22, 16, 50, -15, 8, 9, -14, 40, 24, 6, -31, 15, -22, 9, 8, 6, -12, 80, -42, 18, -27, 39, -4, -28, 23, 65, -4, 23, -35, 25, 52, 2, 12, 12, 3, 5, 34, -12, -8, -19, 24, -66, 23, 26, -27, -5, 24, -15, 1, 25, -37, -10, 27, 42, -54, -27, 7, 27, 0, -27, 58, 15, -62, -44, -13, -18, 23, 1, 2, 18, 2, 54, -2, -14, -18, -37, -24, 18, -16, 47, 37, 0, 40, 48, -30, 5, 25, -6, -3, -71, 19, 8, 1, 3, 32, 4, 3, -4, -16, 8, -8, -13, 35, 7, 4, 32, 36, 22, 96, 8, -15, 13, 3, -54, -12, -29, 16, -29, -56, 13, 5, -49, 42, 32, -41, 26, -31, 37, 30, 40, -22, 41, -61, 1, -53, -9, -10, -6, -52, -27, -9, 9, -21, -16, -32, 32, 20, -21, 29, -49, -88, 30, -24, -27, -19, 0, 20, -10, 10, -41, -24, 6, -37, -29, 2, 53, 45, 41, 41, -53, 6, 10, 3, 35, -15, -16, 19, 21, 0, 1, 7, 19, -43, 0, -9, 10, 78, -16, 0, 24, 15, 4, -11, 6, -62, -52, 22, 16, -3, 23, 17, -11, 20, 11, 45, -13, -44, -3, 5, -22, -7, 11, -34, -47, 22, 0, 4, 6, 48, 26, 23, 7, -11, 80, 27, 26, -6, 0, -19, 12, 42, 6, 23, -6, 33, 39, 53, 13, -47, 31, -1, 22, -41, -23, 20, 26, -6, -24, 14, 2, 1, -29, -2, -13, 26, 8, -3, 22, -6, -23, 34, 35, -10, -18, 17, -2, 13, -22, 37, 4, 23, -48, 1, -45, -1, 106, 4, -46, -42, 42, 13, 5, 28, 28, 1, -60, -38, -12, 2, 2, 31, 39, -40, 27, -4, -29, -7, -3, 27, 6, 32, 23, 47, 11, 20, -37, 12, -2, 14, 30, -19, -7, 7, 39, 60, -2, -6, 8, -8, 1, 4, -7, 37, -14, -29, 35, 36, 12, 3, -11, -11, 14, 23, -14, 2, -4, -13, -1, -1, 31, 2, 4, 44, 26, -14, 34, 0, 57, -6, 3, 23, 38, -54, 21, -22, -24, 22, 37, -50, -24, -44, -53, 11, 9, -3, -14, 7, 7, -13, -12, -29, -3, 36, -18, -11, 24, -8, -26, -16, 8, -23, 3, 3, -40, 18, -15, -46, -1, 59, 20, 10, -18, 1, -21, -35, 0, 22, 23, -37, -54, 8, -17, 30, 27, -30, 26, -15, -34, -16, -50, -25, 9, 74, 12, -3, -51, -48, 38, -12, -12, 28, -29, 27, 1, -18, -21, -6, 11, 32, -34, -27, 41, -39, -37, -13, 1, -31, 33, 12, -15, 10, -17, -22, 44, -42, -6, -24, 33, 46, -7, 2, 16, 11, -7, -30, -40, 43, 5, 2, 30, 61, 19, 0, -11, -88, -4, -27, -6, 22, 20, 33, -2, -22, -6, -47, 13, 40, 38, 2, 6, -30, 20, 10, -18, -1, -9, -17, 16, 19, 20, 3, 25, 28, 38, 35, -25, -4, -7, -30, 1, 50, 2, 5, 27, -18, 23, -5, -54, -19, 74, -34, -40, -23, -10, 30, -18, -11, -38, 29, 30, 38, -20, -45, 7, -16, 5, 0, 39, 29, -15, 23, 15, 33, -5, 6, 39, -2, 0, -30, -45, 3, -55, -1, 80, -15, -55, 27, 20, -20, -53, -5, 34, -42, -43, -7, -29, -45, 38, -3, 17, -20, 2, -50, 3, -23, -11, 3, -24, -22, 53, -33, 15, -38, 5, -4, -3, -3, -29, -28, 72, 30, 16, 2, -42, -4, -5, -9, 17, -18, 24, -1 ]
Hooker, J. On May 1, 1881, Fletcher and the Jewetts executed the following writings, each party accepting and keeping that signed by the other: “Alpena, May 1, ’81. “We agree to pay Gr. N. Fletcher one dollar and twenty-five cents per acre for the E. i of S. E. i section 21, and the E. $ of N. E. ‡ section 28, 31, 5, within four years, with interest, provided the said Fletcher shall decide to pay all the back taxes on said land; and, if not, then the $25 this day paid shall be in full for all his rights in the same, and he shall, at the end of four years, give us a deed of all his interest in the same. “S. S. Jewett. “Burt E. Jewett.” “Alpena, May 1, 1881. “For a consideration of twenty-five dollars, this day paid me by S. S. Jewett and Burt E. Jewett, his son, I sell them all my interest in the east half of the southeast quarter of section 21, and the east half of the northeast quarter of section 28, all in town 31 north, range 5 east; and for the further sum of one dollar and twenty-five cents per acre, provided the taxes shall hereafter be canceled, or if I shall choose to pay the same up to this time; if not, then said Jewetts shall receive from me a deed of all my interest, within four years, they paying-all taxes from this time. Interest to be paid me by them from this time, if I pay the taxes or they are canceled. The $25 now paid shall be in part. “ George N. Fletcher. “If in case I take the $1.25 per acre for the above, I will give them a warranty deed of the same. “George N. Fletcher.” On November 8, 1881, Fletcher conveyed the land described in the writings to the complainant and his partner, Donald McRae, subject to the Jewett contract, which Fletcher at the. same time assigned and delivered to them. Subsequently McRae transferred his interest to the complainant. In November, 1883, complainant paid the taxes mentioned in the writings, and became entitled to. receive $1.25 per acre for the land, which, under the terms of the contract, was to be payable four years from its date. The defendants afterwards tendered to the complainant $250, and demanded a warranty deed of the premises. The complainant refused to give a warranty deed of the premises, but offered to receive the money, and give to the defendants a deed of all of the interest he had received from Fletcher; but this they declined, and refused to pay the money without receiving a warranty deed. This bill is filed to enforce the complainant’s lien, and a decree was entered in favor of the complainant, providing for a sale of the premises in case the defendants should fail to pay the amount of the decree; and providing, further, that, in case of such payment, the complainant should execute and deliver to said defendants a “deed of the premises, with the usual covenants of warranty, except as to acts and incumbrances affecting said lands, caused by or through the defendants, subsequent to May 1, 1881.” The defendants have appealed. It is not disputed that the defendants owe for the land, having never paid for it; but they insist that the tender discharged the lien, or, if it did not, it should have the effect to stop interest. We are satisfied that a proper construction of the two instruments constituting the contract entitled the defendants to a warranty deed, in case Fletcher, the vendor, should pay the taxes, and thereby become entitled to receive $1.25 per acre. This right was not lost by reason of the sale to the complainant, who took the land subject to the defendants’ rights. But, while this is true, we are not convinced that the complainant acted in bad faith in refusing to receive the tender upon condition that he deliver a warranty deed. While he knew that the defendants claimed the right to such a deed, it does not appear that they gave him any information concerning the writing held by them. He distinctly denied it in his testimony, and stated that he had no knowledge of such a paper until the trial, and that he supposed that the writing in his possession correctly stated the nature of the deed that the defendants were entitled to. We are of the opinion that his conduct was not such as to justify the forfeiture of his lien or the stoppage of interest. The defendants have had the use of the land and the money, and we think should pay the amount due upon the contract. Renard v. Clink, 91 Mich. 1 (30 Am. St. Rep. 458); Post v. Springsted, 49 Mich. 90; Sager v. Tupper, 35 Mich. 134. The learned circuit judge, who saw the witnesses, took this view of the case. His decree is affirmed, with costs. The other Justices concurred.-	[ 33, 21, 2, -35, 17, 35, 34, 5, 57, 0, -34, -36, -11, -5, -21, 42, -33, -36, -5, 25, -52, -57, -27, -25, 35, 15, -21, -19, -17, -7, 43, 101, -53, 11, 48, -23, -68, 13, -32, -22, -27, 54, -35, 15, 61, 67, -42, -38, 8, -39, 29, 22, 51, -9, 9, 19, 3, 4, -3, 3, -12, -44, 0, -26, -30, 9, 20, 17, 60, 19, -36, -33, 10, -19, 59, 54, 34, 27, -40, -44, -7, 9, -21, -59, -55, 0, 10, -69, 97, 26, -15, -25, 57, 57, 32, 31, 18, 62, -13, 43, 35, -3, 0, -7, 34, -65, -23, -20, -31, 53, -88, -13, 28, -26, 3, -31, -9, -2, -12, 14, -23, 23, -12, 23, -19, 71, -75, 19, -8, 7, -20, -48, -3, -41, 14, 15, 7, -55, 50, -8, -3, 23, -16, -11, 33, -61, -45, -23, 1, 33, -8, 18, 16, -18, 49, -38, 68, 15, 21, -54, 10, -11, 8, -79, -72, 37, 58, 3, -59, 58, 88, 37, -32, 4, 49, -39, 19, 6, -20, 6, -1, -5, 3, -27, 16, -73, 41, -14, 0, 76, 10, -47, 61, -61, -5, -29, 10, -15, -9, 11, 13, 16, -1, 11, -30, -26, 0, 18, -32, 36, -31, 9, -33, -18, -12, 104, -42, -38, 36, -22, 62, 14, -11, -34, -45, -2, 26, 15, 27, -13, -31, 0, 2, 8, -77, 0, -75, 11, -44, 15, -44, -88, -33, 2, 0, -5, 23, 50, -17, 35, -72, -18, -64, -11, -19, -27, -5, -23, -11, -20, -48, -6, 53, -8, 36, -45, 7, 0, 45, 45, 57, 0, 0, 13, -64, -43, 15, -86, -38, -33, 54, -66, 6, 30, 25, 8, -13, 20, -25, -30, -4, 8, 67, -45, 9, 34, -27, -19, 84, -55, -25, -35, 29, 10, 36, -14, -1, -16, 30, -19, -14, -10, -29, 12, 15, -71, 18, 1, -30, 17, 2, 9, -17, 52, -37, -13, 32, -2, 23, 58, -19, -14, -40, 12, 5, 4, -1, 8, -20, -46, 7, 47, 25, 12, -9, 5, 35, 20, 29, -37, -8, -26, -22, -10, -63, 21, 40, 45, 33, 8, 36, -12, 12, -6, -3, -20, -28, -5, 22, -17, 40, 49, 4, -13, 24, 27, -23, -15, -10, -1, -30, 24, -3, 50, 45, -31, 16, -34, -62, -17, -38, 39, 3, 33, 20, 9, 6, -47, -40, -67, 12, 20, 22, 0, -7, -23, -2, -15, 9, 2, 9, -58, -21, -76, 21, -27, -2, -5, 26, 30, -5, 7, -2, -12, 74, 6, 20, 13, -26, -45, -39, 32, 30, 10, 61, -16, -24, 55, -12, 10, 41, 27, 28, 22, -11, -47, 8, 7, 32, -12, 19, -22, -30, 67, -15, -24, 56, -12, 17, -21, 2, 9, 53, -45, 20, -8, 40, 7, -19, 16, -20, 11, 25, -69, -20, 12, 8, -17, 1, -41, 15, -65, -29, 28, -2, -74, -3, 36, -1, 1, 92, -73, -5, -35, 1, -26, -16, -11, 51, 79, 29, -2, 24, 25, -11, 17, -8, 10, 63, 39, 25, -47, 18, -28, 25, 42, 11, 8, 33, -25, -19, 26, -45, -49, 28, 8, 43, 52, -14, -46, -51, -33, -41, 27, -7, -26, 7, 16, 12, -5, -42, -14, 16, 8, -26, -13, -22, -12, -42, 13, -12, -21, -22, 12, -21, 35, -16, -43, 8, 26, 24, -1, -17, -75, 3, 1, -20, 38, -73, 30, -22, -14, 34, 22, 3, -21, -58, -34, 4, 29, -31, -26, -6, -10, -9, 1, -52, 6, -27, 66, 8, 13, -67, 35, -16, 17, 70, 62, -35, -28, -1, 42, -60, -9, -6, -10, -3, 37, 0, 19, -14, -12, 36, 33, 13, 11, 76, -50, 3, 6, -18, 15, -22, 3, 5, 52, 31, 50, -64, 27, -5, -27, 8, 33, -29, -1, 9, 22, 7, 32, -31, -55, -102, 17, -4, 53, -26, -49, 31, -56, -15, -15, 53, 10, 16, 33, -24, 52, -26, 1, 39, -29, 52, 21, 33, -20, 15, -13, 23, -19, 16, -12, -11, 22, -22, 37, 15, 78, 66, 54, 14, 24, 20, 9, 89, -41, 1, 21, -65, 25, -6, -10, 12, 2, -42, 0, -5, 5, 6, 5, 42, 49, -61, 17, 29, -46, -8, 8, 9, -7, 11, -2, 49, -10, -30, 31, -49, 39, 18, -37, 32, -38, 29, -5, 24, -13, 24, -32, -51, -4, 18, 49, -42, -34, 40, 54, -32, 13, -7, -55, 5, -32, -82, 80, -8, -2, 33, 36, -28, -15, 14, 26, -20, 70, 105, -42, -57, -29, -47, -6, -34, 11, -33, 22, 16, -9, -37, -31, -38, -32, 28, 80, -81, 6, 17, -33, -17, 1, -18, -41, 4, 18, -13, -84, -27, -40, 37, 3, 55, 27, -21, -14, 28, -52, -79, -12, -9, 5, -5, -21, -9, -29, -59, -7, 19, -23, -1, 24, -34, 22, -14, 37, -21, -25, -32, -27, 0, 1, 29, 26, 2, 46, -30, -17, 50, -5, -4, 5, -53, 16, 40, -31, 3, -4, 9, -30, -46, -17, -20, -25, -36, -42, 6, -13, 28, -35, -13, 34, -30, -22, 0, -20, -17, -3, -61, -33, -18, 20, -65, 20, 8, 6, -7, 21, -10, -26, 44, 11, -17, 4, 20, -3, -27, -30, 21, 7, -14, -15, 69, -15, -77, 7, -43, 31, -14, 19, 36, 10, 10, 18, 7, -31, -17, -11, 0, -26, 11, -12, -20, 16, -42, 51, -21, 1, 18, 16, 23, 13, 42, 32, 20, -10, -55, -13, -59, -20, 0, -16, -3, 92, 42, -15, -43, 14, 4, 25, 49, 18, 44, 46, 1, -3, -57, -8, -13, -20, 19, -42, -35, 0, 54, 34, 0, -29, -37, 19, 19, -19, 34, 2, 6, 13, 46, 67, 17, -27, -68, -1, 27, 11, 1, 0, 28, -37, -10, -13, 20, 35, -31, -99, 38, -37, 21, 0, 43, 68, 57, 16, 24, -18, 62, -32, -15, 48, -13, 53, 36, -41, 5, 33, -3, 9, -11, -8, 45, -21, -1, 7, -24, -38, -21, -36, -7, 50, 23, 7, 33, -7, 26, -72, -58, -9, 12, -7, 24, 30, 54, 29, 28, 0, 55, -77, 5, 18 ]
O’Hara, J. This case comes to us on leave granted to appeal an order of the circuit court denying defendant’s motion for accelerated judgment. The question as agreed upon and stated to us is: “Must a suit under CL8 1961, § 436.22 (Stat Ann 1970 Cum Supp § 18.993) be filed and served within the two year limitation contained in the statute.” We have caused “served” to he italicized in the quoted question because the parties agree that the complaint was filed within the two-year period, and that a summons and copy of the complaint were promptly delivered to the sheriff for service. The complaint was filed six days before the two-year period expired. Process was served six days after that period. The statute provides: “Any action shall be instituted within two years of the happening of the event.” Again we have added the emphasis for under the wording of the statute the question really is, when is the action “instituted?” We deem it advisable to eliminate possible confusion which might arise by reason of the use in the dramshop act of the wording “any action shall be instituted within two years of the happening of the event.” (Emphasis supplied.) The fact that the particular statute under consideration uses the word “instituted” rather than “commenced,” which is found more often in statutory and case law language dealing with the limitations of actions is, we think, of no significance. For our decisional purpose we treat the terms as synonymous. We discern no legislative intent to the contrary. Thus, the question becomes, when is an action “commenced” within the terms of the dramshop act? Regrettably perhaps, to “commence” a civil action in our state, has two meanings. GCR 1963,101, and its statutory counterpart, RJA § 5856, provide: “A civil action is commenced by filing a complaint with the court.” This admirably succinct statement would please the most caustic critic of legal verbosity and ambiguity. However, as is pointed out by the author’s comments on the following page, it isn’t all that simple. “The declaration that an action' is commenced by filing a complaint was not intended to govern the point in time at which statutes of limitation are tolled. This is separately controlled by statute.” Logically enough the next step would seem to be to look at that statute. Alas, not so; for under the holding of our Supreme Court in Holland v. Eaton (1964), 373 Mich 34, 40, that is what is not done: “In light of the above, it is clear that our construction of the time limitation period in the dramshop act must lead us to only one conclusion, namely, that the intent of the legislature was to exclude the application to suits under the dramshop act of the savings provisions of the general statute of limitations.” Thus, the requirements of the tolling provision of the general statute of limitation, with its 90-day maximum period within which service of process could be made after the filing of the complaint, is inapplicable here. In Troy W. Maschmeyer Company v. Haas (1965), 376 Mich 289, the Supreme Court came within one vote of applying that salutary uniform period of 90 days to all statutory limitations. The Court divided equally (A-4) and the decision is the law of that case only. Now, in order to divine (and we use that term advisedly) the answer to the direct question of when process must be served in order to toll the statute in this case, we must examine a body of case law decided when “complaints” were “declarations”, and equity was invoked by hill; when process was either a “summons” or a “rule to plead”, and when a different rule applied, when process was delivered to an officer for service, and to a private person. It is understandable perhaps why two learned trial judges came to diametrically opposite answers to identical questions. Little useful purpose would he served by a detailed analysis of all the cases bearing on the question. Suffice it to say that under what is brief-referred to as the “old rule”, Detroit Free Press Company v. Bagg (1889), 78 Mich 650, a suit was not commenced until process was served. This was changed by the holding in Christe v. Springfield Fire & Marine Insurance Co. (1919), 207 Mich 12. In 1923, without mentioning Christe or Bagg, the Court addressed itself to the difference between process served by an “officer” and a “qualified person”. In 1926 the Court affirmed the rule that: “The suit was commenced when the summons was in good faith placed in the hands of the officer for service.” Peoples Mortgage Corporation v. Wilton (1926), 234 Mich 252, 255. (Emphasis supplied.) In 1940 the Court applied the rule concerning service in actions at law to suits in equity (Home Savings Bank v. Young [1940], 295 Mich 725, 730). In 1942 in Nathan v. Rupcic the Court proclaimed the general rule: “The general rale relating to the commencement of suit is that a suit is commenced when the summons is in good faith placed in the hands of an officer for service.” Nathan v. Rupcic (1942), 303 Mich 201, 204. In 1954 the Court discussed Bagg and Christe, Wilton, Young and Rupcic in Korby v. Sosnowski (1954), 339 Mich 705. That case was started in the Common Pleas Court of Detroit. The Court relied on Rupcic and restated the general rule, the immediately above-quoted. We are bound by Holland v. Eaton, supra. It is unequivocal. We must then perforce apply case law and not the provisions of the general statute of limitations. We think the case law is somewhat unclear. As once said by Mr. Justice Brandéis, “It is often more important that the law be settled than it be settled right”. We treat the question of whether service of the summons must be made within the two-year limitation period contained in the dramshop act as unsettled. We here hold: In a suit under the dramshop act an action is instituted when the complaint is filed and the summons is placed in the hands of an officer in good faith for service. We adopt the rule “in the hands of an officer” rather than a “suitable person” because it is the language most often used in Supreme Court case precedent. It will, unless and until changed by our court of ultimate jurisdiction, constitute a clear-cut rule for the circuit bench and bar. We do not undertake to decide how soon after the summons is placed in the hands of an officer, service in fact must be made in future cases. Such anticipatory decision would be imprudent. Sufficient unto the day, the evil thereof. We hold here personal service six days after the expiration date of the limi tation period was reasonable and no prejudice to the defendant in preparing Ms defense arose thereby. Having held that the summons need not be served within the two year period of limitation in the dram-shop act; and it being brief- and record-conceded that the complaint was filed within that period, and that the summons was promptly delivered to the sheriff in good faith for service, it follows Judge Moore, the trial judge here, was correct. The order denying the motion for accelerated judgment is affirmed, costs to the plaintiffs-appellees. J. H. Gtillis, P. J., concurred. The dramshop act — so-called. MCLA § 600.5836 (Stat Ann 1962 Eev § 27A.5856). 1 Honigman & Hawkins, Michigan Court Eules Annotated (2d ed), p 34.—Reporter.	[ -15, -13, 16, -12, 4, 30, 37, -34, -3, 76, -4, 14, -15, 40, 54, 38, 16, 5, -11, 1, 50, 53, 0, -3, 6, 0, 4, 6, 38, 26, -6, -20, -14, 52, -19, -28, -16, -30, 36, 37, 51, -2, 43, -25, -6, -28, 10, -51, 25, -7, 50, 7, -52, -22, -16, -2, -3, 1, 5, 7, -48, 29, 0, -51, 44, 1, -9, -19, -11, -41, -16, -30, -8, 0, -36, -27, 8, -22, 19, -4, 6, 19, 50, -38, -10, -7, -2, -21, 5, -32, -18, -3, -37, 0, -36, 26, -22, 34, 23, 18, 5, -9, 1, -21, -85, 20, -22, -97, -68, -27, 6, 55, 22, -76, 1, -2, 13, 30, -14, -31, 24, 64, 67, 14, 27, 7, -9, 16, 16, 29, -25, 29, 50, 6, 12, 23, 44, -2, 38, -54, -10, -22, 17, -32, 6, -4, -11, 38, -35, -28, -4, 16, -33, 0, -34, 27, 35, -48, -8, -40, 62, -25, -37, -33, 9, -45, -58, 9, 23, 0, 0, 4, 13, 25, -17, 13, 19, -9, 24, 48, -54, -29, 16, 28, 3, 16, -43, -5, 22, 16, 49, -43, 24, 52, 57, -8, 22, 21, 12, -32, -16, -55, 18, 4, -6, 16, 23, 0, -16, -12, -82, 7, -24, 26, -9, -51, 19, -22, -7, 74, -71, -11, 33, -14, -18, -41, -2, 3, 12, 22, -9, 22, -45, 32, 15, -40, 4, 71, 29, 58, 28, 22, 15, -31, 9, 7, 22, -33, 37, 48, 14, 53, 55, 2, -5, -75, 4, -2, -27, -30, 5, 39, -12, -66, -11, -32, -23, 63, -43, 33, -9, -1, 25, 41, 11, -17, -28, -31, 57, 5, -22, 11, 33, -16, -43, -24, 0, -5, -12, 40, -33, -3, -21, 29, 1, 39, 17, 23, 31, 12, 10, -50, 19, -8, 15, -36, -41, -5, 13, -25, -46, 19, 12, -28, 0, -23, 15, 36, 51, -38, 38, -3, 34, 19, -42, -74, 50, 14, -25, -32, 43, -45, 8, -2, 5, 13, 51, -26, -51, 39, 21, 16, 7, 9, 15, 18, 44, -64, 33, 15, -15, -7, 11, 29, 31, 9, -63, -40, -45, 12, 26, -16, -8, -39, 9, 29, 14, 7, -8, 27, -37, -13, -1, -9, -67, -45, -3, 0, -5, 10, -8, -52, -28, 3, 19, 23, -54, -7, 20, 16, -3, 17, 13, -16, -29, 0, 12, 5, 16, 13, -22, -21, 47, -3, -14, 8, -22, 10, 20, 56, 18, -25, 7, 37, -65, 5, -24, 5, 18, -17, 50, -12, -6, -44, 6, -61, 7, 13, 2, -52, -10, 35, -25, -9, 20, 21, -27, -5, -22, -28, -10, -23, -19, 18, -26, 5, 2, -48, 43, 9, 50, 53, -4, -13, -6, 40, -18, 27, -7, 57, 66, -42, -39, 66, -1, 8, -64, -38, 20, 28, -12, -1, 15, 35, -51, 49, 16, 46, -7, 0, -26, 43, 0, -12, -46, -36, 16, -4, 19, -31, 17, -19, -31, 10, -53, 8, -39, -31, -43, 27, -16, 23, 34, 8, 16, -35, -2, 11, -1, 16, -39, 18, 32, -21, 21, 33, 38, 33, 31, 14, 16, -52, 15, 30, -33, -60, 12, 4, 9, -70, 108, -10, -3, -94, -56, 62, -63, -32, -24, -16, 15, 75, -5, 34, -16, 8, -11, 0, -7, 44, 10, 0, -19, 47, -22, -14, -5, -13, 67, -13, 30, 21, 38, -6, -2, -45, -11, -24, 28, -2, -10, 49, 18, 37, -4, -14, -9, 3, 39, -57, 16, 10, -14, -18, -16, -67, 14, -9, 36, 8, 6, 6, -44, -1, 71, 10, -80, -84, 30, -35, -5, 2, -21, -51, -31, -11, -16, 3, -2, 7, -6, 8, -20, -4, -14, -28, -6, 26, -1, 14, -34, -22, -18, 12, -37, 8, -2, -5, -10, 4, 1, -27, -50, -44, 6, -19, -7, 54, 17, 5, -18, 44, 10, -8, -53, 39, 25, 37, 3, -10, -22, 3, 6, -33, 13, 24, -30, -39, -2, -5, 8, -52, 4, 20, -36, -1, 14, -15, -7, 15, 6, -19, 36, 41, 12, -13, -20, -39, -2, 0, -52, -11, 70, -108, -12, 9, 75, -3, 7, -9, -16, -61, 22, -6, 28, 76, 39, 48, 6, 6, -14, -28, 18, 32, -1, -14, -23, -5, 47, -22, -59, 2, 12, -83, 27, 6, -7, 0, -2, -5, 0, 12, 11, -12, -13, 41, -12, -37, 27, -81, -12, 40, -29, 0, -14, 0, 0, -31, 22, 5, -15, -27, 36, -25, -13, -43, 4, 44, -13, 5, 23, -26, 0, -22, -2, -1, -32, -39, -49, -4, -3, 16, -5, 12, -21, 1, -17, -6, 62, -43, 35, -22, 31, -9, 39, 52, 23, -13, 50, -8, 10, 12, -1, 14, 22, -19, 11, -25, 26, -8, 21, -19, 1, -12, -6, 41, 5, 36, 41, -31, -6, -28, 35, 40, 20, 9, 2, 24, -26, -75, -8, 13, -14, -10, -53, -23, -22, 57, -9, -41, -4, 24, 9, 22, 25, -25, 23, -19, 29, 6, -12, 14, 33, 53, -5, -18, -3, -4, 19, -15, -2, 35, 17, 16, 10, 47, -17, -11, 0, -33, 33, 18, -58, -18, 9, 15, -1, -44, -4, -12, 10, 14, 35, -23, 18, -23, -30, 25, 12, -4, 55, 16, -25, -22, -25, -35, -39, -85, -5, -42, -65, 12, -15, 9, -22, -21, 4, -38, -49, 8, 35, 2, -3, 17, 7, 4, -17, 19, -5, -22, -3, 52, 40, 2, -4, 49, -12, 0, -66, 23, 45, 7, 50, -2, 43, 27, -13, 3, 34, -16, 54, -5, -19, -19, -4, -2, 33, 18, 0, 2, -12, 5, 21, 5, 19, -35, -17, -19, -37, 35, -49, -16, -24, 40, -18, 12, 5, 35, 19, 8, -79, -31, -43, -38, -16, 15, 7, 55, -11, 7, 21, 2, -8, 18, 15, 10, -6, 9, -22, -5, 4, -11, 13, 18, 14, 66, -3, -47, -13, 91, -1, -56, -25, 12, -13, 46, -16, 24, -21, -32, 20, 36, 4, 18, 8, 3, -33, -18, -28, -1, 9, 63, 14, -19, 15, -15, 29, 10, -17, -6, -44, 25, 15, 7, -49, 13, -3, -53, -70, -23, 10, 11, -58, 21 ]
McGregor, J. The pertinent facts are extracted from the certified concise statement of the material facts and proceedings, viz.: “On June 11,1968, a preliminary examination was held in the municipal court for the city of Livonia before the Honorable James McCann, municipal judge. The defendant, John F. Morgan, had previously been charged with negligent homicide by the people of the State of Michigan. During the course of the examination, the people attempted to introduce the testimony of officer Raymond Laundrosh who had been called to the scene of an accident involving two vehicles. * # * Officer Laundrosh testified that when he appeared at the scene of the accident there were approximately fifty (50) to seventy-five (75) persons present. Officer Laundrosh further testified that he did not know who the driver of one of the vehicles was and sought to have that driver identify himself by asking on three different occasions who was the driver of the vehicle in question. Defense counsel objected to this line of questioning and particularly to the identification of the defendant, John F. Morgan, who, according to the officer, stepped forward and identified himself. Defense counsel’s objections were based upon the case of People v. Gilbert (1967), 8 Mich App 393 and the 5th and 14th Amendments to the United States Constitution. The court overruled the objections and allowed officer Laundrosli to testify as to who had stepped forward and also to point out in the courtroom the defendant as the party who had identified himself. Subsequently the defendant was bound over to circuit court * * * was arraigned * * # and stood mute. The defendant then filed a motion to quash the information and discharge the defendant. * * * The * * * court entered an order denying the motion and the defendant filed his application for leave to appeal.” The question dispositive of the principal issue is whether or not a police officer is precluded from testifying at a later prosecution that the defendant stepped forward when the officer, prior to any Miranda warnings to the persons assembled before him, asked of the crowd, “Who is the driver of that truck?” The identity of this defendant was not known to the police officer, and the officer had not yet begun to focus accusatorily on this defendant in order to seek information from him. The officer was confronted by approximately 50 to 75 persons, and his question was addressed to the group and not specifically to this defendant. The record does not show that the officer had any reason to suspect Morgan as a perpetrator of a crime. Defendant contends that Michigan statutes require him to report that he was the driver of the vehicle to the nearest police officer on pain of a misdemeanor in the event that he failed to do so. The purpose of the Michigan accident report statute is to apprise the police that an accident has occurred, and to furnish statistical information as to the number and cause of accidents. Defendant relies upon People v. Gilbert (1967), 8 Mich App 393, in which the Court decided that incriminating admissions, such as those involved in the instant case, made in the course of making an accident report as required by statute, were not admissible in evidence. In the Gilbert case, the defendant was charged with manslaughter for negligently driving his automobile while under the influence of intoxicating liquor. The investigating officer testified that when he arrived at the scene, shortly after the accident, he noticed that the defendant appeared very much disturbed and detected the aroma of intoxicating beverages on the defendant’s breath. About one-half hour later, at the hospital, the officer questioned Gilbert. The Court, in its decision, stated: “In response to the question of who was driving the automobile, asked by the police officer in order to fill out the report required by statute, the defendant made incriminatory admissions that he was driving and that he was drunk at the time. Defendant was responding to the questions asked and was thus required by statute to speak. That the statements made were incriminatory is beyond dispute.” (Emphasis added) People v. Gilbert, supra, 399. The police were performing a required police function in investigating the Gilbert accident. There is no indication in the instant case that the police officer knew or suspected that a crime had been committed at the time he asked the critical question here involved, as to the identity of the truck driver. Until an accusatorial finger points at the defendant, none of his constitutional rights are violated. Nothing in the record shows, states, or even indicates that the critical question was asked by the police officer “in order to fill out” the report required by statute, and therefore, the decision in Gilbert, supra, relied upon by the defendant is not analogous. Defendant has predicated his appeal on an untenable position. The examining magistrate and the circuit court rulings on the question of the admissibility of defendant’s reply to the officer’s question as to the identity of the truck driver were correct. Defendant also cites Miranda v. Arizona, supra, as supporting his contention. However, Miranda is inapposite to the situation herein. People v. Gilbert, supra; People v. Patton (1968), 15 Mich App 198. Affirmed. All concurred. Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974). MCLA § 257.622 (Stat Ann 1968 Rev § 9.2322). CL 1948, § 257.624 (Stat Ann 1968 Eev § 9.2324).	[ 58, -7, 4, 7, 38, -17, -49, -32, -29, 37, 23, -33, 14, 13, -10, 18, 3, 29, 43, -80, -17, -52, -23, 18, -43, -19, 22, -4, -34, -2, 0, -25, 11, -60, 22, 0, 58, -58, 12, 28, 38, -13, -1, -88, -25, 7, 19, 1, -26, -12, 17, 4, -20, 26, 14, -27, 14, 27, 5, -2, -39, 5, -15, -25, -41, 37, -4, 45, -31, -14, -37, 16, 1, -27, 13, 1, -17, -18, -5, 12, -1, 35, 29, -27, 37, -31, -26, -55, 29, -43, 46, -1, -19, -47, -8, -43, 23, -36, 39, -32, -17, 21, 20, -9, -19, 58, -105, 15, 48, -28, 2, -6, 64, -13, -9, -44, -4, 24, 24, 38, -2, -15, 41, -3, -19, -9, 8, 4, -16, 23, 63, 3, 33, 4, 6, 10, 33, -13, 17, 45, -19, 45, -1, -41, 53, 22, -47, 19, 29, 16, -22, 20, 22, -21, -64, -48, 12, -50, -1, 26, -4, -7, 30, -37, -4, -12, -7, 35, 17, -29, 16, -1, 55, -4, 38, -25, -40, 26, -27, 16, 14, -30, -8, -40, -20, -21, -44, 9, 6, -14, 27, 17, 15, 7, 56, 36, 0, 23, -3, -8, 13, 4, 14, -67, -54, -18, 20, -22, 32, 8, 1, -29, -1, -15, 7, -58, 25, -12, 18, -51, -20, -31, -2, -41, 1, -39, -29, 16, -35, 38, 80, -8, -15, 22, -64, -26, 45, 8, 64, -9, -5, -11, 24, -14, 24, 2, -27, -41, 0, -27, 23, 23, 27, -38, -35, 6, 21, -16, 7, 18, 30, 23, 26, 32, -59, 4, -8, 54, -36, -38, -34, -7, 3, -32, 10, -8, 1, 22, -14, 35, -12, 9, -15, 33, -31, -49, 8, 43, -31, 13, 60, -13, -70, -33, 31, 4, 45, 14, -35, -23, 71, 11, -2, 26, -47, -26, 22, -3, -26, 41, 48, -3, 19, 23, 56, 9, 1, 0, 40, 2, -37, -4, -25, -29, 0, -6, -1, -9, 33, -68, -27, 27, -16, 14, 19, -26, 8, 23, 16, 15, -24, -21, -23, -19, 20, 11, 16, 50, -54, -38, 35, -1, -5, -7, 17, -9, -23, -20, 49, -15, 15, -34, -1, 59, -33, -3, -71, -55, -15, 24, -34, -65, -20, -6, -40, -40, 57, -47, -1, 34, -41, -19, 1, -7, -13, -31, -10, -23, -36, -1, 14, -14, -37, -24, -5, 45, -5, 46, 35, 16, 14, 24, 3, 43, -32, -14, -4, 6, 10, -28, 9, 17, 22, 18, 10, -39, -2, -9, 18, -45, 14, -31, 57, -36, 60, 20, 0, 52, 49, 25, 37, -22, 59, -50, 4, 6, -32, -57, -17, -10, -5, -14, -28, 36, 4, -12, -29, -22, -20, 18, 38, 33, 40, -45, -37, 59, 23, 4, 12, 31, -73, -37, -30, -30, 33, 10, -30, -21, 9, 9, 26, -11, -27, 16, -52, 3, 11, 0, -30, -29, -10, 15, 15, -23, -68, -13, -33, -5, 69, 23, 7, 2, -69, -15, -26, 8, 4, 9, -29, 0, 5, 55, -27, 13, 8, -51, 58, -12, -13, -20, -13, 39, -16, 24, -34, -17, -12, 0, 5, 18, 47, -8, 14, -20, 4, -12, -10, -50, -40, 1, 63, 19, 72, -6, 107, 26, -7, 9, -3, 10, 35, -3, 23, -17, 24, -52, 21, 0, 61, -14, 34, -5, 15, -41, -8, -77, 51, -20, -43, 21, -17, 6, 49, 57, 13, -8, -12, -2, 73, -45, -18, 94, -1, 20, 6, 43, 17, 56, -19, 13, 39, -4, 18, 22, 5, -22, 46, -47, -13, -49, -53, 16, -42, -12, 21, 7, -53, -30, -31, -6, 71, -9, -28, 46, 9, 0, 33, -10, 22, -43, 25, -11, -27, -15, -41, -3, -74, 18, 17, -6, -20, -7, -26, 18, -37, -40, -9, 39, -6, -23, -22, -23, -64, 10, -5, -23, -14, -33, -9, 6, 4, -7, 54, 1, -3, -58, 3, -46, -67, -20, -38, 36, 25, -24, 4, -15, 9, 31, 14, 35, 27, 35, -24, -24, -22, 0, 26, -32, 15, 4, 51, -14, -27, 25, 16, 50, 52, -30, -35, 29, -9, -31, 15, -11, 16, 17, 1, 1, 20, -33, -11, -7, 47, -9, 28, -17, 8, -22, -13, -10, -40, 4, -24, -11, -21, 13, 15, -25, -10, 51, -54, 57, -11, 20, 34, -2, -26, 9, 13, 13, -36, 48, 33, 10, 19, 26, -14, -14, 2, -39, 45, 33, 57, -42, 14, -1, 39, -22, 9, 2, 0, 7, 60, -36, -26, -40, -9, -7, -6, -6, -5, 9, 53, 9, 0, 63, 22, -11, -11, -38, 38, -5, 23, -13, -64, 5, -10, 45, -1, 8, -55, -39, 22, -22, -29, 32, -10, -45, 19, 0, 9, -7, -23, 0, 32, 5, -19, 24, -65, -6, 37, -3, -2, 25, -11, 0, 17, -34, 37, 11, -15, 27, 26, 12, 27, -29, 28, 45, 20, 15, 29, 2, -43, -66, -46, 0, 9, 7, -22, -30, 15, 3, 45, -27, -70, -26, 29, -73, -4, -6, -31, -3, 15, 38, -7, 14, 37, -23, 13, -7, 46, 30, -19, 34, 37, 41, 0, 0, 11, 62, -10, 81, -25, 6, -16, -26, -12, 17, -37, -10, -8, -9, -21, -28, -3, 51, 26, -39, 27, 22, 35, 19, 45, 30, 22, -30, 9, -23, 1, 42, 26, -51, 46, -7, -4, 37, 20, -31, -42, 24, -24, 16, 1, -23, -38, -16, 54, 59, 27, -34, 34, 0, -47, 12, 32, -15, 1, 66, -25, 38, 4, -5, 4, -37, 16, 25, -60, -22, 28, -44, -5, 19, -3, 6, 4, -27, 18, 8, -35, 39, -29, -16, 5, -46, 30, 6, 15, -25, -79, -4, -18, 6, -59, 29, -11, 5, -30, 7, -33, 21, -31, -30, -6, 5, 26, 11, -2, 8, 17, 1, 14, -2, 16, -20, 41, -7, -26, -21, 28, 49, 38, 19, 4, -51, 33, -13, 0, -21, -32, -28, -56, 6, -8, 43, 80, -6, -33, -38, -18, 8, -16, 7, -12, 23, -42, 38, -43, -1, 23, 12, -5, 49, 19, 44, -10, -41, 3, 2, -6, 39, -23, -26, -30, -27, -11, 26, 8, 16, -48, -21, -35, 43, -52, 27 ]
Per Curiam. Plaintiff brought this action in Presque Isle Circuit Court alleging in separate counts that defendant owed $1100 plus interest of 6% on the unpaid portion of a $1500 note, and that defendant also owed a balance of $900 plus 5% interest on an open account. The defendant in answer admitted liability on the note for $1100, but denied that the note was to bear interest. Defendant further denied that any amount was due on open account. At trial, the plaintiff called as its only witness the president of the defendant corporation. Plaintiff, therefore, placed heavy reliance on the signed note and its account books plus what it alleged to be defendant’s non-compliance with GCR 1963, 602 (re the note) and MCLA § 600.2145 (Stat Ann 1962 Rev § 27A.2145) (on the open account). The trial court sitting without a jury found that defendant had failed to comply with GCR 1963, 602, and that there was sufficient evidence to find defendant liable under it for both principle and interest. The trial court found the defendant’s liability under the note to be $1,551.89 plus interest at six percent from March 1, 1968. As to the alleged balance dne on the open account, however, the trial court said: “Plaintiff seeks judgment in the sum of $900 claiming that goods were sold and delivered to defendant on an open account. Defendant files a sworn answer denying liability and claiming that plaintiff has failed to account for collections pursuant to an agreement between the parties. Plaintiff moves for judgment relying on MSA § 27A.2145. However, the file does not show that a copy of the affidavit and account, together with the complaint, was ever served personally on the defendant. In such case, the defendant’s answer stands, and defendant has testified that he does not owe anything on the open account. Plaintiff did not rebut this evidence and relies solely upon defendant’s failure to comply with MSA § 27A.2145. The court is not convinced by a fair preponderance of the evidence that defendant owes any sum on the open account.” On appeal, the plaintiff asserts that the trial court erred in denying recovery on the open account. A careful review of the record convinces us that the trial court’s findings that defendant did not owe the sum claimed or any other on the open account was clearly erroneous. GCR 1963, 517.1. The pleadings do not show by proof of service that the complaint, account and affidavit were served on the defendant as required by § 2145. The defendant did not deny the account by separate affidavit as required by the statute. The account and affidavit were attached to the complaint filed with the court. Defendant did not object to the alleged failure to serve the account and affidavit. Had such an objection been made plaintiff could have proved such service by other means. GCR 1963, 104(2). Defendant waived any objection to proper service of the account and affidavit. Although the defendant denies that its president testified that his company owed anything on the open account, a review of the record shows the contrary. Defendant’s president testified, contrary to the pleadings, that payments should have been credited to the open account. He claimed certain credits for commissions but did not identify such credits. He also admitted that he had sold the merchandise to another and had gone out of business. Viewing his testimony as we do, we must conclude that the trial court’s finding as to the open account was not substantiated by the record. A redetermination of plaintiff’s claim on the open account should be made by the trial court not inconsistent with this opinion. Remanded for further proceedings. Costs to await final determination.	[ 2, -42, -19, 23, 0, 28, 76, 7, 39, 63, -10, 28, 29, -4, -31, 19, 9, 14, 36, -70, -6, -74, 6, -10, -16, -9, 18, 59, 45, 13, 26, 21, -71, -9, -27, -21, 30, 8, 8, -16, -34, -53, 79, 5, -35, -17, -32, -4, 37, -12, 70, -4, 12, -17, -9, 6, 3, -16, -19, -22, -11, -48, 55, -52, -40, 7, -16, 31, 1, -11, -22, 53, 22, 25, -15, -44, -29, -2, -22, -2, 2, -20, -6, 24, -27, 5, -8, -30, -24, -3, 30, 45, -37, -22, -20, 5, 2, 7, 70, 7, 2, -58, -12, 19, 26, 43, -48, -71, -35, 11, -23, 10, 1, -53, -10, 5, -16, -1, 27, -54, 0, 4, 17, -65, 18, 20, -35, 5, -25, 34, 27, 19, -45, 14, -47, -34, -41, -23, -4, -40, 1, -14, 13, -11, -13, 21, 39, -14, 28, 0, -46, 27, -10, 19, -38, 17, 4, -35, -11, -58, 47, 2, -10, -65, 15, 25, -1, 46, 26, -42, 36, 36, -32, -32, -19, 3, 33, -61, -5, 0, -8, 20, -7, -2, 46, 3, -57, -13, -11, -4, 6, -29, 20, 33, 13, 20, 16, 23, 5, -47, 6, -41, 7, -6, -10, -12, 80, -33, -46, -11, 31, -23, 10, -32, -15, 2, 21, -28, -15, 46, -46, 36, -40, 5, 21, -17, 20, -21, -32, 1, -45, 11, -47, 68, -25, 44, 80, -35, 15, 21, -48, 39, 2, -67, 19, -8, -74, 10, -25, 11, -2, -12, -14, 22, -64, -10, -5, 3, -24, -28, -7, 21, -31, -2, -28, -28, -14, 42, -26, 8, -28, -29, 8, 17, 32, -24, 8, 2, -46, -40, 52, -3, 2, 6, -8, -28, 20, 26, 13, 17, 25, 31, 14, 3, 51, 16, -7, -36, -1, 30, -28, -53, 46, -17, -2, -18, 1, -3, -71, -26, -7, 96, 9, -50, 73, -30, -6, -21, 50, -9, 33, 1, -22, 27, 17, 3, 31, -43, 29, -24, -3, 23, -6, -60, 19, -33, 13, -14, 38, 39, 26, 19, 0, 11, -6, 44, -22, 0, -26, 18, -46, -10, -33, 39, 50, 20, 22, -2, -39, 16, -9, 20, 21, -32, 45, 39, -4, 17, -8, 61, -59, -24, -17, -80, -60, -10, -10, -46, -50, 27, -21, -20, -24, 36, -3, -21, -66, -23, -9, 20, -58, -4, -6, 8, -15, -15, 1, 0, -63, -41, 33, 3, 39, -22, -20, 9, -7, -47, -3, 19, -3, -5, -35, 33, -22, 0, 74, 26, 70, -9, 36, -13, -42, -40, 29, -75, -22, 24, -17, 14, 5, 29, -24, -26, 58, -4, -20, 12, 14, 14, 57, -1, -12, 0, 73, -33, -7, -30, 46, 41, 34, -38, 5, 11, 15, 44, 5, -7, -34, -68, 29, -12, -4, 46, 70, 4, 20, -14, 36, 44, -25, 42, 1, 68, -69, -3, 1, 0, -16, 24, -50, 65, 16, -24, -9, -16, -31, -39, -8, -16, 20, -1, -37, 51, 26, 2, -51, -19, -32, 55, -56, -15, -9, 43, 41, 14, -20, -22, -5, 23, -43, 31, 34, 23, -4, 4, -9, 1, -30, 53, 33, 24, -37, 18, -3, 8, -9, 16, 38, 32, 32, 30, -17, -19, 2, -11, -16, 43, 5, 30, 0, 60, -22, 43, -3, -4, -58, -23, -16, -1, -21, -9, 84, 27, -22, 15, 47, -4, -4, -33, -6, 27, -4, -36, 18, -18, 8, -16, 8, -45, -6, -4, -26, 4, -46, 3, -7, 22, 20, -76, -22, 0, -11, -56, -51, 19, 4, 31, 6, -21, 11, -13, -10, -13, 11, -19, -36, -33, 40, 77, 6, -7, -52, 15, 12, -2, -8, 75, -2, -42, 95, 17, 28, 6, 0, -70, 33, -58, 3, -10, 9, 8, 20, 34, 10, -17, -13, -39, -10, 27, 17, -30, -12, 14, -48, 17, -16, 20, -24, -42, -25, 29, 25, -9, 11, -1, 12, -20, 0, -12, 21, 119, 46, 49, -21, -8, 14, -9, -12, -30, 3, -41, -5, 40, 4, 43, 9, -13, 32, 4, 10, -59, -9, 18, 64, -11, -24, 33, -7, -56, -46, 0, 11, -10, -6, -10, 7, 35, 11, 10, 8, 31, -34, -8, 8, -6, 14, 39, -33, 39, 7, -20, -32, 30, -42, -19, -43, 3, 17, 31, 6, -24, -15, 0, -12, -20, -26, 53, -25, -18, -7, -38, 25, -15, -30, -10, 60, 38, -30, -8, 6, 44, -28, 37, -2, 4, 29, -25, -47, 25, 28, 1, -15, 0, -30, 17, -19, 13, 0, 20, 28, 29, 1, 35, -6, 17, -23, -44, -18, -20, 3, 21, 19, -7, -15, 23, -26, -10, -16, -22, -37, -5, 37, -11, -28, 72, 51, -38, 38, 21, 34, 23, 15, 19, 19, -30, 2, -2, -30, 56, 5, -7, -23, -41, 20, 53, 14, 17, -29, -12, -9, 0, -9, 27, -10, 21, 10, 37, 16, 46, -48, -19, -10, -47, -25, 49, 1, -20, 13, 5, -19, 41, 8, -8, -27, 69, -13, -14, -26, 14, 7, -35, 19, -20, -53, 11, 15, -13, -54, -38, -20, -18, -22, 13, 18, 14, -35, 1, 33, -28, 28, 5, -14, -36, -33, -3, -8, 32, -15, -14, 23, 4, -64, 16, 92, 34, -47, -7, 32, -29, 10, 44, -11, 19, 60, 5, 47, -24, 16, -15, -54, 38, -21, 10, -9, -4, 31, 0, -39, 2, 18, 35, 19, -42, -17, -52, 1, -55, 16, 1, 10, 17, 7, -20, 8, 57, -6, -1, -17, 51, 29, 6, 8, 13, -5, 51, 43, -29, 28, 7, -19, 0, 34, -23, 3, -2, 30, 7, -16, -24, -1, -25, 16, 40, -15, 9, -17, -51, -26, 56, 16, -65, 17, 5, -39, 6, -6, 2, -5, 5, -45, 25, 11, 24, -20, 1, -25, -43, 16, -3, -36, 22, -6, 2, 22, 7, 35, -18, -23, -2, -36, -27, -19, -24, -4, -7, 33, -33, -17, 41, 14, -43, -27, 39, -3, -13, -55, 16, -27, 7, 26, -24, 10, 7, 26, -29, 69, -8, -12, -10, -10, -23, 8, -8, -6, -64, 54, 49, -8, 0, 14, 22, 60, 4, 50, 8, 13, -23, -2, 38, -44, 13, -30, 47 ]
Larnard, J. This is an appeal from a circuit court order terminating parental rights. This case originated in the Probate Court of Lapeer County, where a petition was filed alleging that Barbara Ellen Franzel was a neglected child under the provisions of MCLA § 712A.2(b), (Stat Ann 1962 Rev § 27.3178 [598.2]). The probate court found that it had jurisdiction under the above statute and entered an order terminating the parental rights of Barbara’s mother, Veronica Franzel. An appeal was taken to the circuit court where a jury trial was conducted on the issue of neglect and the jury found that Barbara was in fact a neglected child. A separate hearing was conducted by the circuit court on the issue of a proper order of disposition and an order terminating all parental rights was subsequently entered. The first issue presented on this appeal is whether the jury verdict finding Barbara to be a neglected child was contrary to the weight of the evidence presented. Proceedings under the Michigan statute, MCLA § 712A.2(b), require a two-step procedure. First, a finding must be made that the case falls within the statute, thus giving the court jurisdiction over the matter. Second, if it is determined that the court does have jurisdiction, it must make a proper order of disposition. In re Mathers (1963), 371 Mich 516. Appellant cites the cases of Fritts v. Krugh (1958), 354 Mich 97, and In re Mathers (1963), 371 Mich 516, to the effect that a showing of neglect must be made in order to justify the termination of parental rights under MCLA §712A.2(b). Accepting the correctness of this position, the question becomes whether or not sufficient facts were shown to bring the case within the statute, which in relevant part provides that the court shall have: “(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county, “(1) Whose parent or other persons legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical or other care necessary for his health, morals or well-being; “(2) * * * or whose mother is unmarried and without adequate provision for care and support.” The appellees’ theory in the circuit court was that the case fell within (1) above because the mother had neglected to take proper care of the child and had shown a marked preference for the older child, and also under (2) above, because the mother was unmarried and without the means to adequately provide for the child. The record indicates that various persons testified regarding the issue of neglect. Mr. Ealph Samuelson, a social worker, testified that Barbara’s mother contacted him before Barbara was born, and discussed the possibility of giving up the baby, and also indicated that she did not feel the same way about Barbara that she felt about her older child. Mrs. Patsy Meachum, another social worker, testified that on November 30, 1965, she placed Barbara in a foster home acting at the mother’s request. She further testified that when the child was left at the foster home, the mother showed no signs of emotion and failed to write down the name and address of the foster home, whereas when the older child was temporarily placed in foster care, the mother showed a great deal of emotion and was careful to get the name and address of the foster home. Further testimony by Mrs. Meachum indicated that the mother had said that she felt differently about Barbara than she did about the older child, that she wanted Barbara to be adopted and that on one occa sion she indicated that she was desirous of having both children placed in a foster home so that she could travel with a man who worked for a carnival. Manley Gordon French, a minister in whose home the mother and children had lived for 11 months, testified that the mother had neglected Barbara and showed a definite preference for the older child. He further testified that: “There was a recurring difficulty of stale bottles, carelessly prepared formula, wet diapers, not changing frequently enough, matters of this type that we were assuming the responsibility for, and evidently, it would not have been done had we not done it.” Mr. French also stated that Barbara’s mother showed partiality in dividing clothing between the children, always giving the best to the oldest child, and that the mother did not give Barbara the kind of love and care that a child that age needs. The criteria for determining what constitutes neglect is not at all clear. However, in Fritts v. Krugh (1958), 354 Mich 97, 116, the Court said: “There must be real evidence of long-time neglect or serious threats to the future welfare of the child.” The repeated failure to care for the physical needs of the child, together with a marked lack of affection and marked preference for another child, were sufficient to support the finding by the jury that Barbara was neglected and that such finding was not contrary to the weight of the evidence. Appellees’ theory was further based on MCLA § 712A.2(b) (2) because of the fact that Barbara’s mother was unmarried and without adequate means to care and support Barbara. Appellant admits that the mother was unmarried, but contends that she was able to provide for the child since she was receiving money from Mrs. Koss and from Aid to Dependent Children. However, Mrs. Koss admitted that the source of this money was certain social security payments which terminated in the fall of 1965. The ADC payments were received when the mother was living with the Frenches, and they terminated when she placed the child in foster care in November of 1965. We therefore find that this provision of the statute MCLA § 712A.2(b) (2), was satisfied by the above findings. Appellant claims that the form of the jury verdict was improper and that the verdict should be reversed on account of this error. We do not agree with appellant’s contention that the form of the jury verdict requires reversal. The following form of verdict was given to the jury by the trial judge: “One possible form, we find the court does have jurisdiction; two, we do not find that the court has jurisdiction.” The verdict announced by the foreman of the jury was that the court should have jurisdiction, rather than does have jurisdiction. When this ground was raised in the trial court, the judge indicated that he had questioned the jury and was satisfied that they had made a proper determination. The determination of this question falls under the principle that errors in the form of the verdict can be corrected by the court. Standard Oil Co. v. Gonser (1951), 331 Mich 29. The court very clearly instructed the jury they could find for the appellee only if they felt that the facts were within the statutory language. The jury found for the appellee and the use of the word “should” can be regarded as surplus verbiage to which the appellant attaches undue importance. We find no merit in appellant’s contention that the original petition was collusive and filed as a means of circumventing the adoption code. The second stage of the proceedings under the above statute, the proper order of disposition by the court, is alleged by the appellant to have been improper. After a determination of neglect has been made, thus bestowing upon the court jurisdiction in the case, the remaining question becomes what disposition is in the best interests of the child. The underlying philosophy of this determination was set forth in the opinion of Greene v. Walker (1924), 227 Mich 672, 675, holding: “The paramount question under the law in all cases of this character is the welfare of the child. All other considerations must yield to this one. The dying wish of the mother, the desire and purpose of the father, the otherwise superior right of either father or mother even the wish of the child herself, are and must not be entirely controlling.” And in the case of Weiss v. Weiss (1913), 174 Mich 431, 438: “While the wishes and affections of the parents for the child are not to be ignored, they are a secondary consideration. The primary consideration is the welfare and happiness of the child, from the standpoint of education, moral and religious training, good influences, care, kind treatment, pleasant environments and future prospects.” The record indicates that the trial court conducted extensive hearing on the matter of the proper disposition of Barbara. At the hearing, testimony was taken from Bernice Tunison, juvenile court case worker; Ralph Samuelson, a social worker; Veronica Franzel, Barbara’s mother; and Eleanor Koss, Barbara’s grandmother. At the time of the hearing, Barbara’s mother was 20 years old, was working as a barmaid and earning approximately $75 a week, and contributing $10 a week to the support of the oldest child who is living with Mrs. Koss. The mother had given birth to a third illegitimate child which was being passed back and forth between Mrs. Koss and another relative. Both Mr. Samuelson and Mrs. Tunison testified at the hearing that they were of the opinion that parental rights should be terminated, whereas Mr. Michael Carter, Barbara’s guardian ad litem was of the opinion that the mother should not have custody at that time, but did not want the rights terminated permanently. There was also evidence presented as well as testimony that Barbara had a special problem with allergies and needed special care. We find, from a completed search of the record, that the trial judge made an exhaustive determination of the facts in this case and made proper order of disposition in the best interests of the child, Barbara. Our Supreme Court, in the case of In re Ernst (1964), 373 Mich 337, 342, 343, stated: “In such circumstances we have no right — no right whatever — to overrule or disregard Judge Fenlon’s finding and order upon the best interest question; ‘the determination of the judge as to the facts being conclusive’.” See Corrie v. Corrie (1880), 42 Mich 509, followed to the point in In re Sneden (1895), 105 Mich 61; Carpenter v. Carpenter (1907), 149 Mich 138; and In re Gould (1913), 174 Mich 663. Affirmed. No costs, a question of public policy being involved. All concurred.	[ -3, -20, -16, -18, 53, -30, 25, 12, -29, 1, 2, -18, -4, 7, -24, -48, -1, -30, -24, -45, -8, 35, 12, 47, -13, -37, 45, 35, 19, 22, -64, -56, 40, 17, -15, -12, 59, -43, 43, 2, 23, -25, 36, -42, -11, 10, 29, 21, 3, -27, 7, -20, -37, 33, 62, 6, 57, 12, 33, -14, -40, -8, -24, -16, 19, -19, 24, 9, 7, -58, 38, 5, -30, -4, 55, 20, -2, 0, 27, 100, 16, -8, 28, -12, 71, 4, -31, 35, -62, 0, 10, 20, -63, -5, 21, 10, 7, -22, 18, -46, -9, 14, 23, 6, -57, -5, -9, -51, -11, -20, -4, 35, -7, 12, 4, 11, 8, 10, 10, -3, 15, 4, 17, -30, 25, 4, -30, -28, 43, -19, -47, -4, 33, -12, 44, 16, -13, -11, 8, -23, 38, -21, 56, -19, 25, -28, 1, -27, 30, -35, 17, 4, 39, 77, 17, 17, 12, -36, -5, 16, -22, 17, 15, -34, -11, -97, 35, 91, 14, 7, 37, 18, 31, -19, -17, 42, -2, -1, -18, -7, -19, -26, 21, -22, -44, -11, -29, -9, -45, -36, -3, 40, 22, 13, -30, 59, 56, 40, -47, -1, -41, 22, 62, 14, 13, -21, 20, -45, -42, -47, 17, 52, -19, 14, -37, -67, -35, -1, -49, -9, 9, -41, 49, -15, -33, -38, -28, -2, -44, 0, 66, 38, 34, -21, -23, 39, -16, -11, 9, -6, 35, 28, 22, -21, 11, 60, 8, -3, 49, -3, 33, 45, 7, -8, -40, -19, -8, 2, 4, 4, 50, 20, -49, -3, -16, 36, -6, 31, -22, -77, -9, 17, 15, -11, -52, -11, 20, 14, 42, 31, 16, 27, 0, 27, -38, -18, -3, -11, 9, 18, -42, 30, -21, -45, 39, -12, -1, -20, -3, -21, -6, 30, 8, 74, -17, -13, 3, 15, 1, 11, -23, 52, -4, -24, 8, -3, -57, -34, 39, 4, -6, -18, -18, 11, -39, -5, -17, -23, 37, 10, -6, 16, -10, -13, -2, 12, 0, 30, -4, -1, 48, 12, -19, 23, 25, -24, -13, 0, 9, -47, 14, 59, 57, 24, -51, -79, -20, -72, -51, 5, -43, -18, -23, -6, -2, 46, 20, -42, 29, 0, -10, -11, 24, -2, -40, -3, -12, 4, 25, 58, 17, -12, -19, 32, 19, -29, -55, 23, 15, -20, -17, -44, -9, 1, 6, 2, -7, 17, 25, -17, 59, 27, -3, 56, -39, 45, 23, -27, 1, -26, 9, 25, 60, 46, -2, -25, 23, -35, -32, -41, -22, 45, 77, -37, 5, -45, 9, 2, 52, -2, 28, 30, 4, -17, 51, -21, 2, 15, 25, -15, -55, 7, 11, 24, 11, -21, -19, -10, 1, -41, 47, 51, -23, -26, -8, -6, -53, 18, -42, -52, -13, -31, 36, 18, 10, 3, -15, 14, 30, 3, -35, 9, -20, 12, -6, 70, 13, 18, 6, 6, 19, -5, -33, -12, 11, 12, -19, -36, 14, -20, -28, -17, 12, 31, 3, -35, -17, 20, -51, 4, 37, 14, 88, 17, 23, -52, 30, 3, -43, -21, 12, -1, 27, -6, -46, -4, 18, -22, 11, 7, -11, -17, -11, -3, -38, -34, -8, 8, -26, 46, 46, 26, -2, -7, -9, 26, -20, 25, 4, -28, 0, 15, -3, 0, 11, -83, 18, -9, 15, -22, 9, -17, 0, -45, 31, 14, -24, -4, -14, 3, 20, 13, 22, 19, 10, -55, -50, 0, 5, -27, 31, 25, 7, -4, -2, 38, 37, 13, 9, -22, -12, 12, -62, -39, 3, -15, 58, -45, 47, -25, -35, -48, -43, -38, -29, -57, 10, -41, 30, -53, 8, 15, 13, 14, 10, -15, 17, 1, -13, -40, 23, -9, -20, -2, 32, 23, -5, -18, -11, 45, -70, -13, -38, 34, -77, -3, -43, -56, 59, -9, 16, 13, 25, -28, -29, -9, -9, -24, -6, -40, 7, 44, -45, 27, -22, -14, 15, -18, -5, 59, -42, 65, -35, 3, -38, -35, -28, -17, -11, 18, 26, -3, -19, -9, 58, 42, 20, 38, -2, 20, -53, 48, -67, 45, -68, 6, -15, 27, 18, 38, -56, -3, -23, -22, -3, 70, 15, 48, 36, -15, 2, 0, 62, 0, -31, -63, -9, 56, -43, -14, -8, 37, -5, 31, -72, 35, -16, 10, 6, -56, -48, 65, 39, 11, 6, -1, 16, -53, -12, 41, -62, 24, -10, -55, 4, -23, 6, -27, 0, -33, 25, 18, 17, 14, -42, 29, 7, -3, 39, 17, 0, 8, -11, -42, -45, 5, 29, -31, -11, 22, 4, -21, 40, -22, -43, 0, 65, -2, -17, -12, -15, 16, -23, -22, 8, 9, -60, -10, 12, -43, -22, 13, -74, -34, -4, 22, -23, 18, 16, -96, -21, -11, 11, -19, 17, -14, 59, -22, -36, -13, 23, 27, -25, 16, 54, 52, -23, -14, -4, -28, 56, 7, -38, 6, -20, 48, -60, -3, -16, 35, 30, -8, -3, -32, -19, 27, 54, 22, -47, -34, 39, -33, 22, 22, -56, 36, -16, -5, 2, -1, 28, 53, 23, 6, -26, -29, 5, 22, 28, 27, -43, -14, 0, -59, -2, 42, 6, -3, 32, -3, 25, 7, -48, 50, 39, -25, -3, -7, -6, -1, -18, 59, -17, -38, -2, 52, 3, -26, 16, 51, -63, -78, 18, 24, 24, -83, 0, -33, -71, 46, 64, -19, 21, -9, 40, -6, 15, -2, -21, 6, -31, 9, 29, 1, -5, 42, -12, -25, -53, -27, -8, 0, -3, -32, 7, 17, -26, 16, 20, 11, -2, -20, -1, 45, 23, -2, 4, 10, 35, -80, 5, -1, 29, -8, -48, -8, -15, -46, -20, 34, -4, 27, -34, -10, 60, -49, 27, 13, -1, 33, 1, 17, -51, 8, 32, 13, 33, 21, -32, 17, 8, -19, 24, -28, -27, 33, -9, -5, -55, 7, -26, 16, 8, 36, 42, -56, 47, 0, -5, 23, -27, 42, -9, -12, -11, -43, 10, 23, -2, 28, -43, -5, -13, 13, 2, -50, -79, -18, -56, -43, 19, -6, 27, -16, 1, 41, 16, -17, 36, 31, 38, 0, -18, 12, 47, -40, -26, -46, -14, 16, 12, 39, 47, 8, -8, -37, -17, 15, 3, -16, 19, 17, 30, 22 ]
Quinn, J. December 13, 1968, tbe trial court granted General Motors Corporation’s (hereinafter referred to as defendant) motion for accelerated judgment. Judgment of dismissal entered and plaintiff appeals. May 23, 1964, plaintiff, a Negro employed as a crane operator by defendant, dropped a die from the crane he was operating. Effective May 28, 1964, plaintiff was transferred from crane operator to press operator. At plaintiff’s request and effective August 31,1964, he was transferred to crane hooker. Prior to May 23, 1964, four other complaints on plaintiff’s operation of the crane had been received by defendant, and plaintiff had one prior demotion for his unsatisfactory performance as a crane operator. Plaintiff was a member of UAW-CIO, Local No. 1292, which with the international union, was plaintiff’s collective bargaining representative. Defendant and the unions executed a collective bargaining contract September 20,1961 which was in effect May 23, 1964. Among other things, the contract placed sole responsibility for transferring employees with management and provided: “Any claim of personal prejudice or any claim of discrimination for union activity in connection with transfers may be taken up as a grievance. Such claims must be supported by written evidence submitted within 48 hours from the time the grievance is filed.” May 27, 1964, plaintiff filed a grievance with his foreman which read: “Protest management removing me from the crane operator group. Demand that I be returned to the crane operator group at once.” On the bottom of the grievance slip under the heading “Disposition by foreman” is the following: “The complainant was properly transferred to the press operator classification. Grievance denied.” This is dated May 28, 1964 and signed by the foreman. January 15, 1965, plaintiff filed an application for the issuance of a complaint against defendant with the Michigan Civil Rights Commission alleging in essence that his transfer from crane operator was discriminatory because it was based on his race. This claim was dismissed by the commission April 27, 1965 and no appeal was taken by plaintiff. November 17, 1965, plaintiff filed his four-count complaint in this action. Counts two and four set forth plaintiff’s alleged action against his local union. Count two alleges that plaintiff’s transfer from crane operator was discriminatory and based on his race in violation of Const 1963, art 1, § 2, and CLS 1961, § 423.303(c) (Stat Ann 1968 Rev § 17.458[3] [e]). Count four alleges that plaintiff’s local union violated its contractual duty fairly and adequately to represent him with respect to his grievance. On the basis of a stipulation entered into between plaintiff and the local and international unions, the trial court dismissed plaintiff’s action against the unions. Count one of plaintiff’s complaint alleges that defendant transferred him from crane operator be cause of his race in violation of the constitutional and statutory provisions cited, supra. Count three charges defendant with violating the discrimination provisions of the contract of September, 1961 by transferring plaintiff from crane operator because of his race. The basis for the cause of action set forth in counts one and three is the charge of racial discrimination. The accelerated judgment of dismissal below was based on the fact that plaintiff had failed to exhaust his remedies under the collective bargaining contract. This is a recognized basis for the relief granted, Billings v. Levitt (1968), 10 Mich App 399. The rule is not applied if it is shown that conduct of the employer amounts to a repudiation of the contractual procedures or if it is shown that plaintiff was prevented from exhausting the contractual remedies by the union’s wrongful refusal to process the grievance, Vaca v. Sipes (1967), 386 US 171 (87 S Ct 903, 17 L Ed 2d 842), Harrison v. Arrow Metal Products Corporation (1969), 20 Mich App 590. There is nothing in the record before us to indicate or from which we may infer that the employer repudiated the contractual procedures. Similarly, there is no showing that the union refused, wrongfully or otherwise, to process plaintiff’s grievance based on alleged discrimination. Plaintiff never filed such a grievance. Affirmed with costs to defendant. All concurred.	[ 14, 4, -30, 35, 26, -1, 29, -22, -4, 19, -23, 6, 10, -20, 16, -31, 15, -13, 3, -34, -1, -28, -1, -11, 4, 6, -1, -90, -12, -15, -58, -23, -25, -29, -22, 4, 9, 16, -14, -15, -4, 2, -36, -10, -8, 17, 4, 22, 45, -17, 10, -7, -2, 21, 3, -9, 0, 15, -30, 52, 7, 23, 15, -17, 67, -4, -27, 10, -54, 14, -35, 7, 24, -38, -73, -45, -4, 14, -47, -24, 2, -31, -7, 23, -18, 73, 5, 46, -17, -45, -23, 47, -25, 25, 0, 18, -5, 31, -7, -53, -23, 27, -11, -1, 12, -30, 1, -38, -21, 3, -20, -11, 21, 3, 19, -50, 46, 32, 3, 19, -1, -39, -19, -20, -35, -13, -18, -9, -28, 88, 13, 25, -25, -3, 8, 19, 61, -15, -9, 3, 9, 6, -13, -14, -13, 6, -9, 20, -13, -17, -36, 22, -10, 0, -25, -13, -1, 8, 38, 25, -6, -17, 38, 17, -5, -16, -40, 13, 1, 9, -51, -30, 15, -51, 23, 9, -28, 7, -60, 30, -20, 25, -27, -4, 11, -35, 20, 13, -10, 3, 21, -11, 17, 24, -21, 43, 17, -55, -4, 21, 45, -4, -15, -21, -25, 35, 30, -55, -8, 49, -13, -2, 15, -53, -16, 29, 11, -22, 3, 4, 25, -18, -20, -2, -28, -38, -5, 41, 60, 5, 27, -3, 9, 4, -4, -22, 36, 1, 52, 17, 25, -3, 21, 0, -33, 12, -40, -50, 23, 52, -1, -19, -11, -8, -5, -40, -36, 12, 26, -9, 11, 4, -10, -7, -8, 14, -59, 29, 6, -43, -10, 3, 48, 23, -5, -42, 11, 24, 58, -15, -28, -3, -63, -65, 3, -11, 41, -53, -69, 21, 15, 21, -8, -21, 57, -19, 40, -16, -50, 6, -63, -58, -13, -29, -8, 3, -56, -9, -9, 1, 4, -62, 37, -37, 52, -27, -6, 23, -2, 12, 21, 47, -17, 5, -7, -16, 0, 46, 69, -16, -3, -12, -37, -3, 11, -38, -16, 44, 51, 17, -2, 21, -13, -54, -19, -14, 5, -6, 59, -12, 33, -25, 6, 5, 67, 32, 64, 8, -62, 36, 24, -61, -13, 2, 14, 19, -51, 5, 28, 39, -9, 0, 20, -32, -27, 35, -34, -9, 30, 64, 25, -39, 28, -114, -15, -34, 3, 30, -2, -11, -20, -7, -29, 50, 51, 17, 22, 36, -10, 21, 41, 10, -78, -76, -2, 8, 31, -75, 22, 0, -27, -47, 22, 33, -11, -11, 15, 11, 13, -8, 47, 3, 11, 18, 47, 24, 36, -50, -16, 32, -31, -27, 28, -7, -7, 64, 21, -27, -1, 13, -18, -41, -34, -19, 26, -59, -34, -10, 29, -10, 33, 65, -8, 27, -17, 6, -39, 10, -38, -2, -58, -9, -13, 45, -21, 8, 8, 15, 26, 8, -26, 0, 22, 44, 4, -28, 13, -31, -3, -12, -5, 26, 13, -27, -47, -41, -1, -16, 12, 4, -11, 36, 9, -6, -30, 13, 0, 33, 7, -23, -52, -22, 22, -6, -1, -11, 4, -69, -14, 34, -29, -37, 23, 19, -7, -19, -22, 63, 1, 55, 1, 23, -5, -2, 7, -72, 4, -15, 15, -24, 77, 11, 53, 56, 29, 3, -19, 18, -9, -45, 11, 22, 12, 26, -30, -3, -68, -33, -15, 1, 62, -36, -3, -25, 25, -25, -2, 7, 22, 2, 2, 20, 4, 49, 18, 16, -18, -1, 26, -6, 8, 28, 37, 52, 24, -7, 50, -3, 2, -2, -68, -16, 26, 23, 8, -16, 41, 48, -5, 32, -12, -23, -25, -34, 106, 29, -17, 9, 1, 2, 58, -37, -72, 20, -23, -25, -19, -12, 39, -16, -8, 22, -28, 4, -3, -6, -45, -22, 26, 63, 13, 26, -23, -28, -22, -30, 25, -24, 19, -8, -1, 25, -12, 11, -8, -10, 68, 10, 3, -42, 21, 15, 73, 14, -31, -56, 6, 5, -17, -14, -17, 16, -3, 1, -26, -55, -5, 0, -35, -46, 8, 16, 8, -10, -6, -46, 14, -34, 10, -35, 40, -5, 39, 7, 47, 30, -26, 28, 28, 29, -42, -5, -49, 1, -3, -50, 43, 31, -8, -10, -22, 20, 0, 39, -7, 35, 10, -30, -5, -19, -76, 21, 23, 29, 9, 19, -22, 0, 4, 15, 3, -65, 26, -10, 20, 88, 23, -19, -50, -58, -26, 43, -2, -10, 10, 51, -22, -30, -34, -51, 13, 26, 8, 48, 8, 12, 7, -10, -65, 32, 44, -36, 6, -18, -59, -10, -25, 3, 1, -34, 4, 15, 27, 24, -32, -18, 30, -10, -37, -7, 32, -57, 55, -16, 3, 41, 1, 9, 23, -31, -48, -29, 20, -45, -10, 16, -16, -11, -36, -44, -22, -74, 39, 33, -51, -15, 6, 33, -1, -25, -7, -33, 13, -20, -16, -11, 2, -1, -31, -45, -14, 35, -25, 36, 14, -63, 22, -27, 4, -51, -18, 35, -16, -70, 33, 21, -48, -3, -24, 39, -6, 52, -61, 23, 13, -108, -3, -19, 20, 31, 78, -12, 33, 87, -48, 9, 16, -12, 20, 13, 23, -48, -27, 47, 5, 17, 0, 77, -23, -50, -3, 0, -43, 48, 15, -2, 1, -26, 10, -10, 10, 6, -49, -19, 0, 65, -51, -39, 54, -29, 34, 0, 3, -9, 1, -41, -29, 58, 81, -19, -2, 9, 2, 27, 10, 24, 27, -26, 42, 16, 55, 10, -8, -50, -11, -4, 2, 15, 33, -32, -9, 34, 47, 24, 18, -16, -50, -61, -38, -1, 20, 19, 1, 11, 19, 24, 12, 21, 74, 0, -37, -12, -31, -28, 49, 23, 5, 45, 36, 45, 22, 25, 40, -49, 23, 58, -29, -34, -29, 43, -11, -23, -10, -6, 1, -73, -58, -30, 4, 36, -49, 31, 27, -10, 25, -15, -39, -15, 5, -50, 34, -12, 21, 22, 42, 0, -12, -39, 0, -31, 7, -5, -37, -45, 8, -14, 4, 25, 8, -7, 23, -15, -13, 62, 78, -72, 2, -33, 27, 14, 37, 30, 29, 42, 35, -29, 23, -44, 39, 22, 22, 16, 2, -15, 42, -1, 52, -33, 2, 28, 32, -6, -85, 29, 26, 39, -43, -8, -33, 8, 26, -33, -10, -23 ]
Per Curiam. On September 12, 1967, plaintiffs purchased certain lots in the Township of Green Oak from Mary M. Shields. On April 3, 1968, the defendant filed a petition for condemnation in which an easement was sought by defendant for a sanitary sewer across a portion of one of plaintiffs’ lots. The plaintiffs were not named in these proceedings and received no notice of the progress of these proceedings until January 21, 1969. Plaintiffs then commenced an action against defendant asking that the circuit court declare the condemnation proceedings a nullity as to their land and to enjoin the defendant from entering upon their land to construct a sewer. The defendant answered and moved for a summary judgment in its favor alleging that there is no genuine issue as to any material fact. This motion was supported by an affidavit of the supervisor of defendant township who stated that the entire easement in question obtained by defendant lies wholly in and on a roadway maintained by the Livingston County Road Commission and is and has been open to and used by the general public for an excess of 25 years. Plaintiffs did not refute this statement in their opposing affidavit. After a hearing, the trial court granted defendant’s motion for summary judgment on the ground that there was no genuine issue as to any material fact. On appeal, plaintiffs contend that the grant of summary judgment in behalf of defendant by the trial court was erroneous because there is a question of fact as to whether plaintiffs should have received notice of the condemnation proceedings. The defendant has filed a motion to affirm pursuant to GCE 1963, 817.5(3). Based on the affidavit submitted by defendant and the evidence extracted at the hearing of March 24, 1968, we think it is undisputed that the easement in question runs wholly in the public roadway. As a result, it was unnecessary for defendant to seek condemnation of a part of plaintiffs’ land. See MCLA § 221.20 (Stat Ann 1958 Rev § 9.21). MCLA § 247.183 (Stat Ann 1958 Rev § 9.263); Village of Grosse Pointe Shores v. Ayres (1931), 254 Mich 58. It is well settled that the mere existence of issues of fact is no bar to entry of summary judgment for defendant, if, upon resolving all such issues in favor of plaintiffs, the defendant would still be entitled to a judgment as a matter of law. Whittenberg v. Carnegie (1950), 328 Mich 125. Even if the admitted question of fact with respect to the condemnation proceeding is decided in favor of plaintiff, the undisputed fact that the easement lies wholly on a public road, requires that defendant be granted a judgment in its favor as a matter of law. The question presented here on appeal is unsubstantial and requires no argument or formal submission. The motion to affirm the decision of the trial court is granted.	[ -12, 50, -2, -15, -28, 48, 29, 11, 2, 34, 2, -58, 26, 50, 15, -21, -24, 13, -14, 18, -33, -16, 15, 9, -16, 13, 32, 27, 17, 17, -19, 13, -40, 25, 13, -59, 8, -9, -2, 23, -25, 12, -24, -21, -15, -3, 26, 7, -12, -16, 37, 28, -3, -37, -30, -10, -34, -20, -14, -58, -23, -16, -30, 17, 35, 38, 7, 22, 27, -27, -41, 12, -20, -61, 11, -4, 0, 18, -19, -19, -11, 10, 44, 37, -29, -5, -49, -13, 7, -10, -30, -38, -29, 8, 3, 49, 3, -40, 11, -25, -9, 69, -4, 31, 9, 15, -24, -42, -5, -45, 32, -10, 24, -23, -8, -23, 41, -25, 0, -20, -14, -54, 54, 23, -15, 16, 4, -20, -10, 25, 25, 16, 0, 20, 25, -14, -19, -19, 18, -5, 8, -28, 6, -31, 28, 26, 8, -28, 24, -5, -28, -7, 11, -9, -10, 45, 40, -68, 43, -9, 47, 29, -5, 7, -40, -1, -18, 32, -14, 7, 28, -32, 28, -34, -28, -42, -27, 30, -16, 20, 36, -39, 11, 29, -82, -56, -21, -21, -30, -16, 21, -14, 18, -7, 2, 73, -28, 23, -30, -8, 27, -55, 25, -29, -33, 10, 16, -34, 1, 49, -8, 20, -10, -26, 16, -42, 60, 33, 16, -1, 15, -16, -16, 4, 39, 18, -32, -24, 2, -25, -7, -1, 11, 26, -19, 10, 9, 43, 10, 39, -12, 50, 15, -30, -15, -18, 0, -36, -4, 27, -5, -6, -28, -28, -26, -49, -36, 37, 2, 7, 27, 72, -36, -15, -59, 21, -33, 13, -68, 12, -64, 50, 6, 0, -34, -25, -12, 12, 1, 20, -25, -25, 12, 3, -12, 43, -5, 22, -18, 5, -15, 23, -55, -2, 14, 23, 20, -37, 2, 21, 0, -9, -1, -1, -4, 9, -4, 26, 42, 4, 21, 16, 48, 17, -32, 53, 0, -15, 44, -32, 11, 56, -23, -10, -18, 16, 35, -23, -11, 44, -9, 31, 10, 32, 40, -2, 8, -52, -24, 14, 46, 26, 24, -17, 30, 0, -53, 1, 9, -2, -37, 6, -4, 20, 2, -35, -26, -10, -14, 41, 9, 54, 36, -16, -30, 2, -25, -30, -17, 40, -17, -19, -6, 38, -13, -36, 21, 15, -31, 42, -9, -27, 27, 48, 37, 15, -27, 5, 7, -18, -59, -83, -3, 42, 6, -5, 6, 37, -17, 14, 1, 14, -11, 44, -16, 43, 14, -29, 15, 16, 19, -4, 13, -29, -13, -10, 29, 6, 35, -24, 17, -10, 18, -15, -35, -43, -19, 5, -1, 30, -35, 49, 2, -31, 46, 46, -16, -35, -20, 17, -25, 63, -2, -57, -23, -53, 0, 41, 8, 25, 0, 54, -7, -14, -13, 8, 19, -37, 54, -27, 2, -24, -16, -17, -6, 16, -41, -24, 28, 4, -7, 60, -26, -1, 32, -29, 26, 41, -22, 14, 26, -26, -39, -23, -50, 5, 21, 19, 5, -23, 26, -11, 41, 27, 54, -36, -16, -43, 24, 25, 15, 43, -30, 1, 13, 7, -29, 7, -19, 49, 5, -11, 13, -1, -5, 47, 69, -44, 29, 14, -24, 15, 10, -16, 21, 33, 23, -5, 13, 9, 36, -5, -37, 19, 0, 11, -9, 7, 31, 9, 30, 61, -9, 22, -2, -5, -3, -52, 13, 0, -24, -15, -19, 14, -10, -47, -43, -57, 11, -22, -42, 28, 11, -23, 64, -10, 37, -54, -2, -4, -30, 13, -3, -76, -30, 32, 18, -13, 3, 35, -28, -33, -48, -62, 9, 20, 53, -7, -1, 4, -10, -21, -17, -33, 11, 6, -46, 14, 28, 13, 27, -33, -31, -16, 4, 2, 12, -26, 1, -37, 33, -34, -32, 30, 16, 37, 26, -33, 50, 0, 4, -4, 18, 31, 47, -11, 11, 32, -39, 40, 7, 22, 9, 8, 32, -8, -15, 22, 23, -6, -16, -2, -36, -16, -23, -48, -43, 3, -12, -7, -28, 63, 7, 0, -18, 55, 23, -12, 37, -37, 65, -34, -18, -26, -40, -15, 28, -11, 27, 62, 13, -18, -43, -4, -17, -31, 47, 10, 49, 50, -7, -14, -15, 23, -33, -59, 14, 43, 0, -37, 6, -1, -3, 42, -25, -59, 3, 21, 26, 23, -12, 17, -16, 28, -58, 48, 19, -7, -10, -43, -50, -11, -12, 15, -21, 41, 22, -2, 27, 18, -12, -3, -21, -19, -5, -30, 39, 6, -12, 25, -2, 50, -14, 35, -11, -12, 47, -24, -58, -61, 17, -25, -19, -6, 65, -13, 35, 31, -24, 11, -9, 0, 18, 3, -9, -21, 31, 5, -13, 11, 45, -3, -27, 0, 20, -40, -1, -38, -35, 44, -78, 21, -2, -34, 17, 34, -24, -34, 28, -20, -22, -21, -11, -11, -13, -20, 15, -52, 12, 14, -31, 6, -36, -6, 18, 1, 26, 9, 17, -18, 50, 52, 19, 22, 1, 26, -63, 3, 8, 56, -6, -53, -2, -65, 10, -18, -33, 30, 32, -10, -1, 52, -9, 9, 9, 10, 45, -59, -2, -27, 64, -47, -24, 48, -9, -14, 3, 15, 4, 0, 6, -40, -40, -56, 0, 16, -43, -30, -9, 22, -38, 35, 43, -3, 31, 2, 6, -45, 16, -6, 63, 29, -38, -8, 20, 14, 5, -36, 35, -23, 10, 66, -26, -32, 35, -46, -25, -26, 2, -20, -51, 2, 3, 8, -44, -1, 1, -10, 8, 57, 50, 37, 16, 36, -24, 3, -15, 2, 14, -16, -27, -16, 17, 19, -32, -27, 13, 13, 8, 31, -39, -64, 23, -2, -5, 0, -30, -69, 7, 14, 53, 20, 10, -39, -33, -9, -39, 51, -45, 11, -30, -24, -10, -19, 29, 0, 32, -57, 9, 14, 2, -38, -5, 39, -17, 20, -41, 36, -12, 29, 9, -25, 34, -1, -49, -23, 4, -19, -27, 8, 40, 34, -9, -37, 12, 8, 23, 15, 18, 56, -30, -10, -17, 20, -19, -53, -3, -4, -48, -4, 16, -61, -31, 6, -1, 0, 13, -13, 1, -40, -5, -10, 2, -40, -30, 1, -30, 5, -9, -2, -3, 30, 17, -2, 37, -7, 54, 0, 25, -14, -54, 37, 61, 25, 15, -1, -30, -4, -19, 0, -1, 2, -31, 50 ]
Stone, C. J. This is an action of assumpsit to recover for commissions claimed to have been earned by the plaintiff on sale of stock and bonds for the defendant. The declaration contained a special count to the effect that defendant, through its proper officers, entered into an agreement with the plaintiff, in February, 1911, whereby he was to act as its solicitor for the purpose of securing purchasers of the stock and bonds of the said corporation, and it agreed to pay to said plaintiff a commission of 20 per cent, on any stock of the said defendant company sold to any person or persons introduced to, or brought in communication with, the officers or agents of the defendant by or through the efforts of the plaintiff. It was further alleged that whereas, prior to October 16, 1911, the plaintiff introduced to and brought the officers and agents of defendant into communication with certain persons therein named, for the purpose of interesting said persons in the purchase of stock and bonds of the said defendant company, and whereas thereafter the defendant, through its officers and agents, did sell to said persons 2,800 shares of stock in said defendant company, receiving therefor a valuable consideration, and whereas the par value of said stock is $10 per share, there was due to the plaintiff the sum of $2 for each and every share of said stock sold by defendant, through its officers and agents, to said named persons as aforesaid, which had not been paid although demand had been made for same, etc. There were also added the usual common counts, including the count for work and labor done and performed by plaintiff for defendant. The plea was the general issue. Upon the trial there was a sharp conflict, between the plaintiff and defendant, in the evidence as to what the contract was between the plaintiff, and E. L. Buell, the secretary and treasurer of the defendant. There was no claim made by the defendant upon the trial that Buell exceeded his authority as an officer, or that he was not authorized by the defendant to make any contract which he did make with the plaintiff; and, as stated by the trial court in its charge to the jury: “You have an issue, and that is, was a contract made as the plaintiff says it was?” The plaintiff testified, among other things, that he first met Mr. Buell in connection with said matter at the office of the defendant, 610 Majestic Building, Detroit, on February 26, 1911. He testified that Mr. Buell had before that time sent him a letter, and that he called to see him in response to that letter. Plaintiff testified: “I went up and asked what kind of a proposition he had, and he said, ‘I would like you to go to work for the Standard Lime & Cement Company.’ At that time it was called the Standard Lime & Cement Company, but was afterwards changed to the Charlevoix Rock Product Company. I said I would be glad to go to work for them, and asked him on what condition.” A letter seems to have been here introduced in evidence and marked as an exhibit. It is a peculiarity of this record that, while it refers to many exhibits, not one of them is set out, and we are unable to know what any of them contained. The plaintiff continued his testimony: “Mr. Buell wanted me to go to work for the Standard Lime & Cement Company, that was later the Charlevoix Rock Product Company, and I asked him how much it was, and he said that he would give me 15 per cent, on all bonds sold and a bonus of 50 per cent, that I could either keep for myself or give to the customers. That I gave to the customers. I thought they were more entitled to it than I was; and he would give me 20 per cent, of the stock sold and 40 per cent, at par. Stock was then selling at 50 per cent.; that was $5 a share.” He then testified that he started out and commenced to work for the defendant. It was conceded, during the trial of the case, that the Charlevoix Rock Product Company and the Standard Cement and Lime Company were one and the same company; the name having been changed. The witness testified at great length about the work which he did in selling stocks and bonds, and he testified that, in a subsequent conversa tion with Mr. Buell, one I. N. Aldrich was referred to by Mr. Buell as a good “closer.” He testified: “I got acquainted with Mr. Aldrich through Mr. Buell. Mr. Buell told me that he had been interested with him in the Marengo Cement Company, of Marengo, Indiana; that he was a quick closer and could close up quicker than I could, and for, me to look after the prospects, and I would get my 20 per cent, commission anyhow. Mr. Aldrich would close them up for me, and I could pay Mr. Aldrich 5 per cent, on my commission that I would get from Mr. Buell.” Then he proceeded to testify to numerous dea]s in which Mr. Aldrich became interested, and gave testimony generally in support of the declaration. We gather from the plaintiff’s testimony, generally, that he does not claim that he ever, personally, closed the sale of any stock with any of the persons that he interviewed, but that he brought to the office and introduced such persons, who were taken charge of either by Mr. Aldrich or Mr. Buell, and that sales were consummated. He does claim, however, and testified to having sold some of the bonds of the defendant company. On behalf of the defendant, Mr. Buell testified that the plaintiff never made a sale of stock for the defendant and was never paid any money by the defendant at any time; that what stock he did sell, or assist in selling, was private stock belonging to individuals; and he denied that he had any agreement or arrangement with reference to Mr. Aldrich, as testified to by plaintiff, he claiming that the persons, or solicitors who closed the transactions, were the ones who were entitled to the commissions. On his direct examination, after testifying to his connection with the defendant company, he said: “Sorenson first.began to sell the stock of the Charlevoix Rock Product Company in the latter part of February, 1911. He worked for the company until about the first of .November, the same year. “Q. Did he have any contract with the company? “A. No, sir; I paid Sorenson for the commissions upon the sales of any business that he did.” Upon cross-examination, his attention being called to a letter, apparently the one about which plaintiff had testified, the following occurred: “Q. Now, calling your attention to this letter that is dated October 20, 1910: “ ‘Mr. Charles Sorenson, “‘No. 916 Bellevue Avenue, “ ‘Detroit— “‘My Dear Mr. Sorenson: ‘“You will remember the writer having had some talk with you regarding a cement proposition at Charlevoix, Michigan. We now have our bonds ready and are in a position to pay a good liberal cash commission, as well as 50 per cent, stock bonus.’ “Now, who was ‘we’? “A. It is the company. “Q. What company? “A. The Charlevoix Rock Product Company. “Q. Now, when you said, ‘we have a proposition,’ you meant the company had? “A. Yes, sir. “Q. Well, in response to this (indicating), Mr. Sorenson at some time did come in to see you? “A. Yes, sir. “Q. Did you tell him, T want to hire you for myself,’ then, yes or no? “A. No, sir. “Q. Did you tell him who you did want to hire him for? “A. Yes, sir. “Q. Who did you say you wanted to hire him for? “A. I wanted him to sell bonds for the Standard Cement & Lime Company; that is now the Charlevoix Rock Product Company. We fully decided not to make the cement, and changed the name. “Q. At any rate, ‘We now have our bonds ready and are in a position to pay a good liberal commission as well as a 50 per cent, stock bonus’? “A. Yes, sir; that is what we paid him for all he sold. “Q. That is, you paid him a cash commission? “A. Yes, sir. “Q. A 50 per cent, stock bonus? “A. Yes, sir; allowed that. “Q. All right, you don’t call that a contract? “A. No, sir; that is not a contract. * * * “Q. Now, then, you did agree for the company to give Mr. Sorenson 15 per cent, on the sale of bonds? “A. Yes, sir. “Q. Did you agree with him to give him 20 per cent, on the sale of stock? “A. Yes, sir. “Q. Did you agree that in case any of the stock was sold at par that there was 40 per cent, due him? “A. I explained that. “Q. Yes or no to that question. “A. No, sir; the company never paid only 20 per cent. “Q. How soon after the sending of that letter, that I called your attention to, did you see Mr. Sorenson? “A. I could not say. It was some little time after that he came in. “Q. Well, was it answered in person? “A. Yes, sir. * * * “Q. Well, as a matter of fact, as I understand your testimony to Mr. Trevor, the only thing that Mr. Sorenson did was to sell two bonds for the Charlevoix Rock Product Company? “A. Yes, sir. “Q. To Mrs. Emig, and I think to Mr. Martin? If he sold bonds for the price that the company wanted, then the 50 per cent, of stock was his? “A. It was an option to use the stock as he saw fit. * * * “Q. So that he never sold — Mr. Sorenson never sold a share himself from your standpoint, and was entitled to no compensation for a share of stock while he was in the Charlevoix Rock Product Company? “A. No, sir.” For the bonds sold, about which there seems to be no question, the witness testified that he paid the plaintiff by his own personal check; he saying: “I paid him out of my own personal check book. The company settled with me. * * * “Q. Isn’t it a fact that you told Sorenson that any person that he got, that bought stock or bonds, that the commission was his, no matter who closed it? “A. No, sir; I never told him that.” There was further testimony of the same character, and the plaintiff testified in rebuttal that his contract was never changed. The case was submitted to the jury by the trial court in a very clear charge, in which the court, among other things, used the following language: “It is the claim of the plaintiff here that some time in the year 1911 he entered into the employment of the defendant, the Charlevoix Rock Product Company, at that time known by a different name, and that the terms of the contract he entered into were these: That he was to sell the stock, or the bonds of the company; that on the sale of stock he was to get 20 per cent.; that on the sale of bonds he was to get 15 per cent.; that he was to sell the stock at $5 per share; and that he further claims that if he sold at par he was to get 40 per cent.; that he was to use his endeavors to interest parties in this proposition; that, having gotten them very thoroughly interested in the proposition, he was then to report his prospects as probable purchasers to the company and the ‘closer-in,’ or somebody with more experience or more knowledge of the affairs of the company, was to go forth and close the transaction; but that he was, nevertheless, to receive the commission for the same for the work that he had done in leading the prospective purchaser that far in the transaction. “Now, that is the contract in brief words, that the plaintiff claims was made; that is the understanding the plaintiff claims he had when he entered into the work. Now, if you find that such an understanding was reached, of course, that sort of an understanding would constitute a contract. Now, the defendant says that such was not the case at all, that the terms - of the employment were different from what the plaintiff says the terms were, and that the man was not engaged either as to the terms or manner in which he claims he was engaged, and that as to each different transaction a full understanding was had with respect to each particular transaction. Now, it is for you to say whether the plaintiff has maintained his case, or whether the defendant has satisfied you that the situation was as defendant claims it was. (If you find that plaintiff was engaged as the plaintiff claims he was engaged, and that as a result of his labor stocks or bonds were sold, whether those stocks or bonds were out of the treasury of the company or of some person else, if the sale of them resulted from his having reported them to a superior, and the superior officer having taken advantage of his work and sold to the purchaser a different piece of property from the piece of property that the plaintiff had been attempting to sell, the plaintiff, nevertheless, would be entitled to-compensation which the contract said he should receive for .that particular sale.) - Now, in giving you this kind of a statement, do not misunderstand me. I am not finding any facts for you; I am not saying that the officer of the company did the things; I am saying, if you find that to be so, then certain results would follow. It is for- you to say whether or not that particular thing did happen, because the testimony with respect to that has been placed before you. You have seen the parties upon the witness stand.” The jury returned a verdict for the plaintiff in the sum of $851.40, and judgment was entered thereon. At the close of the plaintiff’s evidence, and again at the cloke of all the evidence, the defendant moved the court for a directed verdict in its favor, upon the ground that there was no evidence before the jury that showed any liability on the part of the defendant ; that, taking the plaintiff’s own testimony that he sold some bonds or stock, there was no testimony that he sold any stock that the defendant ever got a dollar for. Th'e defendant also requested the court to charge the jury as follows: (1) That under the proofs in the case the plaintiff could not recover. (2) That the plaintiff had not shown that either alone, or by the aid of any other person, he sold any of the stock of the defendant for it, and is not entitled to recover. (3) That in order for plaintiff to recover a verdict it was necessary for him to show either that he sold some of the capital stock of the defendant owned by it, or that he, together with others working with him for that purpose, sold capital stock of defendant belonging to it, for which he did not receive any commission. (4) The plaintiff would not be entitled to any commission for any sales of stock made to any person or persons after he left the employment of the company. There was a motion for a new trial entered by the defendant based upon the following grounds: (a) Because the verdict was contrary to the evidence. (5) Because there was no testimony to sustain the verdict, (c) Because the proofs introduced showed that the plaintiff performed no services for the said defendant for which he was entitled to any compensation under the pleadings and evidence in said cause. (d) Because the proofs in said cause show that, if any services were performed by said plaintiff for any person whomsoever in relation to the capital stock of the defendant, such services were performed for Elbert L. Buell, and not for the defendant, (e) Because the proofs in said cause show that plaintiff did not sell any capital stock issued for the defendant, but that, if he had anything to do whatever with the sale of such capital stock, it belonged to private parties and not to the defendant. (/) Because the proofs in said cause show that Elbert L. Buell paid the plaintiff in cash for all services performed by him for any person in the sale of the capital stock issued by the defendant. (g) Recause, under any view of the facts shown in the evidence, the verdict rendered in said cause was excessive. (h) Because the verdict in said cause was contrary to law. (i) Because the verdict in said cause was contrary to the instructions upon the law as given to said jury in open court, O') Because the court erred in refusing to direct a verdict in said cause in favor of defendant at the close of the evidence therein offered by the plaintiff, also at the close of the testimony in the case. The court in denying the motion for a new trial used the following language: “Briefly, the facts are that the plaintiff was employed to work for the Rock Product Company. The man who hired him was authorized to effect that sort of an agency. Under the terms of this employment, all prospective buyers discovered by him brought a certain commission to him, even though the sale was actually brought about by some other. It appeared that some sales were made subsequently, but it was the defendant’s claim that this stock was not the stock of the company, but was the stock owned by the agent who had hired Sorenson. Plaintiff was never, according to his testimony, acquainted with the difference in the ownership of the stock. His testimony was to the effect that he assumed that his work regarding it was no different from his work respecting other stock. The whole matter was distinctively a question of fact —rather various questions of fact, and I do not see how the defendant could justify itself by putting in a position of trust with power t'o employ agents, an officer, and then excuse itself for paying a commission on the sale of an agent’s personal property when the seller was not apprised of the difference in the ownership of the property he was selling. Under the theory of the plaintiff as presented to the jury, it would have been possible for a verdict much in excess of this amount to have been returned, and the motion for a new trial will be denied.” The defendant duly excepted to the reasons given by the trial court in overruling the motion for a new trial, and has brought the case here upon writ of error. The first eight assignments of error relate to the rulings of the court upon the admission of testimony. We have read the record with care, and are of opinion that there was no reversible error in the rulings of the court upon that subject. We do not think the assign ments or error upon those rulings present a meritorious question. The remaining assignments of error, beginning with the ninth, relate to: (1) The court’s refusal to direct a verdict for the defendant; (2) the refusal to grant defendant’s several requests to charge; (3) the court’s misstatement of the alleged contract; (4) the erroneous statement by the court of the plaintiff’s theory of his contract to the utter exclusion of the defendant’s theory; (5) the court’s denying of defendant’s motion for a new trial. 1. As we have already indicated, in our opinion there was such a conflict in the evidence of the respective parties that a question of fact was raised for the consideration of the jury as to what the contract was. In our opinion, the court did not err in refusing to direct a verdict for the defendant. 2. We find no error in the refusal of the court to give defendant’s requests above referred to. The first, second, and third requests to charge contained no merit for the reason, already stated, that a question of fact was presented for the jury. Defendant claims that the third request to charge raises the point that plaintiff could not recover for sale of bonds, because there is no such claim in the declaration. Such evidence was competent and relevant under the count for work and labor. No bill of particulars of plaintiff’s claim was demanded in so far as the record shows. The fourth request to charge was properly refused, because if the jury believed the claim of the plaintiff he was entitled to commissions for sales to persons whom he brought to, and introduced to, the officers of the defendant, and whether a sale of stock was actually made before or after he left the employment of defendant would be a matter of no importance. 3. The third and fourth points of defendant’s position may be considered together. We have set. forth so much of the charge as purports to contain the substance of the contract claimed by the plaintiff and the claim of the defendant relating thereto. We find no error in the charge, and are of opinion that the trial court was correct when it gave that portion of the charge embraced in parenthesis, to which the twelfth assignment of error refers. If the plaintiff was correct in his claim that he was hired by the defendant, through its secretary and treasurer, to sell stocks and bond's of the defendant, or to introduce prospective purchasers to the defendant where sales were consummated, as claimed by plaintiff, we do not think the defendant could escape liability by substituting stock or bonds of individuals, where the plaintiff had in good faith negotiated for the sale of the stocks or bonds of the defendant company, as claimed by him. Lastly, we think that the trial court’s denial of defendant’s motion for a new trial was not erroneous, for the reasons given by the trial court. We have examined this entire record with care and find no reversible error therein. The judgment of the court below is therefore affirmed. Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.	[ 8, 35, 11, 6, 0, 21, -4, -3, 7, -14, 53, 29, -23, 9, 9, 2, 4, -20, 53, -27, -17, -28, 25, 4, -8, -17, 12, -83, 5, -13, -50, 2, -38, -56, -27, 67, 9, -31, -14, 17, 3, 40, 35, 2, -29, -9, -4, -64, 39, -14, 30, 6, 21, 23, 6, -47, -2, 22, 46, -4, -29, -65, 50, -45, 28, 12, -14, 9, 56, 7, -30, 17, 29, 25, -18, 9, 3, -24, -32, -28, 0, -13, 32, -4, -67, 24, -9, 2, 12, -20, 10, 13, 13, 33, -4, 0, -25, -7, -19, 7, 10, -7, -56, -10, -19, 20, 17, -34, 11, 31, 4, -17, 27, 5, -33, -25, -31, -55, -16, -46, 7, -42, -39, 40, -35, 22, -32, -24, -27, 23, 5, -3, -26, 37, -14, -26, -22, -27, -3, 23, 37, 3, -66, 14, 28, 27, -1, 24, -32, 17, -33, 6, 26, 34, 27, -12, 13, -1, 51, -69, 39, 13, 9, 2, -21, 0, -47, -28, -35, 4, 4, 23, -7, -61, -39, 4, 8, 0, -34, 38, -5, -4, 8, -18, -5, -65, 27, 4, 11, 39, 23, 33, -14, 71, -38, 21, 17, 20, 32, 0, 13, -21, -14, -21, -30, -34, 31, 33, 28, 51, -27, 3, 26, -55, -22, 35, 9, -42, 34, -41, 6, -49, -20, 43, -9, -77, 31, -12, -42, 20, -9, 1, 37, -34, -37, -25, 20, -10, 58, 25, -61, -21, -15, 7, 29, -61, -51, -4, 19, 11, 6, 10, 0, 20, -3, -15, 8, 3, 7, 31, 19, 44, -40, 58, 15, -46, -22, -5, 3, -8, 16, -47, 5, 14, -11, -50, -37, 1, 18, -28, -1, -27, -35, -9, -13, 14, 20, 1, -51, -36, 23, 45, 75, -52, 23, 34, 49, 8, 15, 18, -38, 23, 16, -19, 9, 3, -14, -17, -21, -8, 5, -32, 31, -5, 11, 16, 23, -10, 25, -40, 18, 36, -42, 53, 59, 0, 53, -33, 31, -65, 22, 8, 9, -21, -49, -21, 24, 16, -10, 10, 39, 40, 51, 18, -26, -7, 5, -41, 12, 0, -68, -89, -18, 24, 9, 22, 48, 8, 1, 27, 53, 11, 41, 24, -14, 0, -45, -11, -12, 64, -10, 51, -25, -14, -1, -16, -27, -17, -68, 87, -17, 16, 16, 5, 47, -30, 1, -1, -16, 10, -37, 60, 16, 51, 5, -6, -11, -51, -54, -18, 18, 27, 4, -27, -76, -21, 31, 39, -8, 34, 32, -32, 25, -13, 0, -26, 52, 42, -10, 19, 22, -42, -17, 2, 53, -18, 24, 16, -59, -35, -18, 28, 16, -17, -8, -45, -44, 20, -5, -1, 12, 0, -16, 35, 36, -38, -3, 29, 47, 16, -22, -4, 8, 30, -23, 38, 12, 6, 11, -12, 9, -38, 34, 9, -16, 6, 64, -26, 4, 46, -4, -10, -19, -2, -27, -6, -41, -35, 18, 10, -17, 29, 10, 13, -54, -22, 8, 27, -13, 3, -11, -14, 37, -31, -4, 18, -45, 15, 33, 27, 0, -26, 1, 2, -24, 19, 10, -32, -33, 43, -29, -14, -24, 2, 88, 8, -15, 40, -9, 27, 33, 44, -36, 33, -29, -29, 22, 2, 36, -26, 5, -58, -5, -7, -19, 14, -1, 0, -4, -13, -5, -4, 11, 31, -42, 20, 0, 25, 18, -22, -47, -23, 35, -25, 10, 17, 44, -29, -14, 16, -39, 0, 6, 12, 37, 6, -2, -27, 25, 39, -26, 15, 46, 13, 0, 0, -15, 22, -16, -61, 0, -19, 25, -25, -36, 13, 56, 3, 0, 29, -21, -22, -23, -35, 20, 13, 25, -9, -7, 57, -8, 0, -54, -18, -62, -47, -11, 58, -2, 7, 23, -20, -3, 0, 49, 9, 0, -27, -2, 36, 3, 2, -10, -24, 47, 34, -49, -10, -43, -2, 9, -41, -47, 41, -33, 3, 35, 23, -26, -19, 16, 3, 11, -7, -17, -52, -32, 38, 52, 2, -35, -30, 72, -14, 20, -23, 4, -24, -7, -52, 5, -2, -12, -22, 32, -23, 25, 20, -16, 11, 39, -4, 8, -47, 9, 46, -12, 39, 19, 10, 36, 22, 21, -3, 18, -1, 0, 33, -20, 8, 15, 20, -36, -24, -26, -1, 41, -14, 22, -53, -13, -49, -13, 30, -2, -33, -15, 28, 8, 15, 53, -60, -25, 7, 18, 53, -18, 8, -46, -20, 4, -42, 47, -23, -31, 44, 13, -21, -71, -60, 58, -38, 17, -3, -25, 52, -19, -45, -54, -49, 24, -8, -33, -4, -13, -11, 12, 66, 23, -5, 2, 22, 24, 41, 42, 12, -28, -22, -37, -1, -77, 66, -4, -49, -34, 28, -7, 10, -2, -56, -38, -24, -16, -15, 0, -29, 42, 13, -2, -24, 6, -21, -30, 15, -43, -18, 11, -6, 50, 12, 43, -32, -3, -31, -21, -20, 53, 12, 2, -6, 1, -4, 3, 56, 1, -11, 18, 33, 18, -1, -63, -14, -15, -52, 30, 21, -40, 13, -1, 3, -69, 12, -17, 19, -15, 8, -11, -10, -37, 11, 47, 10, 19, 20, -21, 42, 28, -50, 0, 23, 5, 15, -36, -15, 35, -33, -41, 3, -30, -35, -3, -2, -25, 12, -39, -17, -20, 3, 27, 4, -11, 23, -84, -29, 33, -25, -38, 5, 4, 34, 26, 50, -36, 12, 25, 28, -16, -22, 33, 27, -39, 4, 13, -9, -20, 7, 67, -38, 3, 63, -27, -53, -46, -25, 32, -36, -30, 30, 52, 12, 17, 18, 33, 44, -8, 51, -18, -16, -24, 22, 75, -43, -25, -10, -80, 76, 20, 26, 23, 59, 28, -12, -37, -38, -14, 26, -3, 33, 34, 36, -26, -38, -4, -32, 33, -14, 2, -53, -39, 6, 46, -5, 1, -32, 17, -6, -37, -28, 3, 32, 45, 19, 13, 23, -33, -54, -33, 0, -1, -27, 51, 23, -16, -8, 14, -11, 21, -15, 5, -11, 25, 1, -46, -8, -2, -16, 19, 2, 0, -43, -15, 16, -17, 37, 20, -14, 19, 18, 7, 58, 28, 39, -50, 33, -13, -10, 42, -11, -7, -65, 0, -32, 24, 30, -6, -5, 17, 15, 33, -10, -14, 10, 21, 24, -40, 37, -14, 25, 12, -82, 5, 16, -22, 54 ]
Fellows, J. Plaintiff received an injury by a particle of steel becoming imbedded in his right eye. That the accident arose out of and in the course of his employment is conceded. As a result of the injury a traumatic cataract formed which was removed by an operation, the expense of which was borne by defendant. Since the operation plaintiff has one-sixtieth normal vision without the use of a glass, but with a strong glass his vision with that eye is above normal, but his two eyes do not co-ordinate. If he uses the uninjured eye, he can not wear the strong glass on the other; if he uses the injured eye with the strong glass he must cover the other eye. The eminent specialist, Dr. Campbell, testified: “Yes, before he could use this injured eye he must have a very strong glass, and that very strong glass so mixes him up with the other eye that he cannot utilize it. So, consequently, if he ever uses this eye, it will have to be when the other eye is excluded from vision. This is a common thing with corneal cataract. * * * “Q. Doctor, then, in your opinion, has the applicant lost the useful vision of his right eye? “A. I might answer that by saying that industrially he has lost the use of the vision of that eye.” The testimony establishes that while plaintiff has useful vision with each eye, he can use but one of them at a time, and the commission, reversing the finding of the deputy commissioner, held that he was entitled to the statutory compensation for the loss of an eye. Preliminary to the main question, it is insisted that the claim for review was not made within the ten days. The return shows that the claim was received within the time but the letter was not opened and the claim stamped until the following day. The commission had the power to extend the time; it declined to dismiss the case, and heard it on its merits. If the actual date of receipt controls, the claim was seasonably filed; if not, the commission haying declined to dismiss and having disposed of the case on its merits, we may assume it would have extended the time as good cause appears for such extension, and it would profit no oné to dispose of the case for this technical reason and send the case back only to have it up here again on the main question. We shall, therefore, dispose of the case on its merits. The main question is new to this court but it has received the attention of the courts in several other jurisdictions. Frings v. Pierce-Arrow Motor Car Co., 182 N. Y. App. Div. 445 (169 N. Y. Supp. 309), was very like the instant case. It sustains defendants’ contention. The workman with the aid of a proper glass had at least normal vision with the injured eye, but it would not with such glass co-ordinate with the uninjured eye. It was held that he had not lost an eye or the use of an eye; two justices, however, dissented. The same division had the question before it again in Smith v. F. & B. Construction Co., 185 N. Y. App. Div. 51 (172 N. Y. Supp. 581), where by the use of glasses the workman had but one-third vision with the injured eye and sustained the award for the loss of an eye. The court distinguished the case in this particular from the former holding where the workman by the use of a proper glass had normal vision, and said that the “rule in the Frings Case should not be extended beyond the facts there found.” The supreme court of Illinois had the same question before it in Juergens Bros. Co. v. Industrial Com mission, 290 Ill. 240 (125 N. E. 337). It was there said: “Plaintiff in error contends that should Kaage lose the sight of his good eye he could by the use of lenses gain the use of the injured eye, and therefore he has not lost the sight of the injured member. The question before this court is whether or not this man has for all practical uses and purposes lost his eye. The application of laws of this character should not be made to depend upon fine-spun theories based upon scientific technicalities, but such laws should be given a practical construction and application. For all practical purposes when a person has lost the sight of an eye he has lost the eye, and to say that the statute providing compensation for the loss of the sight of an eye' does not apply here because of the remote possibility of Kaage losing his good eye, whereby he can through artificial means gain a certain amount of use of the injured member, is to place a construction on a remedial act which deprives it of all practical effect. Such could not have been the intention of the legislature in passing this act.” To the same effect will be found O’Brien’s Case, 228 Mass. 211 (117 N. E. 1), and Stefan v. Elevator Co., 106 Kan. 369 (187 Pac. 861); and in Purcell v. International Motor Co., 91 N. J. Law, 707 (103 Atl. 860, 104 Atl. 894), and Oliver v. Christopher, 98 Kan. 660 (159 Pac. 397), it was held that the failure of the eyes to co-ordinate could be considered in cases involving partial disability under the statutes of the respective States. These are the only cases dealing directly with this questioni which we have been able to find in the time at our disposal. The weight of authority sustains the findings of the commission and we are persuaded that the reasoning of the majority cases is fundamentally sound. The award will be affirmed. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred.	[ 1, -24, -18, 38, -55, -2, -6, 8, -13, 62, -17, 16, 72, 19, 19, 10, 28, 10, -13, 8, 10, 37, -28, -2, -27, 3, -38, -4, 2, 36, -56, 28, -7, 6, -37, 70, 55, 20, 26, 11, 71, -27, 17, -8, 7, -38, 34, -5, -6, -14, 67, -17, -10, -14, -2, 16, 21, 14, 15, 1, 3, 22, 25, -11, 10, 62, 2, 3, 30, 1, -33, 12, 21, 16, -28, -77, 3, 31, 15, -17, -23, -49, 25, -16, 0, 69, 6, 17, 0, -56, -5, -34, -25, -63, -27, 28, -12, -7, 30, 90, -60, 26, -40, -6, -19, -6, -31, 9, -8, 16, 21, -20, -6, -4, 54, -22, -6, 24, -19, 17, 30, 16, 21, 4, 24, 21, -8, -40, -8, -27, 29, -49, -2, 64, -35, -10, -14, -5, 20, -9, -31, 23, 7, 34, -34, 46, -22, -5, -39, 17, 9, -17, -51, -9, -45, -40, -24, -16, 50, -36, 30, 34, 13, 36, 26, 11, 0, -28, 12, 47, 28, -19, 45, -10, 32, 5, 29, -31, -39, -20, -19, -7, 45, -16, 35, -6, -52, 27, 29, -5, -5, -28, -43, 11, -27, 17, 15, 6, 25, -46, 15, -26, -12, 51, 9, 18, -23, -9, 35, 56, 2, 16, -1, -61, 24, -22, -25, -42, -47, -47, -24, -23, 30, -25, -63, -19, -47, -6, 47, -29, -9, -4, 39, 30, 16, -34, 23, -23, 29, -36, -5, 30, -26, 4, 27, 12, -31, -7, -15, 56, 19, 5, 3, -51, -32, -88, -40, -4, 14, -31, -74, 68, 7, 21, 46, -31, 27, 7, 38, -5, -7, 9, 49, 10, -40, -70, -8, -16, 44, 38, 19, 5, -50, 24, -105, 9, 5, -20, -43, 8, 2, -24, -10, -1, 33, 25, 20, 20, -73, -26, 29, -28, -12, 54, 29, 0, -42, 13, 47, -39, -48, -25, 28, -18, 5, -26, -1, 30, 4, 0, -28, 47, 29, -12, -28, -51, 24, -21, 13, 10, -54, 39, -4, 51, 27, -3, 20, -45, 16, -38, 29, -36, 18, -16, -7, 20, 44, -62, 38, 0, -27, 35, 16, 9, 33, 48, -14, -51, -59, 5, 54, -26, -22, 24, 0, -39, 35, 0, -18, 47, 7, -30, 38, -35, 16, 20, 2, -21, 25, 30, 40, -15, 21, -83, -18, -23, -63, 7, 4, -44, -37, -22, 37, 30, -17, -7, -33, -38, 12, -1, 9, 2, -29, 12, -9, -18, -5, 4, -13, -3, -27, 47, -28, 1, 12, 9, 33, 20, 6, -3, 44, 29, -20, -54, -4, -10, -45, -14, -23, -19, -12, 11, 8, -30, -15, -24, -17, -4, 11, 1, -47, -41, -57, 24, 24, 97, 7, 25, 26, -6, 7, 9, 45, 37, -12, 17, 4, 21, -13, -14, -7, -35, -52, -12, -7, -28, -8, -37, 50, 6, 19, -10, 1, 1, -3, -9, -47, 32, -37, -28, -5, 26, -14, 10, -6, -31, -22, 4, 17, 25, 18, -3, 3, 15, -63, -6, -16, 8, -71, -26, -49, 2, -22, 38, 60, -39, 15, -51, 54, -30, -64, 2, 17, -18, 10, 0, -26, 0, -2, 39, 27, -29, -49, 39, -14, 4, -50, 5, 20, -55, 1, -9, 32, 35, 4, 19, 10, -19, -40, -17, -70, 28, 14, 6, 28, -27, -20, 84, 11, 40, 9, -2, 31, 24, 20, -26, 39, 56, -5, -30, -31, 30, 1, 38, 17, -13, 8, 7, 23, -3, -8, -24, 40, 59, 7, -16, 31, -6, -45, 12, -39, 28, -15, -19, -51, -3, 37, -71, -26, 9, 15, -3, 7, 35, -19, -4, 20, 6, -12, 41, -12, 11, -24, -41, 15, 14, 26, 21, 65, 19, -21, 32, -38, -78, -38, -26, -9, 32, 30, 4, 29, -4, -3, 24, -15, 15, 14, -31, 17, -16, -44, -66, -25, -8, 33, 25, -19, 21, -28, -30, 19, -37, 32, 11, 19, -3, -6, 64, -3, -1, 2, 27, 6, -10, -40, 36, -21, 12, -27, 32, -35, -42, -10, -33, 30, 10, -34, 9, 14, -32, 26, 0, 63, -26, 15, -18, 13, 17, -6, -26, -16, -35, 34, -17, -7, 44, -61, -33, 46, -41, -17, 0, 2, -23, 0, -13, 24, -30, -14, 38, -48, 24, 10, 18, 52, 19, 30, 3, 45, 23, 0, 69, -15, -24, 28, 25, -27, -4, -24, 8, 18, -6, 39, -7, 43, 22, -22, 4, 18, -5, 3, -61, -29, -1, -30, 18, -2, -30, -1, 12, 14, 10, 44, 19, 25, -27, 13, 3, -33, -2, -71, 21, -27, -56, -37, 6, -17, 13, -7, 7, 31, -20, 20, -41, 6, -19, 0, -47, -10, -20, 12, -38, 29, 0, -15, 38, -28, -51, 6, 16, -22, -12, 20, 11, -18, -59, -7, 2, 17, 27, -23, 0, 22, -31, 15, -59, 3, -34, 6, -25, 8, 41, 53, -27, 20, 15, 53, -37, 2, -19, 15, 9, -6, 27, -26, -42, -6, -49, 8, -21, 18, 14, -35, 7, 47, 31, 0, -19, 17, 35, -1, 1, -40, 56, 55, -5, -31, -13, -6, 5, 18, 8, -25, 36, 31, -27, -33, -26, -36, 0, -46, -54, -33, -7, 0, -10, 12, -23, 16, 11, -37, -15, -4, 17, 27, -42, 0, 45, -1, -52, 51, 14, -3, -11, -57, 52, -38, -55, -6, 42, 22, -17, 1, -18, 0, -74, 9, 2, -62, 20, 31, 10, 19, -17, -8, 10, 12, 59, 35, 16, 22, 44, 20, 52, 66, -33, 31, -9, -19, 16, 5, 2, -8, -3, 51, -7, 33, -37, -6, -8, 14, 22, 12, 5, 20, 42, 46, 18, 20, 29, 27, 26, 7, 1, 60, -5, -10, -92, -26, 32, 36, -27, -20, 34, -48, 9, 1, 13, -39, 6, 7, -14, 0, 14, -37, 7, 11, -35, -47, 5, 0, 29, -36, 7, 21, 62, 14, -28, -61, -47, 59, -1, -20, -8, 11, 26, -43, -34, -4, 38, -30, -49, 28, -38, -15, -55, 32, -4, -26, 11, -27, 39, -38, 30, -8, -33, 35, -5, 74, 31, 31, 15, -21, 35, 62, 1, 37, 65, -28, -40, 0, -16, 55, -35, 6, 10, -56, 0, -70, -27, 30, 22, 43, 5 ]
Ostrander, J. The brief for appellant contains a meager statement of facts, followed by a subdivision headed “Legal Points,” which is in turn followed by one headed “Argument.” To the point where argument begins there is no reference to any error relied upon or to the manner in which any question involved is raised. Under the heading “Legal Points” it is said: “It was negligence on the part of the railway company not to give due and timely warning of the approach of its cars to street intersections when a street car stopped there discharging passengers. “It was negligence on the part of the street railway company not to maintain a constant and careful lookout ahead when a street car was stopped discharging passengers on a parallel track when the danger of collision was greatly enhanced. “It was negligence on the part of the street railway company under section 13 of Ordinance LIII of the city of Saginaw to propel its car at a wanton and reckless rate of speed in the city as this south-bound car was propelled at a rate of speed of, to wit, 30 miles per hour. “It was gross negligence on the part of the street railway company to propel this southbound car at great speed contrary to ordinance past an intersection where passengers were just being discharged from another car on a parallel track one block from a large factory. “The evidence discloses no contributory negligence on the part of the appellant, and it was error to direct a verdict upon that ground.” It is needless to say that no compliance with Supreme Court Rule 40 is attempted. As has often been pointed out, obedience to the rule not only saves labor on the part of the court, but aids the court in apprehending the precise points which áre involved and the appellant’s contentions. An examination of the record discloses that, plaintiff having rested his case, counsel for defendant moved the court to direct a verdict for defendant upon the ground — the sole ground — that upon the undisputed facts plaintiff was guilty of negligence contributing to his injury; that the motion was granted, a verdict returned, and judgment thereon entered. It also appears from the record and brief for appellant that, while numerous exceptions to rulings of the court were entered, some of which are made the basis for assignments of error, two principal rulings" affecting the re- suit are questioned — one the direction of a verdict upon the ground that plaintiff was himself negligent; the other the exclusion of the contention of plaintiff that testimony had been introduced or offered tending to prove the gross negligence of defendant. I say this appears, but am not entirely certain that the second point is correctly stated. A considerable portion of the brief is a criticism of the alleged non judicial attitude of the court during the trial and the manner and language used in the rulings made. Assuming that the second point stated is involved, it is proper that it be first considered. It is alleged in the declaration, in negativing the asserted duties of defendant, that it wholly and wantonly failed to give any warning of the approach of the car which did the injury, and that the car was driven negligently and wantonly at an unreasonable and improper rate of speed. Further, generally, it is alleged that by the gross negligence, omission, and fault of the defendant plaintiff was struck and injured. Plaintiff preferred no requests to charge, and I am referred to no page of the record for evidence that gross negligence of defendant was relied upon. No ruling of the court upon the subject is referred to; but it appears that after hearing argument of the motion for a peremptory verdict the court took a recess until the next morning. During the recess the court prepared a memorandum of his charge, and upon the coming in of court, the jury being present, the court was interrupted by counsel for appellant as follows: “May it please the court, before the court makes a statement, I desire to say at the adjournment of court last night the court made a request that I be prepared this morning to show the court that under the declaration filed in this case there was a charge of gross negligence. “The Court: I have decided the question. If you desired to do that you should have presented them before. “Mr. Lloyd Crane: This is the first opportunity I have had. I respectfully ask the court to show you the Michigan decisions I have here. “The Court: I decline to hear you.” There was more said to the same effect, and the court proceeded with the charge. It is alleged with a videlicet that the car which injured plaintiff was traveling at the rate of 35 miles an hour. Witnesses riding on the car from which plaintiff alighted described the speed of the car which struck plaintiff in various terms, as that it whizzed past; seemed to be making up time; went at a tremendous rate. The witness Lipinski testified in part as follows: “Q. Can you give us an idea, from your experience, with having driven in automobiles, say, at 15 or 16 miles an hour, about how fast this car was going?” The witness was riding in the car which struck plaintiff, the speed of which she was asked to estimate, and she replied: “A. About 30 miles, I think, an hour.” I do not find other testimony of the speed in miles per hour. She had testified that she had driven in automobiles and had asked and been informed as to the rate of speed they were going. She qualified in no other way to testify as to the comparative or actual speed at which a vehicle was moving. It was sought to show by her that she knew the motorman of the car, having traveled on his car many times during a period of four years, that in going to her work she preferred to take his car because of the speed with which he drove it, and that he drove it faster than other motormen with whom she had ridden drove their cars. In offering some of the testimony of Miss Lipinski which was excluded the purpose was stated to be to show that the motorman on the car on which she was riding — the car which struck the plaintiff, was incompetent. • But I find no testimony admitted, or excluded, tending to prove his incompetency. ' I am not prepared to hold that the declaration, considering all of its averments, does not allege gross negligence. Indeed, if the point was controlling, I should be inclined to hold that gross negligencé is charged. It fairly alleges that a street car had stopped for passengers to alight, and that passengers were alighting therefrom; that upon a parallel track a car was driven at great speed, without warning of its approach, in entire disregard of the fact that passengers from the standing car, some of them, would be likely to cross the street from behind the standing car. But the doctrine of comparative negligence does not obtain in this State, and the gross negligence of defendant, if established, does not in all cases relieve an injured plaintiff from"1 the consequences of his own negligence. Contributory negligence of plaintiff may not prevent a recovery in a case where the defendant, who knows or ought to know of the precedent negligence of plaintiff, does him an injury. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581) ; Richter v. Harper, 95 Mich. 221 (54 N. W. 768) ; Borschall v. Railway, 115 Mich. 473 (73 N. W. 551). “It may be said that in such a case the negligence of the plaintiff only put him in position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.” Cooley, Torts [1st Ed.], p. 674. Assuming that the declaration alleges gross negligence of defendant, I find no testimony admitted, or offered and excluded, which in the view I take of the main contention required the court to submit the question of defendant’s gross negligence to the jury. The first assignment of error is based upon the rul ing directing a verdict for defendant. In the brief the plaintiff, appellant, recites the facts relating immediately to the injury as follows: “As a passenger for hire the plaintiff boarded a street car on the west side of Saginaw, and was conveyed to his destination at the corner of Holden street and South Washington avenue, arriving as before stated prior to 7 o’clock on this wintry morning. Washington avenue runs north and south, and is intersected at the point where this accident took place by Holden street, running east and west. The defendant company owns and operates parallel tracks on Washington avenue; north-bound cars using the easterly tracks, and south-bound cars the westerly'tracks. The car upon which the appellant was riding was a northbound car, and therefore upon the easterly tracks, and upon signal stopped upon the north side of the street intersection to allow the appellant and another passenger to alight. The car was stopped on a line with the sidewalk at this point, and the appellant allowed a lady to alight ahead of him, and then he alighted. The cars operated by the defendant company during the winter season were the large inclosed cars that projected over the rails about 18 inches on either side. After the appellant had alighted he stepped back about 2Vá feet away from the car to the east and allowed it to pull out and proceed north in the neighborhood of 30 feet before moving. The Bartlett Foundry was located to the west one block, and, as this was his first morning going to work there, he stopped before crossing the tracks and looked north for an approaching car, and then to the south for any vehicles or automobiles. Seeing no danger, he started to cross the easterly track and proceed slowly, and again looked north, and saw only the rear of the car he had left, and this he estimated was probably 55 feet from where he stood. The way was seemingly clear, and he proceeded toward the westerly track, and when he had taken only a few steps from where he stopped to look, and while he had not reached the westerly track, and was still between the tracks, he was struck by a south-bound car going at a terrific speed, and which sounded no warning whatsoever. The impact of the collision was received upon the right side of his head and body, and he was struck by the projecting portion of the car and thrown forward and to the east, and only in this way escaped being ground to death under the car.” In argument it is said: “We contend first that a street car company does not acquire by its conferred franchise a - servitude or right to priority of way upon the highway as does an ordinary freight or passenger railroad company by gift, transfer for consideration, or condemnation as to land over which it runs its tracks. A street car and a pedestrian have equal rights of the same kind to the concurrent use of the city streets. Bremer v. Railway Co., 107 Minn. 326 (120 N. W. 382, 21 L. R. A. [N. S.] 887), and cases there cited. “We contend secondly that it is not contributory negligence as a matter of law for a discharged passenger to attempt to cross a parallel track when he has looked and his view is obstructed by the projecting back of a retreating car, and when it is conceded the motorman was propelling the car by which he was struck at a reckless speed, and did not give the accustomed signals. “We contend thirdly that upon the following conceded facts: (1) The car striking plaintiff was running at excessive speed, to wit, 30 miles per hour; (2) no warning or signals were given to acquaint plaintiff of the on-coming car; (3) the car had such impetus that it went over 200 feet after striking the plaintiff before it could be stopped; (4) the plaintiff waited until the car he had left had gone north about 30 feet, and looked both ways before attempting to cross the parallel tracks; (5) the plaintiff was struck before he reached the westerly tracks, that is, while he was between the tracks — it was error for the trial court to direct a verdict for the defendant.” It is not conceded that the motorman was propelling the car at a reckless speed and did not give customary signals, 'but there was testimony tending to prove, as I have shown, a considerable rate of speed, and that no signals were given. There are, too, many important facts which were testified to, not embraced in the state ment made by the plaintiff. At the point where plaintiff alighted and for a considerable distance in each direction Washington street is 100 feet wide, and 40 feet of the width are paved. Plaintiff was 30 years old, in health, with unimpaired hearing and vision. He was reasonably familiar with the surroundings, knew of the double tracks and the use which was constantly made of them. There were neither vehicles nor people interfering with his progress nor demanding his attention. Except as the car from which he alighted interfered with observation, the view to the north was unobstructed. He could have seen a car 1,700 feet away. It follows necessarily that he did not look for an approaching car at all, or, if he looked, it was from a point where his view was obstructed by the car from which he alighted. Whatever the legal consequences may be, what plaintiff did not do is put beyond question by the undisputed physical facts. He did not look to the north for an approaching car from a place where his view was for any considerable distance unobstructed by the north-bound car from which he alighted. If he had done so, he would have seen the approaching car. In the line of his progress to the west, and while he was in a place of safety, he would have seen the approaching car if he had looked for it. The case must be considered as though plaintiff had testified that, if he had looked from the space between the rails, and while he was in a place of safety, he could and would have seen the on-coming car, and did not look. Under the circumstances, what did ordinary care for his personal safety demand of him? That passengers alighting from street cars often pass to the rear of the cars and cross the street is a circumstance, a fact, affecting the conduct of those using the street with vehicles. The view of persons alighting from the car and the view of drivers of vehicles approaching from the direction in which the car is moving are alike interfered with for a time by the standing or moving car. Drivers of street cars, traveling in the same street, in opposite directions, on parallel lines of track, cannot, in prudence, ignore the fact that they are approaching a car from which passengers are alighting. But the duties arising from the circumstances are reciprocal. The alighting passenger, desiring to cross the street, owes the duty to exercise reasonable vigilance for his own safety. He knows that an approaching car cannot turn out for him; that it is heavy and cannot be instantly stopped. He knows that until he is in a position to see an on-coming car he cannot be observed by its driver. He can in an instant put.himself in a position where the sharpest lookout and most careful management will not save him. In my opinion, the case is ruled by Clark v. Railway, 168 Mich. 457 (134 N. W. 463). The judgment is affirmed. Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.	[ -32, -3, 42, -16, -20, -41, 38, -26, -5, 31, -9, -2, -15, 5, 56, -29, 11, -17, -24, 17, -23, -34, -1, -25, -21, -24, 19, -33, 15, 28, 70, 2, -31, -8, 8, 39, 18, -3, 42, 11, 59, 9, 28, -67, 13, -6, 28, 18, 11, -53, 18, 42, 2, -2, -14, 9, 23, 35, 1, 30, 43, -41, -20, -30, 12, 16, 29, 23, -60, 2, -78, 32, 22, -16, 0, -2, 9, 55, -1, 0, -7, 0, 38, -26, 6, 35, -5, 6, -25, -16, 15, -24, -17, -18, 1, 34, 0, -4, -17, -5, -34, 52, -7, -18, -37, 25, -5, -44, 23, -6, -21, 83, -16, -24, -13, 9, 19, -20, 13, 27, 30, -26, 36, 43, -35, -16, -38, 51, -35, 16, 2, 6, -7, 20, 94, 15, -36, -55, -22, 22, -27, 29, 0, -4, -39, -5, -4, 34, -9, -48, -30, -20, -38, -71, -34, -32, -26, -15, 38, -6, 61, 18, 31, 35, -26, 33, -14, 6, -17, 5, 26, -14, 53, -72, 42, 2, -46, -20, -62, -12, 4, 21, -8, 3, -29, -21, 1, 9, -29, -12, 40, -23, -7, -16, 5, 9, -6, 34, 31, 4, 14, -22, -21, 6, -61, 22, -26, 11, 12, 31, -6, -14, -18, -27, -5, -20, -40, -65, 16, -45, -38, -9, -14, -48, -9, -32, -47, -11, -62, 38, -15, 27, 3, 9, 7, -28, 2, -55, 66, -12, 62, -4, 9, -12, -3, -1, 9, -38, 10, 39, 27, 10, -35, -28, -4, -34, 8, 10, -31, -46, 54, 75, -27, 62, 9, 10, -20, 11, -11, -22, 19, -18, 12, -18, -29, -76, 14, 4, 57, 21, 13, -6, -25, 10, -10, 24, 5, 55, 0, 5, 3, -67, -20, 49, 49, 23, 41, 26, -30, -44, 17, -24, 2, 16, 67, 13, -23, 43, -18, 13, -19, -43, -11, 8, 53, -4, -2, -14, 78, -32, -46, 30, -14, -26, 12, 12, 31, -26, 17, -36, 15, 42, 38, 48, -3, -29, -25, 4, 6, -15, 5, 21, 15, -32, 10, 37, 34, 7, -19, -11, 0, 9, 34, -40, -13, -28, 24, -63, -1, 9, 15, -2, 20, -16, -10, -22, -2, 27, -16, 45, 17, -55, -15, -15, -12, -37, 57, 23, -41, 78, -38, -29, 27, -52, 13, 11, -40, -33, -13, 37, -36, -15, 43, 24, 0, -5, -10, 60, -38, 28, -26, 3, 30, -17, 10, -21, 49, -9, -31, 33, -24, -4, 74, 22, -3, -9, 18, -16, -6, -38, 20, 3, 19, -4, 2, 20, 0, -38, -12, -34, 28, -11, 40, -29, -38, 10, 7, -15, -25, -32, -61, 24, 19, 22, -21, -8, -2, -12, 15, -44, 34, 14, 66, 42, -21, 11, 33, 27, 12, 21, 30, -28, -12, 23, -19, -44, -11, -30, 69, -14, -13, 23, -16, 23, -12, -8, 0, 9, -34, -36, -53, -11, 22, -74, -27, -21, 15, -29, 43, 16, 19, 65, 4, -37, -50, -10, -38, 16, -23, 18, -24, -19, -30, -5, 9, -36, 32, -40, 38, -6, -5, 7, 30, 14, 1, 20, -41, -19, 5, -21, 6, -14, -25, -43, -53, -15, -5, -36, -16, -5, 49, 14, 4, 22, -33, -5, 22, -6, -12, -4, -18, -15, -4, -36, -7, -24, 4, 8, 7, 7, 0, 26, 20, -14, 17, -21, -64, -24, 13, -36, 27, 18, 17, 17, 27, 29, -32, 28, -1, -65, -29, 40, 18, -62, -32, 41, 24, 25, -33, -21, -7, 27, -11, -22, -48, -2, 13, -3, -15, 21, -2, 14, 31, 3, 26, 12, -12, 36, 40, 33, -6, -31, -41, 22, 14, 13, -49, -51, 25, -12, 37, -36, -14, 32, -12, 10, -28, -6, 52, -14, -39, 1, 10, -10, -33, -21, 19, 16, -29, -49, -18, 5, -62, -14, -1, 25, 20, 8, 7, 6, 8, 38, 73, -17, 31, -41, -77, 56, -8, 25, -43, 31, 1, -54, 15, 35, -20, 24, -65, -50, -3, 14, -25, 0, -28, -13, -25, -30, 21, -11, 38, -11, -24, 19, 24, -32, 12, 15, -24, 57, 41, 8, 26, -55, 2, -62, -31, 38, 85, -18, 0, -5, 6, 35, -40, 10, 43, -10, 19, -43, 4, -2, 27, 9, -42, -43, -13, 35, 59, -2, 32, 14, -7, -9, 0, 36, 12, 6, -69, 37, 46, 12, -10, -29, 9, 25, 46, -35, -16, -4, -20, -9, 17, 4, -35, 16, 42, -53, -15, -5, -25, -11, 20, 7, -40, 30, 23, -33, -6, 6, -14, 12, 100, -23, 30, -12, 6, 31, -6, -58, 16, -37, 20, 1, -33, 19, 2, -11, 0, -1, 7, -26, -21, -49, -56, 83, 51, -56, 34, 18, -22, -15, -5, 56, -8, 10, -11, 23, -24, 9, 35, -2, -7, -12, 6, 0, -6, 17, 0, -9, -10, -17, -24, 48, -43, 14, 1, 73, 30, -15, -2, -10, -32, 0, 27, 17, 31, 56, -12, -3, -23, 41, 8, -2, -28, 0, 0, -45, 56, 6, 72, -8, 10, 51, -21, 28, 35, 25, -20, -14, 45, 9, -42, 40, 37, -13, 7, 5, 39, -8, -19, 1, 33, -9, -1, 0, 1, -13, 6, 72, -35, -2, -40, -17, -6, 10, -71, -19, -20, -50, 16, 37, -6, -28, 11, -13, -10, -16, 13, -8, 17, -59, 23, 26, -38, -51, -14, -69, 40, 27, 31, -9, 37, -5, -34, -23, -59, 11, 14, 32, -14, 39, 29, -2, -34, 36, 4, -25, -43, 2, 3, 24, 23, 7, 8, 33, -70, 8, 73, -8, -34, 14, 27, 4, -64, 35, -10, 33, 10, 40, -9, -41, -4, -28, 38, -23, 7, -7, 13, 0, -35, -35, -58, 73, -1, -53, -35, 0, 3, 2, 0, 9, -29, 35, 23, 12, 6, -18, -35, -32, -2, -1, 41, 0, 20, -42, 4, -11, -16, -5, -36, -12, 10, -1, -16, 12, -12, -20, -38, -8, 35, 2, 21, 47, -41, -7, -2, 0, -9, 56, -30, 7, -47, 0, -44, -21, 0, 14, 25, -35, 16, -19, 15, 23, 32, -4, -20, 14, -8, 29, -16, 31, 30, 25, 63, 41, -46, -53, -27, -34, 20, 72, -6, -9 ]
Stone, C. J. The bill of complaint herein was filed to reform and correct the description of a certain parcel of land in the village of Holly contained in a deed to the defendants and in the deeds to other predecessors in title as far back as and including a certain deed executed by John Lacey and wife to Frances A. Rumley, bearing date August 21, 1880. It is undisputed that James G. Mitchell’s plat of the village of Holly was dedicated on May 10, 1855, and, when dedicated, Oakland street, which runs east and west through said village, was 100 feet wide. Lots 16 and 17 are located on the north side of Oakland street, and are 110 feet in length north and south by 40 feet wide east-and west, and the strip of land in dispute is said to be 16% feet north and south by 25 feet east and west, toward the rear of these lots. It is also undisputed that on the 27th of September, 1867, by order of the circuit court for the county of Oakland, one rod of both sides of Oakland street was vacated and abandoned by the village for street purposes, and it is claimed thát adjacent lot owners immediately took possession of the abandoned part of the street. Prior to 1880 one John Lacey was the owner of lots 16 and 17, and other lots lying east thereof, of block 1 of said plat, and had been the owner for a number of years. On August 21, 1880, he and his wife executed a deed to Frances A. Rumley. In said deed the description of land was as follows: “Commencing on the south line at the center thereof of lot 16 in block 1, James G. Mitchell’s plat of Holly village; thence east 45 feet; thence north 90 feet; thence west 25 feet; thence north to alley; thence west to a point north, of the place of beginning, thence south to the place of beginning, being on section 33, town 5 north, range 7 east, Michigan.” It is the claim in the complainant’s bill that Mr. Lacey made an error in the starting point of the description of land contained in said deed, that he intended to sell and convey to Mrs. Rumley, and that Mrs. Rumley intended to purchase, and supposed she had purchased, a piece of land which would be properly described by starting at the north boundary of the street, or one rod south of the original lot line, and that the correct description should have been as follows: “Commencing at a point one rod south of south line, at the center thereof of lot No. 16 in block 1 of James G. Mitchell’s plat of Holly village; thence east 45 feet; thence north 90 feet; thence west 25 feet; thence north to the alley; thence west to a^ point north of the place of beginning, thence south to the place of beginning, being on section 33, town 5 north of range 7 east, Michigan.” The bill in its stating part seems to have been filed on the theory that there was a mutual mistake of both parties in the description of the premises conveyed, not only in this deed, but also in the deed of Mrs. Rumley to one James H. Cummings, by James H.' Cummings to James R. Winglemire, and by James R. Winglemire to the defendants, and that a similar mistake occurred in the deed to the complainant of the property lying east of that, which has been above described, contained in a deed by the heir and legatee of said John Lacey to the complainant, which deed bears date July 5, 1910, in that the starting point in all these deeds should have been one rod further south than that given in the several descriptions. These claims and allegations of the complainant are all denied by the answer of the defendants; and, among other things, it is the claim of the defendants that they and their immediate grantor, Winglemire, had been in the possession of the disputed strip of land for many years, cultivating it and claiming to own it, and that the defendants were bona fide purchasers under a warranty deed from said Winglemire bearing date November 13, 1909, the consideration of which deed was $1,000; that they purchased and went into possession of said property without any notice or claim that the complainant or her predecessors had or made any claim to the strip of land in dispute. It will be noted that the vital question in the case was whether there was a mutual mistake in the point ending at 90 feet north of the starting point, at which the boundary or description runs west 25 feet. Whether that point was correctly located there, or should have been 161^ feet further south, is the important question in the case. It is undisputed that at the time John Lacey and wife executed the deed to Mrs. Rumley he had a large barn located next to the alley in the northwest portion of his remaining property, which was built upon a stone foundation, and that there was a shed some 10 or 11 feet wide upon the south side of the barn extending the whole width of the same east and west. That shed seems to have disappeared some years ago, and long before the defendants made their purchase. If the defendants’ claim is correct, the southwest corner of this barn encroached upon the disputed parcel for a distance of about 5 feet north and south and 2 feet east and west in the northeast corner of the disputed parcel. At the hearing the facts were a good deal in dispute. After reading the entire record, we are impressed with the wisdom of the rule frequently announced by this court and distinctly stated in Kinyon v. Cunningham, 146 Mich. 430 (109 N. W. 675), viz.: “To justify the reformation of a written contract upon the ground of mistake in drafting the same, the alleged mistake must be proved by clear and satisfactory evidence, and the mistake must have been mutual and common to both parties to the contract.” Mrs. Rumley was examined as a witness for the complainant at the hearing. Much of her testimony is vague, indefinite, and unsatisfactory. We think it does appear that it was her understanding at the time that the south line of the property which she was purchasing was the street where the sidewalk was, but how far north she was to go from there before turning west in her description she was entirely “at sea.” She was also quite positive that she did not purchase any part of the land occupied by Lacey’s barn; and, while she testified as to the intention of Mr. Lacey, it is very evident that such testimony was a mere conclusion of hers. On cross-examination she testified as follows: “I just bought the Lacey land described in my deed. I did not buy any other- land. I simply bought what was described in the deed. In the deed we have referred to I bought all of the land described in the deed and took possession. “Q. And occupied it up to the time you sold it to Mr. Cummings? (Objection by complainant’s counsel.) “The Court: Your description in the deed does not cover, apparently at least, the claims of 16% feet said to be vacated for a street-while you say you bought just what is described. You ought to know what the description is before you answer the question. “A. Yes; but I suppose the description in my deed, would show. “The Court: That is disputed. It is clear the deed does not show. “A. Well, I bought from what I call the lot line. I meant that I bought from the lot line.” Whereupon the description in the deed was read to her, and the question was then asked: “Q. That is the land you purchased from Mr. Lacey, is it not? “The Court: Now, if you answer that question as it is, it'conflicts with your direct testimony in this case, if you don’t know what the description means. “A. I don’t know. I couldn’t tell the number of feet or anything about it. “The Court: Did you ever study that description to know what it is? “A. No; I never did know anything about it. I suppose I deeded this same property to Cummings that I received from Lacey.” We have referred to this testimony of this principal witness in the case upon the question of mistake to show its unsatisfactory character. Even if we were to hold that the evidence was sufficient to show a mutual mistake made by Mr. Lacey and Mrs. Rumley, we are then confronted with the question whether these defendants, having purchased and paid for this property and entered into possession of it, as we think the evidence fairly shows they did, under their deed above alluded to, should be disturbed in such possession. It has been held as a general rule that a deed will not be reformed against a bona fide purchaser for value without notice, assuming the grantor to be lawfully entitled to convey the very quantity denoted by the description in his deed. We gather from the evidence that there was nothing in the whole transaction even to put these defendants upon inquiry as to any right or claim of the complainant or her grantors in this small parcel of land. It is too well settled to need citation of. authority that no reformation of a deed can be made affecting the property after it has gone into the hands of a bona fide purchaser for value without notice. Dart v. Barbour, 32 Mich. 267; Toll v. Davenport, 74 Mich. 386, 397 (42 N. W. 63); Culbertson v. Witbeck Co., 92 Mich. 469 (52 N. W. 993). A bona fide innocent purchaser for value and without notice is the peculiar favorite of a court of equity, and the authorities unite on the proposition that a mistake in a written instrument will not be corrected against such a party. 34 Cyc. pp. 956, 957, and' cases cited. The most that can be said against the defense in this case is that, when the defendants purchased the property, they were informed by their grantor that the Lacey barn projected upon the northeast portion of their premises to the extent of 2 feet in width east and west and about 5 feet in length north and south, and some manure had been from time to time thrown out from the southwest corner of said barn upon their premises. This would be notice to them of any claim which the complainant or her grantor had in that part of the premises so occupied and used. This, however, constituted but a very small portion of the piece of land in dispute, and no resort to equity was necessary' to adjust those rights. It is a significant fact that in the deed to the complainant, after following the metes and bounds contained in the other deeds, there is a specific description of the vacated property as follows: “Also the land adjacent to above grant on south, released from Oakland street, by an order of the circuit court in [equity] chancery on the north side of said street; all of said lands are in block 1, James G. Mitchell’s plat of Holly, on section 33 town 5 north, range 7 east” —thus making a specific conveyance of the rod in question. There are many objections raised by defendants’ counsel to the right of complainant to any relief in the case, which we do not discuss or rule upon, because we are convinced that, taking the entire record, the complainant has not sustained the burden cast upon her to show that a mutual mistake was made in the deeds referred to, and especially that no such case has been made out against these defendants which should disturb their rights in this property. In our opinion, the bill of complaint should be dismissed, without prejudice to the rights of the parties to resort to a court of law to adjust their rights, and the decree of the court below is reversed, with costs to said defendants. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.	[ -7, 2, 52, -39, -11, 8, 38, -13, 35, 19, 22, -11, -13, -3, 14, -3, -19, -63, -1, -19, -3, -70, 4, -35, -3, 4, 35, 28, -4, -3, -7, 23, -32, 32, 75, 21, 67, -13, 0, -6, -67, -40, 43, -51, 27, 38, 4, -16, -5, -59, -40, -45, -3, 15, 7, -26, -66, -30, -3, -15, -26, -3, -16, -51, -29, -8, 27, 12, 46, -40, -6, 14, 16, -91, 21, 34, -18, -25, -63, 29, -48, -10, 47, 21, -14, -13, 23, -11, -22, -19, 0, -3, 6, 75, 5, 22, -6, -8, 1, -6, 19, 47, 6, 9, 30, -48, -24, -46, -3, -36, -13, -41, 24, -23, -3, -14, 27, -20, 64, 0, 21, -15, 16, -27, -63, 46, -26, 4, -20, -18, 9, -32, 17, -13, -12, -14, -10, -51, 82, 21, 18, 0, -46, -27, 8, -34, -45, -19, -13, -66, -16, 31, -14, 4, -10, 24, 53, -10, 26, -14, 17, -28, 40, -63, -50, -5, 36, -27, -9, 61, 30, -27, -31, 11, -39, -32, 24, 37, -15, 10, 21, 1, 12, -34, -18, -31, -38, 15, -31, 18, 61, 15, 7, -87, 0, 5, -5, -11, -46, -33, -24, -48, 30, -61, -23, -6, 25, 9, 22, 48, -15, -49, -51, 40, 12, -12, 52, -42, 64, -16, 9, 18, 14, 36, -13, 3, 15, -23, -9, -10, -14, -23, -47, 2, -52, 10, 5, -3, -15, -11, -9, 4, -24, -11, -9, 87, 26, -8, 26, 31, -22, -13, -38, 2, -12, -8, 19, 11, 0, -10, -23, 25, 14, 44, -21, 10, -17, 31, -11, 72, -34, 3, 19, 31, -12, -6, 10, -67, 24, 48, -16, -32, 56, 31, 30, 28, -18, 49, 16, 2, -12, 0, -24, -11, -21, 28, 12, -48, 13, -32, -29, 10, 13, -49, -6, -7, 14, 0, 68, 16, -23, 14, 37, -31, 13, -1, 22, 22, 30, -6, 42, 24, -10, 13, 8, 60, 32, 34, -18, 24, 16, -6, 24, 40, 49, 35, 24, -60, 13, -11, 71, 35, 31, 31, 13, 9, -25, -11, -15, -13, -14, -20, -42, 37, -25, 13, 1, 8, -9, 58, 45, 56, 17, -27, 6, -20, -42, -42, -9, 35, -32, 21, -42, 72, 19, -11, -22, 6, 29, 75, 60, 21, 22, 65, 78, -61, -27, -50, -29, -19, -15, 25, -26, 12, 29, -6, 12, -8, -47, -35, 0, 47, -17, 74, -23, 33, -14, 60, 32, 24, 31, -40, 20, -37, 17, 15, -4, -68, 18, -7, 56, 41, 10, -53, 3, -47, 29, -5, 25, -6, -35, 17, 14, 10, 42, -9, -42, -2, -32, -1, -16, 32, -35, 30, -45, -31, -20, 61, 43, -55, -1, 34, -49, -3, 24, -2, 56, 19, 26, 12, 60, -22, 0, 25, -29, -12, 3, -13, -46, 44, -52, 15, -23, 16, 21, -8, 67, 9, -16, -21, 50, 17, -25, -7, -11, -42, -2, 39, 3, 17, 41, -33, 1, 36, 67, -12, -43, -74, 15, 37, 0, 24, -17, 9, -33, 5, 3, 40, 64, 62, -50, -36, 2, -6, 4, 33, 35, -47, 29, -13, -32, -17, -25, -29, 10, 14, 59, -20, 11, 40, -22, 6, -23, -14, -2, -26, -53, 79, 16, 5, 25, 0, 22, 34, -20, 12, -15, -48, -25, 2, -39, 0, -24, -42, -34, 30, -23, -29, 36, 5, -19, 1, 18, -54, 50, -12, 69, -44, 25, 37, -26, -13, 39, -35, 4, 14, -13, 28, 24, 18, -46, -49, 15, 5, 32, 1, 0, 55, -43, 58, -19, 4, -57, -22, 5, -6, -43, 29, 51, -22, -8, -76, -6, 0, -25, 15, -16, 11, 14, -10, -30, -30, 4, 38, -4, 40, 2, -28, 14, 35, -38, 0, 9, 20, 23, -23, 13, 29, -24, 4, -36, 2, 26, 23, 40, -10, 9, 25, 31, -21, 10, -74, -66, 9, -35, 31, -45, 45, -6, -7, -65, -1, 22, -25, 16, -24, 18, -28, 24, 65, 53, -24, 1, -23, -16, -30, 29, -10, 36, 6, -33, -48, -13, -10, -53, -34, 4, 55, 65, -19, 29, 25, -3, 15, -9, -21, -25, 1, -5, 36, 33, -7, 17, 7, -4, 11, 25, -19, 7, 29, 0, 81, 7, 24, -14, 67, 37, -1, -26, -54, 25, -10, 9, -22, 2, 40, -5, 28, 2, 38, -24, -16, -43, -40, -44, -10, -12, -40, -26, 10, 13, 39, -13, -39, -48, -50, -25, 22, -2, -10, 5, -80, -75, 2, 23, -12, 42, 8, -53, -8, 7, 7, -50, 26, 45, -51, -53, 41, -45, -26, 14, 9, -15, -54, -16, 18, -2, 9, 2, 12, -34, 39, -17, 1, -21, -24, -21, -9, 18, -17, -3, -26, 4, -28, -41, 30, 19, -59, 28, -10, -31, -26, -34, -16, -17, -14, -16, -46, 25, -3, 31, 28, -43, 31, -2, 5, -93, 13, -17, -2, 6, -9, -25, -71, -13, 38, 41, 33, 16, 14, -2, -2, 23, -31, 76, -1, 14, 5, -1, 10, 32, -2, 32, 7, -14, -36, 6, -40, -12, 28, -30, -14, -10, 15, 12, -23, 7, -1, 44, -18, -38, 16, 17, 0, -46, -2, 22, -24, -18, 27, 32, -42, -22, -82, -27, 34, 54, -32, 35, 32, -7, -57, -29, 23, 19, -16, -24, -61, -14, -6, 2, -17, 31, -54, 9, 21, -1, 49, 41, 28, -1, 44, -1, 8, -34, -15, -31, -11, -39, -36, -18, 27, 3, 5, -42, -49, 2, 0, 24, -9, -26, -91, -11, -49, -49, -11, 29, 9, -68, 25, 20, -51, 25, 20, -40, 15, 54, -18, -43, 42, -34, 42, -37, 16, 20, 26, 46, -39, -2, 46, 24, 65, 45, 5, -11, -52, 3, 14, 24, 0, -4, -12, 72, 42, -43, 13, -72, -3, -24, -59, 37, 11, 8, -30, -1, 0, -15, 36, 32, -22, -35, -4, 6, 48, 15, 10, 12, 41, 32, 38, 9, -52, 21, 46, 15, -2, -10, -13, -3, -18, -2, -19, -31, -33, -6, -31, -42, 21, -23, -25, 54, 3, 21, 9, 31, -45, 31, 18, 6, -8, -51, -1, 31, 63, 4, 59, -1, -6, -37, 0, 51, -21, -1, 25 ]
O’Hara, J. Defendant appeals of right from a judgment of $2,900 awarded plaintiff for breach of an employment contract. The contract was for 9-1/2 months of teaching in the defendant school district for $5,800 payable at two-week intervals for the 1967-1968 school year. Her authorization to teach was a 90-day substitute teacher permit obtained for her by the school district. Her services were terminated at the end of the first semester. There is no claim that plaintiff’s services were in any manner unsatisfactory. Rather, it is conceded that she was a “competent and effective” teacher. She was replaced because she was not “certified” and a properly certified teacher became available for her position in January of 1968. It is the defense of the school district basically that its superintendent could not apply for a continuation of her temporary permit because the application included an oath-supported statement that no properly certified teacher was then available. The contract plaintiff and defendant executed contained the following provision: “This contract shall terminate if the certificate shall expire by limitation and shall not immediately be renewed or if it shall be suspended or revoked by proper legal authority.” Plaintiff never had a “certificate”. The proviso has no effect on her rights under the contract. The defense may be legally viable as applied to a teacher protected by the teacher tenure act but it is inapplicable here. The irreducible fact is defendant district ill-advisedly executed a contract for the whole school year with a teacher who at the time had a teaching permit for only 90 school days. The district was well aware of this fact. There was no concealment or misrepresentation on the part of the plaintiff.. The penalty for eihployment of an unqualified teacher when one properly certified is available is loss of a certain amount of financial state aid. The defendant district suffered this sanction in the past. It is understandable perhaps why it chose to terminate plaintiff’s services when it did. The district placed itself in its untenable position. Lee B. Lonsberry, the Supervisor of Teachers Certification for the Michigan Department of Education, was called as a witness for defendant district. He testified in part as follows: “Q. Have you had an opportunity in your position to advise [school] boards as to whether they should sign a contract with a [temporary] permit teacher? [Bracketed material added for clarification.] “A. I have advised during the clinics I referred to earlier, repeatedly throughout the state that I did not think it was good policy to issue contracts to permit holders. “Q. Do you think that the nature of the contract here for one year in the form of a tenure contract is good policy? “A. I do not.” We hold that where a school board undertakes as here to contract with an applicant who has only a temporary permit, which is effective for a period shorter than the period for which the contract assures employment, the hoard (district) cannot he heard later to complain that the permit expired and was not renewed and, therefore, that the hoard is relieved of its contractual liability to the teacher who, in all other respects, was blameless. The judgment below is affirmed. Costs to appellee. All concurred. MOLA § 38.71 et seq. (Stat Ann 1968 Eev § 15.1971 et seq.).	[ 32, -37, -46, 6, 39, -4, 0, -6, -25, 22, 45, -12, 49, -18, 24, -26, 23, 22, -24, -32, -69, 7, 7, 2, 6, -21, 29, -39, -26, -8, -13, -12, -9, -29, -9, 0, 47, 1, 16, 7, 16, -9, -45, -31, 0, -15, 12, 13, 20, 13, -21, 42, -19, 15, 38, 1, -26, -17, -10, -3, -62, 48, 24, -34, -57, -31, 24, 69, -15, -12, -24, 45, 21, -47, -37, -8, -23, -13, 27, 43, 31, -18, 45, -71, 38, 18, 19, -19, -19, 12, -23, 32, -36, -1, -53, 18, -21, 2, 52, -2, 21, 0, -4, 4, -29, -32, -25, 0, -50, 30, 10, 28, 55, -43, -26, 22, 2, 17, 47, -8, 31, 17, -16, -39, 67, -19, -22, 1, 14, -24, 13, 13, -45, 7, 26, 28, 29, -12, 90, -23, -39, 27, -22, -47, -5, -39, -10, -25, -55, -41, -57, -29, 35, 25, -15, -15, 62, -12, -10, -59, 66, -15, -9, 21, -19, -78, 14, 7, 47, -20, 78, 9, 3, -41, 2, -22, 60, 24, 31, 18, -46, -28, 11, -45, 62, -35, -51, -35, 38, 63, -8, -18, -6, -42, -1, 38, 5, 42, -45, 11, -9, -5, 6, 38, 6, 7, -16, -44, -6, 47, -24, -21, 13, -27, -57, -28, -11, 66, 7, 21, 13, -26, 5, 15, -10, -82, -31, 19, 10, -19, 32, 43, 13, 11, -9, 14, -22, 57, 80, -26, 19, -6, -27, -1, -34, -68, -45, -18, 31, 16, -27, 2, 23, 10, -30, 19, -32, 34, -49, -28, -5, 44, 6, -9, -11, -18, -6, 83, 3, -40, -1, -20, 11, 19, 31, -24, -57, -28, 7, -2, 8, 74, -50, 48, -41, 39, 12, 29, 4, -38, -5, -32, -25, 2, 30, -37, 25, 36, -28, 35, 9, -34, 72, 31, -10, 28, -27, -31, 40, -19, -42, 20, 21, 10, 26, -34, -50, -88, -25, -15, 18, 10, -3, 13, -2, -43, 19, 0, -21, -36, 41, -33, -40, 14, 58, -31, -23, -18, 6, -21, 55, 5, 37, 5, 37, 17, -43, 7, -14, -33, 32, -2, 17, 27, 8, 6, 20, -1, 14, -19, -33, -5, -17, -58, -9, 46, -4, 24, 51, 1, 30, -55, 5, 2, -8, -24, 19, -8, -37, 34, -39, 0, -43, 40, -6, -14, 26, -14, 24, -70, -44, -9, -9, -33, 28, -2, 49, 36, -27, 8, -1, -4, 25, -10, -1, -64, -60, -44, -53, 46, -13, 2, -8, -34, -17, -32, 68, -56, 37, 4, 39, -27, 2, 42, -7, -46, -39, 8, 24, -3, 0, 28, 46, -12, -33, -38, -14, -23, -39, -5, -1, 12, -80, -3, 19, 67, 21, 24, -39, 9, 38, 24, 14, 47, 5, -22, 2, 14, 29, 47, -31, -33, 45, 4, 10, -42, -34, 19, -15, -3, -7, -6, 6, 76, 20, -23, -19, 11, -23, 39, 38, 13, 51, -46, -19, 15, 36, -37, -49, 10, 11, -4, -66, 42, -6, 20, 47, -37, -8, 67, -30, -27, 48, -38, -34, -52, 0, -34, 9, -45, -29, 9, 10, 49, 1, -72, -4, 8, 39, 27, -15, 24, -40, -30, 26, 27, -44, 1, -1, 29, 36, 99, 88, -3, 28, 27, -18, -2, 2, -23, -42, 45, -32, 64, 50, -39, -55, -33, 25, 37, 56, -31, -12, -9, -72, 14, 32, 16, 38, -40, -38, 38, 6, 29, 8, -5, -43, 32, 2, 44, 8, -45, 13, -11, -33, -12, 51, 8, 14, -4, 35, 34, -13, -17, -35, -15, 30, 8, 38, -17, 31, 19, -7, -30, 5, 5, 39, 10, 24, 27, 4, 2, -43, 18, -1, -17, -44, 35, 4, -41, -8, -10, 9, -80, -6, -53, 37, 77, 33, 36, -13, 23, 40, 21, -26, 80, 36, -46, 35, -49, 31, 4, -25, -15, -20, -21, 11, -3, -16, 3, 31, -26, -20, 40, -33, 17, -20, 17, 17, -52, -18, -14, 42, -56, -5, -31, -41, -29, 36, -40, -35, -17, 3, -4, -50, 4, -39, 16, 0, -39, -24, -31, 40, -30, 12, -21, 51, 12, 2, 3, 21, 44, -21, 4, -25, 16, -31, 15, -20, -21, 40, 27, 17, -20, -15, -92, 29, 38, 1, 24, -28, 50, -36, 3, -28, 40, -26, -6, 27, 73, -28, 26, -26, 1, -14, 7, 13, 16, -68, 24, 7, 28, -12, 38, 9, 33, 46, -36, 11, -45, 36, 56, -42, -22, -15, 6, 42, -5, 8, -41, 22, 0, -20, -18, -7, -10, 30, -31, -65, -61, -7, -76, 30, -15, -51, -19, -10, 4, -28, 40, -32, 17, -19, -6, 31, 18, -4, -46, 15, -16, 30, 7, 10, 0, 57, 10, 48, -24, -32, -45, 16, 26, 0, -5, 20, -56, -20, 1, 4, 16, 10, 8, 23, -4, -13, 33, 2, 41, -5, -40, 1, -10, 7, 40, -17, -2, -51, -26, -10, -26, 16, 60, -40, 35, -33, 28, -31, 2, -38, 23, 13, -9, -24, 7, -12, 7, -4, -32, -44, 6, 2, -22, 61, -14, 0, 3, -57, 5, 21, 15, -8, 1, -1, -38, -2, 17, -11, -3, 13, -56, -20, 10, 6, 1, 34, -7, 21, -34, 34, 27, 1, 1, -48, 26, 31, 82, 11, 22, 67, 13, 28, -14, 43, 23, -16, 35, 0, -20, 22, -2, 20, 6, 9, -30, 0, -15, -2, -23, 18, 23, 42, 72, -7, -23, -17, 4, 21, 30, 20, -23, 25, -2, -31, -50, -19, 28, 48, -58, -3, 22, -1, 30, -13, -28, 41, 17, -40, -16, 29, -24, -6, -52, -35, -48, 30, -1, -15, 15, -44, -1, -1, 14, -10, 56, 43, 22, 63, -27, -7, -10, -40, -22, -6, -22, -5, 44, -15, 34, 13, -3, -37, 58, 40, 14, -107, 11, -35, 21, -13, -22, -36, 56, 34, -7, 30, -4, 36, -8, -31, 16, 12, 9, 21, 20, -13, -17, -6, 20, -5, -12, -22, -3, -39, 29, 29, -2, 9, -34, -76, -75, 14, -22, 40, -31, -25, 5, -18, -30, 55, 23, 28, 30, -43, 19, 30, -3, 59, -36, 12, 44, 22, -7, 12, -34, 23, 21, -10, -25, -12, 5, 52, 42, 29, 26 ]
Per Curiam. The information charged the defendant with possession of a burglary tool, specifically a pressure puller commonly known as an “old man.” MCLA § 750.116 (Stat Ann 1962 Rev § 28.311). He pled guilty to attempted possession of a burglary tool and now appeals his conviction and from a denial of his motion to set aside his guilty plea. The motion to set aside plea asserted that: (1) the tool was specially designed to open a telephone coin box, that opening a telephone coin box is a misdemeanor (MCLA § 750.113 [Stat Ann 1962 Rev § 28.308]) and, therefore, the court was without jurisdiction to entertain a plea of guilty in respect to the charged offense because the only possible crime that could have been committed with it was that misdemeanor; (2) the defendant was arrested March 5, 1968, but did not plead guilty until April 22, 1969 and he was denied a speedy trial. The defendant’s first question, although stated in terms of jurisdiction, does not, in our opinion, raise a jurisdictional issue. The defendant pled guilty to a crime known to the laws of this State. The court had jurisdiction. Upon his plea the defendant was convicted. He does not assert that his plea was coerced or other wise involuntary. It does not appear whether the defendant sought to offer testimony or other evidence in support of the claims and factual assertions set out in his motion to set aside guilty plea and supporting arguments; in any event, the presented record does not support those factual assertions. A motion to set aside guilty plea is addressed to the trial judge’s discretion. We have no basis for concluding that the trial judge abused his discretion in refusing to set aside the defendant’s plea of guilty. Affirmed.	[ 43, 0, -35, 10, -59, 13, -49, 6, -4, 61, 51, -2, -29, -46, -7, -27, 20, 24, 35, 1, 2, -22, 38, 33, -14, -67, 24, 48, 6, 33, 41, 8, 20, -39, 2, -35, 18, -9, 21, 34, -27, -15, 27, 7, -25, 7, -52, 20, 4, -35, 59, -19, 5, 22, 33, 2, -10, 0, 25, 44, 13, 10, -43, -40, -25, 18, -26, -17, -12, -33, 26, -36, 20, 3, 18, 0, -15, 94, -2, 29, 24, -15, 21, -24, 55, 0, -10, -34, -41, -67, 23, 6, -23, 2, 22, -18, 3, 7, 25, -37, -25, -32, -47, -45, 75, -13, -41, -39, -26, 14, 7, -6, -6, -8, -14, -28, -33, 3, -10, -35, -23, 7, 16, 23, 0, 17, -22, -50, 22, 7, -20, 54, 17, -72, 47, 46, -8, 11, 32, 19, -8, 6, 50, 16, 36, -49, -38, 51, 18, 72, 19, 30, -41, 1, -2, 3, -39, -18, -27, 0, -54, 34, -6, 11, 21, -38, -32, 43, 0, -5, -6, 4, 31, 35, 39, -47, -35, 22, -14, 5, -30, -2, 16, 9, 13, 14, 25, 27, -34, -7, 12, 24, 0, -2, 51, -8, -18, 5, 42, -13, -32, -20, 31, 7, 11, -36, 12, -9, -21, -27, -40, -4, 1, -23, -61, -34, 25, -35, 5, 49, -30, 39, 5, 0, -39, 13, 12, 27, -4, 23, 3, 21, 9, 30, 2, -1, 27, -48, 32, 45, -20, -1, 25, -12, 33, 4, -14, -1, -51, -68, -44, 21, -1, 40, -6, -6, 9, -26, -53, -12, -17, 9, 2, 23, -26, 20, 13, -41, -47, -6, 17, 17, 17, 17, 18, 19, -81, 37, -1, -78, 30, 12, 22, 15, -43, 35, -5, 7, 42, 6, 37, -22, -43, 13, 14, 67, 18, -40, -44, -23, 16, 7, 24, -48, 32, -26, 55, 9, -24, 17, 37, -13, 9, 54, 25, -1, 17, -3, 13, -11, -83, -13, -20, -23, 1, -29, 31, -9, 63, -12, 12, 9, 15, -18, -42, 4, -23, -10, -36, 37, -18, -26, -15, -44, 17, 4, -34, 30, -38, -10, 25, -1, 2, -9, 54, -14, -22, -23, 32, -26, 25, -21, -9, -17, 36, -44, 6, -18, -5, 28, -40, -58, -32, -8, -16, 2, -1, 11, 1, -8, 21, -16, 32, -20, 0, 35, 2, -41, 14, 19, -2, -12, 12, -52, 62, 17, 13, -38, 30, -4, -32, -16, 25, 0, -42, 11, 7, 56, -39, -16, -10, 13, 68, 99, -31, 8, 4, 28, 24, 13, -36, -14, -1, -38, 5, -4, -41, -7, -4, -54, 52, 0, 0, -39, 14, 81, -49, 17, 24, 11, -47, -48, 14, 2, 55, 27, -44, -25, 35, -3, 14, 61, -29, -30, 18, 54, 26, 0, 40, -17, 20, 14, -36, 1, 36, -47, -49, -27, 46, -10, 12, 25, -11, -2, -12, 47, -11, 45, 7, -22, -14, 22, -2, -13, -16, -8, -38, -42, 43, 5, -2, -12, 23, -27, 5, 28, -35, -18, -2, 69, -16, 1, -6, 18, 67, -7, -13, -8, 41, 5, -36, 29, -10, 19, 7, -9, 25, -2, -45, 48, -22, -51, 0, -27, -19, 12, -80, -31, -20, 18, 37, -49, -5, -30, 0, 22, -19, -53, 13, -1, 26, 49, 39, 51, -30, -5, -1, -14, -24, 5, -24, 26, 17, -6, -4, -22, -37, 19, -40, -42, 28, 0, 61, 35, -29, 14, -26, -39, 32, 1, -18, 21, -19, 37, 10, 14, 15, 3, -3, 3, 34, 77, -28, -30, -26, -19, -53, -33, -6, -62, -16, 32, 20, -53, 1, -11, -94, -5, -5, -4, -3, 11, -26, -11, 79, -18, 27, 26, -45, -19, 88, 8, -2, -29, -17, 10, 0, -28, -67, 10, 3, 5, -28, 8, -15, -54, -44, 0, -46, -20, -1, -29, 0, 13, -17, 14, -24, 18, -35, -4, -39, 38, -13, -10, -16, 16, 29, -5, 3, -9, -4, 26, 3, 31, 63, -20, -60, 12, 43, -33, 1, -4, -12, -23, 16, 72, -14, -11, 0, 3, -25, -30, 0, 12, -16, -15, -50, -30, 45, -50, -28, -25, 15, -52, -5, -20, 9, 18, 8, 27, -2, 5, 64, 9, 32, 15, 31, 38, 4, -2, 12, 72, 23, 1, -2, -24, 32, -18, -19, 25, -63, 4, -14, 0, 22, -39, -20, -48, -55, 14, 11, -48, 28, 19, -2, 25, 45, 11, 15, -49, 4, -50, -1, -22, 25, 18, -45, -2, 19, 28, -33, 9, -18, -1, 15, 22, 39, -48, -8, 0, 55, -18, 14, 17, -1, 27, 7, 21, -27, -49, -11, 47, -1, -47, -14, 26, -21, -40, 29, 33, -10, -54, 21, 37, -32, 2, -41, -44, 72, 27, 5, 45, 9, 18, -3, -16, -42, -26, 27, -3, 50, 0, -63, 9, 13, -16, -29, -15, -10, 36, 26, 1, 42, 9, -33, -12, 31, 15, 8, 31, 19, -8, -7, -12, -4, -48, 22, -1, 19, -25, 23, 24, -58, -47, -7, -9, 38, -46, 20, 19, 14, -30, 26, 10, -5, 7, 29, 23, -39, 47, -18, -19, 42, 8, 22, 2, -17, -53, 7, 62, 39, -4, -54, 4, 23, -18, 27, 44, -2, -45, -8, 54, -15, -26, -22, -2, -24, -3, 60, -11, 15, 21, 109, 21, 18, 22, -64, 20, -42, -11, -21, 0, 32, 17, -2, -41, -39, -44, -30, 45, 7, 36, -33, 19, 29, -5, 6, -26, -15, -17, 54, 6, -15, 8, 56, -7, 14, 16, -47, -12, 19, -15, 11, -16, 33, -39, -34, 6, -15, -14, -47, 60, 55, 29, 38, -30, 6, -14, -49, 21, 10, -22, 14, -16, 30, -9, -32, -28, -4, 7, -44, -13, -31, 5, -30, 28, -48, -13, 19, -5, -28, -19, -2, -52, 39, 3, 28, -28, 13, -1, -47, 23, 9, -22, 68, 67, 16, -37, -43, 0, 6, -35, 2, -13, 66, 4, 0, 19, -20, 24, 18, 3, 20, -20, 56, 17, 7, 39, -53, -10, 50, -45, -16, 41, -30, 37, 17, -51, -17, -15, -37, -13, 44, -21, 0, -2, 20, -19, -12, -2, 8, -6, 14, -20, -18, 7, -17, 6, -34, 16, -39, -7, -78, 67 ]
O’Hara, J. In the narrow — and sometimes dimly-lighted — corridor of permissible judicial review of findings of fact of the Appeal Board of the Michigan Employment Security Commission, two familiar adversaries worthy of each other’s rhetoric meet again. General Motors Corporation is the appellant. Nominally, Horace Bruff and 5,815 other GM employees are the appellees. The UAW-CIO, by its attorneys, have appeared in their behalf throughout the proceedings. The question presented is the entitlement of the claimants to employment security benefits. Appel lant GM2 contends they are not. The Union urges that they are. The controlling section of the statute in effect at the time the claims were allowed was § 29 of PA 1936 (Ex Sess), No 1, as amended by PA 1955, No 281 (CLS 1961, § 421.29 [Stat Ann 1960 Rev § 17.531]), which read in pertinent part: “(1) An individual shall be disqualified for benefits: “(b) For any week with respect to which his total or partial unemployment is due to a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed: Provided, however, That no individual shall be disqualified under this section if he shall establish that he is not directly involved in such dispute. For the purpose of this section, no individual shall be deemed to be directly involved in a labor dispute unless it is established: (1) That, at the time or in the course of a labor dispute in the establishment in which he was then employed, he shall in concert with 1 or more other employees have voluntarily stopped working other than at the direction of his employing unit, or (2) That he is participating in or financing or directly interested in the labor dispute which caused the stoppage of work: Provided, however, That the payment of regular union dues shall not be construed as financing a labor dispute within the meaning of this sub-section * * * .” (Emphasis added.) It is essential to point out that the question as here framed cannot arise again because the above-quoted statutory provision was amended by PA 1963, No 226 and again by PA 1965, No 281, effective July 22, 1965. The amendment materially affects the basis for future disqualifications. The cases involve 5,816 claims for unemployment compensation benefits. The unemployment occurred in 11 General Motors plants in Michigan. The periods for which benefits are claimed vary from case to case, but all claims together cover the benefit weeks ending September 16, 1961 through October 7, 1961. During this period, GM and the union were engaged in collective bargaining negotiations which the referee found to have been predominantly local in nature. Six of the 11 plants of the corporation were struck and picketed following the failure of the parties to reach agreement over these local issues —the strike deadline of September 11,1961, had been set by the union’s president, Walter Eeuther. Pickets were removed and offers to return to work were made by the local unions at various times prior to September 24, 1961.- The claims of each of these plants cover the period between the making of such offers and the resumption of full scale production and recall of the employees. The remaining five plants were not struck, but were compelled to curtail operations due to the effects of the strikes at the other plants. The claims at each of these plants cover the period between the curtailment of operations and the resumption of full scale production and the recall of the employees. Based upon findings of fact which are unchallenged by GM, the Appeal Board concluded that benefits should be paid for all weeks claimed with the exception of weeks when a plant was actually on strike, save only as to the Cadillac plant which will be discussed separately later. The decision of the Appeal Board was affirmed by the Circuit Court of Ingham County as not being contrary to the great weight of the evidence. It is almost as important in this case to understand what the employer does not claim as what he does. First, GM asserts that it does not seek reversal or modification of any finding of fact on the ground that the finding was contrary to the great weight of evidence. Rather, GM argues that impermissible inferences and conclusions were made from the facts as found, and that the controlling law was erroneously applied to those facts, inferences and conclusions hy the majority of the Appeal Board. Second, GM iterates and reiterates that it has at no time contended that the plant in which each claimant was employed was anything other than a separate “establishment” as that term is used in the act. In consequence of this position GM contends that Park v. Employment Security Commission (1959), 355 Mich 103, is totally inapplicable. Appellant takes particular exception to the language of the learned circuit judge that its legal argument is “a rephrasing of the ‘functional integration’ ” argument rejected by the Supreme Court in Park, supra. We fully appreciate GM’s vigorously urged contention that Parh is inapplicable. What we consider GM’s position to be is that it transcends permissible inference or logical conclusion to hold that a national automotive strike with GM as the “target”, called at national level, “causing hundreds of thousands of General Motors employees to collectively withhold their labor power”, by action that could only be authorized by the Executive Board of the International Union, could by some legalistic metamorphosis become at some point in time during negotiations a local strike in separate establishments concerned only with local issues. It seems to us GM is urging a “proximate cause” test, as that term is used in negligence law. This is to say, the national strike initially caused the total stoppage of work and that what happened at a given time in local plants are non-proximate, irrelevant causes. In logic, there may be force in this position. From the standpoint of the controlling law, which we cannot disturb, it cannot prevail. We are unable to accept GM’s contention that what was decided in Park is not an issue here. Appellate issues, like friends, sometimes can be chosen, but sometimes, like relatives, they are thrust upon us. Park is thrust upon GM. The case cannot be swept under the rug of review. Logically or not, the Appeal Board found factually that local issues in separate establishments did exist. The record, including GM’s annual report, which was an exhibit, supports this finding of fact. We may not disturb it. We do, however, find a misapplication of law with regard to week No 38 (ending Sept. 23,1961). After finding as a fact that certain claimants were disqualified for that week by reason of a work stoppage due to a labor dispute in the establishment in which they were last employed, the board made an additional finding. We set it out herewith: “There is, however, another controlling element as to week No 38 (week ending Sept. 23, 1961) and that is in respect to the corporation’s efforts to resume production during said week after having been closed down by the strike. It would appear that the Corporation endeavored to make ready for production within a reasonable period following the tentative agreement and did, in fact, resume production on September 21, 1961 (at the Cadillac plant). “We are of the opinon that Park, supra, is not controlling as to week No 38, but is more compatible with the principle of the case of Buzza v. Unemployment Compensation Commission (1951), 330 Mich 223. “It has been held that a labor dispute disqualification * * does not necessarily end with the settling of the issues in dispute but such disqualification may continue for a reasonable period thereafter if, because of the nature of the employer’s operations or because of necessary and reasonable make-ready operations, it is not possible to resume production immediately (citing Peaden v. Employment Security Commission (1959), 355 Mich 613). ¿i. “The employer utilized the period from September 18,1961 to September 21, 1961 for make-ready operations * * * [i]t is deemed that the stoppage of work existed because of the labor dispute, and they are disqualified for benefits * * * for said week.” As noted by GM in its brief: “Paradoxically the Board majority failed to disqualify claimants from the Chevrolet Livonia Spring and Bumper, Fisher Fleetwood and Fisher Livonia plants for an additional week to allow reasonable plant make-ready time at those plants even though evidence of need for such time was undisputed on the record.” We agree. We can find absolutely no factual difference between the situation at the Cadillac plant and the others specified in GM’s brief. Hence, we hold that as a matter of law, the appeal board misapplied its cited cases as to the Chevrolet Livonia Spring and Bumper, Fisher Fleetwood and Fisher Livonia plants. The order of the circuit court affirming the appeal board is modified to impose the same disqualification upon claimants from the above-specified plants as was imposed upon claimants from the Cadillac plant. In all other respects the order of the circuit court is affirmed. No costs, neither party having prevailed in full. The relevant statutory provision which was in effect at the time the claims were allowed was § 38 of PA 1936 (Ex Sess), No 1, as amended (CL 1948 § 421.38 [Stat Ann 1960 Rev § 17.540]), which read in part: “The findings of fact made by the appeal board aeting within its powers if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive, but the circuit court of the county, in which the claimant resides or in which the employer’s principal place of business in Michigan is located, if no claimant is a party to the ease, or the circuit eourt for the county of Ingham shall have power to review questions of fact and law on the record made before the referee and the appeal board involved in any such final decision, but said court may reverse such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence * * * ,” We shall so refer to the parties throughout the decision.	[ 64, -6, -5, 36, 79, 1, 23, -48, -14, 3, 0, 14, 32, -44, 31, -28, 31, 15, -8, 24, -12, -46, 25, 41, -17, -14, 19, 15, -24, 25, -75, -18, -27, -10, -30, -47, 26, -26, 3, 13, -40, -10, -36, -33, -23, -5, -19, 25, 34, -25, -21, 1, -48, 36, 60, 20, 12, 18, -26, 22, -24, 17, 67, -12, 20, -16, 31, 6, -2, 25, -25, -4, -20, -17, -30, -16, 36, 21, -22, 10, 19, -14, 24, -37, -11, 30, 9, 38, 10, -52, -13, -24, -33, -3, -15, -21, -36, 56, 12, 13, -42, 19, 36, -3, -17, 6, 27, 9, -5, 38, -13, -1, 12, 17, -4, 2, -14, -6, 22, 23, 18, -9, 8, 50, -26, 31, -29, -5, -59, 40, 0, 14, 12, -3, -23, 20, 43, -13, 45, 11, -13, 15, -26, -59, -16, -4, 56, 0, 22, -7, -19, -5, 21, -32, -59, 4, 47, -27, 58, 34, 9, 1, 6, 58, -16, -19, 2, 25, 42, -34, 4, 8, -9, -25, 15, 0, 20, 10, -40, 34, -46, 4, -60, 24, 3, -13, -25, 1, 39, 20, 13, -12, 50, 16, 12, 44, 42, 33, -33, 37, 32, -25, -5, 12, -22, 10, 5, -6, -23, -5, 11, -12, 13, -36, -19, 8, 36, 13, 39, -26, -22, -14, -54, 17, 11, -54, -23, -15, 21, -11, -2, 1, 81, 3, -23, -15, 17, -36, 72, 19, -18, 1, -6, 24, -46, 3, -32, -10, 74, 30, 39, 17, 20, 28, -51, -49, -29, -3, -10, -39, -21, 47, 3, 4, -26, -36, -12, 72, -36, -39, 16, -12, 53, -9, -43, -36, 17, 3, 58, -34, -59, 40, -53, -3, -64, -2, 12, -77, -17, 12, 51, -27, -1, 37, 23, -27, 13, -2, 54, 63, -59, 14, 4, -49, -25, 4, -25, -70, 48, 6, -14, -29, 19, -21, 52, -21, 8, 24, 38, -25, 6, 0, 16, -6, 14, 1, 6, -8, -7, -60, 17, -26, -25, 16, 27, -38, 11, 24, 35, 5, 23, -8, 33, -10, -2, -4, 45, -7, 52, 0, 42, 29, 8, -15, 45, 41, 57, -4, -87, -34, -22, 5, 19, 31, -22, 2, -58, -47, 27, 7, 3, -18, 24, -6, -49, 2, -43, -7, -16, 49, 21, 12, 22, -49, -8, 26, -10, -34, -30, 0, -61, -69, -15, 36, 0, 26, 44, -1, -32, 34, -20, 0, -18, 4, 33, -78, 39, -34, -84, -9, -20, 18, -14, 35, -13, -22, 54, 2, 2, -63, 42, -17, 14, -19, -2, -22, 12, 57, -31, 63, 11, -47, -19, -47, -43, -9, 0, -77, -37, -48, 9, -21, -21, -4, 23, 0, -35, -8, 31, -20, -2, -3, -41, 31, -48, -42, 17, 42, -25, -32, -49, -10, 33, 33, 47, -22, -26, 1, 37, 60, -46, 0, 27, 46, -6, -40, 0, -20, 17, -50, 13, 9, 18, -19, -74, -27, -26, -24, 1, -14, 31, 3, -6, -21, 3, 1, -18, 0, 0, 8, -16, 38, 46, -22, 20, -51, -32, -117, 5, -8, -50, -39, 26, 81, 35, -31, -4, 38, 26, 7, -14, 1, -18, -20, -2, -24, -47, 10, 6, -27, 37, 7, 105, -1, 54, 5, 14, 50, -71, -45, -8, 33, -14, 28, -17, -77, -26, -11, 67, 17, 18, -29, -26, -22, 53, 13, -12, 0, 33, 5, -49, 13, 39, 39, -31, 33, -54, 60, 54, -20, -28, 50, 41, -4, 17, 32, 69, -18, 3, 17, 7, 0, 20, -10, -9, -23, 16, 36, 38, -64, 26, -106, -6, 23, 81, -6, -8, 38, 10, 41, 50, -23, -54, 7, -14, -15, -1, 16, 29, -23, -14, 44, -16, -44, -50, -18, -14, -15, 12, 48, 42, 53, -13, -33, -47, 42, 31, 1, 3, -51, -8, 5, -18, -48, 6, -25, 13, -8, -28, 45, 18, 8, 50, 21, 14, -70, 0, -5, -8, -52, -1, 56, -3, -46, -22, -5, 6, 18, -29, -73, 26, 6, 37, 16, 19, 13, -27, -10, -15, 14, 58, -3, 44, 60, 68, 24, -18, 4, -40, 22, -51, -43, -13, 26, -7, 20, -19, -24, -9, -24, 44, 51, 23, -28, -57, -19, 0, -19, -4, -37, -38, 25, -1, 0, -36, 31, -35, -16, 50, 31, 19, -34, -4, 9, 4, 44, -16, -30, -61, -18, -52, -14, -32, 0, -2, 46, 44, -78, -44, -20, 5, 0, -33, -1, -14, 12, 27, 8, -57, 36, 42, 23, 52, 40, 9, -4, -20, -17, 24, 15, -39, -5, 10, 40, -19, -17, -10, -24, -41, 5, -1, -48, 44, 35, -30, 10, -70, 11, 27, -31, -36, 10, 4, 2, 8, 45, -26, -32, -48, -5, -11, -22, 13, 0, -47, -43, -41, 0, -11, 16, -4, -14, -7, -59, 8, 13, 46, -24, -10, -6, -21, 16, -25, 31, 28, -38, 0, -9, 50, -10, -18, -16, -11, 10, -23, 38, -27, 26, -39, -4, 6, 15, -5, -67, 65, -12, 8, -40, 35, 27, 3, 18, -1, 66, 32, 25, 8, -21, 6, -46, 13, -47, -36, -12, -11, 43, -11, 47, 13, -27, -1, -28, -56, 55, 5, -19, 5, -31, -5, 30, 11, -11, -11, 19, 1, -4, -47, 22, 15, -13, 35, 3, 40, -18, -21, -26, 1, -11, 16, -7, 30, -53, 61, -26, 26, 28, 20, -16, -21, 19, 39, 41, -18, -6, -18, -16, 7, 8, 12, -45, 40, 62, 5, -12, -22, 77, -12, -12, -31, 4, -3, -13, 10, -10, 13, 7, -8, 42, 41, 3, -43, -33, -37, -28, 13, -8, -7, 5, -29, -1, 6, -24, -3, 16, 45, -9, -9, -11, 15, -40, 9, -9, 2, 0, -47, -20, -7, 20, -8, -11, 0, 5, 32, 33, 39, -33, -5, -15, 13, -33, 3, 37, 36, 36, 61, -26, 33, -28, -42, -37, 4, -16, -2, 5, 34, 22, 14, 45, -4, -16, 39, -4, -13, 42, 23, -55, -19, -23, -33, 26, -4, 68, 16, 30, -2, 9, 13, -19, 83, 15, 56, 16, 15, -10, 48, 16, -35, -37, 33, 12, -7, -23, -26, -14, 8, 57, -42, -27, -42, -33, 21, -20, -25, 6 ]
T. M. Burns, P. J. On October 8,1965, the former owners of the plaintiff corporation executed an alleged agreement, promissory note and check all solicited by and running to the defendant, (AIMS corporation), a Missouri corporation. All parts of this agreement were executed in Roseville, Michigan. The complaint alleged that for some time before and after the date of October 5,1965, the AIMS corporation had been doing business in this state although not being licensed to do so as required by Michigan laws; and also that said foreign corporation was operating as a real estate broker in the State of Michigan, although it was not licensed as a real estate broker under Michigan law. MCLA § 451.201 (Stat Ann 1964 Rev § 19.791). Under this agreement, AIMS corporation was to refer prospective real estate purchasers, who would be located in the Roseville, Michigan area, to the Flo Engel Co., and if a sale was consummated, twenty-eight (28%) per cent of the gross sale commission was to be remitted back to AIMS corporation. There were also other provisions of said agreement, one of which gives rise to AIMS’ action, against Hoover in Missouri. That provision of the contract requires Hoover to purchase a quantity of marketing brochures from AIMS annually. On November 30,1965, Hal K. Hoover, a Michigan resident and licensed real estate broker under the laws of the State of Michigan, purchased all of the common stock of the Michigan corporation known as Flo Engel East Side Company, Inc. He changed the name to Hoover Realty Co. Together with other reasons, under MCLA § 451.213(i) (Stat Ann 1964 Rev § 19.803 [i]), Hoover could not split a brokerage commission with anyone not licensed as a Michigan real estate broker, hence Hoover could not honor said agreement. On March 24, 1966, Western Finance Corporation, a Missouri corporation, an alleged “holder in due course and assignee of AIMS corporation”, commenced suit against Hoover Realty Co. on the promissory note in Macomb County Circuit Court, State of Michigan (X66-1017). This litigation terminated by a stipulated dismissal with prejudice on October 11, 1966. AIMS corporation was not served with process or otherwise made party to the Western action. On February 23, 1967, AIMS corporation instituted suit against Hoover in the Circuit Court of the County of St. Louis, State of Missouri, based upon Hoover’s alleged breach of contract in that it had failed to purchase certain advertising brochures from AIMS. AIMS contends that the Missouri Circuit Court obtained jurisdiction over Hoover by service of process upon an agent of Hoover pursuant to paragraph 6(f) of the agreement. Hoover denied the agency, and moved to quash the process. In September, 1967, Hoover, defendant in the Missouri action, instituted suit in the Macomb County Circuit Court seeking to have the contract declared a nullity and praying for the following relief: (1) Rescission and cancellation of the October 8, 1965 contract. (2) That any judgment declare sums due from defendant to plaintiff as damages. (3) That AIMS be enjoined from any other litigation based on the agreement as well as is'&ue a temporary restraining order enjoining AIMS from proceeding with its action, previously commenced, against Hoover in Missouri. The temporary restraining order was granted and an order to show cause was issued requiring AIMS to appear and show cause why said order should not be made permanent as prayed for in Hoover’s pleadings. AIMS filed a motion to dismiss Hoover’s complaint and a motion to dissolve the temporary restraining order along with a supporting brief. On May 29, 1968, the trial court issued an interim opinion. The trial court entered its order, dated June 24, 1968 denying AIMS’ motion to dismiss Hoover’s complaint and continuing .the temporary restraining order previously granted. Leave to appeal was granted by this Court. Hoover filed a motion, during the pendency of these appeal proceedings, to include as part of the record on appeal, the file and records of case number X66-1017 wherein Western was plaintiff and Hoover was defendant. On June 6, 1969 the Ma-comb County Circuit Court granted Hoover’s motion. Should plaintiff Hoover’s complaint be dismissed because there is a prior pending action between the same parties involving the same claim? The central thrust of defendant’s argument is that GCR 1963, 116.1(4) demands that plaintiff’s complaint be dismissed. GCR 1963, 116.1(4) allows a motion to dismiss a new suit involving the same parties and the same subject matter as that existing in a pending action: “* * * by motion filed not later than his first responsive pleading, a party may demand * * * that judgment be entered dismissing one or more claims asserted against him upon any of the following grounds: “(4) another action is pending between the same parties involving the same claim.” In support, defendant cites the case of Petosky Asphalt Paving Company v. Malow (1961), 363 Mich 13; Chapple v. National Hardwood Co. (1926), 234 Mich 296; Pinel v. Campsell (1916), 190 Mich 347. These cases are not on point as, in them, both prior and subsequent suits were begun in Michigan while in the instant case prior suit was commenced in Missouri and subsequent suit was commenced in Michigan. Defendant argues that since the Missouri court first obtained jurisdiction, it has the exclusive right to decide the matter in issue. Mulford v. Stender (1921), 215 Mich 637; Richey Land and Cattle Company v. Miller & Lux (1910), 218 US 258 (31 S Ct 11, 54 L Ed 1032). These cases do not address themselves to the question in this case whether the pend-ency of a prior action in one state is a ground of dismissal of an action subsequently commenced in another state. These cases are therefore regarded as inapposite to the question in this appeal. The rule in Michigan and elsewhere is that a suit pending in another state, or foreign jurisdiction does not constitute a prior pending action subjecting the subsequent suit to a plea in abatement or motion to dismiss. McKey v. Swenson (1925), 232 Mich 505; In re Elliott’s Estate (1935), 285 Mich 579, 584. 1 CJS, Abatement and Revival, § 63 states as follows : “The general rule, that the pendency of a prior action, between the same parties for the same cause of action, whether by law or in equity, may be pleaded in abatement of a subsequent action therefor * * * applies only where two courts have concurrent jurisdiction of the same cause of action and where the prior action is pending in one of such courts, and the subsequent action in another; and therefore such a plea, ordinarily, will not be sustained, where the prior action is pending in a court of foreign or different jurisdiction, or as otherwise expressed, where the two actions are pending in courts of different sovereignties such as in courts of different states, * * * .” 1 Michigan Law & Practice, Abatement and Revival, § 8 states the Michigan rule as being that: “Although a prior action pending in the state, whether in a court of concurrent or inferior jurisdiction, in the same court, in another court of the same county, or in a court of another county, may constitute a ground for abatement of a subsequent action, the pendency of a prior action in another state generally does not abate an action in this state.” (Footnotes omitted.) The trial court did not err, therefore, in refusing to abate this action because of the prior pending action in Missouri. Is the issuance of the injunction restraining AIMS from proceeding with the prior action clearly erroneous? Defendant relies primarily upon GCR 1963, 718.6 which provides: “No injunction or restraint may be granted one action to stay proceedings in another action pending in any court in which the relief may be sought on counterclaim or otherwise in the pending action.” Defendant contends the word any indicates an intention on the part of the rule to include cases in foreign jurisdictions within its prohibitions. We do not view it so. We consider that GCR 1963, 718.6 just as GCR 1963, 116.1(4), is understood to concern only cases pending in Michigan. This case is properly within the rule as stated in Pere Marquette Ry. Co. v. Slutz (1934), 268 Mich 388, 390: “Where an action is brought in a foreign state for the purpose of evading or avoiding the laws of this state, or for other unjust and inequitable purposes, harassing its citizens and causing them irreparable injury, injunction is properly brought.” See also 31 Mich L Rev 88 (1932). By its action in Missouri, the defendant seeks to avoid the effect of our Michigan statutes controlling the licensing and fee splitting of real estate brokers. Therefore, this is a proper case for the issuance of an injunction. Viewing the situation as we do, we find that the trial court was not clearly erroneous in issuing the injunction against AIMS. Affirmed. Costs to plaintiff. All concurred.	[ -47, 15, 10, -37, -16, 11, 0, 10, 7, 2, -7, 41, 17, -9, -12, -4, 56, -1, 5, -22, 21, -26, -20, 5, 55, -38, 67, -57, 59, -27, -37, -1, -22, -14, -49, -1, -12, -17, 3, -27, -63, 6, 30, 32, -7, -11, 14, -30, 52, -24, 17, 21, 18, 28, -6, -68, -12, 34, -12, 8, 30, -50, 48, 26, -3, -10, 41, 59, 116, -16, 15, -1, 0, 6, 55, -8, 19, 21, -40, -61, 10, -39, 25, -10, 13, 17, -22, 16, -14, -19, -45, -43, 9, 23, 9, 31, 15, 21, -24, -24, 19, -2, -5, 16, -19, 5, 9, -23, 11, 10, -31, -9, -37, 13, -56, -13, -12, -34, -8, 44, -48, -21, -12, 37, 40, 11, 1, 12, -42, -16, 0, -22, -21, 31, -65, -19, 27, -49, -25, -3, -23, 1, -4, 15, -24, 62, 28, -59, -6, -40, -19, 14, 18, 55, 16, -36, 47, -46, -10, -71, 42, -1, 0, 21, -25, 15, -10, 10, -33, 31, 29, -26, -38, -10, -24, -6, 39, 56, -34, 1, 4, -54, 0, -12, -7, -15, 39, -4, 27, -26, 61, -30, 4, 40, -54, 6, 0, 69, 13, -10, -17, -69, 0, -8, 8, -10, -14, 42, 47, 37, 2, 35, 17, -10, -11, -13, -20, -26, 28, -33, 2, 8, 0, 12, -10, -41, 1, -26, -22, 3, -34, 11, -33, -26, -27, 10, 37, 71, 31, 34, 18, -24, -27, 15, 42, 20, -37, -27, 61, 31, -45, -1, -11, -19, -23, -31, -17, 48, 16, 3, -29, 20, -51, -2, -28, -13, -32, -20, -15, 34, -4, -1, 38, 8, -76, -22, -17, -2, -9, -60, 2, -55, -4, 41, -14, 61, 37, 23, -84, 26, -11, 41, -43, -50, 3, -2, 0, -32, 13, 41, -64, 0, 22, -15, 43, -19, -18, -26, -2, 32, 39, 2, -18, -21, -9, -7, 26, 36, 13, -75, 76, 46, 26, 72, -35, -22, 46, -20, 17, -6, 31, -20, 10, 3, -34, 10, 40, -25, -37, -18, 45, 27, 41, 20, 22, 36, -21, -25, -45, 4, 12, -53, 16, 9, 23, 15, 38, 70, -43, 21, 2, 42, -11, 13, -49, 39, 11, -41, 48, 34, -21, 77, -15, -22, -29, -14, -34, -9, -24, 25, 20, -17, 36, -6, 38, -42, -31, -8, -5, 31, -71, -18, -7, 26, 20, -99, 14, -17, -42, -27, 0, 46, -45, -8, -15, -11, 40, -22, 0, -9, 8, 4, 15, -3, -43, 6, 59, -36, 42, 8, 37, -33, -62, -70, 9, -12, 7, 41, -1, 30, -14, 63, 17, -37, -5, -5, -59, 45, -23, 30, -29, -26, -11, 45, -21, -37, 2, -32, 40, 34, 18, 72, 6, 5, -57, 27, 13, 46, 0, -22, 23, -39, 53, -3, -39, -14, 51, -16, 0, 43, 0, -14, -55, 0, -27, -41, 1, 3, -1, -48, -14, 22, 1, 3, -26, -31, 12, -16, 1, -7, 32, 12, 32, 34, 11, -14, -19, 5, 17, -25, 13, -85, 48, 28, 44, 16, 3, -15, 1, 57, -33, -51, 21, 58, -3, 41, -30, -37, 11, 47, -14, -24, -29, -30, -3, 1, 24, -12, 35, 28, -23, -17, 8, -19, -15, -9, 30, 66, -52, 17, 28, 6, -12, 48, -38, 11, 22, -18, -36, 11, -70, -34, -17, -21, -21, 48, -5, 15, 31, 4, -36, 48, 43, 2, -8, -38, -39, -16, 10, 19, -47, 29, 70, 11, 7, -12, -23, -21, -5, 34, -31, -9, 7, -29, -34, -14, 72, -24, 10, -25, 11, -40, -39, -10, 39, 12, -4, 39, -1, 24, -26, -75, -31, -37, -31, -33, 6, 40, -20, -62, -35, -34, 19, 31, -34, 12, 37, -25, 24, -7, 10, -30, 28, 26, 16, 7, -4, 37, 0, 67, -32, -16, -9, 1, 15, 26, 34, -1, -12, 0, 30, 35, -9, -15, 15, -30, 25, -29, 89, 18, -49, 8, 33, 0, -64, -3, -6, -16, 0, 4, -28, 3, -5, -49, 42, -69, 50, -33, 51, 0, -45, 56, 24, 11, -20, 18, -9, -11, 55, 20, -30, 3, 5, -22, 54, -20, 53, -27, -47, 28, -3, 4, -51, -58, -26, -8, 4, 9, -18, -52, 5, 12, 26, 76, -1, 29, -30, 3, 15, -2, 7, -41, 4, -10, -17, 48, -23, 35, -29, -28, -4, -51, -5, -67, 37, 35, 23, 4, -21, 28, 40, -34, 27, 30, 0, 53, 10, -40, -11, 0, 0, 11, -9, 50, -1, -21, -8, 53, 4, -51, -9, 15, 48, 4, 1, -28, -47, 11, -22, -52, -10, 3, -17, -2, 0, 12, -56, -38, 22, -38, -17, 11, -39, -29, -26, -17, 34, -24, 36, -34, -13, -37, -3, 37, 19, -3, -9, 40, 45, -37, 0, -9, 30, -1, -68, 11, 40, -6, 20, -23, -20, -16, -14, 48, 17, -76, -2, -30, 53, 2, -34, -15, -20, 2, 31, 77, -39, 21, -17, -23, -45, -37, 19, 39, -50, -17, -38, -7, -11, 33, 20, 1, -8, 8, 0, -19, 67, -40, -7, -22, 10, -27, -42, -43, -33, -7, -59, 32, 31, -79, -22, -29, -47, -12, -1, 58, -21, 20, 44, -8, 52, -8, -39, 35, 20, -23, -36, -14, -13, 41, -7, 4, -5, 27, 31, 43, -6, -31, -1, -22, -35, 41, 15, -24, -5, -7, 50, -3, -7, 62, -17, 0, -65, -22, 21, -38, 55, -55, 25, 0, -10, -28, 2, 17, -19, 48, 36, -13, -21, 5, 21, 3, 33, 27, -51, 28, 5, 37, -13, 46, 30, -34, -52, -2, 21, -46, 8, 58, 53, 18, 21, -7, -7, 50, 32, -6, 6, -45, -18, -31, 33, 27, -12, 41, 12, 9, 5, 0, 0, 9, -50, 3, 49, 66, 8, 15, -30, 0, -39, -7, 40, -4, -56, -29, 40, -28, -6, 18, 16, 6, -46, -29, -65, 36, 7, 25, 13, 15, -17, -46, 41, 6, 43, 53, -6, -27, 23, 70, 41, -13, 31, -41, -13, -10, 14, 22, 31, 32, 28, -8, 55, 7, -3, -20, -6, 25, 5, -26, 24, -12, -10, -71, 27, 50, -35, 31, -8, 33, 33, 12, 8, -57, -80, 18 ]
Bronson, J. Leon Rockwell and Myrtle Rockwell were married on April 25, 1947. Leon and Myrtle each had children by previous marriages. On February 4,1957 the couple executed a post-nuptial contract in which each agreed not to claim any part of the other’s estate. Plaintiff expressly relinquished “all claim to any allowance, dower, homestead, or any other right in and to the real or personal estate” of Leon Rockwell. The intention of the parties to the contract was that their marriage should not alter the legal rights of their children from their prior marriages in the real and personal property of each of them. The agreement provided that each of their estates would rest in the heirs as determined by will or as if no marriage had taken place. On January 18,1965, Leon Rockwell published a will bequeathing to plaintiff an amount less than that to which she would be entitled under an election. Two years later Leon Rockwell died. On July 3, 1967, plaintiff filed in the Benzie County Probate Court her election to take against the will pursuant to MCLA § 702.69 (Stat Ann 1962 Rev § 27.3178[139]). On January 8, 1968, plaintiff filed with the probate court a petition for a widow’s allowance. The estate filed objections to the petition. On March 29, 1968, the probate court dismissed plaintiff’s petition for widow’s allowance, struck her election, and held the post-nuptial agreement valid. Contending that the agreement was invalid for lack of consideration and because it was contrary to public policy, plaintiff sought review in the circuit court for Benzie County. The circuit court affirmed the probate court’s hold ing, and leave to appeal was granted by this Court on May 29, 1969. On appeal, plaintiff raises two issues: 1. Whether a post-nuptial contract is invalid because contrary to public policy. 2. Whether a post-nuptial contract fails for lack of consideration when the husband only waives any claim in the future estate of his wife should he be the survivor. I. Post-nuptial agreements are not invalid per se. In the majority of jurisdictions, including Michigan, a post-nuptial agreement by a wife to release her interest in her husband’s property on his death is valid if it is fair and equitable and supported by sufficient legal consideration. 49 ALR 116, 122, citing Randall v. Randall (1877), 37 Mich 563; Rhoades v. Davis (1883), 51 Mich 306; Owen v. Yale (1889), 75 Mich 256; Wright v. Wright (1890), 79 Mich 527; Dakin v. Dakin (1893), 97 Mich 284; Chittock v. Chittock (1894), 101 Mich 367; Bechtel v. Barton (1907), 147 Mich 318; La Plant v. Lester (1907), 150 Mich 336. See, also, Const 1963, art 10, § 1; MCLA § 558.13 (Stat Ann 1957 Rev § 26.229) M & D Robinson Company v. Dunitz (1968), 12 Mich App 5. There are several situations in which Michigan Law recognizes the validity of agreements such as the one involved in the instant case. Post-nuptial agreements made during an existing separation are thought to further judicial policy favoring settlement of controversies over litigation. In re Berner’s Estate (1922), 217 Mich 612. In addition, Michigan is one of the majority of jurisdictions that approve post-nuptial agreements in which a wife releases her interest in her husband’s property on his death (see Const 1963, art 10, § 1, and MCLA § 558.13 [Stat Ann 1957 Rev § 26.229]), if it is a fair and voluntary one for a fair consideration. Wright v. Wright, supra. See, also, 49 ALR 116, 122. However, objections are validly raised to post-nuptial agreements where those agreements seek to effectuate a separation or contemplate a future separation. In re Berner’s Estate, supra, at p 620. Plaintiff contends, citing language from Day v. Chamberlain (1923), 223 Mich 278, that the present case is within this latter category. Bay, however, is distinguishable in that the preamble of the agreement held invalid in Bay made it clear that the parties contemplated a separation in the near future. The present case involves no thought of such a separation. The public policy objection to post-nuptial contracts pointed out by the Court in Randall v. Randall (see footnote 1) and raised by plaintiff here does not arise in this case. The instant agreement did not undertake to provide for a separation. There is nothing in this record to suggest that the agreement was calculated to bring about a separation. Nor is there anything in this record to suggest that a separation was contemplated by the parties. To the contrary is the statement in the agreed facts that “at all times during this marriage * * * the parties lived together amicably and peaceably without dis pute or controversy”'. The fact is that the parties lived as husband and wife for 10 years after the agreement was executed and until the husband’s death. The circuit court rejected plaintiff’s argument that the agreement encouraged possible separation: “No authority is cited indicating that a post-nuptial contract is inherently disruptive of the marital state and hence suspect”. In Ransford v. Yens (1965), 374 Mich 110, the justices of the Michigan Supreme Court voting for affirmance, in particularly applicable language, said: “[T]he parties now before this Court entered into said agreement with the hopes that the marital journey they had commenced as rather elderly people would continue on without discord if they eliminated the only dispute or problem they faced, namely: The eventual disposition of property owned severally at the time of marriage as well as that acquired jointly during the marriage.” 374 Mich at p 116. The absence of intention of the parties to separate was determinative in Ransford v. Yens, supra, which affirmed, by an equally divided court, the circuit court’s validation of a post-nuptial agreement by which the parties relinquished for sufficient legal consideration their claims to the other’s separate estates. Four justices affirmed in Ransford, finding that the intention of the parties was to provide for the eventual amicable disposition of their property. The holding for affirmance was made in spite of two provisions of the agreement which looked to the possibility of a divorce. The instant agreement does not contain any reference to separation found offensive in Bansford. Indeed, it was entered into for a purpose found salutary in Bansford, namely, to provide for disposition of property favoring the children by previous marriages of the parties. II. It is plaintiff’s contention that the post-nuptial contract lacked sufficient consideration in that the husband’s promise to relinquish any right in his wife’s estate even in exchange for the wife’s promise to relinquish her dower and widow’s allowance amounted to nothing since he had no such right. The circuit court thought the mutual promises of the parties contained in the agreement constituted adequate consideration for the contracts, citing for this proposition Keller v. Keller (1926), 121 Kan 520 (247 P 433). The trial court on the basis of Keller felt that since neither of the parties had executed wills at the time of the agreement, each was waiving a share in the estate of the other to which he or she would have been entitled under the laws of intestate succession. Plaintiff argues that if such an analysis is followed, each party gave up only a possibility and not a present interest amounting to consideration. Michigan cases have discussed consideration in post-nuptial contracts in terms of dollar valuation and the Michigan Supreme Court has approved agreements where dollar amounts or an equivalent flowed to the wife in return for her release. Thus, in Randall v. Randall (1877), 37 Mich 563, $1,000 was “sufficient”, and in Rhoades v. Davis (1883), 51 Mich 306, $900 was “good” consideration. In the more recent Hansford, case, $4,600 was acceptable for release as to property worth $6,000 at the husband’s death. In Wright v. Wright, supra, the Michigan Supreme Court said, “there is no legal objection to an arrangement between husband and wife, for a fair consideration, to extinguish her right of dower.” Plaintiff makes a strong case by relying on the decision in Wright. She gave up her prospective dower, allowing her husband to make a will giving her nothing in return for a waiver by her husband of his curtesy right, one not recognized by Michigan law. In return for a waiver of nothing more than an expectation, plaintiff argues, of a possible future inheritance by intestacy, the wife relinquished a statutorily defined and protected right. It is plaintiff’s contention that the post-nuptial contract in the present case attempts to achieve that result which was overturned in Wright. Under the facts as found in the present case, we must hold for the Estate of Leon Rockwell. In so doing we do not mean to overturn the line of case precedent cited supra. However, what we find here is that there was “fair consideration” flowing to plaintiff. Myrtle and Leon Rockwell each came to their marriage with children by previous marriages. It was their intention by enacting a post-nuptial agreement to insure the sanctity of their estates for their own children by those previous marriages. While it is true that Leon Rockwell gave up merely an expectancy, it is also true that he gave up the right to any share of Myrtle’s estate upon the event that Myrtle, should she predecease Leon, would have her will contested and found inadequate at probate. It is further true that Leon could have by trust and gift given to his children that which he thought was protected by the post-nuptial agreement. Now that Leon is deceased, it seems somewhat unjust to say that Myrtle has the option of contesting the post-nuptial agreement or allowing it to stand. Had Myrtle predeceased Leon, it is doubtful that he could have come into court and argued that since he had given inadequate consideration, the post-nuptial agreement must fail. Therefore, Myrtle seemingly, were we to accept plaintiff’s position, would have the option upon Leon’s death of upholding the post-nuptial agreement or refuting it. In the instant case there is testimony to the effect that Leon’s estate appreciated greatly after the post-nuptial agreement while Myrtle’s did not. In our view, a party to a post-nuptial agreement cannot sit idly by and wait to see which estate appreciates or diminishes before opting to act within the framework of the post-nuptial agreement or to refute it. While it is true that the statutorily given right of dower and homestead are important ones and must be protected by our courts, in the present case we find that Leon’s forbearance from distributing his estate by any method other than under the post-nuptial agreement should not be set aside at this late date. Accordingly, we affirm the order of the probate court and the opinion of the Benzie County Circuit Court. Affirmed. One commentator has thought that to deny a husband and wife the right to adjust property rights “might easily tend to foster the undesirable separation.” Kunz, Family Law, 12 Wayne L Key 319, 339 (1965). Indeed, going even further (as noted supra), Michigan recognizes post-nuptial agreements made during existing separation of married persons. See In re Berner’s Estate (1922), 217 Mich 612, and Randall v. Randall (1877), 37 Mich 563. Bandall points out, the objection to post-nuptial agreements: “The chief difficulties with such contracts are encountered when they undertake to provide for a separation of the parties and a breaking up of the marriage either with or without a divorce. It is not the policy of the law to encourage such separations, or to favor them by supporting such arrangements as are calculated to bring them about. It has accordingly been decided that articles calculated to favor a separation which has not yet taken place will not be supported * * * ”. p 571. The justices for reversal felt that the agreement was void as against public policy because it anticipated a possible future separation. In further support of the trial court’s decision, see Ransford v. Yens, supra, Carmichael v. Carmichael (1888), 72 Mich 76, and George v. Conklin (1960), 358 Mich 301. In that respect it might be argued that he relied upon the post-nuptial agreement.	[ 18, 3, -22, -26, -19, 9, 14, 34, 19, 15, 5, -8, 58, 72, -27, 22, 0, -2, -23, -43, -78, -18, -62, 33, 11, -6, -25, 13, 17, -33, -13, 54, -87, 21, 12, 2, -30, -53, 8, -7, 5, -20, 9, -7, -20, 10, -14, -46, 0, 7, 4, 2, -19, 2, 30, -7, 2, -5, -30, -43, -11, 51, -22, 38, 27, 25, 72, 40, 25, -17, 8, -52, 2, -5, 14, 1, 10, 14, -22, -21, 84, -32, -7, -1, 18, -11, -15, 42, 1, 2, -54, 1, 13, 27, -4, 0, -29, 7, 0, 49, -20, -15, 30, 15, 13, -1, -20, 15, 12, -56, 3, 2, -28, -12, 15, 35, 11, 33, 25, -30, 17, 33, -7, -33, 26, -39, -25, -4, 24, -31, 61, 37, 38, -51, 0, -14, 13, 36, -53, -45, -3, -7, 34, -48, 29, 35, -14, -79, -57, -78, -9, 9, -1, 35, 75, -41, 25, -53, 32, -14, 39, 1, -10, 49, -8, -6, 9, 2, 0, 24, 38, 6, -28, -33, 19, -2, 48, -9, -24, 0, 12, 1, -22, 3, -16, -35, -5, -6, -57, 5, -16, -37, 41, 37, 13, 37, -32, 20, 1, 42, -30, -59, 21, 57, 0, 40, 3, -38, 7, 7, -30, -12, -28, -77, -63, -3, 24, 5, -43, -5, 47, -25, -10, -23, 0, -16, -24, -64, -39, -21, -53, 34, -8, -15, 13, 16, -51, -22, -21, 25, 16, -33, -26, 20, 2, -47, -20, 73, 57, 73, 21, 10, -46, 56, 44, -1, -29, 34, 12, -28, -35, 65, -54, -19, 0, 11, 3, -31, -15, 36, -9, 20, -2, -7, 0, -81, -21, -42, -14, -31, -5, 20, -19, 24, -11, 12, -51, 8, 22, 28, 29, -28, 26, -15, -10, 26, 4, 35, -21, 1, 10, 68, 73, 44, 24, -3, -60, 20, 6, -30, -37, 37, -4, 15, -15, -6, -14, -16, -7, 8, -12, 0, 12, -2, -13, -31, 24, -1, 7, 36, 10, -3, -1, -33, 24, -7, 46, 69, -96, 6, 45, 29, 54, -5, 16, -6, -1, -19, 21, 14, 30, 7, 8, -12, -27, 37, 87, -29, -28, 30, -22, 59, -27, 6, -15, 9, 16, -21, 62, 4, 24, 54, -5, 1, 28, 9, -17, 58, -16, 59, -32, -9, -3, -15, -24, -17, -49, -12, 6, -18, -38, -41, -59, -23, 37, 71, 50, -24, -32, -9, -12, 21, -45, -16, -16, 17, -44, -3, -98, 1, 19, 4, 43, -6, 3, -18, 26, 32, -52, 23, -19, 0, -55, 22, -60, -19, -28, 14, -3, 16, -20, 22, -6, -22, 46, -9, -41, 17, -5, 56, -18, 21, 27, -41, -1, -18, -16, 4, 27, -20, 26, 13, -5, 59, -19, -53, 71, 24, -46, -22, 0, -19, 56, -33, -14, -20, -52, 36, -34, 3, -58, 3, 7, -16, 10, 13, -15, 10, 27, 7, 12, 29, -6, -49, 18, -22, -15, -14, 15, -66, 17, -25, -21, -5, 10, -41, -13, -22, -4, -22, 19, 43, 0, -9, 51, -39, -50, -48, -8, 10, -13, -68, 25, 56, 47, -18, 93, 5, 13, 24, 4, -5, -16, -8, 8, 32, 21, 15, -6, 50, -63, 53, 6, -38, -13, -26, 13, 6, -5, -40, -14, 66, 9, 46, -26, 44, -12, 5, -17, -28, -29, -107, -14, -33, 15, -1, 6, 11, 34, -32, 36, 6, 10, -7, 9, -13, -6, -58, -18, 62, -38, -26, 57, -14, 4, 20, 30, -39, -6, 14, 11, 52, -8, -4, 31, -24, -17, 44, -22, 4, -31, 29, -8, -15, -22, -1, 47, -5, 34, -27, 16, 45, 3, -33, -81, -50, 26, 37, 1, -5, 12, 14, -4, -35, -6, 43, 29, -31, 36, 40, -10, 54, -12, -4, 18, 42, 29, 1, -4, -3, 24, -5, 4, -23, -9, 11, -4, 5, 43, -53, 14, -8, 16, 5, 3, -83, -18, -55, 16, 29, -15, 35, 36, -15, -3, -46, -50, -25, -22, 37, 20, -39, -31, 59, -1, 35, 72, 11, 13, 6, 47, 50, 9, -7, 35, 34, 78, 43, 18, 44, 28, 45, 13, 13, 17, 2, 20, -25, -10, 11, -8, 35, 0, 2, -37, -11, -7, 54, 26, 11, 25, 23, -33, 36, -87, 0, -71, -50, -51, -24, 10, 23, -46, -23, -60, 8, 33, -18, 16, -14, -59, 41, -37, -17, -12, 0, 21, 19, 0, -22, 23, 29, -15, -2, -17, -18, 58, 9, 9, -42, -11, -13, -1, 2, -11, 23, -14, 0, -28, -1, 0, 17, -52, -18, -16, -15, 17, 54, 10, -19, -17, 28, -31, 10, -43, 5, -2, -15, 17, -33, -4, -14, -8, 6, 0, -2, -13, 25, -7, 11, -17, 27, 39, 9, -52, -15, 39, -32, -23, 88, 14, -63, -7, 18, 19, 4, 40, 29, 9, -63, -9, -27, -15, -15, -28, -4, -54, 49, -12, 33, 2, 4, 16, 17, -22, -26, -25, 41, 23, -81, 62, 1, -15, 26, 22, 30, 7, -34, -19, -19, 18, -6, 10, -25, -33, -2, 16, 24, 25, -62, 3, -65, -62, 5, 52, 47, 1, 24, 14, -41, 26, -53, 17, 61, -36, 31, -58, -10, -25, 5, 23, -6, -4, -25, 34, 1, 35, -11, 50, 18, -14, -36, -38, 5, 50, 74, 51, -49, -13, -30, -50, 21, -22, 5, -54, 39, 35, -35, -29, -20, 46, 39, -12, 23, -40, -4, 19, 0, 37, -15, -12, -4, -2, -65, -22, -5, 23, 27, 25, 29, 29, -37, 11, -40, -15, -4, -4, 8, -46, -17, 55, -41, 0, -61, -59, -35, -4, 27, -9, 15, 60, 13, 21, -4, 22, -34, 51, 78, 1, -43, 1, 3, -55, -61, -9, 23, -12, -37, -1, 8, -2, -34, 23, 49, -16, 16, -19, 0, -31, -2, 0, 50, -13, -32, 21, -35, 49, 26, -46, -9, -1, -22, -16, -7, 13, 0, -12, 11, -20, -10, 5, -29, -17, -1, -13, -5, -1, 37, -43, -36, 57, -22, -35, 4, 37, 1, 17, -29, -11, 32, 4, 18, -12, 24, 4, -50, 6, -13, -49, -41, -19, 24, 45, 47, -17, 70, -34, 0, 31, -68, -14, -20, 10, 5 ]
Clark, J. Certiorari to the department of labor and industry. On April 24, 1925, the department awarded compensation to plaintiff. Fitzpatrick Brothers, copartners, who were held as the employers, and their surety, here contend that plaintiff was an independent contractor, not an employee, and that therefore the award should be vacated. Fitzpatrick Brothers had contracted with the city of Ironwood to collect and dispose of garbage. Their employees did the work for some time. Then it was agreed by and between Fitzpatrick Brothers and plaintiff that plaintiff take over the collection and disposal of garbage under the contract with the city. Under such agreement plaintiff supplied two teams, which he fed and cared for, and he supplied wagons and equipment. Usually he himself worked. Sometimes he did not. He hired such men as he required. He could discharge them or any of them. He laid out and used as he thought best routes for collection of garbage. His hours were not fixed. It was upon him to produce results agreeable to the contract with the city, nothing more. For this he was to and did receive from Fitzpatrick Brothers $30 per day. The less he had to pay to helpers the more he had for himself. The number of his employees varied. So his daily profits were not uniform in amount. Twice a month he went to the office of Fitzpatrick Brothers. The amount due him was determined by the number of work-days in the half month at $30 per day. At his direction a part of the sum due was disbursed by Fitzpatrick Brothers’ checks to his employees. The remainder plaintiff himself received. Fitzpatrick Brothers were interested in seeing that plaintiff’s work met the requirements of the contract with the city and to that end and extent they had right of interference and control and the right to terminate the agreement with plaintiff. Orders or suggestions from the health officers were forwarded to plaintiff. In 26 Cyc. p. 1546, adopted by this court in Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, an independent contractor is defined: “An independent contractor is one who, carrying on an independent business, contracts to do_ a piece of work according to his own methods, and without being subject to control by his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately they may not be_ conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the.agreement to pay a fixed price for the work, the employment of assistants^ by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.” The question has been before this court many times. See Carleton v. Machine Products Co., 199 Mich. 148 (19 A. L. R. 1141); Woodhall v. Irwin, 201 Mich. 400; Odle v. Charcoal Iron Co., 217 Mich. 469; Gross v. Chemical Co., 219 Mich. 200; Gall v. Detroit Journal Co., 191 Mich. 405 (19 A. L. R. 1164); Sawtells v. Ekenburg Co., 206 Mich. 246; Stoddard v. Construction Co., 220 Mich. 643. On the facts, within the definition above, and under the cases cited, plaintiff was an independent contractor. The award is vacated. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.	[ -29, -24, -75, -21, -1, 63, -27, -73, 41, 6, 13, 13, 33, -25, -14, -44, -41, -2, -25, 12, 40, 40, -50, -25, -22, -5, 16, 20, -77, 50, -16, -4, -40, -5, -32, 18, 0, -6, -9, -2, 34, 0, -34, -64, 11, -11, -12, -40, 37, -39, -1, 42, -9, 42, 50, 5, 14, 16, -16, -21, 9, -6, -13, 18, 2, -29, -41, 30, 51, 16, -20, 8, 0, 16, -19, -8, 58, 11, 6, 17, 23, 54, -24, -38, -59, 31, 22, -14, 72, -18, 2, -48, 28, 74, 6, -13, -35, 46, -30, 32, 33, -27, 10, -14, 5, 2, 33, -29, 0, 49, 37, -18, 9, -5, -31, -25, 27, -11, -13, 30, 39, 14, -24, -52, -28, -16, -27, -12, -3, 13, 43, -2, -21, -53, 49, 38, 0, 21, -28, 24, 20, 30, -30, -18, 0, 16, -62, -5, 22, -19, -10, -2, 43, -13, -39, 58, -1, -26, 81, -31, 12, 27, 13, -27, -12, -38, -60, 30, 1, 28, 1, -33, 2, -48, 63, 23, 34, -51, 1, -19, -35, -40, 6, 9, 44, 2, -37, 8, 11, -22, 59, -29, -39, -2, -44, 5, 50, -5, -26, 5, 39, -46, -31, -12, -13, 43, 59, 49, -17, -14, 25, 21, -47, -67, -67, 24, -8, -28, -25, -52, -15, 11, -27, -19, 12, -36, -41, 23, 1, -10, -49, 51, 38, -19, -36, -62, 6, 10, 57, 75, 3, -15, -24, -24, 17, -44, 0, 14, -8, 54, 0, -9, 53, 20, -5, 5, -13, 14, 8, -11, 2, 30, 29, 34, 7, -44, -12, 63, -4, 67, -29, -14, 62, 11, -35, -32, -2, 20, 2, 16, -39, -19, -22, -7, -29, 3, -23, 0, -15, -10, 63, -17, 32, -20, 40, 40, 74, -27, -6, 21, 1, -2, -16, 2, 20, 41, -57, 33, -8, 2, -8, -32, -30, -47, 51, -10, -57, -1, -22, 3, -10, 21, 1, -50, 30, -31, 1, 1, 7, -15, -2, 13, 2, 24, -5, -19, 38, -35, -12, -9, 23, 6, 15, -39, -31, 13, -28, -11, 26, -12, 8, 0, -30, -1, 35, 23, 17, -5, -37, 22, 27, 26, -64, -39, -37, -31, -21, 2, 11, 11, 13, 7, 20, 7, 11, -28, -18, 19, -73, 27, -4, -20, 24, -47, 25, -31, 29, -18, -60, -25, -19, -20, -1, 25, 12, 47, 39, -21, -33, 12, -39, -3, -24, -13, 20, 13, 1, -26, 9, -36, -40, -40, -4, -6, 0, -59, 37, -64, -3, 46, 62, -40, 29, -2, 24, -59, 4, 54, -4, -25, -11, -18, 11, -15, -4, -4, -45, -24, -35, -24, -51, 41, -6, -24, -19, 20, -22, 20, 12, -23, -9, 61, -25, 83, 23, -2, 2, -24, 67, 39, 6, 17, 71, -6, 16, 29, 36, -6, -18, 51, -51, -20, 40, -3, -31, -43, -35, -14, -32, 14, 23, -8, 21, 0, -18, -30, 45, 18, 15, 22, 29, 52, -36, -31, 8, -11, 0, 27, -16, 0, -38, -17, 0, -16, 37, -30, -37, -18, 10, 19, -19, 62, 54, 42, -8, 37, -26, 56, 47, -43, 32, -38, -65, 37, 52, 14, -31, 9, 33, -17, -3, -5, 38, 29, -6, 16, 13, 13, -39, -13, 43, -16, -12, 54, 17, 9, 7, 39, -1, -23, -5, 18, 38, 7, -42, 17, 27, 0, 44, 13, -4, -9, 6, -28, -7, -47, -44, 28, 39, 33, -13, 7, 0, 9, 12, 32, -36, 14, 10, 4, -10, -13, -18, -19, -12, -3, 20, -29, 31, -3, 8, 6, -51, -4, 30, -19, -14, -1, 22, 15, 20, -22, -68, -50, -97, 9, 21, 50, 17, -6, -19, 39, -3, -54, -23, 0, -3, -22, 52, 22, 31, 46, -8, 2, -28, 52, 60, -19, -19, 39, -15, -11, -73, 20, 0, 30, -13, 41, -4, 83, 36, -62, -31, 22, -15, 1, 41, 7, -23, -21, -17, 7, 47, -16, -26, 22, 24, 11, -6, -3, 18, -5, 8, 46, 15, -15, 20, 38, 36, 35, 34, -7, 28, 29, 8, -7, 13, 9, -10, 1, 38, -34, 20, 28, -7, 27, -14, -42, -22, -33, -35, 18, -7, -47, -7, 5, 27, 31, 24, 19, -45, 18, 36, 59, -24, -2, 5, -20, 16, 30, 54, -59, -5, -3, 28, 78, 8, 40, -53, -35, 5, -80, 19, 23, 4, 14, -41, 0, -40, 13, 0, -11, -34, 17, 15, -24, -15, -34, -52, 41, 8, -50, 25, 5, -24, -21, 31, 19, -61, 33, -71, 16, -30, -14, 31, -6, -24, 8, -78, 24, -18, -17, 12, 17, -7, -27, -24, 19, 89, -59, -27, 30, 41, 24, 60, 33, 36, 8, -49, -15, 42, -4, 60, 12, -35, -44, -48, -39, -36, 6, -27, -36, 3, -14, -20, 45, -11, 1, 0, -30, 4, 0, -64, 6, 72, -7, 3, 11, -6, -43, 8, -16, -1, 0, 0, -7, -26, 5, 19, 29, -34, 57, 21, -44, 3, 3, 18, -41, 5, -35, -19, 8, -115, 36, 50, 8, -18, -3, -1, 25, -1, -44, -14, -21, 29, 44, -42, 46, -24, -26, -14, -40, 34, 19, 25, 1, 16, 0, -1, -34, 34, 6, -44, -3, -23, -41, -30, -36, 50, -7, 30, -19, -7, -42, -16, 18, -30, -29, 26, 39, -8, 51, -40, -22, 1, -11, -3, -31, 2, 62, 29, -59, -1, -5, -22, -63, 0, -40, 23, -1, 24, 7, 1, 18, -11, 35, 7, -56, -17, 32, 9, -25, -25, 0, -26, 19, -24, 23, 16, 17, -22, -27, -18, -7, -4, -23, 9, 38, -2, 45, -10, -28, 18, 49, 37, -22, 5, -32, -8, -20, -34, -36, 2, 33, -18, 19, -16, 8, -7, 10, -14, 23, 31, 8, -34, -26, 8, 1, 10, -44, 27, 51, -16, 19, 33, -34, 39, -56, 19, -49, 22, 31, -12, -29, 5, -37, -36, -11, 0, 11, 27, -33, 18, 30, 4, -23, 16, -55, -38, 26, 15, -9, 49, 2, 40, -33, 2, -41, 18, -45, 23, 21, -34, 40, 32, 23, 36, 42, -17, -40, -77, 0, 35, 12, 5, 67, -17, 17, -45, -27, 36, -14, 13, 41 ]
Per Curiam. On September 16, 1966, Mr. and Mrs. Boy Porter were held captive in their home in Detroit while two gunmen systematically searched the house and took various articles and approximately $70 in cash. Defendant Bomain Taylor was arrested on October 13, 1966, and charged as one of the participants in the armed robbery. A trial by jury in the Becorder’s Court of the City of Detroit resulted in a verdict of guilty as charged. The defendant appeals as of right. The defendant’s principal contention on appeal is that the two lineups at which the Porters identified him as one of the gunmen was “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Stovall v. Denno (1967), 388 US 293, 302 (87 S Ct 1967, 1972; 18 L Ed 2d 1199, 1206). He enlists essentially two arguments in support of this conclusion: 1. ) Although all of the members of the lineups were Negroes and two roughly matched the defendant’s physical characteristics, some of the members were unlike the defendant in appearance. 2. ) The defendant is a “darkly-complected Negro who could be prejudiced by the use of lighter-complected persons in the lineup, yet no notes on skin color were taken by either of the two officers in charge”. We find defendant’s contention to be without merit. In the first place, there is no requirement that every member of a lineup, or nearly all of the members, resemble the accused. As this Court said in People v. Lloyd (1967), 5 Mich App 717, 724: “Lineups are conducted in police stations, and the persons who participate in the lineup are taken from those who are being held in custody. It would be unusual indeed if the police had five persons with similar physical characteristics locked up in the same jail. Moreover, the purpose of a lineup is identification. If the defendant is the tallest man in the lineup, and if he believes that this impairs the validity of the identification, he should see that the jury is apprised of that fact. This is a question of the weight to be given the lineup identification, not its admissibility. It presents no basis for a new trial.” Moreover, it affirmatively appears from the record that misidentification was unlikely. The gunmen, who were not masked, were in the Porters’ full view throughout most of the robbery, that is, for nearly 30 minutes. The opportunity to observe and study the defendant’s features was optimum. Indeed, according to Mr. Porter, the defendant said, “don’t look at me so hard”. On the day following defendant’s arrest, two lineups were conducted, one for Mr. Porter, the other for Mrs. Porter. Both of the Porters positively identified the defendant independently of one another. The defendant’s second contention — that he was not proven guilty beyond a reasonable doubt — is wholly lacking in merit and requires no formal discussion. Affirmed. MOLA § 750.529 (Stat Ann 1970 Cum Supp, § 28.797).	[ 80, 17, -2, 20, -51, -38, -40, 1, -37, 25, 59, -42, 2, 21, 7, 17, -13, 37, 53, -55, 10, -32, -25, 64, -15, -30, 53, 27, -51, 41, 22, 7, 72, -27, -24, 65, 68, -14, -13, 32, 0, -1, 0, -36, -35, 8, 19, 37, 6, -37, -8, -54, 2, 60, -36, 21, -17, 6, 36, 4, -21, 13, -16, -17, 2, -31, 23, 15, -21, -23, 11, 0, -28, -6, 14, -15, -13, -35, 44, -13, 4, 2, 7, 0, 9, -9, 20, -55, -40, -16, 11, 8, -25, -42, 19, 5, 23, -21, 19, -47, -9, 4, -27, -19, 11, 15, -57, -6, -15, -1, -20, -18, 22, 0, -16, -37, -17, -14, -16, -26, -9, 12, 59, -25, 7, -63, 22, -57, 4, 13, 5, 42, 18, 28, -29, 54, 13, 15, 4, -23, -19, 21, -20, -8, 50, 17, 0, 24, 41, 14, 1, 25, -19, 33, -37, 26, -19, 1, -22, 16, -44, -29, 17, 0, 10, 18, -57, 5, 3, -2, -64, -2, 46, 33, 51, 44, -26, 27, -25, -17, -12, -5, 0, 12, -43, -24, -18, -34, -18, -43, -5, 3, -21, -2, 21, 34, -3, -59, 0, -65, 43, 7, -33, -2, -25, -25, 1, -3, 12, 31, -47, 4, 41, -26, -4, -10, 11, -60, -23, 26, -41, -46, -25, 3, 20, -22, 20, 8, 11, -20, 36, 31, 37, 2, -23, -32, 1, -48, 12, 0, 31, -55, -10, -27, -41, 14, 17, -7, 31, 53, 4, 17, -26, 6, -36, 26, 6, -16, -6, -4, -42, 1, -29, -4, 37, 91, 2, 28, -87, -21, -43, -28, -26, 23, 12, -24, -46, 59, 14, 25, -14, 37, -19, 0, 15, -61, 3, 2, 20, 34, 48, -14, -1, -27, 16, 8, 42, -10, -30, -17, 59, 41, 7, -38, -20, 24, 47, -12, -11, 1, 16, 53, -18, 31, 36, 0, -3, -7, -9, 2, -62, -26, -1, -22, 56, -21, 35, -1, 0, -43, 16, -1, -17, -25, -17, 1, 41, 23, 8, 42, -62, -7, 16, -30, 22, 21, -33, -7, -55, -60, 6, 32, -32, 1, 22, -17, -36, -22, -16, -41, 44, 0, -27, 39, -10, -3, -43, 17, 37, 19, 16, -61, -4, 29, -4, 20, 43, 21, -5, 14, 3, 0, 35, -57, 7, 0, -21, -27, 62, 28, -23, 0, 21, -26, -38, 12, -57, 48, 81, -90, -55, 14, -9, 18, -21, 7, -33, -4, -28, -60, -19, 20, 41, 44, -36, -15, 0, -27, -35, 3, 7, -20, 5, -17, 11, -1, 21, 30, -15, 4, -7, -26, -8, -48, -5, 19, -25, -79, 21, -71, -32, -46, -36, 31, 52, 35, -8, -9, -38, 55, -9, 32, 26, -29, 0, 33, 28, -15, -11, 23, 19, -18, 3, -3, -33, -5, -51, -11, -17, 5, -1, -12, -14, -13, 0, 18, -2, 6, 5, 8, 2, -4, 39, 21, -59, -39, -35, -52, 51, 5, 31, 26, 28, 15, 12, 7, -31, 7, -10, -38, -9, 28, -17, 0, 58, 19, 5, 7, -19, -8, 42, 12, -45, -22, -41, -50, -10, 14, -22, 17, -6, -13, 24, 5, 17, 46, -17, -53, -43, 14, 45, -27, 6, -2, 50, -15, -10, -32, 34, -17, -21, 29, 25, 4, 5, 16, 15, 1, 8, -66, 27, -17, 32, -17, 16, -25, -20, 8, -24, 1, -12, -2, 62, 40, 34, 1, 7, 11, 77, -48, -38, 25, -28, 66, -37, 26, 34, 12, 4, 42, 4, 74, -20, -8, -23, -3, -10, -26, 10, -15, 19, -42, 12, -23, 3, 13, -79, -19, -36, 17, 73, -19, -51, -25, 46, -30, -44, -10, -53, 3, 33, 0, -5, -21, -27, 13, -34, -16, 0, 15, 27, 13, -39, 47, -5, -35, -44, -13, 9, -29, -43, -17, 8, 39, 6, 0, 48, 12, -63, 73, -22, 17, 45, 0, 9, -20, -48, 5, 40, -57, -29, 6, -2, 20, 25, -37, -21, 11, 0, -17, 1, 84, -56, 32, -18, 14, 26, -86, 51, -12, 13, 11, 9, 5, 20, -4, 17, -20, -16, 9, -8, -18, -18, -2, 3, 50, -8, -29, 14, -31, -17, 3, 12, -32, 65, -7, 45, -8, 13, 3, -20, 18, 26, -29, -32, 0, -9, -18, -18, -9, 13, 65, 6, -32, 27, -44, -89, 14, 10, 20, -30, 6, 70, 1, 32, 4, 32, -20, 8, -20, 6, 3, 19, -36, 36, 23, -48, -6, 9, -4, -43, 2, 78, -8, -12, -35, 21, -80, 19, 65, 75, 43, 18, -4, -25, 50, 5, 53, -55, -48, 4, -32, 26, -55, -34, 16, -36, -10, 17, -26, -65, -37, 1, 15, -11, 25, -13, 0, 55, 9, 2, 57, -42, 50, 19, 43, -16, 48, -12, 10, 13, 22, -53, 4, 13, 33, 23, -37, 4, -16, 63, 78, 49, -12, -6, -15, -18, 31, -2, -12, 35, 33, -16, -1, -25, 26, -30, 15, 28, -12, 14, 3, 14, -2, -38, 53, -37, -46, 24, -25, -19, 46, 8, 54, -43, 34, -6, -5, -18, 18, 74, -5, -3, 6, 32, 45, -28, -20, 14, -7, -10, 16, -24, 28, 0, 12, 13, 2, 13, 11, -11, 24, 2, -29, -19, 31, 82, -68, 34, 61, -46, 20, 22, 45, 13, 41, -18, 74, -7, -4, 20, -28, 12, 25, 41, 33, 0, -53, 23, -19, 0, 13, -42, -4, -12, 9, -5, -3, 37, -20, 24, -12, -57, 31, 2, -20, 32, -2, -47, -3, 81, -39, -17, -4, 27, 19, -3, 1, 15, -58, 2, 26, 18, 22, 25, -70, -11, 24, 7, 40, -8, -3, -19, -52, 31, -27, 48, 5, -3, 16, -50, 11, -77, 10, -2, 70, -43, 8, 9, 24, -17, 9, -4, 29, 38, 24, -11, -32, -19, 7, -38, 50, -26, -35, 25, 55, -41, -51, -19, -8, 21, -11, -20, -78, 19, -71, -13, -19, -29, -40, -48, -17, -20, 6, 21, -55, -21, 4, -61, 26, -36, 11, -9, 6, 1, 43, -31, 12, -23, 22, -26, 71, 48, 16, 12, 6, 45, -10, 0, -22, 10, -44, -8, 30, -35, -30, 5, 26, -11, 17, 8, 19, -7, 24 ]
Per Curiam. Defendant appeals from his nonjury conviction of the statutory rape of his daughter and the ensuing sentence therefor. The three specific issues framed by defendant all relate to his contention that he was denied a fair and impartial trial. Const 1963, art 1, § 20, guarantees a defendant a right to trial by an “impartial jury”. On jury waiver, a judge “shall proceed to hear, try and determine such cause in accordance with the rules and in like manner as if such cause were being tried before a jury”. CL 1948, § 763.4 (Stat Ann 1954 Rev § 28.857). In effect, the statute places the same standard of impartiality on the judge as the constitution places on the jury. The record discloses that the trial judge interrogated witnesses prior to trial in the presence of defense counsel and the prosecuting attorney but in the absence of the defendant. The purpose of the interrogation was proper. The trial judge was seeking information on which to determine the grant or denial of defendant’s application for a continuance. At that time a jury trial was anticipated, and if the cause had been tried by a jury, we would hold no error occurred. At a subsequent hearing, again on defendant’s motion for adjournment, the trial judge stated in addressing defense counsel, “But I also didn’t realize, and maybe you didn’t know before you stepped into the picture, that your client took a lie detector test. Do you know that?. And he failed it.” Again, if this had been a jury trial, as then expected, we doubt that we could find reversible error. There after, the trial judge accepted defendant’s waiver of jury trial. We are satisfied that had a jury voir dire examination disclosed that any prospective jurror possessed the information that the trial judge possessed prior to trial, that juror would have been excused by the trial judge for cause. Similarly, we challenge the trial judge for cause as trier of the fact and excuse her. A judge, the same as a juror, does not pass the required test of impartiality once possessed of the type of information this record discloses that the trial judge possessed prior to trial.. The conviction is reversed. CL 1948, § 750.520 (Stat Ann 1954 Rev § 28.788).	[ 34, 17, -41, -7, -7, -21, -24, -14, -62, 39, -16, -13, 30, -20, 1, -32, 36, 6, 22, -76, -42, 30, -5, 87, -50, -35, 6, 54, -49, -52, 41, 7, -33, -2, 2, 1, 60, 31, -30, 7, -9, 54, -61, -17, -83, -20, -24, 19, 28, 37, 39, -14, 10, 16, 36, -20, 19, 12, 8, -9, 13, 27, -25, -37, -26, -22, -59, -18, -34, 14, -37, -23, -25, 1, 22, -7, 3, 27, 28, 52, 36, -23, 20, 20, -18, -15, 57, -15, 18, 1, 0, -1, -59, 19, -51, -3, 73, -38, 87, 10, -21, -8, 91, -18, -38, 4, -63, 15, 53, 3, 22, -50, -5, -30, -43, -20, -4, 4, -48, -71, 32, 17, 63, 33, 32, 27, 22, -62, -30, -62, -12, -17, 52, -33, 15, -35, 25, -21, 25, 10, 36, 13, 39, 10, 24, -20, -17, 0, -4, 34, -5, 41, -6, -13, 21, -30, -7, -25, -9, 14, -55, 61, -38, -5, -4, -28, 32, -17, 6, -17, 0, 25, 92, 33, 10, -70, 38, -18, 26, 19, -27, 33, 1, 16, 25, 31, -55, -27, -52, -19, -11, 4, -18, 10, 97, 26, 21, 12, 31, 0, -3, 13, -6, 3, 19, -13, 14, -40, -3, 2, -45, 39, -26, -30, 23, -48, -7, 28, 19, 42, -44, 8, 0, -52, -41, -25, -16, 3, 4, -6, 26, -37, -39, 3, 17, 14, -1, -31, 53, 43, 13, 17, 58, -2, -4, -43, 13, -8, -56, -2, 52, 9, 37, 11, -44, -20, -50, -5, -22, -16, -17, 14, -56, -3, -58, -18, 31, 50, 4, -32, -52, -27, -29, 2, 21, -4, -26, 1, -42, -26, -29, 14, 15, -5, -105, -2, -33, 38, 29, 13, 53, 9, -50, -8, 22, -9, -18, 56, -5, -50, 30, -34, 23, 14, -31, -45, 11, 19, -35, 17, -3, 22, 20, 24, 5, 52, -45, 12, 32, -15, -3, -60, -1, -35, -18, -14, 10, -78, -25, -12, -74, 22, -5, 22, 58, -5, 4, 9, 7, 39, 6, -20, -31, 9, 9, -12, -13, 44, -27, 0, 9, 14, -17, -37, -42, -52, -29, -40, 8, -29, 31, 7, 21, -3, 27, 10, 7, -14, 18, 46, -1, -53, 16, -19, 1, -52, 8, 16, -4, 26, -44, 37, 75, -59, -13, 49, 17, -3, 0, 1, 3, -35, -23, -13, -32, 36, -14, 22, 24, 17, -81, -31, -5, 7, -16, -26, -15, -53, 0, 33, -25, 73, 46, 34, 29, -51, 10, 1, 50, -11, -17, -76, 6, 15, -3, 8, -8, 16, 80, -38, -34, -20, -32, -73, 16, 50, 13, 1, 27, 7, -17, -21, -65, -10, -11, 8, 22, -9, 5, 8, -16, 24, 37, -42, -8, 30, 22, 15, -13, 25, -18, 1, -41, 9, 55, -27, -48, -18, -5, -18, 61, -20, -7, 7, -20, 39, -25, 62, 51, -15, 31, 6, -19, -6, -29, -16, 31, -14, 47, -13, -23, 2, -27, 23, -39, 17, 10, 1, 34, 37, -15, 8, -9, -11, 17, 16, 43, -26, 9, 0, 9, 30, -41, 42, -12, -15, -46, -33, -23, 31, -10, -67, -11, -9, -23, 35, -51, -5, -2, 6, 75, 68, -22, 0, 35, 49, -13, -91, -3, 32, -29, 25, 25, 4, 48, 25, 1, 28, 30, 23, 11, 31, 1, 20, -17, 2, -15, -40, 37, -52, -13, -15, 46, 22, -7, 10, -40, 3, 9, 23, 17, 6, -76, 70, -8, 28, 9, 94, -3, 2, 29, 32, -10, -47, -7, -23, 17, -18, 33, -31, -63, -29, 13, -23, -15, -76, 3, -29, 28, 17, -8, 2, -60, -11, 25, 17, 22, 55, -23, -37, 34, -1, 21, -21, -6, -43, -10, 13, -10, 48, -34, -1, -46, -45, 13, -7, -21, -16, -15, -42, -17, 13, -10, -34, 6, 39, -35, -27, -12, 21, 36, -10, 18, -40, -26, -24, 8, 20, 13, -88, 21, 11, 19, -37, 68, 12, -11, -12, 72, -22, 2, -2, -33, 51, -6, 45, 6, -3, -31, -21, 14, -4, 66, 20, -2, 4, 25, 37, -88, 20, -10, -69, -16, -9, -28, -4, -47, 12, 15, -6, 3, -12, 54, -23, 43, 4, 36, 25, -22, 11, -2, -18, -14, -14, 18, -2, 8, -31, 28, -2, -51, 53, -28, -30, 34, 6, -37, 4, 0, 17, -36, -24, 13, 18, -36, 34, 50, 6, -2, -35, 10, 24, -4, 34, -2, 37, 1, -39, 18, -47, -14, 29, 24, -45, 0, 0, -11, -7, -21, 18, 6, 34, 51, 43, -29, 63, 39, -41, -37, 15, -2, 7, -1, -58, -41, 39, 12, -7, 32, 58, -44, -37, 64, -11, -31, 20, -6, 0, 37, -12, 12, 13, -46, -38, 50, -31, 18, -20, -39, 14, 60, 9, -5, 63, 24, -12, 19, -11, -7, 19, 0, 5, -7, -36, -3, -18, 1, -9, 16, 4, 68, -28, -30, -10, -39, -14, -8, -10, 41, -17, 32, 52, -13, -65, 14, 14, 7, -60, 42, -27, 22, -57, 0, 37, 13, -47, 3, 22, -30, -15, -23, 41, 13, 19, 32, -45, -5, 11, 38, 31, 31, 28, 11, 0, 17, 0, -8, 30, -65, 23, -58, 6, -32, -46, 30, -16, -10, -22, 32, -19, 17, 0, -30, 11, -41, 19, 21, 11, -50, 67, 4, -6, 0, 9, 5, 4, -53, -42, -64, 7, 46, 32, 34, 33, -1, 12, 40, 1, -3, 0, -19, -1, 10, 29, 11, 19, 1, -21, 10, 45, -35, -20, 9, -9, 103, -15, -17, -14, 26, -25, -35, 28, -35, 21, -3, -53, -29, -81, 1, -18, -5, -16, 25, -4, 25, -1, -39, -32, 5, 46, -11, -20, -21, 9, -35, 21, -59, 50, 29, 30, -49, -9, -24, 5, 48, -16, 45, 49, -4, -51, -18, 37, 16, 37, 0, -12, 3, 20, 17, 43, 56, -17, -12, -32, -42, -11, 19, -3, 22, 5, -20, -20, 9, -6, -30, -41, 4, 62, 2, -51, 40, -59, 6, 37, -38, 43, -10, -25, 49, 51, -5, 25, 30, -25, 6, 46, 1, -32, -17, 49, 9, -36, 42, -3, 7, -10, 0, -99, 32, -21, -21, 82, 26, 24 ]
Per Curiam. Defendant appeals from the summary judgments of dismissal of its counterclaim and supplemental counterclaim against plaintiff. October 10, 1968, plaintiff filed its complaint against defendant to recover the amount of the latter’s promissory note to the former, and summons issued. At the same time, three writs of garnishment issued and were served. These writs were quashed October 23, 1968 on defendant’s motion, because the affidavits on which the writs were based were held to be fatally defective due to an insufficient statement of facts to support plaintiff’s claim of just apprehension of loss. October 23,1968, plaintiff filed new affidavits, and new writs of garnishment issued to the same garnishee defendants named in the first writs. Again defendant moved to quash, and this motion was denied December 13,1968. December 5,1968, defendant filed its counterclaim seeking damages against plaintiff for abuse of process on the basis of the issuance of the first writs of garnishment. By judgment of February 13, 1969, the trial court dismissed this counterclaim on plaintiff’s motion. By stipulation, a supplemental counterclaim for damages, based on the same theory but on the issuance of the second writs of garnishment, was filed. Again, on plaintiff’s motion on March 3, 1969, judgment entered dismissing the supplemental counterclaim. Garnishment was proper prior to judgment in this contract action. MCLA § 600.4011(1) (Stat Ann 1962 Rev § 27A.4011[1]), GCR 1963, 738. The trial court found that the affidavits for the second writs were sufficient, and defendant has not appealed this finding. The March 3, 1969 judgment dismissing defendant’s supplemental counterclaim is affirmed. The essential elements to establish an action for abuse of process are, (a) the existence of an ulterior purpose and (b) an act in the use of the process not proper in the regular prosecution of the proceeding. Spear v. Pendill (1911), 164 Mich 620; Pilette Industries, Inc., v. Alexander (1969), 17 Mich App 226. It is defendant’s contention that the purpose element must be judged from the state of mind of the garnisher, and that this is a jury question, hence summary judgment was improper. Defendant’s position in this regard is not supported by the authorities it cites, and it is contrary to Pilette, supra, at page 228: “The proper issuance of process may become tainted by its subsequent use, but a regular use of process with bad intentions is not a malicious abuse of that process. Spear v. Pendill, supra. The manner of use of the process, not the intention, is what is evaluated.” Affirmed with costs to plaintiff.	[ -32, -15, 32, 0, -6, -15, 30, -36, -20, 67, -44, -28, 11, 45, -38, 2, -27, -55, 11, -2, -23, -18, 1, -14, 10, -17, -14, -11, 34, -56, -17, 5, -33, 0, -9, -53, -16, 14, -9, 16, -19, 6, 16, 15, -20, -26, -23, -13, 11, -11, -1, -44, -18, -10, -16, -23, 11, -6, 0, -19, 8, 6, -51, -13, -53, -9, -15, -3, -1, -5, -41, 49, 27, -12, -11, -18, -28, -28, -32, -1, -4, -18, -2, 7, 14, 13, 0, 10, 27, -19, 2, 23, -50, -28, -35, 1, 26, -19, 66, 80, -23, 30, 15, 27, -9, -33, -14, -17, -54, -30, 35, -8, 1, -61, -46, -62, 38, 3, -42, -18, 4, 7, 44, 16, 23, 24, -3, -22, -24, 100, 30, -6, -2, 54, 12, -22, -6, -43, -44, -46, -15, -54, -31, -27, 4, 22, 35, -7, 11, -12, -34, 39, -63, 0, 2, -13, 11, -37, 24, -45, 2, 46, 6, -1, -3, -28, 12, -4, 39, 15, -10, -10, -12, -7, 0, 3, -30, -40, -44, 22, -5, 27, -3, 16, 27, -47, -69, -21, -3, -6, -28, 32, 7, 14, 18, -8, 47, -10, 24, -23, 18, -11, -7, -10, -9, 40, 71, -65, 12, 44, -25, -13, -54, -32, -54, -44, 51, 3, 40, 40, -71, 16, -10, 0, -19, 19, -15, -10, -11, -7, -28, -18, 31, 8, -1, -3, 67, 36, 32, 6, -17, 33, 5, -29, 33, 33, 17, 6, 1, -1, -6, 37, -5, -1, -7, -70, -63, 41, -1, -3, 42, 61, -3, -12, -37, -24, 26, 59, -44, -11, -7, 8, 24, 36, 61, -53, -34, 7, 4, 23, -9, -1, -30, -37, -56, 11, 47, -2, 12, 43, 0, 19, -15, -18, -32, 22, -13, -54, -17, 0, -50, -59, 36, -50, -25, 15, -10, -17, -52, -52, -15, 42, -42, -49, 13, 16, 7, -8, 31, -43, 22, 23, 48, -35, -36, -9, 32, -17, -7, 34, 3, 12, 17, -32, 25, -41, 14, -33, -4, 13, 19, 25, -35, -16, -46, 72, 17, 10, 29, 48, -24, 0, 43, 32, 88, -29, 30, 6, -4, 18, -21, 31, 8, -34, 45, 47, -18, -8, -38, 62, -31, 0, 11, -14, -28, -15, -19, 23, -19, 75, 4, -51, 47, 20, -4, -3, -2, -3, -6, 1, -43, -1, 19, -8, 35, -22, -48, -25, -38, 45, -40, 50, -6, -8, -21, -18, 7, -40, -11, 0, -19, 16, 0, 33, -14, -35, 11, 10, 38, -67, 62, 6, 3, -31, 15, -6, 41, -21, 11, -22, -37, 103, -1, -36, 5, 39, -16, -6, 48, -1, -7, -20, -4, 4, 26, 21, 33, -19, 29, 0, 2, -38, 4, -2, 73, -14, 52, 9, 35, 22, 45, -18, 9, 23, 6, 0, 4, 8, 9, -18, 16, -31, -54, -11, -47, -8, 13, 40, 12, -13, 27, 26, 16, -79, -7, 35, 6, -17, -3, -62, 5, 2, 37, 11, -24, -75, -62, -34, -18, 33, -3, -8, 21, -7, 35, 4, -29, -5, -10, 50, -17, 6, 53, 2, 12, 6, 68, -18, -9, 10, -18, -24, -54, -32, -37, 6, 19, 26, 28, -8, 25, 16, -1, -36, 17, 35, -40, -39, -3, 18, -4, 75, 48, 29, 17, 27, -40, -13, -3, 53, -31, -24, 52, 22, -48, 11, 11, -9, 64, -79, -7, -10, 17, 7, 56, -30, 28, -29, -28, 3, -20, -4, 25, 14, -13, 16, 31, 0, -15, -44, -8, 41, -15, -60, -17, 4, 21, 11, -19, 32, -2, -19, -17, -32, -8, 0, -46, -20, -11, 42, 7, -1, -42, -18, -15, 16, 16, 14, -7, -50, 32, -33, 1, -37, -39, -69, -5, 9, 7, 53, 11, -24, 23, 35, -6, 27, 15, -25, -32, -3, 58, -38, -1, 14, -45, 18, -41, 20, -24, -39, 11, 14, 16, 0, -20, -84, -4, 30, 29, 5, -28, 43, -1, 17, 8, -28, 38, 15, 5, -59, -12, -11, 23, -2, -14, 50, 8, 21, 21, 45, 33, -58, 24, 28, -2, -7, 9, 7, 18, -19, -21, -24, 2, 28, -2, -1, 5, -2, 30, -37, 1, 16, -21, -19, 12, -18, -9, 32, -24, 24, 5, -19, -26, 45, -32, -25, -12, 6, 48, 10, -22, -41, 24, 8, 29, 15, 30, 52, -43, -11, 14, -2, 58, 30, -21, -39, 65, -33, -31, -25, 26, 59, 1, 69, -29, 0, 21, -61, -58, 0, 13, 3, 31, -10, 8, 38, 43, 86, -18, -24, 11, 10, 34, 12, -13, 19, 26, -35, 15, 16, 8, 32, -8, -45, -26, 51, -12, -14, 0, 14, -45, 0, 50, -43, 7, 33, 22, -58, 54, -20, -3, -26, -5, 20, 2, -83, 5, -21, -40, 18, 27, -9, 15, -3, 5, -6, 8, -2, -41, 2, 2, -12, 0, -11, -13, 4, -16, -20, 2, -16, 40, -31, 5, 0, 25, 12, -41, 18, -53, -16, -6, 48, 3, 45, 22, 22, 19, -58, -4, 20, 14, -48, 3, 64, -16, -1, 25, -11, -20, -52, -3, -36, -2, 7, 25, 17, 3, 21, -8, -51, 6, -4, 30, 15, -8, 0, -22, -6, 7, 29, 38, 0, -39, 10, 57, 20, -23, 23, 12, 16, 57, 37, -44, 15, -19, 1, 37, -14, 19, -6, 33, 4, -59, 51, -11, 6, 11, -34, -66, 14, 69, 6, 44, 7, 17, 2, 64, -48, -3, -3, -45, 8, -30, 19, 5, -2, 11, -51, -2, 39, 47, 19, -16, 7, 56, -13, 71, -16, 35, -22, 30, -44, -5, -37, 13, -44, 19, 16, -9, 14, -30, -18, 11, 24, -16, -28, -18, -32, -2, 41, -36, -7, 20, -12, -7, -53, -67, 15, 22, 53, -23, -9, 83, 23, -3, 18, 14, -8, -24, -26, 46, 7, 28, 1, 30, 10, 31, -1, -2, 42, 36, -71, -20, -41, -28, -33, 48, 2, -51, 22, 15, -51, -7, -29, 6, -15, -14, 16, -26, -1, 40, 46, -3, 19, -45, -8, 9, 4, -16, 72, -38, -18, 66, -59, 38, 13, 9, 8, -44, -23, -23, -46, 14, 62, 5, 4, -57, 23, -62, 12, -6, -13, 59, 22 ]
Per Curiam. Upon motion of the defendant the court of claims dismissed plaintiff’s cause of action for lack of progress. UCR 1963, 501.3. Plaintiff has appealed arguing that this was an abuse of discretion. The record clearly supports the action of the trial judge. The argument is without merit. Corley v. Krawczak (1969), 16 Mich App 176; People v. Tolbert (1970) 23 Mich App 566; Spalding v. Spalding (1959), 355 Mich 382. Affirmed, no costs, defendants not having filed a brief.	[ -13, 39, 29, 23, 1, 4, 11, 13, -28, 17, -30, -27, -11, -13, 23, -14, 18, -48, 32, -17, -66, 20, 27, -19, -31, -46, -1, 19, 0, 9, -15, 1, -51, 40, -20, -49, -10, -20, -11, 22, 15, -69, 54, 31, -53, -11, 35, 12, -24, 40, -7, 29, -59, -30, 17, -7, 15, -23, -8, -30, -13, 14, -11, 18, -4, -2, -7, -52, -23, 0, -11, 22, 27, -29, 1, -14, -7, 17, 9, 41, 52, -8, 37, 47, -3, 4, 4, 4, -13, -4, -60, 42, -62, -20, -13, 39, -18, -8, 39, 2, 17, 20, 16, -29, -19, 18, 30, -27, -96, -60, -24, 47, -24, -26, -6, 46, 9, 17, -37, -41, 4, 31, 38, 4, -29, 31, -12, 9, -1, 29, 0, 65, -1, -40, 9, 20, 15, -11, 8, -6, -18, -6, 11, -27, -5, -28, 26, -9, -41, 0, -13, 76, -37, 54, 26, 0, -9, -28, 0, 39, 10, -13, -49, 12, 27, 39, 8, 17, 55, 6, -19, -5, 6, -15, -26, 16, 32, -2, -6, 7, 7, 16, 6, 20, -18, 33, -52, 25, -15, 5, 0, 3, -10, 5, 46, -5, 8, 44, 43, -29, 31, -14, -21, -40, -26, -22, 7, -80, 23, 23, 5, 18, 8, -61, 40, -19, 51, -25, -6, -8, -1, 21, 30, -28, 3, -42, -3, -3, -69, 21, -6, 39, -25, 15, 41, 31, 0, -53, 30, 34, -15, 38, -7, -23, -65, 24, -22, 58, -23, -10, 56, 3, -10, -24, 23, -42, 12, -13, -8, 4, -2, 73, -40, -50, -3, 10, 18, 33, -1, -13, 12, -8, -16, -43, 10, -29, -30, -26, 3, 23, -11, 22, 21, -21, -85, 26, -23, 5, 42, -9, 5, -47, -37, -24, 37, 45, 39, -16, -14, -31, -44, -21, 34, 11, 15, -23, -18, -11, -78, -14, -25, 43, -18, 9, -8, 26, -24, -12, -4, -55, -11, 14, -15, -51, 45, -54, 26, 5, 35, 18, -38, 10, 22, 2, 10, -10, -9, -21, 7, 34, 6, 19, -41, -15, -23, 0, -29, -16, 32, 39, -36, -48, 24, 3, 11, -26, -28, -17, -57, 6, 18, 23, 40, -28, 42, 76, 10, 23, -13, 65, 15, -57, 53, -44, -35, -37, 15, 23, 3, 68, -9, -84, 42, 2, 3, 10, 26, 27, -28, 12, -1, 1, 14, -8, -12, 23, -69, 49, -1, 12, 2, -30, -12, 16, -36, -21, 20, -22, -3, 36, 26, 19, 32, 73, -25, -16, 67, 0, 54, -15, 55, -4, 9, 17, -14, 15, 13, -25, 50, -68, -10, -1, 5, -6, 52, 99, -20, 14, -30, -42, -1, 27, 11, 37, -4, 26, 19, -10, -20, -27, -28, -10, 32, -6, -26, -33, 42, 6, -9, 57, 6, 2, -38, 5, -7, -3, -61, 15, 40, 8, 56, -3, -15, 0, -33, 18, -23, 28, 59, -43, -5, -6, -35, -56, -32, -10, 25, -29, 47, -40, -8, -13, 11, 24, 22, -26, -19, 11, -51, 44, -42, -17, 11, -24, 71, -32, 19, -16, 24, 66, -46, -6, 19, 26, -20, -18, 13, 23, 23, -12, -42, -6, -45, -22, 0, 4, -12, -12, 10, 20, 87, -3, 9, 9, -53, 69, -25, -45, 20, 27, 4, 58, 9, 29, 56, 3, -9, 6, 22, 36, -30, -17, 22, -25, -37, -11, -24, -9, 13, -68, 15, -34, 37, 24, -31, 8, 19, -56, 30, 62, 45, 58, 16, -41, -4, 57, 17, 16, 26, -9, 3, -6, -54, -37, -42, -13, 38, -36, -11, -16, -80, -20, 41, -43, 27, -12, -69, -19, 89, 35, 27, 2, -38, 42, 2, 55, 17, 8, -4, -37, 42, 12, 15, -46, 46, -50, -31, 43, 7, -48, -32, -30, -3, 3, -28, -28, 2, -27, -44, -5, -4, 14, -12, -47, -33, 39, -28, 3, -49, 15, -43, 30, 0, -9, -6, 4, -10, -5, -43, 16, -18, 37, 33, -48, -17, -66, -20, 13, 10, -63, 30, -10, -32, -27, 31, 28, -17, 32, 22, 7, -29, -31, 13, 15, 13, 4, 56, 18, -26, 6, 4, -35, 111, 34, 25, -6, -30, 63, -24, -16, 18, 54, -29, -26, 0, -14, -16, 36, 65, 17, 0, 8, 32, 23, 48, -22, -23, -16, 24, 14, 11, 15, -6, -31, 0, 2, -20, -24, -25, 21, 31, -5, 36, 34, -25, -5, 54, 34, 43, -71, 2, 63, 16, 40, -21, 27, 21, -33, -24, 1, 14, -11, 24, 17, -56, -10, -41, -7, 17, 26, 3, -48, 21, 16, -1, -22, 26, 1, 12, 3, 7, -20, 1, -52, -54, 17, 20, -1, 4, 22, -41, -30, -4, -45, -51, -4, -7, -42, 47, 39, -29, -30, 29, 73, -6, -25, 56, -49, -29, -4, 68, -47, -64, -38, 27, 6, 17, -17, 11, 2, -37, 13, 35, 20, -41, 28, -47, -9, 3, -12, 28, -48, -27, -31, 28, 45, -29, 39, -12, -21, -6, 24, 6, 51, 18, 16, 37, -20, 20, 11, 42, -81, 33, 60, -38, -26, 36, 42, -51, -7, -16, -16, -29, 27, 43, 31, 7, -30, -13, 18, 16, 42, -17, 0, 4, -44, -42, -61, 2, 16, 43, 30, -57, -41, -7, 48, -15, -5, 10, -38, 47, 54, -30, -16, 14, -21, -4, -44, -1, 9, -18, 7, -27, 0, 17, -37, -24, -19, -52, 39, 87, 31, 22, 6, -12, -2, -25, -45, 18, -40, -51, -4, 101, 1, 45, 13, -46, 25, -20, 4, -17, 7, 62, -31, 37, 0, -45, 6, 12, -26, 3, 5, -1, -11, -2, -20, 4, -17, -30, 23, -19, -45, -23, 12, 20, -14, 42, -56, 5, 9, -30, -31, -23, -25, -22, -35, -56, 8, 4, 43, 29, -16, -9, -10, -17, -5, 53, -4, 42, -22, 41, -15, -42, -10, -36, -17, 37, 32, 5, 68, -21, -50, -19, -22, -3, 24, -18, 27, -27, 39, -14, -94, -24, -51, -99, -36, -8, -7, 4, 13, 9, 30, -15, 8, -17, 22, -5, -31, -23, 65, -36, 53, 42, -58, 47, 15, 49, -50, -2, -14, 12, 59, 41, 11, -10, -15, -22, -61, -35, -15, -31, 47, 16, 8 ]
Per Curiam. Defendant was found guilty by a jury of breaking and entering and was sentenced to four to ten years in the state penitentiary. Defendant’s sole issue on appeal concerns MCLA § 725.16 (Stat Ann 1962 Rev § 27.3956) which requires a judicial order to empower a clerk or his deputy to sign a criminal complaint. The issue is stated thus: is reversible error committed when the trial court refuses to dismiss a criminal case at the conclusion of the people’s proof, and at the conclusion of the trial, where the original criminal complaint issued against the defendant was not signed by a municipal judge, but by a deputy clerk not having authority to do so? There is ample Michigan authority to hold that there is a waiver of the right to object to a criminal complaint if not brought before the jury is sworn. People v. Roney (1967), 7 Mich App 678; People v. Licavoli (1931), 256 Mich 229; People v. Bonneau (1948), 323 Mich 237; People v. Linscott (1968), 14 Mich App 334; People v. Curran (1916), 191 Mich 583; People v. Graves (1968), 15 Mich App 244. Affirmed. MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305).	[ -19, -15, -17, -5, 1, -3, -8, -46, -55, 70, 6, 3, 2, -21, -29, 0, -19, -5, 1, -24, -23, -24, -8, 36, -54, -32, -8, 47, 3, -2, -25, 21, 36, 17, 32, -79, 40, -3, 28, 37, 50, 13, 30, -57, -78, -15, 12, 48, 22, -11, -13, 12, -45, 2, -24, 42, -1, -34, 12, 34, 2, 64, 31, -5, -14, -33, -7, 18, -61, 8, 35, 19, -6, -50, -21, 57, -35, 1, -44, 42, -6, 8, 42, -30, 20, -16, 19, -26, -2, -43, 2, 12, -25, -8, 20, -23, 17, -16, 34, -69, -43, 29, 21, -22, 1, -35, -25, 5, -16, -39, 10, 0, -27, -31, 5, -1, 2, -5, -9, -15, 71, 33, 48, 40, 11, 31, 55, -13, 61, 10, 13, 42, -1, -34, -13, 44, 32, 22, 60, 20, 49, 14, 46, -34, -14, -51, -41, 28, 23, 19, -12, 20, -13, -23, -13, 36, -10, -19, 8, 8, 20, 32, -54, -43, 27, -25, -2, 3, 1, -43, 31, -24, 27, -10, 43, -76, -4, 0, 26, -25, -3, 27, 22, -44, 0, 3, -17, -40, -53, -10, -6, 30, -14, -32, 67, -9, -9, 74, 45, 44, -25, 8, -5, 23, -25, -17, -9, -17, -11, 61, -55, -19, -57, 18, 3, -37, 36, 3, -12, 46, -21, 14, 24, 33, -3, -22, 26, -33, 0, 30, 34, -18, 40, -22, 9, 4, 25, -5, 19, 6, -38, -14, 15, 1, 19, -33, -5, 7, -10, 7, 71, 14, -8, -59, -40, 13, 11, -23, -58, 29, -10, -17, -2, -20, -58, 35, 14, 24, -16, -39, -1, -2, -2, 6, 6, 20, -12, 17, 18, -4, -7, 12, 38, 26, -37, -19, -28, 21, 11, 0, 39, -10, -45, 19, 37, 36, -15, -11, -53, -5, 13, 14, 1, -19, -26, -29, 12, 3, -6, -5, 21, 44, -7, 37, -15, -7, -9, 7, 42, -24, -46, 4, -16, -36, -47, -7, 34, -52, -5, -26, -29, 15, -10, -8, 24, 39, 26, -24, -46, 8, 43, -10, -27, -18, 2, 31, 18, 25, -75, 7, 42, -28, 14, 3, -2, -35, -54, -51, -6, 39, -6, -24, -36, 37, 33, 3, -17, -4, 40, 78, -7, -44, -12, -27, -34, -22, 54, -53, -21, 23, 0, -16, -33, -87, -8, -20, -33, -14, -46, -1, -57, -30, 3, -56, -78, 21, -14, -13, 4, 20, -11, 2, 33, 27, -5, -16, -42, 30, 0, 43, 0, 54, -5, 14, 0, -64, 48, -26, 85, -38, -14, -5, 22, -57, -6, -3, 6, 38, 34, -7, 51, 35, 12, -50, 61, 4, -43, -35, 24, -12, -10, 26, -59, -18, 4, -5, -5, 0, -9, 17, 25, 19, -2, -42, -4, 56, 22, 34, -3, -27, -12, -51, -37, -18, 7, -32, -12, -42, 36, 42, 0, -27, -24, 53, -43, -7, -21, -18, -14, 35, 36, 53, 5, -1, -1, 7, 52, -11, -9, -27, -52, 19, -4, 58, 26, 33, -65, -33, 0, 27, -20, 57, 0, 33, 25, 10, -3, -26, 53, 30, -23, 47, 0, 25, -22, -13, 9, -50, 34, 31, -54, -5, -24, -21, -19, 31, -55, -12, 0, 45, 48, -18, 8, 11, 22, 32, -12, -36, -35, 21, 24, 8, 48, 7, 35, 33, -57, 14, 44, 7, -3, -3, -38, -39, -32, 41, -12, 36, 35, -12, -9, -5, 52, 28, 2, 16, -3, -22, 38, -9, 10, -4, -53, 0, -20, 26, 10, 3, 4, -39, 7, 49, -2, -20, 22, -5, -24, -41, 19, 3, -50, 4, 16, -67, -38, 1, -6, -27, 59, 48, 34, 18, -7, 45, 40, -38, 55, -3, -31, -51, 41, -17, -33, -5, 22, 11, -21, 11, -37, 45, -10, 11, -13, -3, -40, -54, -26, -53, -40, -15, -6, 37, -25, -31, -9, 47, -6, 38, -39, -22, -31, 41, -5, -33, 30, -19, 40, -1, 12, -15, 13, 49, -18, -12, 71, -12, -21, 2, 60, -11, -17, 10, -47, -5, -14, 60, -25, -20, -2, 17, 18, -6, -28, 7, -6, 6, 21, 5, -48, -24, 6, 4, -11, 1, 1, -70, -14, 34, -11, -13, -18, 59, 37, -13, 7, -2, 53, 72, -18, 23, 13, -23, 15, 15, -33, -4, -1, -47, 20, -26, -25, 44, -8, 14, 38, -16, -23, 7, -14, 7, -21, -62, 19, 18, -38, -27, 6, 2, 50, -1, -3, -30, 25, -14, 12, 48, -13, 21, -10, 19, -26, 27, -32, -38, -11, -37, 39, -10, 7, -13, 13, 42, -70, 29, -4, 22, -1, -50, -48, 40, -7, 16, -26, -27, -12, 54, -12, -14, 52, -2, -14, -21, 15, -15, -3, 36, -3, 6, 43, -32, 8, 17, -73, -46, 21, 23, -8, -20, -79, -16, 12, 9, 1, 32, 6, -3, 13, -20, -26, 47, -2, -26, 0, -49, -18, -23, -11, 33, 11, -16, 16, -7, -35, 15, 38, 36, -14, 20, 23, -35, -20, 9, 9, -26, -16, 10, 8, -62, -5, 0, 11, 5, 31, 22, -22, -65, 12, 43, -29, 12, 3, -39, 0, 14, 21, 21, -11, -26, 37, 42, 29, -4, -9, 1, 9, 5, -14, -42, 22, -5, 4, 31, -46, -31, -4, 8, -20, -41, -19, -62, -42, -37, 18, 6, 9, 20, 0, -10, -5, 10, 16, -8, 55, 7, 32, -48, -9, -17, -36, 24, 0, 51, -3, 35, 11, -35, 38, -40, 11, 18, 30, 16, -6, -23, 16, -5, 15, 42, 0, -13, -9, -23, -29, -4, 27, -32, -53, 36, 45, -65, -11, 44, 7, -15, 6, -20, 16, 1, -19, 25, -14, -32, 19, -43, -25, -23, 47, -42, 26, -53, -36, 34, -24, 9, -56, 49, -20, 54, -18, 12, -46, 21, 15, 11, 40, 37, 1, 2, -31, -14, -33, 40, 1, 17, -19, 34, 27, -31, 16, 71, 25, -27, 4, -8, -49, 18, 28, 26, 17, 44, 3, -70, -10, 4, 3, -56, 0, -10, -9, -36, 19, 20, -4, 4, -4, 7, -23, -45, -37, 46, 0, -11, -30, 22, -7, -10, -3, -12, -6, 55, 26, 21, 43, 13, -21, 15, 21, 20, -52, 44, 9, 67, -16, 13 ]
Per Curiam. Defendant entered a voluntary plea of guilty to breaking and entering a drug store on February 7, 1969, with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). Sentence was from 2-1/2 to 10 years. On appeal, defendant requests withdrawal of the guilty plea, contending that his answers to the court at the plea acceptance hearing were prompted by promises allegedly made to him by the sheriff and probation officer that by entering a guilty plea his sentence would be probation. There is no basis in the record for the claim advanced upon appeal that the defendant “was lured and induced” to plead guilty by “an expectation of leniency”. The following question was asked at arraignment: “Q. Has anyone told you that some kind of a special arrangement would be made, that if you entered a guilty plea you’d get a particular kind of treatment or some special consideration? “Mr. Dorner: No, sir.” In the sentence record the court asked the following questions: “Q. Is there anything that you would like to say to the court before the court disposes of your case? “A. No, but there’s one thing I’d like to ask. “Q. All right. “A. If I’m going to be sentenced to Jackson how is my wife going to take care of herself seeing how she’s going to have a baby in October.” The defendant’s participation in the commission of the crime was adequately established by direct questioning of the defendant, as required by People v. Barrows (1959), 358 Mich 267, 272; the defendant stated, “I broke through a door” and later, “I went inside and found two cash registers there and I proceeded to empty them.” Defendant’s assertion that his plea was not voluntary is made for the first time in this appeal. A reading of the transcript of the arraignment discloses a thorough and careful questioning of the defendant by the trial judge, which establishes, in so far as the record is concerned, that the defendant’s plea of guilty was voluntary and not the result of any promises made to him of probation or leniency. In the defendant’s brief he refers to an affidavit, which we fail to find in the file on appeal. The proper forum for such an issue to be determined is in the trial court by way of a motion to withdraw the plea of guilty, set aside the judgment, and for a new trial. This the defendant has not done. We therefore affirm, without prejudice to the defendant to file such a motion in the circuit court for Kalkaska County. We do not retain jurisdiction of this matter. Affirmed without prejudice.	[ 40, 12, 20, 11, -54, -18, -28, 35, -46, 30, 11, -26, -34, -3, -28, 6, -5, 31, 47, 21, 31, -7, 20, 7, -51, -9, 5, 65, 8, 60, 52, 56, 3, 1, 18, 6, 52, -47, 7, 25, -34, 21, -8, -5, -47, 12, -14, -19, 42, -30, 40, 23, 19, 9, 15, 15, -5, 0, 30, 2, -43, 12, -58, -27, -17, 8, 0, 87, -9, -36, 29, 22, 17, 6, 10, 12, -5, 64, 0, 57, 12, 5, 46, -1, -19, 17, -10, -45, -7, -68, 35, 23, 20, -24, 22, -31, -14, -3, 50, -53, -30, 7, -22, -34, 40, 5, 4, -18, -21, 20, -37, -3, 0, -35, -58, -9, -17, 0, -29, -57, -10, 22, 22, 0, 34, -19, -5, -41, -8, -14, -9, 76, -1, 5, 27, 19, 9, 13, 40, 40, -13, 41, 52, -2, 19, 9, -54, 35, 10, 23, -4, -11, -34, -17, -9, 33, -47, -15, -61, 14, 6, -8, -44, 8, -7, -35, -40, 30, 4, -25, -6, -35, 52, 18, 26, -52, 0, 6, -27, -11, -70, -2, -1, 0, -15, 6, 13, 42, -20, -11, 3, 9, -15, -16, 40, 3, -6, 61, 12, 7, 13, -24, 33, 28, 20, -2, -29, -29, -1, -21, -27, 6, -19, -26, -12, -25, 14, -3, 6, 30, -56, 13, -25, -3, -35, -1, 22, 16, -17, 23, -1, -5, 0, 63, -27, 5, 29, -16, 65, 29, -27, -3, 73, -32, -4, 6, -43, -2, -56, -7, 20, 70, 0, 20, -42, -71, 19, -36, -11, -1, 31, 29, -17, 3, -13, 8, -40, -19, -63, -38, 11, 12, -15, -23, 36, 17, -32, 33, -19, -32, 11, -39, 22, -5, -22, 0, -19, 25, -16, 13, 50, -1, -50, -16, 68, 21, -1, -12, -92, 6, 21, -32, 13, -51, 28, -5, 31, 6, -38, -8, 18, -9, 24, 12, 10, -31, 31, -19, 94, 37, -43, -9, -4, 0, -22, -73, 5, -24, 54, -17, -29, 13, -1, -43, -15, 58, -27, -38, -20, 47, 2, 38, -44, -29, 25, 20, 17, 17, -36, -19, 30, -54, 8, 7, -3, 10, -39, -23, 31, -57, 30, 2, -20, -11, 15, -16, 4, -18, 21, 57, -1, -86, -11, -38, -30, -44, 27, -50, 12, 15, -34, -57, 14, -2, 4, -35, -14, -23, -12, 34, -32, -22, -7, -65, 21, -19, 43, 9, -7, -20, 1, -38, 56, -15, -12, -8, -7, 13, -1, 0, -15, 75, 41, 66, -24, -28, 7, -12, 11, -32, 21, -5, -8, 5, -2, 37, 11, 12, -10, -11, 20, 14, 22, -21, 51, 33, -41, -35, 22, 0, -28, -10, -23, 22, 85, 12, -84, -40, 22, 12, 21, 36, 17, -25, -11, 61, 0, 20, -1, -3, 29, 18, -41, 12, 69, -64, -56, -25, 43, 19, 15, 24, 0, 27, 9, 31, 23, 26, 61, 16, 0, -20, 10, 9, -27, -26, -17, -41, 20, -11, 40, -40, -3, -19, -29, -11, -13, -14, -15, 56, -38, -10, -45, 25, 54, 12, -9, 11, 56, 4, -17, 29, 17, -24, 42, -28, 16, -5, -28, 10, -36, -56, 1, -9, 7, 38, -21, -31, -21, 5, 29, -59, -18, -75, 32, 3, -15, -52, -3, -56, 64, 27, 14, 57, 4, 23, 8, 8, 20, 1, 7, 23, -6, 6, -31, 5, -4, 1, -34, 0, -20, 9, 83, 15, -25, -5, 18, 28, 27, 34, -35, 20, -34, 22, 37, 13, 2, 2, 32, -2, 80, 60, -4, -26, 19, 18, -10, -23, -18, -12, -59, -14, 11, -33, 38, 4, -71, -9, 18, 39, 17, 21, -57, 35, 31, -5, 13, -6, 11, -1, 57, -62, -29, -36, -39, 12, 27, -35, -41, 34, 9, 10, -12, -63, 0, -51, -47, -21, -39, -26, 2, 21, 0, -26, -52, -5, -31, 18, -63, -16, 25, 55, -27, 3, 63, 11, 13, 4, -10, 11, -4, -8, 78, 18, 71, -2, -24, 35, 20, -28, -21, 17, -37, -34, 39, 61, 24, -8, 2, 48, -31, -7, -35, 19, 48, 23, 7, -8, 28, -30, -25, -45, 14, -51, 10, -48, 2, 7, 12, -1, -32, 7, 53, -12, 3, 35, 46, 64, 2, -4, 4, 32, 14, -5, -39, -10, 40, -20, -3, -2, -32, 16, -20, 17, -32, -9, -72, 20, -36, 9, -35, 22, 16, 43, 15, 3, 33, -29, 17, -38, 30, -27, 0, -15, -4, -3, -19, -4, 23, 31, -17, 44, -81, -10, -34, -9, -19, 2, -19, -6, 53, -3, 15, 43, 28, 33, 37, -39, -63, -12, -61, 55, -18, 4, -13, 77, -24, -5, 15, 18, -27, -14, 25, -30, -29, -4, 14, 9, 13, 3, 1, 34, -24, -21, -17, -3, -3, -9, 22, -32, -38, 38, -27, 31, 15, 21, 15, 21, -4, -16, 4, -28, -10, 16, 9, -8, 1, 14, 47, -12, 24, 7, -9, -30, -35, -27, -8, -62, -2, -11, 12, 10, -48, -26, -53, 17, 38, -19, 34, 3, -12, -10, 16, 32, -33, 5, 35, 30, -60, 29, 9, -6, 44, 38, -18, -15, 27, -54, -8, 23, 32, -51, -1, 2, -12, 20, 20, 33, 42, -60, -9, 0, -10, -27, 21, 32, 4, 8, 31, -73, -38, -1, 9, 17, 17, 46, -30, -36, -6, -53, -13, 14, 26, 27, 27, 5, -32, -61, -70, 49, -6, 46, -46, 36, -22, -36, 14, -43, -44, 13, 56, -1, -12, 9, 43, 13, 34, 51, -31, 31, -4, -2, 36, 5, 26, -3, -15, -3, 14, -38, 1, 22, -7, 55, 53, -15, 9, -17, -51, 19, 6, -3, 11, -42, 25, 22, 15, -10, 30, -3, -12, -33, -48, 6, -69, -3, -2, -24, -6, -5, 10, 18, -7, -20, -13, 13, 23, 12, -1, 35, -14, -6, 17, 1, -6, 17, 35, 6, -13, 21, 45, -61, 13, -29, 24, -6, 44, -29, 8, 6, 23, -60, -39, -19, -3, 23, -3, 14, -47, -63, 33, -23, 31, 46, 14, 4, -17, -51, 12, -30, -23, -35, -9, -17, -63, -45, 0, 8, -14, -1, -2, -5, 0, -62, -11, 5, 10, 14, -62, 21, -79, -21, -45, 24 ]
Holbrook, P. J. An information was filed in the circuit court for Kalamazoo County on March 24, 1969, charging- Lawrence David Minson, defendant, with having in his possession in said county, d-lysergic acid diethylamide (LSD), on the 25th day of October, 1968, contrary to MCLA § 335.106 (Stat Ann 1970 Cum Supp §18.1106). On April 7, 1969, defendant, with his counsel present, pleaded guilty to the charge and was sentenced by the court on May 19, 1969, to prison for a term of from one to four years. Defendant was credited with 14 days spent in the county jail. On July 14,1969, defendant filed his claim of appeal, and on said day, the circuit court set bail in the sum of $3,000 which was furnished, and defendant was released on bond July 16, 1969. The defendant raises four issues on this appeal: (1) Whether the trial court made an adequate inquiry into the facts which constituted the crime? (2) Whether the trial court erred in not informing defendant of the consequences of his plea? (3) Whether the defendant was informed of the nature of the offense with which he was charged? (4) Whether the facts alleged in the defendant’s affidavit require a testimonial hearing to determine their truth or falsity? I The defendant, relying on People v. Barrows (1959), 358 Mich 267, People v. Perine (1967), 7 Mich App 292, and People v. Mason (1968), 13 Mich App 277, contends that the trial court erred by not conducting an examination of the defendant respecting the facts of the crime and the defendant’s participation therein. At the arraignment held April 7, 1969, the following occurred in part: “Mr. Oergely: I will waive the reading and my client informs me that he wishes to enter a plea of guilty to this offense. “The Court: Is this correct, you want to plead guilty to this offense? “The Respondent: Yes, sir. “The Court: Did you have in your possession LSD? “The Respondent: Yes, sir. “The Court: I can’t even pronounce the name of it, d-lysergic acid — I passed chemistry, but I got a ‘C’ in it. “Mr. Qergely: Diethylamide. “The Court: Are you pleading guilty because you are guilty of this offense of possession of LSD? “The Respondent: Yes, sir. “The Court: Has anybody threatened you if you did not plead guilty? “The Respondent: No. “The Court: Anybody promise you anything to get you to plead guilty? “The Respondent: No, sir. “The Court: Are you satisfied he is pleading freely and voluntarily? “Mr. Gergely: I am satisfied that he is. “The Court: I am satisfied that his plea is freely, voluntarily, and understandingly made, without compulsion, duress, or promise of leniency. “You could be sentenced up to four years. You still want to plead guilty, do you? “The Respondent: Yes.” If there was nothing more in the record than the foregoing, it would be necessary to rule on the sufficiency of the inquiry; however, the trial judge questioned the defendant in chambers. We do not have the transcript of what took place there, but we do have the substance as stated in the record from what took place at the time of sentencing, vis.: “Mr. McCune: If the court please, before your Honor this afternoon is Larry Minson. He is here for sentencing on a charge of possession of narcotics. It is a companion case with the last case, possession of LSD. “The Court: Minson, is there anything further now that you wish to say before sentence? “Mr. Gergely: We have said everything we could in chambers. “The Court: Mr. Prosecutor? “Mr. McCune: Nothing else, your Honor. “The Court: * * * This young man graduated very high in his class in a very fine school in Cincinnati. * * * He has been using marijuana and LSD. On this occasion he was transporting approximately 1,500 capsules of LSD and I think you told me they were worth between a thousand and fifteen hundred dollars, is that right? “The Respondent: (Nodded head affirmatively). “The Court: And some twenty pounds of marijuana and what was it, fifty dollars a pound; am I right? “The Respondent: Yes, sir. “The Court: Which he was transporting to a friend, a student at Harvard, was transporting it to Boston where this friend apparently was going to sell it. The marijuana had been paid for. The LSD was to be páid for as he sold it. * * * “The Court: * * * This young man’s case is very substantially different from the young lady who was with him on this trip. She knew about the drugs that were being transported but he was the one that —and he has never claimed otherwise — he was the one who was delivering them. She was riding only to Ann Arbor. # # # “Now you said you quit using drugs after your psychiatric help, but as I told you in chambers it bothers me that after that you were transporting 1,500 capsules of LSD and twenty pounds of marijuana for somebody else to use. It bothers me that after learning your own lesson you were willing to get somebody else into the habit which you have tried to lick and probably have licked. This is a constant fight upon the part of law enforcing officers to hold this traffic down. You never can do away with it all, but we will do the best we can with holding it down.” The interview conducted by the trial judge in chambers shows that the proper inquiry was made, the crime established, and defendant’s participation therein ascertained. This issue is resolved by People v. Winegar (1968), 380 Mich 719, 731, 733: “Third, a plea of guilty should not be set aside after sentence merely because the verbatim record does not affirmatively show compliance in illis verbis with GCR 1963, 785.3(2). ■H* ^ “A convicted defendant no longer enjoys the presumption of innocence. People v. Fritch (1910), 161 Mich 111; 1 Wharton, Criminal Evidence (12th ed), § 93, p 189; 29 Am Jur 2d, Evidence, § 225, page 276. He has the burden of showing something more than technical noncompliance with a rule. Absent a showing of violation or denial of constitutional rights, he has the obligation of alleging in a motion to withdraw plea such facts as would, if true, substantiate a finding that there was noncompliance which resulted in a miscarriage of justice.” The record discloses that defendant was guilty of possession of LSD and defendant admits that such facts are true. The defendant does not, at this time, assert that they are untrue, nor in fact, that he is not guilty. We find no miscarriage of justice in relation to the first issue. II Defendant contends that he was not informed of the consequences of his plea because the court did not inform him of his constitutional rights as required by GCR 1963, 785.3, and cites People v. Dunn (1968), 380 Mich 693, and Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274). The pertinent portion of GCR 1963, 785.3 states: “.3 Arraignment and Sentencing. In every prosecution wherein the accused is charged with a felony, the trial court shall conform to the following practice : “(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken. “(2) Imposing Sentence. If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.” In the instant case, defendant was represented by retained counsel. Therefore, subsection (1) is not applicable, and the first part of subsection (2) is completely satisfied, i.e., the court informed the accused of the nature of the accusation; the Dunn case, supra, is authority for the rule that “consequence” of a plea of guilty, within the wording of the court rule, is that an accused, by so pleading, waives his right to trial by jury, or trial without a jury by the court, and that the accused subjects himself to whatever penalty is prescribed by law including possible confinement in a penal institution. As stated above, GCR. 1963, 785.3(1), requiring the defendant to be advised of his right to a trial by jury is specifically not applicable where the accused is represented by counsel. As to the requirements of subsection (2), we rule that insofar as informing defendant that he waives his right to a trial by jury or a trial without a jury by the court, they are not mandatory where a defendant is represented by counsel. People v. LaRoe (1969), 18 Mich App 262. The information concerning the possible penalty in the present case was specifically given by the trial judge to the defendant. The requirements of the balance of GrCR- 1963, 785.3(2) were fully complied with by the court. Defendant claims that the Boykin case, supra, requires the court to inform a defendant who is represented by counsel as to his right to trial by jury, the right to confront his accusers and the privilege against self-incrimination. The people assert that Boykin should be read so as to require the record in a criminal case to show that the plea was made knowingly and voluntarily. In Boykin, it is stated in part: “Before the matter came to trial, the court determined that petitioner was indigent and appointed counsel to represent him. Three days later, at his arraignment, petitioner pleaded guilty to all five indictments. So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.” The extent of the ruling of the Court in Boykin is not too clear; however, in any event, it should be applied only to pleas taken after June 2, 1969, when it was decided. Since defendant pleaded guilty on April 7, 1969, Boykin is not applicable. Ernst v. State (1969), 43 Wis 2d 661 (170 NW2d 713). Ill The defendant contends that he was not informed of the nature of the accusation, citing McCarthy v. United States (1969), 394 US 459 (89 S Ct 1166, 22 L Ed 2d 418). Insofar as McCarthy, supra, requires that the defendant be informed of the nature of the charge, it does not appear to work any major change in Michigan law. People v. Goldfarb (1967), 6 Mich App 7. In the instant case, defendant was told that he was charged with possession of LSD. This is not a case like those of McCarthy and Goldfarb where the defendant may not have understood the nature of the specific intent needed for the crime. The ordinary person would know what is meant by the phrase “possession of LSD.” Our Courts, when construing the narcotic act, have held that the term “possession” is used in its ordinary sense and is not given esoteric meaning. People v. Harper (1962), 365 Mich 494; People v. Eaves (1966), 4 Mich App 457; and People v. Cherry (1968), 10 Mich App 420. There is no error in the procedure followed as claimed in defendant’s third issue. IY Defendant’s final contention, as set forth in an affidavit, is that he pleaded guilty because his lawyer informed him that if he pleaded guilty, he would receive probation. He further contends that his lawyer told him that the prosecutor’s office had indicated that they were recommending probation. Because of these facts, he contends that the case of People v. Bartlett (1969), 17 Mich App 205, requires reversal of his conviction. We do not agree. In Bartlett, supra, the trial court did not conduct a testimonial hearing on a motion for a new trial when defendant claimed he was promised a certain sentence but received a longer sentence. We stated that when defendant asserts facts in his affidavit which, if true, would entitle defendant to withdraw his plea of guilty, a testimonial hearing must be held to determine the truth or falsity of the assertions. In Bartlett, a motion was presented to the trial court to withdraw the plea of guilty, set aside the sentence, and grant a new trial. This motion was supported by an affidavit setting forth the alleged promises of a certain sentence. The trial court did not conduct a testimonial hearing to determine the facts, i.e., as to whether the plea was voluntary. We therein stated that the trial court should have conducted such a testimonial hearing. In the instant case, the issue is raised in this Court for the first time. The matter not having been presented to the trial court, we do not consider it on appeal. Affirmed, but without prejudice to the defendant to present such a motion within 30 days to the circuit court for Kalamazoo County. All concurred. The practice of relying upon a conference off the record should he discouraged unless the trial judge again covers the matter on the record as was done in this case.	[ 67, -15, 13, 58, -41, -8, 55, -35, -7, 34, -21, -79, -14, -7, -39, 14, -9, -1, 42, -30, -20, -16, 26, 54, 2, -36, 9, 60, 3, -56, 33, 52, 17, -61, 22, 19, 16, -33, 30, 27, 13, -11, 0, -27, -30, -1, -25, -24, 46, -18, 17, 23, 33, 36, 1, -39, 27, 2, -21, -9, -37, 2, -14, 4, -3, 13, -46, 22, -6, -81, 0, 10, 15, -34, 6, 47, 39, 39, 14, 45, 4, 26, 17, 53, -28, -52, -51, -47, 29, 14, 10, -25, -12, -70, 15, -48, -42, 14, 14, -8, -37, -31, -9, 3, -34, -5, -58, -24, -17, -3, -18, -5, 38, 2, -43, -43, -25, 3, -23, 8, -5, -10, 53, 16, 25, -35, -45, -14, 25, -26, 45, 44, 14, 12, -29, -25, 2, 6, 37, -14, -17, -4, 43, -7, 1, -14, 22, -21, 24, 42, -84, -29, -6, 61, -2, 14, 21, -45, -33, 28, 8, 4, -2, -19, 14, -70, -39, 17, 30, -72, -12, 31, 43, 67, 24, -19, 12, -13, 0, 42, -2, -22, -14, 21, 4, -17, 15, -19, -18, -5, 29, 36, -11, 20, 18, 2, -43, 16, -31, -50, 22, 1, 1, 57, 51, 17, 7, 36, 59, 3, -1, -42, 64, -8, -10, -25, -11, 33, -4, 1, -26, -37, 12, 25, -25, 12, 5, 2, -44, -11, -35, 4, 18, -15, -28, 0, 37, 1, 22, -20, 0, -28, 27, -38, 54, -1, -2, -9, -88, 24, -37, 24, -8, -55, -39, -23, 24, -23, -22, -8, -2, 5, -4, -21, -30, 27, -46, 26, -19, 7, -64, 24, -17, -6, -23, -9, -16, 51, 35, -22, 72, -42, 42, -16, 31, -16, 5, 78, -64, -11, 11, -7, -35, -45, 42, 31, 0, 38, 2, 39, 28, 20, -88, 0, -48, -19, 24, 41, -31, -29, 37, -47, 19, 11, -35, -38, 8, -24, 73, -4, -32, 40, -39, 3, 17, 5, 6, -15, 41, -9, -31, 18, -34, -35, 12, 14, -22, -14, -9, 32, -8, 12, 17, 1, 21, 59, 10, 31, -50, -60, 20, 4, 16, 13, -60, -4, -20, -73, -7, -6, -3, -26, 17, -13, 8, -23, -4, -56, 0, 12, 9, -13, 15, -21, -12, -6, 25, -20, 26, 22, -25, 21, 13, -10, -11, -2, -9, 5, 46, 3, -12, 28, 35, -44, 12, 30, -5, 36, 10, -45, 27, 3, 58, -31, 17, -20, -5, 57, 25, -11, 7, 70, 4, 25, 4, -43, 26, -9, 14, -23, 56, 6, -22, -69, 12, 27, 32, 12, 44, 17, 7, 27, 23, -19, -1, 8, -21, 9, 11, -11, 15, -41, -21, 11, 39, -34, -20, -29, 21, -5, -4, -19, 20, 9, -54, 78, 8, 12, -54, -11, -40, -37, -9, 16, 76, 0, -20, 20, 11, 4, 22, 49, -12, 16, -18, 16, -3, 61, 15, 15, 6, 6, -27, 15, 31, -27, -6, -34, -5, -21, 2, 34, -57, 37, 41, -20, -48, -15, 0, 63, -16, -2, -15, 49, 35, 10, 96, 14, 20, -21, 43, 32, -4, 18, 11, -21, 9, -27, -22, 17, -33, 42, 28, 19, -34, 2, 27, -73, -34, -8, 2, -38, -48, -47, -1, -30, -27, 3, -29, -18, 44, -1, 20, 34, -10, -14, -23, -10, -3, -25, -8, 39, -8, -18, -39, -37, 2, 73, -15, 7, 42, -10, 44, 9, -19, -3, 11, -19, 21, 80, 6, 27, -14, 16, 28, 15, -30, 57, -4, 29, 20, -3, -4, -41, -17, -3, 27, -29, 9, -41, 0, 48, -13, -36, -35, -28, -45, -52, 19, -1, 15, 24, 18, 33, 50, 40, 2, -16, 45, -19, 55, -16, -13, 0, -27, 31, -1, -46, -42, 17, -57, 3, 35, 18, -11, -34, -84, -33, -16, -6, -52, -27, -43, 3, -4, 9, -4, 15, -66, -18, 25, 26, -64, -28, -18, 17, -51, -25, -32, 1, -14, 47, -3, 2, 23, -11, -27, 28, -7, 13, 18, 36, -75, -20, -30, 22, 12, -44, 60, -13, -27, -44, -39, -28, -19, -62, -12, -6, 34, 4, -26, -1, 25, -65, 77, 40, -32, 4, 16, -29, -44, 25, 48, 0, 0, -33, -4, 0, 55, 6, 10, 36, 27, 3, -17, 41, 32, -15, -28, 6, -40, 52, -11, -5, -16, -28, 4, 13, -50, 12, -17, -11, -2, 54, 7, -6, 6, -11, 5, -94, 43, -17, 8, 7, -4, 41, 11, 14, 0, -15, 5, -15, -58, -16, -60, -18, 13, 9, 2, -49, 27, 22, 39, 6, -19, 30, 37, 11, -89, 0, -35, 27, -35, -66, -53, 44, 35, 20, 35, 36, -24, -1, -40, -25, -29, 21, -51, 13, 2, -3, 23, 7, -53, -41, 32, 20, 13, 13, 42, -27, -7, -39, 21, 37, 13, 8, 17, 46, 10, -2, 19, -39, 70, -31, -46, 32, -37, -38, 0, 70, 59, 76, 32, -62, -20, 25, -26, -61, -1, 15, 41, 13, -9, 15, -21, 5, 0, -25, 0, -20, 7, -8, 42, 46, 24, -8, 29, -48, 6, 43, 65, -11, 32, -20, -15, -6, 56, -18, 37, 11, 3, -19, -14, -10, -35, 55, 11, 3, -32, 33, 27, -15, -20, -11, 1, 27, 33, -20, -1, -28, 20, -14, 24, 70, 18, 34, -39, -19, 0, 7, -30, -54, 69, -36, 23, -64, -9, -59, 10, 21, -49, 60, -13, -1, -20, -18, 11, -5, -13, -38, 59, 14, -10, 8, 48, -34, 6, 0, -46, 14, -50, 17, 6, 15, -71, 4, -44, 47, 1, -3, -26, 22, 32, 57, -6, -18, -8, 17, -26, 15, -22, -1, -21, -84, -11, 32, 37, -13, 31, -4, 69, -17, -10, 13, 31, 48, -19, -19, 45, 60, -56, 47, 18, 39, 15, 8, -2, -4, 45, 30, -63, 7, -9, -13, -13, -4, -27, 11, 23, 32, 19, -18, -18, -16, 22, -12, 37, -20, -21, -34, -38, -19, -33, -37, -6, 37, 14, 42, -17, -9, -37, -35, -32, 13, -21, -8, -16, -68, -6, -4, 18, 15, -27, 13, 39, -48, 42, -14, -18, 14, 1, 0, 44, -58, -22, 29, -2, -8, -23, 88, -68, 18, -26, 31 ]
Stone, C. J. This is a suit in assumpsit to recover damages for an alleged breach of a contract appointing plaintiff defendant’s sales agent at Onaway, Mich. The damages claimed were for expenses incurred by plaintiff in altering his store to receive the defendant’s goods, for loss sustained in having to sell his old stock on hand to make room for the new stock, and for labor and expenses incurred in securing certain lists of names and copying the same for the defendant. The defendant and appellant is an Ohio corporation authorized to do business in Michigan. Its business consisted of selling direct to the customer, at retail, boots and shoes manufactured by it at Columbus, Ohio. It did this by establishing stores in various towns and cities, each store in charge of a local agent. A general agent, one A. W. Prindle, had charge of certain territory and the stores in it. His duties and powers, as testified to by him, will be hereinafter stated. The contracts were made on printed blanks furnished by the defendant. Some time prior to December 28, 1912, the plaintiff, who had a small store and shoe shop at Onaway, wrote to Mr. Prindle, defendant’s said agent in control of the territory in which Onaway was situated, requesting to be appointed local agent at that place. On said December 28th Mr. Prindle was at Onaway, and he, in behalf of the defendant, and the plaintiff, signed the following contract: “Articles of Agreement entered into this 28th day of December, 1912, by and between the Wear-TJ-Well Shoe Company, hereinafter described as party of the first part, and Sam Feldman, hereinafter described as party of the second part, witnesseth: “(1) Party of the first part will hereby designate and create the party of the second part as its sales agent at Onaway, State of Michigan, to sell and dispose of the goods hereinafter described, consigned to him, party of the second part, as such sales agent, and .subject to the terms hereinafter set forth. “ (2) The goods herein contemplated to be consigned to the party of the second part by party of the first part to consist of shoes and rubber goods, findings and fixtures, furnished, by party of the first part and invoiced by it, the amount of such consignment to be at all times at the option of the party of the first part. The party of the first part will also furnish said second party certain advertising matter, printed and otherwise, consisting of circulars, papers, bills and other forms of advertising which the first party may select at its option. It also will furnish to said second party certain interior and exterior decorations for use at the salesroom where said goods will be stored. As said stock is from time to time depleted ,by sales made therefrom, it is to be replenished and added to from time to time at the option of the first party in such amount and of such quality as the first party may determine. “ (3) Party of the second part is to keep said stock in good and merchantable condition and is to be responsible to the party of the first part for any loss or damage resulting to said goods, or a part thereof, from any other cause than that of accidental fire. “(4) Party of the first part is to keep said stock insured in its name and to pay the insurance payments thereon. “(5) The second party is to furnish room for said merchandise, and all transportation, operating, and maintenance expense and charges shall be borne by the party of the second part, including all taxes and assessments which may be levied thereon, either through or by virtue of State law or any municipal ordinance or regulation. “ (6) The second party further agrees to be responsible to the first party for all moneys received from the sale of said goods until the same has been deposited in a bank to be selected by said first party, and a banker’s certificate given for each separate deposit. Proceeds of such sales to be the property of the party of the first part, and the deposit of the same to be according to such method and reported to said party of the first part upon blanks and forms prepared by it. “ (7) The second party agrees at all times to follow the instructions and use the accounting systems provided by party of the first part. “(8) The party of the second part further agrees to deliver and surrender said stock of goods and each part thereof at any. time after having received fifteen days’ notice to do so from the party of the first part. Second party further agrees to execute and deliver to the first party a bond in such amount and upon such condition for the performance of this contract, upon his part to be performed as may be required by said first party. “(9) In consideration of the employment of said second party by said first party, said second party further agrees not to sell or deal in any other shoes than those obtained from the first party during the term of this contract, and in case of violation of this part of this agreement by said second party he agrees to forfeit and pay to the said first party the sum of $500 as liquidated damages therefor. The second party further agrees that in the event this contract bé terminated for any reason the second party will not engage in or be employed by or in any way connected with the business of selling shoes at either wholesale or retail, within said county of Presque Isle, State of Michigan, for the period of six months next succeeding the termination of this contract. “(10) For and in consideration of the services of said party of the second part, and agreements on his part to be observed and maintained, the first party agrees to pay to the second party a compensation as follows: _ The same to be computed upon a percentage basis, being 12 per cent, of all the sales of shoes sold at $2.98 per pair or higher, and 12 per cent on all shoes sold at $2.48 per pair or lower. The computation and payments of such compensation to be made therefor monthly, and the amount thereof to be paid by the first party to said second party, but second party has no right to deduct the amount thereof from the amount of sales, which at all times are to be deposited to the credit of the first party in full amount, as sold. “(11) The said second party further agrees to sell all goods included in this agreement for cash. Should, he extend credit to any one, he agrees, to pay cash to party of the first part out of his own funds at the time.of sale. “In witness whereof party of the first part, in its proper officers, have hereunto set its hand and seal, and the party of the second part has set his hand on the day and year first above mentioned. “The Wear-U-Well Shoe Co., “A. W. Prindle. “Sam Feldman. “Witnessed by A. W. Prindle. “The location of the above is Main street.” It was claimed by plaintiff that on the day the contract was signed he and Mr. Prindle visited a local agent of the Massachusetts Bonding & Insurance Company with a view of giving the bond required by the contract; that after some conversation with the bonding company’s agent Mr. Prindle said to plaintiff that defendant would get a bond from the same company for the plaintiff for $5 a year, and said to plaintiff: “You will get a letter from the bonding company inside of a week or a few days. When you get the letter from the bonding company, send your check for $5 and sign with a witness, and then your bond will be accepted.” In a letter dated January 8, 1913, the general agent of the bonding company sent to the plaintiff the bond to sign, and he did sign it, and sent it with his check for $5 to the Massachusetts Bonding & Insurance Company at Columbus, Ohio. The bonding company received the plaintiff’s check and cashed it, and the paid check was produced upon the trial. It was dated January 11, 1913, and on January 15, 1913, the defendant wrote to the plaintiff as follows: “We wish to acknowledge receipt of contract for opening a branch in your city. We will ship the goods as soon as we possibly can, and wish you would please notify us when they come to hand. We will then advise you the day of opening.” The defendant never shipped plaintiff any goods, and he heard nothing more about the matter until he received a letter from Mr. Prindle, dated February 24, 1913, in which he said: “I inclose you a bond to get some one who is responsible for $1,000 free from exemption to sign and return to me at Bay City so I can look it over; then we can open you up.” On March 12, 1913, Mr. Prindle went to Onaway, and while he was there called upon the plaintiff, and according to plaintiff’s testimony the following conversation occurred: Mr. Prindle said to plaintiff: “I want you to get personal bonds, and I will give you the shoes.” The plaintiff replied: “I give you one bond, and ain’t got my check back, and I couldn’t give you twice bond.” On direct examination the plaintiff testified: “Q. Did you tell him that you would not — you would give him a personal bond? “A. Yes, sir. ' “Q. If that was straightened out? “A. Yes, sir. “Q. And had the company notified you before that time your bond had been canceled? “A. No, sir.” On cross-examination the plaintiff testified: “I told Mr. Prindle if I will get my check back again I will give him a personal bond.” This was the second trial of the case. Upon the former trial Mr. Prindle had testified. He died before the trial we are dealing with, and his testimony taken upon the former trial was read by the court and the official stenographer. Upon this subject Mr. Prindle’s testimony was as follows, on direct examination: “It was after February 25th when I met Mr. Feldman in his store and asked him for a new bond. He said he wouldn’t give it to me; he has given one, and that was all he was going to give.” It is undisputed that after the conversation between Mr. Prindle and the plaintiff on that occasion, and while Mr. Prindle was at Onaway, he entered into a contract with W. H. Fish to become the defendant’s agent at Onaway, under date of March 12, 1913, to put in a stock of shoes for Mr. Fish and appointed him manager of the defendant’s company at Onaway. It is the claim of the plaintiff that he was not informed at any time that the bonding company had refused to accept his original bond until he received a letter dated March 14, 1913, from the defendant, in which the defendant said: “The Massachusetts Bonding Company for some reason refuse to accept the bond for which you made application, and we have written Mr. Prindle to call and see you and arrange for personal bond.” It will be observed that before this letter was written Mr. Prindle had given the agency to Mr. Fish. The plaintiff further testified that afterwards he received a letter from the bonding company bearing date April 2, 1913, in which the company said: “Inclosed find check for $3.90, the same being for the unearned premium on your bond in favor of the Wear-U-Well Shoe Company, the earned premium on the same from the time the bond was issued to date of cancellation being $1.10.” A material question in the case is as to the duties and powers of the defendant’s agent, Mr. Prindle. Upon that subject his testimony upon the first trial, in February, 1914, as read into the record in the instant case, was as follows: After referring to his retirement as district manager for the defendant on account of ill health in January of that year, he said: ■ “Before that I had been in their employ ever since they started business. My territory was the southern peninsula. My business with them was the contracting with people for running stores, to audit stock and see if it was all there, and to keep them in shape, and to do a general business:” On cross-examination he testified as follows: “I was with the Wear-U-Well Shoe Company ever since they were organized, and before that for ten years. They organized the company four years ago the 27th of May. I was with the company before that for ten years. The Wear-U-Well Shoe Company is a corporation with its headquarters at Columbus, Ohio. Their general business is manufacturing shoes and selling tnem at retail direct to customers. Their method of doing that was appointing agents and having agents for their distributors in the local places. Ónaway was one of them. There were 100 of these stores in the State the last I heard. There is more than that now. I had to look after 47, outside of the two south tiers of counties of Michigan. I had all the rest of the southern peninsula. My business was the managing stores, contracting with people and checking them up to see if they had the goods, and doing the general business that was to be done. I looked after all the business in Michigan in the territory I described. I had a written contract to do that work. The contract did not state exactly all the authority 1 had, but part .of it anyway. I haven’t the contract with me. It is in existence.' There is one at my house in Pinconning, and one down at the headquarters at Columbus. They have the original, and I have a copy. ■ I haven’t it with me. I made contracts around through Michigan with the distributors or local managers, and, when I sent the company the contract and bond for the stock, they sent it. “Q. Now, you made contracts with individuals with whom you could put in a stock according to the circumstances, did you not, in the different places? “A. Well, I sent out about the same kind of stock to every town. “Q. Yes; but in making the arrangements you had the authority to make arrangements to put in these stocks and handle them, didn’t you? “A. I could make a contract with whoever I wanted to. “Q. You signed the contract for the company, didn’t you? “A. I signed the contract for the company, but I couldn’t contract for anything that wasn’t on the contract. “Q. What is that? “A. I couldn’t obligate them to anything only what was on the contract. “Q. If it became necessary to arrange, make advance arrangements to put in a stock, you had the authority to do that, didn’t you ? “A. Not unless they would accept it. “Q. What is that? “A. Not unless they would accept it, if it was outside the contract. “Q. In making the contract, and afterwards, you had authority to make the arrangements, didn’t you, in order to get the stock in? “A. Give me that over again. (Last question read by stenographer.) “A. I had authority to make all the arrangements the contract would call for. “Q. Yes; you had authority to may any arrangements to get in the stock and get a place for the stock? “A. No; I didn’t have all that authority, because, if I had to put a stock out to get a stock in, I wouldn’t had no authority to have done that. “Q. No; I didn’t mean that at all. In many places it was necessary for you to make arrangements to clear out the store and get ready for it? “A. That was the local man’s business to do that. “Q. You were the only one who had any authority to make any change at all, wasn’t you, in Michigan? “A. I had the authority to put in the stocks. The local man had to make the arrangements for the stock. “Q. You made no preliminary arrangements you say? “A. No, sir; I had nothing to do with making arrangements for putting in a stock; that was the local man’s business. If he wanted my stock and made arrangements for it, why, he got the stock; if he didn’t, why, he didn’t get it.” Upon the trial, against the objection and exception of defendant’s counsel, the plaintiff testified that in his arrangement with Mr. Prindle he was told that he must change his storeroom in the front by taking out the window and putting in plate glass, and by taking out the partition and papering the store and painting it. He further testified: “Then I says to Mr. Prindle, I couldn’t afford to put in that expense in the store; I wouldn’t sign the contract; and he said: ‘When we will send you the shoes you give us the first Saturday night commission, and we will pay all the expenses what it will cost.’ ” He further testified that in his arrangement with Mr. Prindle the latter told him that he must sell out the rubbers and shoes and stock on hand before the Wear-U-Well Company’s stock came on; and it was agreed that he was to close out and get the stock he had in there out before the shoes came, which would be in about two weeks. It is the further claim of the plaintiff, and testified to by him, that following the' agreement and understanding that the plaintiff had with defendant’s manager in reference to fixing over the store and the selling out of the stock, and the procuring of the list of names for the defendant, he also had to get ready to take in the stock of the defendant; that he sent for the plate glass, took out the partition, papered the store, moved his shoeshop into the back room, and got the store and everything ready in the manner he was directed to do; that the repairs necessitated the expenditure of $75; that in the sale of the stock which he had on hand, and which he was required to dispose of, as under the contract he could sell no other goods of the character furnished by the defendant during the time of the contract, he was obliged to sell at a sacrifice, and he lost on the stock $300 by having to close it out in so short a time. The case was submitted to the jury in a very full charge, in which the court called attention: First, to the question of the conflict between the testimony of the plaintiff and Mr. Prindle relative to the bond; and, second, upon the subject of damages. The trial resulted in a verdict and judgment for the plaintiff in the sum of $437.85. It is claimed by the defendant, and it seems probable from the evidence in the case, and from the charge of the court, that there were embraced in the verdict the loss on the old stock sold, $300; repairs to building, $75; for names obtained, $42 — making a total of $417' interest on this sum for one year at 5 per cent., as directed by the court in case a verdict was found for the plaintiff, $20.85 — making the total of the verdict. There was a motion for a new trial, which was denied, and exception duly taken, and the case has been brought here by the defendant for review. The numerous assignments of error of the defendant are discussed by its counsel under four heads: (1) That the defendant was not in fault in canceling the contract and appointing another agent. (2) Defendant was not chargeable with any arrangement that its agent, Mr. Prindle, ’ might make with the plaintiff that was not embodied in the written contract submitted tó, and approved by it. (3) If defendant were in fault in canceling the contract, it was not such fault as to subject it to damages. (4) If the defendant’s action canceling the contract subjects it to damages, what should be the measure of those damages? * 1. Whether the defendant was in fault in canceling the contract and appointing another agent depends upon whether it wrongfully canceled the contract, and whether the jury believed the testimony of the plaintiff or that of the defendant’s agent relating to the proposed new bond. That question was fairly and fully submitted to the jury by the trial court in a very elaborate charge. We think it presented purely a question of fact, and, the jury having found in favor of the plaintiff, we see no reason for disturbing the verdict or judgment upon that ground. 2. We have set forth the testimony of Mr. Prindle covering the questions of his duty and authority as general agent for the defendant. We might dispose of this branch of the case by saying that such testimony presented a question of fact for the jury. Whatever may be said of the authority of Mr. Prindle to^ go outside the contract in matters not covered by that instrument, it is very apparent that, if the defendant wrongfully canceled the contract and deprived the plaintiff of the benefit of it, the defendant must have known by its acquaintance with the nature of the business to be engaged in that the plaintiff would necessarily suffer considerable damage as a natural result of that cancellation. Certain damages would naturally spring from a breach of the contract. For instance, the defendant must have known that, if the plaintiff was proceeding in accordance with the terms of the contract, he was making the necessary arrangements to receive the defendant’s goods, to make room for them in his store, and to place the same on sale under advantageous conditions, and, if deprived of that right, that damages would naturally follow. 3. The third and fourth propositions of the defendant may well be considered together. What we have already said upon the subject of damages applies here. The damages should be such as would reasonably compensate the plaintiff for the injury which he had suffered. “In cases of breach of" contract the damages ‘should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.’ ” Hopkins v. Sanford, 38 Mich. 611, 613. See, also, Tracy v. Butters, 40 Mich. 406, citing Allison v. Chandler, 11 Mich. 542; Drysdall v. Smith, 44 Mich. 119 (6 N. W. 211) ; Murdock v. Roe, 186 Mich. 233 (152 N. W. 969). We have examined the charge with great care upon this branch of the case, and are of opinion that the question was properly submitted, and that the dam ages recovered were neither unreasonable nor excessive. After a careful examination of the entire case, we cannot say that any of the alleged errors have resulted in a miscarriage of justice. The judgment of the court below is therefore affirmed. ' ' Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.	[ -35, 20, -9, 2, -41, 15, 12, 9, 23, 6, 5, 48, 11, 35, -9, -8, 9, 36, 21, 20, 33, -58, 8, -44, -8, -39, -34, -83, -6, -42, -58, 21, 9, -35, -65, 72, 75, -16, -3, -29, 26, -2, 39, -2, -23, 1, 39, -52, 55, -45, 23, -3, -20, 17, -16, -40, 19, 5, 45, -25, -6, -11, 55, -37, 5, -66, 20, 42, 71, 37, -4, 0, 35, -2, 16, 4, -50, 1, -68, -20, 7, -30, 67, -2, -53, 50, -20, 49, -10, -14, -34, 39, 9, 21, 15, 19, -2, 4, -18, 20, -2, 6, -10, 26, -8, 6, 6, -71, -34, 40, 30, -7, 9, -12, -17, -42, 27, -38, 37, -19, 49, 16, -8, 32, 16, -8, -15, -26, 0, 3, 28, 33, -15, 72, 20, 25, -2, -17, 17, 21, 32, 21, -39, 3, -5, 36, -30, 16, -95, -53, -31, -41, 6, 46, 2, 34, 66, 24, 72, -77, 56, -29, 36, -8, -51, -18, -56, 3, -52, 47, 2, -5, -10, -57, -46, 35, 19, 15, -3, -6, 0, -20, -12, -34, -4, -37, 9, -9, 8, 35, 38, -25, -47, -19, -39, 0, -21, 15, -13, -35, 7, -40, -14, -27, 21, 21, 6, 36, -26, -16, -18, 23, 13, -69, -37, 7, 4, -12, 8, -32, 10, -23, 0, 46, -24, -49, 39, -28, -23, -15, -41, -14, 5, 13, 8, 12, 33, -26, 34, 34, -8, -38, -43, 26, -15, -30, -61, 20, -9, 41, 4, 2, 0, 9, -24, -12, -3, 18, -20, 5, -56, 62, -31, 16, -16, -13, 7, -20, -22, 26, -39, -15, 75, 3, -9, -31, -27, 1, 6, -2, -15, -53, -7, -32, -13, 53, 39, 6, -36, -5, -19, 30, 38, -40, 55, 30, 14, -26, -28, 44, -66, 23, 13, -22, -22, 27, -11, -2, 18, -2, -25, -28, -6, -30, -9, 47, 21, 35, 34, -40, -29, 44, -7, 74, 8, -63, 9, -25, -1, -58, 23, -15, 37, -39, -51, -26, 28, -24, 2, 20, 41, 47, 57, -8, -5, 47, 2, -65, 23, 34, -16, -62, 11, 8, 17, 45, -3, -4, -31, 15, 53, -1, -16, -36, -24, 50, -26, 6, 9, 17, -29, 19, -14, 6, -10, -69, -20, -24, -27, 78, 24, 2, -18, -7, 38, -29, -5, -3, -14, -12, -60, 17, 50, 36, -37, 0, 4, -13, -18, -6, 20, 29, -22, -16, -28, 12, 16, -5, -3, -3, 40, -61, -33, 6, -8, 9, 55, -5, -5, 8, 13, -13, -43, -13, 64, -40, 10, 32, -17, 5, 2, 17, 26, -23, 5, 10, -70, 26, -2, 11, -57, 33, -21, 16, 26, 13, -44, 82, 40, -7, 15, 26, 30, 44, -7, 5, 22, -7, 38, -10, 42, -54, 8, -8, -26, 20, 36, -43, -24, 38, -28, 16, 15, -5, -15, -30, -18, -30, 1, 9, -16, -1, 13, 21, -37, -24, 10, 37, -10, 7, -6, 25, 20, 11, 4, 23, -64, 2, 43, 23, -30, -28, -24, 10, -8, 23, 1, -33, 14, 50, -29, -17, 10, 14, 64, 34, 1, 19, -60, -4, -2, 21, -30, 18, 24, 20, 22, 20, 21, 22, -15, -35, 23, 5, -19, -5, 47, -13, 21, -31, -6, 24, 13, 17, -10, 1, -3, 2, 39, -17, 23, -12, 12, -50, 2, 35, 4, -15, 45, 6, -20, 21, -1, -19, 43, 4, -1, -27, 15, 11, -70, 0, 13, 1, 19, 29, 7, -20, -14, -37, -11, -11, -45, -72, -22, 31, 20, 12, 8, 24, -4, -14, -23, -41, 1, 29, 16, -20, 42, -9, -6, -36, -49, -19, -27, -44, -2, 31, 35, 14, 7, -54, -9, -59, 10, 13, 5, -3, 14, 11, -18, -2, 19, 40, 39, 55, -4, 2, -58, 9, 37, -12, 2, 28, 14, 36, 72, 14, -56, -29, -4, -19, 8, 7, 6, -22, -29, -15, 42, 2, -13, -3, 74, 5, -10, 11, 14, -13, -7, -24, -18, -5, -43, -4, 55, 3, -8, -21, 9, -13, -6, 32, -4, -26, -15, -3, 26, 20, -2, 13, 29, 17, 32, 8, -11, -4, 11, -19, -9, -28, -3, 15, -54, -49, -5, 22, 25, 4, 32, -70, -61, 17, 3, 62, -7, 29, -26, 18, 13, 53, 37, -49, -14, 35, 35, 87, 6, 36, -49, 39, -6, -27, 25, -23, 25, 10, 7, 7, 0, -5, 21, -19, -11, -19, -30, 16, -16, -43, -55, -13, 1, -37, -1, 19, 18, -9, 34, 10, 23, -18, -12, -8, 29, 12, 41, -22, -32, -23, -92, -2, -26, 18, -5, -43, -10, 45, 48, -54, 6, -37, -12, -20, -50, 13, -21, -36, 52, 33, 6, -50, 30, 0, 27, 44, -11, 16, 19, -6, 35, 16, -8, -56, -56, -18, -44, -13, 26, 29, 1, -31, -22, 12, 27, 66, 4, -13, -17, -15, 51, -7, -35, -70, -3, -53, 20, 16, -28, 28, -22, 35, 1, -33, -28, 23, -19, -11, -16, -15, -23, -7, 69, 14, -17, -4, -34, 52, 36, -16, -5, 9, 30, 21, -24, -21, 42, 24, -29, 8, -10, -38, -17, -8, -22, 0, 4, 0, -1, -8, 23, 28, 16, 3, -77, -25, -6, -25, -46, -26, 17, 49, 15, 60, -3, -16, 37, 24, -18, -14, -1, -13, -22, 26, 45, -8, -4, 26, 35, 2, 35, 55, 17, -19, -43, 39, 13, -33, -6, 1, -10, 7, 27, -6, 38, 18, -48, 44, 9, 5, -19, -10, 23, -30, -35, 7, -14, 39, -13, 33, 16, 22, -21, -35, -29, -55, -24, 9, 14, 24, 40, 32, -20, -23, 19, 11, 23, -17, 23, -62, -44, 41, -13, 11, -10, -63, -1, -31, -22, -6, -11, -1, 0, 31, -1, 42, -54, 6, -7, -26, -12, -24, 44, 39, 16, -10, 9, 24, 36, -32, 7, -19, -6, -17, -8, 4, 0, -24, -12, 9, 47, 27, -7, -20, -50, 62, 32, 23, 4, 14, -31, -13, 5, 35, -20, 5, 1, -31, -3, 17, 0, -39, -14, -17, -31, -20, -60, 10, 13, -18, -11, 9, -31, 2, 34, -12, -47, 46, -8, 49, -24, -53, 33, -45, -16, 34 ]
Per Curiam. Defendant was convicted after jury trial of the crime of larceny in a building in violation of MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). He was sentenced by the court to a term of from three to four years in prison. On appeal defendant raises four issues: 1. Whether a criminal defendant is deprived of a fair trial and/or the effective assistance of counsel when his court-appointed counsel does not call the defendant to testify in his own behalf and does not present any other witnesses to testify in defendant’s behalf. 2. Whether the prosecutor in a criminal case must in his opening statement recite a fact situation which would allow the jury to find the defendant guilty of the crime charged and, if so, whether the trial judge committed reversible error in denying defendant’s motion to dismiss on this ground. 3. Whether defendant waived his exceptions to jury instructions for appeal purposes when, subsequent to his exceptions and after additional explication by the trial judge to the jury, defendant indicates he has no further objection. 4. Whether defendant was deprived of a fair trial by the failure of the prosecutor to actually call two witnesses indorsed on the information to the stand even though these witnesses were made available in court for defendant counsel to cross-examine and by tbe failure to locate and indorse certain alleged res gestae witnesses unknown to tbe prosecutor before trial. Defendant on appeal argues that he was deprived of a fair trial because his court-appointed counsel did not effectively assist him in that the attorney failed to call either the defendant or other witnesses in his behalf. Defendant asserts that the failure of his trial counsel to present a defense prejudiced his due process rights to a fair trial. No authority is cited for this proposition. A review of Federal and state cases seems to indicate that for the defendant to prevail on this argument, courts require a very strong showing of the incompetency of trial counsel. In the present case, the “tactics” of defendant’s counsel might be considered good. He successfully fought introduction in evidence of appellant’s confession, made motion to dismiss, and decided not to put defendant on the stand, in all probability because of defendant’s previous record, which included a 1962 disorderly conduct conviction arising out of a larceny in a building and a 1964 conviction for unarmed robbery. With regard to the failure to call witnesses, one court has said, “the failure to produce and put on the stand material witnesses is merely an error of judgment which does not constitute lack of effective representation of counsel.” Hoffler v. Peyton (1966), 207 Va 302, 311 (149 SE2d 893, 899). As the people noted in their brief, recent Michigan cases correlate with this Federal trend. In a case in which the convicted defendant asserted as incompetent his counsel’s decision not to offer an alibi defense, this Court said: “No strategic position taken nor decision made during the pre-trial and trial stages can be made the basis for a claim of denial of counsel due to incompetence solely because the strategy was not successful.” People v. Kaczor (1968), 14 Mich App 724, 726. The decision of appellant’s counsel not to call the defendant nor offer any defense would appear to be such a “strategic position” that this Court after Kacsor is reluctant to brand as “incompetent”. Unsuccessful strategy cannot serve as a basis for a claim of denial of counsel due to incompetency. People v. Kaczor, supra, and People v. Gorka (1969), 381 Mich 515. Defendant charges error in the trial court’s denial of motion to dismiss for failure of the prosecutor’s opening statement to recite a fact situation which would allow the jury to find the defendant guilty of the crime charged, as required by GrCR 1963, 507.1. At trial defendant moved to dismiss after the prosecutor’s opening statement objecting to the fact that the prosecutor had “failed to recite a fact situation which would allow the jury to find the defendant guilty of the crime of larceny from a building.” The court denied the requested relief, because the combined voir dire and opening statement had informed the jury of the charge and the elements to be proved. Criminal cases indicate that the demands on the prosecutor in his opening statement are not too rigorous. In People v. Fowler (1895), 104 Mich 449, 452, the Supreme Court said that “the prosecuting officer’s duty is to explain to the jury the nature and elements of the issue that they are to try.” Even though the prosecutor had made a remark in his statement that was not later proved, the court did not think that was sufficiently prejudicial to compel reversal. In People v. Koharski (1913), 177 Mich 194, the prosecutor omitted completely the opening statement to the jury. When defendant requested a ruling that a statement should be made, the trial court refused. When this was assigned as error, the Supreme Court said: “We are of the opinion that the rule [Circuit Court Rule 24, now GCR 1963, 507.1] is directory, and that it was promulgated for the purpose of having the plaintiff’s case outlined in advance so that the jury could better see the force and bearing of the evidence as it came in, and while we think it is a proper rule to enforce, we are not prepared to say that the refusal to enforce it is reversible error, where its omission is not shown to have been prejudicial to respondent’s case.” 177 Mich at p 196. In People v. Clayton (1926), 236 Mich 692, when again faced with a claim of prejudice at the prosecutor’s failure to make an opening statement, the Supreme Court said, “The jury was doubtless fully informed as to the charge against defendant when examined on their voir dire.” 236 Mich at p 694. The trial court in the present case also thought the voir dire was sufficient to inform the jury. Citing Koharski, the Court held the prosecutor’s failure was not reversible error where no prejudice to defendant’s case was shown. Neither the record nor defendant’s brief show any prejudice to the defendant. In addition, the Court in Koharski thought that even if the omission was prejudicial it was later remedied, because: “[I]n view of the fact that the first witness upon the stand * * * told a connected story of the whole controversy, we think the jury must have been early advised as to what the claims of the prosecution were.” 177 Mich at pp 196, 197. In the instant case, similarly, the first witness, Mrs. Yeldman, told the jury essentially what the prosecution was trying to prove. From the Supreme Court’s rulings that GCR 507.1 does not require a full statement by the prosecutor, it appears the trial court committed no reversible error in denying appellant’s motion to dismiss. We find no error by the trial court under People v. Koharski, supra and People v. Clayton, supra. Defendant charges error in the trial court’s instructions to the jury. Defendant’s counsel failed to preserve by objection error that might have been committed. People v. Van Driesche (1908), 154 Mich 158, People v. Mallory (1966), 2 Mich App 359, and People v. Dexter (1967), 6 Mich App 247. Defendant argues that the prosecutor committed prejudicial error in failing to indorse two res gestae witnesses whose existence became known to him at trial and in failing to call two indorsed witnesses who were in court available to defendant’s counsel. Since defendant’s counsel did not object at trial to the failure of the prosecutor to locate and produce the claimed res gestae witnesses, he cannot raise this point for the first time on appeal. People v. Rimson (1966), 3 Mich App 713; People v. Brandon (1969), 16 Mich App 601. For the ordinary witness who is indorsed, the prosecutor’s only obligation is to produce him in court. People v. Kern (1967), 6 Mich App 406. The record is clear that the prosecutor fulfilled this requirement. Affirmed. Many of the Federal circuits have spoken on this subject. The Fifth Circuit reiterated its position recently. “This court stated in Kennedy v. United States (CA5, 1958), 259 F2d 883: 'Ordinarily, unless a convicted prisoner or habeas corpus * * * alleges and proves misconduct of his counsel amounting to a breach of his legal duty faithfully to represent his client’s interests, the defendant in a criminal case is bound by the acts of his counsel’ ”. Cade v. Balkcom (CA5, 1966), 361 F2d 212, 213. No such showing of misconduct has been made by the appellant here, nor is misconduct apparent from the record. Although Cade involved counsel chosen by the defendant, not court-appointed counsel, it is still applicable since the appellant initially retained his counselor, Gordon A. Doherty (see notice of appearance, November 13, 1968 and arraignment transcript, November 15, 1968). It was not until January 23, 1969, that Mr. Doherty became court-appointed counsel. The Third Circuit has not felt that the “eourt-appointed” aspect of a defendant’s counsel was significant. Their conclusion is that “the tactics to be employed * * * are primarily those for the exercise of counsel’s discretion.” Gawartka v. United States (CA3, 1964), 327 F2d 129, 131. Appellee cites two additional Federal cases following this view. In United States, ex rel. Bloeth, v. Denno (CA2, 1963); 313 F2d 364, the Second Circuit stated that: “Poor tactics of experienced counsel, however, even with disastrous result, may hardly be considered lack of due process.” 313 F2d at 374, rev’d on other grounds. See, also, United States, ex rel. Hamby, v. Basen (CA7, 1944), 178 F2d 379. Appellant has called into question the language of GCR 1963, 507.1, -which reads, in part: “Opening Statements. Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of his case and the facts he intends to prove.”	[ 18, 8, -25, -30, -20, -35, -38, -17, -66, 37, 31, -8, 20, -43, 12, -33, -7, 3, 35, -42, -23, -26, 20, 32, 28, -21, 12, 48, -10, 15, 24, 11, -14, 15, -29, 4, 24, -2, 26, 41, 23, 9, 13, -18, -84, 8, -21, -5, 56, 0, 26, 31, -6, 36, 21, -17, 8, 26, 47, -16, 49, 42, -66, -37, 10, -24, -20, -23, -30, -12, -71, -29, 28, -4, -1, -42, -15, -15, 8, 66, -9, -16, 50, -3, 48, -18, 25, -43, -1, -26, -42, 39, -24, 7, -32, -29, 69, -9, 62, -17, -6, -17, -14, -32, -2, -33, -56, -9, 0, 0, 25, 0, 31, 8, -44, -38, -18, -5, -37, 17, 19, -6, 29, 19, 38, 1, 21, -20, -2, -25, -24, 68, 31, -43, -11, 11, -19, 26, 55, 24, -7, -4, 7, 11, 62, -30, -48, 38, -6, 61, -5, 45, -67, 13, 24, 9, -42, -40, 0, 2, 7, 46, -65, -56, 41, 8, -12, -36, 16, -6, 23, 8, 38, 42, 15, -70, 8, -19, -12, -18, -27, 11, -4, 25, 8, 3, -22, 16, -77, -47, 2, 51, -28, -13, 63, 23, 7, 29, 47, 5, -32, 14, -10, -31, 26, 6, 5, -21, 35, -28, -38, 25, -37, -45, 0, -29, 13, -13, 26, 21, -61, -8, -21, -68, -28, -12, -9, 30, -2, 24, 21, -13, -6, -11, -17, 23, 20, -14, 46, 15, 3, -3, 55, -30, 4, 11, -2, 35, -30, -53, 5, -18, 5, -2, -39, -29, -34, -18, -52, -23, 21, 54, -20, -31, -25, 21, 5, 15, -42, -7, -29, -7, -15, 50, 6, -4, -71, 48, -15, -4, 28, 9, 2, 3, -46, -20, 11, 24, 42, 0, 7, 28, -44, 9, 40, 17, -11, 16, -39, -16, -1, -20, -47, -18, 9, -18, 18, -24, -40, -4, 28, 37, 36, -2, 8, 34, -31, -4, 13, -43, 4, -31, 7, -71, 35, -14, 31, -26, 2, -1, -5, -6, -17, -24, 26, 33, 36, 3, 5, 44, 13, -42, -9, -41, 35, 2, -37, 25, -15, -4, 54, -3, -7, -5, 34, -35, -10, -32, -10, -5, 67, -20, 18, -13, 39, 26, -7, 35, -7, 46, 8, -73, -26, -35, -56, -27, 35, 0, -25, 24, -3, -34, 59, -47, -14, -15, 4, -7, -16, 75, -17, 20, -3, -66, 0, 41, -33, 9, 32, 22, -41, -12, 15, 16, -57, -30, -43, -4, -19, 26, -47, 75, 51, 112, -17, -45, 25, -7, 38, -8, -1, -36, 55, 32, 4, 14, -27, 13, -6, -63, -9, 15, -6, -43, 46, 36, -38, 1, 16, 9, -25, -39, -61, -21, 49, -9, 9, -69, 20, 29, -40, 60, 0, -3, 45, -3, 24, 8, 24, -18, 30, -10, -77, 14, 48, -52, -36, -33, 18, 0, 41, -2, 51, 39, -69, 36, -28, 51, -6, 18, 39, 11, 17, -13, -27, -7, -4, -15, -35, -66, 2, 37, 2, -40, -36, 12, 35, 2, 9, 8, 0, 4, 6, -21, 15, 3, 59, -21, 28, 7, -34, 33, 14, 6, -8, -31, -9, 7, -23, 1, 24, -52, -20, -19, -26, 9, -54, 31, -1, -18, 66, 21, -46, 6, 50, 55, -15, -18, -22, 12, -20, 59, -1, 7, 19, -3, 11, 13, 35, 45, 48, 17, 22, -9, -28, -29, -31, -4, 61, -47, 0, -7, 45, 44, -9, -13, -12, 13, 27, 11, -9, 25, -21, 32, -25, 22, 0, 45, 52, -24, -18, 10, -30, -76, -19, 26, 5, 16, 23, 10, -69, 28, -4, -38, -44, -39, -61, -51, 39, 46, 18, -19, -39, 0, 10, -32, 47, 41, 11, -19, 77, -13, -23, -18, -13, -36, -16, 33, -43, 52, 12, 36, -18, 1, -22, -37, -45, -6, -37, -24, -4, 8, -12, -12, -39, -1, -10, -12, -23, 20, -23, 19, 2, -52, 12, -50, 26, 1, 8, -71, -3, 32, 28, -42, 30, -42, -12, 27, 39, -22, 17, -6, -45, 8, 44, 25, 5, -4, 3, -3, -13, -4, 19, 76, -24, 32, -17, 9, -44, -21, -1, -43, 8, -14, -39, -6, -42, -7, 52, 9, 0, 19, 60, 17, 11, -5, 62, 7, -39, -15, -6, -30, 7, 4, 13, -5, 30, -41, 10, -43, -18, 34, 14, 11, 45, -28, -84, -10, -39, 64, 28, -11, 29, 27, -46, 3, 70, -7, 57, -25, -1, 25, 3, 14, -14, 34, -37, -60, -23, 15, -21, 38, 43, -65, -28, 37, 41, -48, 14, -19, 39, 45, 20, 31, -27, 25, 37, -14, -38, -29, -17, 9, -5, -45, -33, 35, 20, -9, 37, -13, -47, -41, 62, -17, -16, 6, -34, -14, 39, -4, 28, 39, -38, -27, 27, -7, -29, 29, -44, 23, 36, -6, -52, 51, -1, -48, -30, -15, -6, -9, 18, 30, 57, 6, 0, -19, -12, 47, 38, -14, 21, -16, -22, 37, 12, 14, -4, -5, 13, 1, -31, 32, 1, -34, -20, 23, 33, -32, -10, 27, -15, -55, 38, 36, -5, -23, 17, 65, -52, -27, 5, 2, -15, 48, 55, -19, -13, -30, -1, 29, 48, 52, -11, -31, -17, -15, -5, 25, 3, -18, -26, 76, 5, -24, 18, 39, -32, -20, 46, -29, 18, 1, 44, -11, -13, 38, -15, 48, -17, 18, 3, -3, -24, 5, 6, -29, -29, -22, -39, 17, 14, 32, -16, -11, -13, -18, 34, -21, 6, -18, -16, -57, -11, -2, 50, -22, -4, 0, -44, -23, 14, 28, -33, 10, 59, -18, -31, 16, 39, 26, -44, 72, -8, 11, -9, -32, -2, -42, 11, -4, -1, -1, 8, -29, 18, -8, 0, -46, -25, 10, -34, -2, -25, 23, -32, 18, -75, 22, 18, 30, -59, -13, -41, -14, 30, 13, 18, 9, -4, 10, -53, -38, -27, -12, 42, 20, 4, -36, -45, 37, 50, -61, 7, -30, 11, -11, -1, -12, -23, 7, -39, -18, 22, -7, -6, 7, -1, 29, 10, -26, 38, -10, 7, 26, -23, 67, -18, -64, 5, 38, -11, 28, 35, 13, 31, 45, 27, -14, -38, 2, 27, -55, 78, -32, -7, 6, 2, 7, 3, -16, -21, 59, -31, 44 ]
Per Curiam. This is an action to determine the ownership of a house and lot in the City of Muskegon Heights. On October 11, 1957, the defendant purchased the property on land contract from Paul and Mary Heistand for $8,500, with $500 down and the balance payable with interest at 6% per year in monthly payments of $80 or more including interest. On November 16, 1957, the defendant executed an assignment of his interest in the land contract to the plaintiff. Plaintiff’s complaint alleged that, by virtue of the assignment, he became the owner of the land contract purchaser’s interest and asked that the defendant be required to convey his record title interest to the plaintiff, the true owner of the property. The trial judge found that the plaintiff failed to sustain his burden of proof. The plaintiff testified that in connection with the execution and delivery of the land contract assignment he and the defendant orally agreed that the plaintiff would purchase and the defendant would sell the house for $8,500 payable $85 a month. Although the land contract between the Heistands and the defendant was formally assigned to the plaintiff, the plaintiff said that he was obligated to make his payments to the defendant and the defendant would make the payments to the Heistands. The plaintiff claimed that he made the monthly $85 payments to the defendant, but he was unable to produce a receipt, cancelled check or other written evidence of payment. The defendant made the required monthly land contract payments to the Heistands until September 25, 1964, when he refinanced the property, obtaining a mortgage from a savings and loan association and a deed from the Heistands subject to the new mortgage. The defendant testified that after purchasing the property, the plaintiff, with whom he was acquainted, suggested that he be allowed to live in the house and rent part of it to others and manage the property so that there would be sufficient income to pay the land contract payments to the Heistands. At the time of the assignment of the land contract to the plaintiff, the plaintiff took possession of the property and he or his tenants lived in the house until 1965. The defendant conceded that it had been agreed that if the plaintiff made the payments the property would become the plaintiff’s, but that, in executing the land contract assignment, the defendant intended only to confer on the plaintiff the right to manage the property. (There was no objection to this testimony either on the ground that it violated the parol evidence rule or the statute of frauds; accordingly, we do not reach the contention of the plaintiff in that regard argued on appeal.) The testimony of the real estate man who prepared the land contract assignment tended to corroborate the defendant’s testimony. He said that the defendant told him that the plaintiff was going to “handle” a house for the defendant and that he, the defendant, wanted “a paper collected.” The plaintiff testified that, in addition to the land contract assignment, the defendant delivered to him a copy of the land contract between the Heistands and the defendant; and that he mailed a copy of the assignment to the Heistands, retaining a duplicate copy of the assignment for himself and the duplicate copy of the land contract. The defendant denied that his copy of the land contract was ever delivered to the plaintiff and the Heistands denied that they ever received a copy of the assignment from the plaintiff. Both the plaintiff and the defendant made improvements on the house from time to time, but the plaintiff claimed he paid or obligated himself to pay the defendant for the improvements made hy the defendant. The plaintiff said that the rental income from the house was inadequate to cover the $85 a month payments which he was required to make to the defendant, that nevertheless he made the required monthly payments, but, as previously mentioned, he was unable to produce any evidence, in addition to his own testimony, that he had made such payments. The defendant denied ever having received any money whatsoever from the plaintiff. It appears that the plaintiff’s occupancy of the house was intermittent. Less than a year after the execution and delivery of the assignment the plaintiff moved to Chicago where he obtained employment, returning monthly or more frequently on weekends to Muskegon. He testified that a year after he left for Chicago he returned the land contract to the defendant to facilitate the making of payments. The plaintiff, nevertheless, continued to exercise a right of occupancy and collected rents from tenants until 1965. Throughout this period the fire and extended coverage insurance policies on the property showed the interest of both the plaintiff and the defendant either (i) without description or (ii) as land contract purchasers or (iii) as second land contract purchasers. When the defendant refinanced, the original land contract price of $8,500 had been reduced to $4,-108.42. The new mortgage was for $5,600 and, thus, there was a differential of almost $1,500. At the close of defendant’s case, an officer of the savings and loan association which provided the new mortgage financing testified that pursuant to the defendant’s instructions a check for $665 was sent hy the savings and loan association to the plaintiff; the record is silent as to the reason the defendant paid the plaintiff this money. There is no evidence that, either at the time of trial or at the time of conveyance by the Heistands to the defendant, the property was worth more than the $8,500. that the defendant paid the Heistands and the plaintiff promised to pay the defendant. If this is so, after all the payments on the land contract, the equity before the refinancing was $4,400 and after the refinancing was $2,900. The plaintiff does not claim that he made any payments on the new mortgage. In July 1965 the plaintiff wrote the defendant saying that the defendant could peddle the house for $1,600 and suggested that he do so: “So you can forget my asking about the car, take the house, run it like you want to. Please give me time to get all of my things out”. In a later letter the plaintiff advised the defendant regarding certain unpaid bills in respect to the house-and gave some advice with regard to its maintenance, said that he was not in a position to pay the defendant some $500 or $600 owing for work done by the defendant on the house, and that he was writing the then tenant asking her to move and “you can take over”. On this somewhat unusual record, we are inclined to agree with the trial judge’s appraisal that while the plaintiff and the defendant “had some arrangement between them” the plaintiff failed to sustain his burden of proving that he is entitled to have the deed from the Heistands to the defendant set aside or that the defendant should be required to convey the property to the plaintiff. The resolution of the issue presented depends upon one’s appraisal of the credibility of the witnesses. We find nothing in the record which would justify our concluding that the trial judge incorrectly re solved the credibility question. With that decided, we cannot say we are left with the definite and firm conviction that a fact finding mistake was committed by the trial judge or that he clearly erred in refusing to grant the plaintiff the relief requested. Affirmed. Costs to defendant.	[ 4, 36, -30, -17, -10, -3, 23, 57, 29, -1, 13, -17, 35, 31, 27, -3, -24, 12, -7, -27, -51, -45, -47, 23, 2, 2, 28, -25, -7, 39, 44, 15, -25, 8, -8, -15, 19, 8, 14, 0, 33, 3, -8, 18, -12, -28, -25, -29, 9, -2, 27, 12, 49, 20, -44, -19, -42, -9, -44, 11, -17, -44, -32, 8, 31, 1, 34, 12, 48, -24, -25, 4, 11, 9, 25, 12, -53, 22, -13, -31, 19, -45, 40, 14, -12, 30, 27, 5, -37, 1, -26, -16, 11, 56, -12, -3, 48, 39, 35, 10, -26, 7, 6, 52, 21, -5, -61, -30, -44, -15, 17, 8, 38, -16, -7, 3, -20, 24, 36, 2, 18, -1, 22, -47, -16, 24, -73, -19, -33, -14, 11, 27, -39, 25, -36, -7, 6, -31, 21, -40, 6, -33, -28, -52, -3, -26, -8, -45, 8, -65, -40, -28, 55, 52, 10, -42, 3, -16, 15, -55, 41, -47, -4, -44, -2, -5, -17, 45, 11, 12, 31, 2, -4, -94, 28, -8, 40, 16, -29, -22, 10, 27, -4, -20, 4, -31, -38, -30, 0, -34, -13, -21, -16, 8, -2, 33, -38, 42, -51, 3, 10, -23, 23, -21, 9, -30, 19, -24, -31, 7, -14, -12, -4, -39, -34, 30, 22, -11, 2, -4, 25, -25, -42, 11, -26, -9, 64, -36, 42, 19, -14, -3, 25, 28, -35, -1, 14, 16, -5, -8, 27, 28, -22, 7, -6, 12, -8, -11, 4, 4, -34, -14, -67, 30, -11, -1, -31, 21, 3, -25, 12, 32, -30, 50, -15, -18, -7, 6, 9, 13, -17, 8, -4, 47, -68, -3, -56, -15, 1, 18, 44, -15, 6, 15, -33, 36, 61, 44, -24, -6, 19, -39, 0, -25, 62, -2, -19, -36, 14, 0, -51, -42, 21, 18, -4, -37, 13, 25, 6, -2, 40, -18, 22, 0, -14, 26, 0, -24, 8, -35, 28, -19, -21, 33, 47, -7, 45, -70, -28, 37, 1, -10, 1, 28, 20, -18, 42, -14, -9, -8, 28, 27, 5, 18, 51, 23, -28, 0, -20, -11, -28, -18, -50, 27, -21, -26, 36, 1, 8, 32, 9, 32, 26, -26, -24, 13, -9, -23, -28, 7, 25, 54, -26, 6, -31, -31, -33, 22, -61, 66, 41, -19, 20, 43, 18, -24, -44, -6, -5, 0, -71, -18, 10, 8, 15, -50, -27, 19, -56, -37, 31, 21, 1, 31, -38, 6, 50, 3, -7, 39, -40, -42, 20, -36, 30, 9, 32, 28, 43, 45, 21, 22, 6, 7, -3, 0, -23, 14, -17, 39, -39, 23, 35, -43, 62, 10, -46, -12, 3, 55, -27, 37, 17, 11, 19, 0, -31, -46, -14, 0, 27, 12, 2, 11, -18, 5, 77, -22, 27, -3, 41, -19, 22, -9, 31, -14, -31, 1, 9, 15, -11, 29, 21, -7, -30, -17, -18, -10, 0, 17, -6, -11, -22, -26, -23, -14, -37, -10, -39, 40, 14, -24, 35, 58, 43, -20, -13, 4, 14, 24, 23, 33, 38, 76, -9, 0, -17, -42, -22, 5, -20, -21, 4, 39, 5, 50, 56, -38, 42, 4, -3, 23, -10, -22, 47, 7, 36, 40, -28, -11, -22, -23, -11, -12, -27, -25, 4, 20, -4, -12, -13, 63, 7, 21, 11, -1, -9, -6, -5, 22, -20, -61, 20, 22, -34, -40, 41, -40, -6, 5, -3, 22, 22, -17, 67, -19, -15, -43, -22, 51, -53, -60, -28, 3, 15, -40, -34, -21, -7, 50, -62, 17, -2, -14, 10, 43, 49, 20, 4, 14, 15, 2, 5, -58, -5, -43, -2, 11, 12, -13, -10, 20, -70, -19, -17, -19, -6, 8, -11, -27, -5, 13, 34, 19, 8, 9, 6, -18, 0, 15, 52, 46, 17, -22, 12, 14, -34, 4, -38, 41, 52, -27, 14, -20, 37, -39, 25, 13, 11, -65, -17, 4, -30, 22, 2, -15, -20, -21, 0, -45, -66, 54, -1, -6, 22, -16, 4, -3, 41, -4, 63, -46, -48, -5, 1, -14, 18, -41, -14, 20, -11, 14, 26, -20, 0, 17, 1, 39, 62, -67, 6, 4, 13, 29, 11, -14, 5, -36, 2, 7, 10, -19, -46, -14, 25, -15, -1, -14, 13, 34, 22, 20, 14, -30, -29, 70, -3, 18, -2, -23, 8, -17, -45, 1, -5, 35, 1, -13, -5, 12, -4, -5, 3, -89, 18, 3, 50, 28, 2, 15, 0, 16, 16, -6, -19, -25, 6, 30, -19, -51, -11, -31, -37, -14, -7, -35, 32, 16, -16, 6, -32, 3, 29, 30, -15, 0, -35, 29, -16, -1, -15, 42, -6, 23, 16, 4, -17, -53, 4, -15, -15, -22, 1, -16, 3, -13, 20, 6, 30, -33, 18, 3, 23, -50, 1, -23, 18, -12, 34, 65, -20, -31, 1, -9, -39, -8, 52, -5, 13, -60, -18, 26, 27, -20, 19, 67, -55, 19, 0, 9, -4, -41, -35, -5, 9, 63, 8, 48, 19, -1, -2, 44, 2, 10, -36, 13, 5, -28, -59, 27, 36, -43, -23, 8, -4, -19, -3, 33, -39, 5, -1, -43, -69, -11, 19, 19, -14, 20, -1, -24, -38, -17, 57, -11, -27, 14, 5, 23, 15, -36, 22, -15, -36, 40, 18, -27, -41, 8, 25, 24, 55, -5, -17, 0, 54, -24, 5, -10, 11, 7, -8, 59, -28, -19, -27, 20, 26, -1, -31, 44, 6, 18, -43, -9, -29, -11, -4, -37, -28, 33, 18, 30, -4, 0, -16, 11, -10, -13, 6, -7, 5, -25, 4, -22, -18, -21, -2, -39, 59, 14, 12, 20, -87, -25, 0, -55, -12, 27, -31, 30, 15, 26, -5, 13, 38, -3, 72, -21, 18, -24, -7, -10, 16, 16, -54, -6, -4, -39, 35, 24, -63, 64, 2, 43, -21, -16, -20, -25, -23, -14, -9, 15, 24, -48, 72, -24, 21, 13, -1, -3, 25, -34, -44, -20, -21, -22, 36, 41, 0, -27, -10, -41, -24, 0, 2, 6, 24, -8, -23, -75, 8, 12, 41, 11, 16, -24, 52, 11, 40, 4, 7, 29, -3, -35, -5, -27, 52, -1, 2, -9, -4, 3, 90, -15, -4, 20, 0, -10, -13, 0, 24, -5, -24, 36 ]
Quinn, J. Plaintiff’s action was for breach of contract by defendants. The trial court granted defendants’ motion for summary judgment of dismissal, finding that the complaint failed to state a claim upon which relief could be granted. The basis for this finding was that the contract involved was an artist’s management contract, and plaintiff, the manager, was not licensed as required by MCLA § 408.603 (Stat Ann 1968 Bev §17.393); hence, the contract was unenforceable. The controlling issue is whether plaintiff is subject to the statute. The pertinent language of the statute reads: “No person shall open, operate or maintain an employment agency in the state of Michigan without first procuring a license from the state superintendent of private employment bureaus.” Another section of the statute, MCLA § 408.615 (Stat Ann 1968 Bev § 17.405), classifies the licenses to he granted. Section 408.615 (d) provides: “A class 4 license shall entitle the holder to engage in the business or profession of serving as manager, business advisor or rendering technical service to an entertainer. An artist’s manager shall he licensed under a class 4 license regardless of where such business is conducted.” MCLA §408.616 (Stat Ann 1968 Bev § 17.406) specifies the rules applicable to each classification of license. Section 408.616(a) specifies the rules applicable to an artist’s manager license. MCLA § 408.621 (Stat Ann 1968 Bev § 17.411) makes violation of the act a felony. Plaintiff concedes that the contract involved is for artist’s management. This concession and the foregoing statutory provisions mandate a holding that plaintiff was subject to the act and was required to he licensed. The contract involved was void regardless of the fact that there is no statutory language declaring it to he so. As was said in Cashin v. Pliter (1912), 168 Mich 386, 389: “The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void.” (Citing authorities.) We decline comment on plaintiff’s final claim that the statute must he strictly construed because it is penal in nature. The penal provision is not here involved. Affirmed with costs to defendants. All concurred.	[ 6, -41, -44, -10, 47, -7, 28, -41, -40, 69, -17, 15, 46, -17, 22, 21, 18, 55, -22, 3, 22, -19, -16, 20, -52, -3, 55, -8, -17, 7, -48, -21, -5, 15, -53, -11, 28, -33, 16, 0, 25, 11, 14, -59, 9, -32, 50, 4, 56, -14, -15, 8, -31, 29, 29, -44, -18, -2, -26, 20, -49, 28, 28, -29, -4, -77, 11, -9, 19, -10, 5, 90, -54, 24, -56, -11, -28, -28, 50, 20, 4, -43, 31, 30, 38, 50, -16, 10, -1, -8, -11, 54, -27, 16, -18, 23, -2, -26, 7, -54, 1, 34, 14, 5, -9, -19, -28, 25, -16, 23, 5, -47, -12, -61, 25, -19, 43, -7, -1, -27, 19, 4, 8, -24, 12, -20, 0, 27, 6, 43, 50, 51, -11, -28, 15, 52, -25, 60, 51, 10, 18, -30, -11, -17, -16, -22, 8, -22, -29, -49, -29, 1, 21, 39, -13, -19, 0, 15, 50, 22, 27, 6, -24, 21, 24, -43, -15, 6, 45, -14, -13, -14, 10, -22, 22, -2, 42, -15, 0, -44, -18, 21, -23, -37, 55, -38, 1, -62, -31, -39, -4, -60, -11, 29, -4, 6, 2, 35, 22, -49, -2, -21, -23, 19, 27, 48, 0, 6, -34, 29, -26, -41, -17, -44, -48, -21, 43, 7, -29, -7, -21, -49, -3, 39, -38, -100, 15, -41, -62, 1, -11, 11, 89, 21, -43, -17, -7, -31, 55, 2, -53, 3, -41, 3, 17, -23, -13, -40, 29, -12, 15, -18, 43, 32, -35, 1, -25, 31, -66, -9, -49, 33, -31, 41, -31, -23, -41, 36, -44, 2, -42, 4, 36, 23, 19, -50, -19, 63, 15, -33, -22, 25, -23, -61, -8, 32, -18, -7, -15, 17, 26, -28, -21, 10, 11, 33, 23, 10, 0, 20, 3, 10, 35, 49, -16, -24, -39, 24, -4, -43, -52, 19, -17, -12, 12, -20, 16, -53, 13, -14, 59, 0, 38, 1, -55, -77, 68, -19, -4, -31, 75, -35, -3, -26, 0, 7, 48, -7, -4, 37, 23, -11, -11, -54, -33, 22, 18, -7, 0, -10, 14, -32, -62, -1, 49, 14, 31, 0, -45, 9, -19, -15, -41, -84, 24, 30, -20, 33, 33, 41, -52, 23, -30, 26, -69, -5, 34, -17, -69, 31, -22, -36, 10, 28, 36, -43, -5, -58, 39, -19, -22, -27, -17, 33, 9, 7, 10, 37, -25, 30, 2, 18, -7, -37, -14, 13, 39, -41, -27, 30, -64, 19, 41, 37, -29, 61, 67, -59, -6, 2, -2, -53, -2, 0, -21, -33, -59, 49, -11, 5, 7, 48, 25, -52, 5, 18, -29, -16, -27, 32, 10, 1, -92, 9, 24, -7, -13, -13, -12, -38, 15, 18, -20, 75, -5, 34, -32, 64, -10, 28, -9, -16, 13, -17, -1, -48, 5, 20, -6, 48, -44, 23, -31, 28, -8, -3, -17, 10, -8, 56, -3, 77, 58, -17, -9, -15, 30, -20, -8, -40, 25, -18, 13, 91, -33, -30, 10, 49, 11, 17, 16, -26, 26, 37, 25, 11, -18, -37, 15, -18, -31, 41, 25, 28, 33, -16, -31, 24, -1, -18, -2, -10, -38, 20, -18, -5, -69, 11, 29, 19, 28, 37, 32, 21, 10, -19, 16, -6, -10, 13, 51, 27, -53, 49, 53, 42, 13, -15, 16, -23, -18, -34, 44, -61, -2, 0, 21, 11, 61, 49, -36, 23, 19, 29, 29, -2, -22, -10, 52, 44, 14, 12, 26, 17, 2, -25, 50, -25, 14, -68, -7, -11, 39, -1, -10, -12, 5, -17, 55, -33, -14, -56, 2, -42, 19, 8, 9, -45, 56, 87, -22, -9, -64, -20, -26, -43, 28, -24, 19, 8, -15, -7, 9, -65, 10, -4, 31, -31, 8, 54, 37, 39, 39, -37, 5, 33, 35, -30, 4, -1, 24, -41, 16, -25, 21, 27, -12, 36, -28, -53, -24, 21, -20, 17, 20, -12, 17, 14, 16, -26, -11, 17, -10, -6, 20, -21, -31, -32, 29, -26, 3, -16, -36, 56, 35, -6, 24, 0, -6, 5, 32, 50, 46, 6, 44, 19, -19, 19, -6, 13, 0, -28, 46, 0, -5, 14, 1, -27, -14, -20, -19, 47, 28, -85, -8, -10, 10, 58, -1, -53, -9, 36, -51, 17, 6, 17, -29, -22, 2, 75, 14, -11, 14, 30, 25, 52, -21, 42, -53, -11, -40, -28, -4, -43, -24, 18, 43, -3, 23, -32, 18, 23, 24, 2, 0, 24, -2, 3, -91, 43, 91, 1, -13, -6, -67, -24, -5, -5, 15, 13, -33, 22, -25, 33, -35, 6, 14, 8, -35, 62, -33, 63, -27, 34, 49, 18, -47, -21, 4, -14, -12, 9, 1, -8, -8, 7, 57, 0, -50, -40, 91, 11, 27, 4, -21, 15, 15, -55, -25, 7, 45, 19, 15, 18, -8, 9, 40, 11, -26, -53, -18, -15, -16, 36, -28, -21, -26, -40, 53, -43, 1, -14, 16, 6, 5, 1, -39, 13, -28, -44, -1, -3, -26, 1, -4, -48, 22, -33, -11, -23, 37, 6, -13, 21, -22, 31, 1, -31, -9, 6, -3, -25, -3, 66, 14, 24, -71, -6, -12, -79, 3, 0, -5, -3, -44, 2, -30, -32, 71, -16, -3, 54, -35, -38, -2, 3, -43, -22, 53, -53, -33, -8, 28, -10, 34, 0, -44, 8, -29, 18, 31, 6, -36, -36, 5, -1, 12, -27, -11, 48, 78, 5, -6, 20, -23, 1, 6, 4, 29, -41, 30, -3, 10, 19, 0, -1, 34, -12, -17, -8, -11, 24, 16, -1, -7, 36, -16, 24, 20, -46, 5, -20, -2, -23, 28, -5, -16, 24, 0, 11, -31, -18, 55, 3, -23, -39, 17, 10, -70, -9, -43, -5, 37, -28, -28, 24, -48, -9, 0, -5, -54, 75, 11, -34, -59, 32, 5, 21, -26, -67, 16, 41, -9, -5, -4, 15, 75, -43, 8, -12, 15, -6, -23, 30, -1, -16, -13, 25, 21, -22, -23, -47, -25, 30, 36, -16, 17, -37, -30, -69, 9, -15, 33, 21, -11, -48, 0, -6, 11, -39, 55, 47, -101, -28, 7, 25, 29, -23, 29, -24, 13, 50, 48, 5, -56, 53, -28, 34, -54, 14, -10, 42, -43, 17 ]
T. M. Burns, P. J. On August 25,1967, defendant called the Detroit police. He told them that he had shot and killed a Mr. Bennie McCormick by mistake. The defendant stated that while he was visiting at the flat of a Mr. Edward Prince, he heard footsteps on the back stairs. The defendant said that he thought a burglar might be trying* to break in, as the flat was on the second floor and since it was about 5 a.m. He further stated that with that in mind, he mistakenly shot and killed his friend, Bennie McCormick, as he opened the apartment door. Defendant was taken to police headquarters. After being advised as to his rights, he made a statement. Preliminary examination was held on September 5,1967, and defendant was bound over to Recorder’s Court for trial on a charge of murder in the second degree. MCLA § 750.317 (Stat Ann 1954 Rev § 28-.549). Defendant was found guilty by a jury on April 15,1968, and was sentenced to serve from 8 to 20 years in prison. On appeal, defendant seeks to raise five issues for our consideration. Did the lower court fail to properly supervise the procedure whereby a written statement was taken into the jury room? Defendant’s signed and sworn affidavit states that the jury foreman came out of the jury trial room and requested a written copy of defendant’s oral admissions. The court granted the request and the prosecutor handed the foreman a written statement. This statement was not read by either the judge or defense counsel. The defendant asserts that there is no assurance that the paper given the foreman was his statement about the shooting which had been admitted into evidence. He says it could have been a written copy of his oral admission relating to the use of narcotics which was present in the court room but had not been admitted into evidence because of its prejudicial nature. Therefore, defendant contends he was denied the right to be confronted by his accusers and due process of law. There is nothing in the trial transcript to substantiate defendant’s contention that the unadmitted admission concerning the use of narcotics was given to the jury. Defendant by his affidavit only says that the admission concerning narcotics might have been the document sent'into the jury, not that it was the document. It is within the discretion of the trial court in a criminal case to permit papers and documents to be taken to the jury room for consideration of the jury. People v. De Frenn (1929), 247 Mich 698; People v. La Londe (1917), 197 Mich 76. However, it would have been error to permit a jury to take with them, during deliberation, matter which was not admitted into evidence. People v. Krueger (1968), 99 Ill App 2d 431 (241 NE2d 707). This claim, however, was advanced for the first time on appeal. It has not been the subject of a motion for new trial, and the defendant never sought an evidentiary hearing on this issue. Therefore, since there is nothing in the record to support defendant’s speculations as to the possibility that the document which was given the jury was anything other than what the judge directed to be given to it, there is nothing before us to review for possible error. Was the introduction of narcotics testimony, in the course of the trial proceedings, prejudicial to the defendantf The defendant contends that the introduction of evidence concerning the use of narcotics by the prosecutor was so prejudicial that it denied him a fair and impartial trial. The trial judge ruled that the portions of defendant’s statement relating to narcotics was not to be read into evidence. However, the prosecution did ask questions about narcotics and thereby, according to defendant, denied him a fair trial. Defense counsel’s objection was sustained, however, when Mr. Prince was asked if-he knew whether defendant used narcotics. Counsel did not object when the same question was asked as to other parties involved. It is the duty of the defense to make timely objections so that the questions may be preserved for appeal. People v. Dodson (1967), 9 Mich App 123. Since timely objection to this line of questioning was not made, the question is not properly before us. Did the lower court err when it failed to rule on the defendant’s motion for a mistrial? The defendant argues that the trial judge was under a duty to rule on his motion for a mistrial when allegedly prejudicial testimony concerning narcotics was introduced into the jury trial proceedings. The defendant further urges that the effect of the failure to rule on a motion has been held to be equivalent to an adverse ruling and was therefore, renewable on appeal. People v. Sartori (1912), 168 Mich 308. We are unpersuaded by the people’s argument that the defendant did not put his objection to the testimony in the form of a motion. However, a review of the situation in context convinces us that the trial judge did not abuse his discretion in denying a mistrial under the circumstance that the question put to Prince regarding Benberry’s use of narcotics was answered in the negative by Prince. The sequence was: “Q. Do you know whether Lawrence Benberry used narcotics'? “Mr. Long [defendant’s counsel]: All right, now, I’m going to object to that. “A. No, sir. “The Court: The objection is sustained. “Mr. Long: I think it ought to be declared a mistrial. That’s the most prejudicial thing I have ever heard. “The Court: Well, there’s been no answer to it. The jury will disregard the question. There is no evidence here that Mr. Benberry is involved in narcotics. The jury should disregard it.” If the answer had been, “Yes, Benberry was a narcotics user”, a different question might be presented. Under this circumstance presented to us here, the trial judge did not err in failing to declare a mistrial. Did the lower court err when it failed to properly instruct the jury on the issue of the duty to retreat while in the dwelling of anotherf The defendant asserts that the lower court erred by failing to instruct the jury on the issue of the duty to retreat or not to retreat while in the dwelling house of another, which was critical to his con tention that he acted in self-defense. He argues that since he was dwelling in the kitchen of the flat for the night, he was under no duty to retreat. Having reviewed the instructions given, we consider that the court adequately instructed the jury in respect to the crime involved, including instructions on justifiable and excusable killing, self-defense and retreat. At the time, defense counsel stated that he was satisfied with the instructions that were given. Since he failed to object or request further instructions, defendant cannot object for the first time on appeal in the absence of plain error. See People v. Guillett (1955), 342 Mich 1, 7, 8; People v. Liggett (1967), 378 Mich 706, 714; People v. Oberstaedt (1964), 372 Mich 521, 526; see also 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 566. Did the lower court properly deny the defendant’s motion for a directed verdict, in the course of the trial proceedings? The defendant asserts that his motion for a directed verdict was improperly denied because the prosecution failed to sustain its burden of proof. The prosecution, according to the defendant, failed to introduce any evidence concerning malice aforethought which is an essential element of second-degree murder. People v. Potter (1858), 5 Mich 1. A review of the facts show that there was sufficient evidence before the court to submit the issues of fact to the jury. Materially, the fact of the crime had been established and the fact that defendant had killed McCormick was not in dispute. The disputed issue was the nature of the crime or whether it was excused or justified. The trial magistrate was duty-bound to submit the issue to the jury under the circumstances, and a refusal to do so would have re- suited in usurping the function of the jury. People v. Hancock (1950), 326 Mich 471. It has long been the rule in Michigan that: “The sufficiency of the evidence is exclusively for the jury. It is only where there is no evidence, upon a material point, that the court can take the case from the jury.” People v. Eaton (1886), 59 Mich 559; People v. Abernathy (1931), 253 Mich 583. A review of the facts shows sufficient evidence, if believed, to find defendant guilty beyond a reasonable doubt. The presence of malice requires an intent to cause the harm that results or some harm of the same general nature, or an act done in wanton or willful disregard of the plain and strong likelihood that some such harm will result. People v. Hansen (1962), 368 Mich 344. It also requires the absence of justification, excuse, or recognized mitigation. Such matters are questions of fact for the jury to determine. Finding no reversible error, we affirm. Affirmed. All concurred.	[ 1, -46, 21, -14, -6, -31, -26, -22, -41, 32, 22, 34, 20, -7, 5, 34, -6, -16, 42, -56, -12, -61, -42, 60, -8, -37, -9, 37, -30, -10, 15, 35, 22, -40, 11, -34, 9, 6, 13, 58, -15, 14, 49, -28, -37, 0, -29, 4, 9, -24, 25, -17, 15, 36, -53, -22, 7, 17, 9, 14, 7, -7, -89, -15, 9, -36, 1, 25, 26, -9, -14, -54, 3, -7, -17, -3, -20, 13, -18, 6, -8, 5, 52, -43, -22, -66, 15, -69, 30, -28, 47, -16, 7, 24, 9, -14, 2, -13, 19, -2, -23, 24, 10, -2, -10, -17, -39, -40, 34, 3, -10, 32, 19, 16, -27, -55, -12, 2, -65, 28, 1, -19, 39, -62, -2, 3, 7, 9, 35, -29, 12, 45, 38, -10, -9, 10, 16, 8, 13, 22, -16, 20, 15, -5, 87, 7, -31, 37, 11, 49, -24, 16, -8, 26, 15, -6, 24, -40, -37, 15, 12, -30, 30, -30, 2, 7, -59, -37, -11, -39, -10, 1, 47, -6, 45, -18, 10, -15, -33, -36, -13, 2, 11, -27, 19, 17, -21, -29, -28, -19, 19, 22, -37, -18, 17, -14, 12, 14, 30, 16, 37, -29, 24, -2, 5, 12, -38, 19, 57, -7, 9, 4, -10, -36, 5, -47, 21, 0, 3, 12, -78, -57, 9, -38, -3, 21, -29, -5, -34, -1, 30, 2, -61, 31, -17, -37, 10, -31, 19, -4, -28, -9, 14, 11, 47, 28, -6, 12, -3, -28, -17, 11, 27, -4, -28, -10, 0, -42, -16, 2, -11, 13, -22, 35, -9, 42, -33, -3, -43, 17, -17, 14, -15, 56, 8, -22, -6, 9, -23, -31, 33, -3, -19, 8, -29, -2, -4, 3, -50, 34, 13, 10, -44, -18, 44, -11, 35, -24, -26, 0, 27, 20, -21, -62, 2, -50, 35, 12, -37, 3, 85, 15, 31, 29, 40, -20, 50, -2, 12, -43, -12, -18, -13, -20, 14, -27, 40, -26, 2, -29, 3, 9, 13, 29, -3, -7, -38, -17, 2, -1, 27, -26, -25, -21, 8, 32, -7, -17, -104, -21, 58, -8, 15, -50, -31, -11, -29, 10, 21, -42, 35, -14, -56, 29, 21, -21, 12, -56, 46, 44, -8, -28, -38, 2, -18, -13, 57, -11, 2, 53, -64, -9, 9, 24, 11, 27, -17, -54, 57, 18, -42, 42, -35, -31, 38, -18, -6, 27, 13, -24, -2, -8, 46, -13, -29, -37, -45, 51, 0, -3, -19, 36, 32, 14, -29, 2, 12, -14, 17, -21, -1, -15, 40, -15, -6, -25, 14, 79, 14, -36, 33, 20, 25, -8, -28, 19, -54, 0, 37, 18, -57, -44, -40, 7, 12, 0, -44, 3, 25, 29, -1, -19, 0, -2, -17, 50, -10, 29, 28, -6, -35, -62, -52, 12, 4, -24, -53, -44, -12, 22, 22, 3, -27, 45, -58, -17, -4, -12, 19, -7, 60, 30, 28, 0, -36, -31, 15, -70, 29, -15, 7, 29, 19, 11, -52, 93, -8, -4, -19, 2, -40, -9, -31, 16, 29, 18, 8, -9, 0, 25, -11, 35, -33, 3, 18, -14, -14, -17, -21, -22, -3, 11, -19, 1, -58, -39, 13, -47, -58, -28, 74, 9, 11, -52, 45, 23, -69, 22, 17, -7, 43, 16, 41, 49, -47, -26, -13, -15, -2, 16, -7, -6, -4, -34, -2, -3, 0, -1, -32, 7, 0, 21, 78, 50, -9, -28, -14, 25, 45, -10, -10, 3, -28, 7, -1, -1, 15, 54, 5, 25, 25, 38, 19, 51, -22, -26, 39, -9, -16, 6, -63, 58, -27, -28, -35, -37, -61, -39, 2, 1, 43, -7, -16, 32, 8, -3, 16, -32, 41, -38, 30, -53, -39, -32, -22, 5, -19, -13, -38, 57, 6, 22, -6, -14, -25, -31, -51, -18, 23, 0, -8, -26, 15, 13, 20, -6, 16, -3, -27, -45, 11, 27, 7, -9, 34, -1, -38, -11, 35, -49, -11, -1, 37, -43, 10, -56, -23, 46, 47, 4, 19, 67, -63, -15, 17, 12, 40, -75, 21, 27, 13, 21, 0, -2, -33, 30, -29, 9, 62, 0, -24, -31, 29, -17, 68, -11, -31, 26, 2, -2, -35, 45, 56, 4, 55, 0, 16, 70, -31, -40, 19, -46, -6, 21, 0, -6, 75, -3, 7, -11, 2, 17, 16, 25, -2, -17, -90, -13, 19, 51, -42, -39, 19, 0, -21, 8, 7, 17, 17, -35, 56, -79, -8, 15, 39, 33, -44, -3, 15, 68, -17, 16, -40, -19, -22, -41, -1, -6, 16, 10, 23, 27, 24, 32, -10, 77, 41, -24, -31, -13, -5, 13, 20, -49, -36, 35, 20, 45, 65, 26, -52, -42, -12, -18, -33, 63, -64, 1, 0, -14, 41, 42, -39, -50, 9, 3, -43, -27, -11, 7, -30, -8, -36, 46, 23, 4, 57, 21, 6, 52, 32, 4, 29, -14, 14, -47, 6, 6, 19, 23, 23, 39, -25, -7, -38, 12, -8, -42, 41, 0, 8, 23, -5, -16, 0, 49, -36, -18, -19, -8, -26, 29, 63, 38, -24, -14, -2, 5, -21, 35, 1, -9, -16, 25, -13, -3, -17, 6, 36, -8, 9, -13, -7, -28, -74, -18, 30, 32, 41, -19, 15, 30, -22, -57, 5, 51, -11, 5, -1, 7, -12, -8, 33, 4, -9, 65, -25, 35, -12, 6, 0, -41, 40, -19, 65, -35, -3, -73, -11, 14, -5, 68, -5, 6, 22, -37, 42, 38, 15, -38, -3, -35, 3, 42, 48, -34, 49, -17, 20, 0, 6, -33, 0, 13, 6, -14, -52, 17, 29, -3, -30, 21, 22, -13, 0, -30, 13, 18, -14, 20, -11, -23, 40, -92, 8, 4, 26, -84, 5, -2, -13, -4, 4, 15, 7, 16, -42, -39, -29, 32, -22, -13, -9, 22, 5, 17, -14, 19, -26, 10, -10, 31, -46, 25, 54, 12, 20, -19, 5, 0, 39, 20, -33, -10, 18, -24, 14, 46, -17, -19, -14, -38, 0, 1, 32, 2, 6, 4, 14, -6, -10, -3, -33, 69, -11, 4, 36, -8, -37, -22, 14, 30, -20, 8, 31, -17, 31, 27, 7, 3, 15, 10, 3, -26, -1, 54, -12, -4, -32, 22, -14, 21, -14, 13 ]
Roberts, J. This is an original action in this Court in which petitioner seeks a writ of mandamus ordering George A. Kropp, the warden of the State Prison of Southern Michigan, to restore to him the “good time” which he had accumulated as credit on a sentence he is now serving. MCLA § 600.4401 (Stat Ann 1970 Cum Supp § 27A.4401); GCR 1963, 714(1). In 1958, Irving Heyman was convicted in Detroit Recorder’s Court of armed robbery and was sentenced to serve not less than 15 nor more than 30 years under the jurisdiction of the State Department of Corrections. The petitioner was transferred to the State Prison for Southern Michigan (Jackson) to serve his sentence. On or about December 2,1961, the guards assigned to the “north yard” of the prison investigated a commotion and personally observed the petitioner running after another inmate (one Springette) with a knife in his hand. Springette informed the officers that petitioner had just stabbed him. On January 31, 1962, the incident was brought to the attention of the prison disciplinary hoard and petitioner was ordered held in segregated status pending further investigation. The prison disciplinary hoard reconsidered this matter on February 28, 1962, and again continued it. On March 28, 1962, the disciplinary board recontinued this matter pending the outcome of criminal proceedings instituted against petitioner in the circuit court for the county of Jackson. On April 5, 1962, petitioner was convicted of assault with intent to do great bodily harm less than murder. On April 9, 1962, the warden of Jackson determined that petitioner had committed a breach of discipline and ordered that petitioner forfeit his accumulated statutory “good time” allowance of 9 months and 24 days. On June 24, 1969, petitioner asked the warden to review the matter. On June 27, 1969, petitioner was informed that consideration of his request would “have to be made a little later.” For reasons not here relevant petitioner’s April 5, 1962, assault conviction was set aside in April 1969 by the United States District Court. Petitioner presents a twofold attack on the legality of the forfeiture of his accumulated “good time”: (1) He contends that since his assault conviction was subsequently set aside by the United States District Court, he may not be penalized for his actions by forfeiture of his statutory good time, and (2) since recognized prison rules were not followed in his case, the loss of his statutory good time is null and void. The Attorney General essentially counters that the warden’s actions lie well within his recognized discretion and, under the facts presented here, are not (or should not be) reviewable by the judiciary since the warden is an officer of the executive branch of government. We reject petitioner’s first contention. Nothing appears on this record to indicate that the setting aside of defendant’s April 5, 1962 conviction by the Federal district court occurred because defendant did not stab Springette. The record does indicate that that stabbing occurred. This is sufficient to sustain disciplinary action in the form of forfeiture of good time. CLS 1961, § 800.33 (Stat Ann 1954 Rev §28.1403). With respect to petitioner’s second contention, § 800.33 does not provide for particular notice or procedure before the warden may exercise the authority therein granted to him. Absent such a statutory requirement and on the reasoning of Lane v. Department of Corrections, Parole Board (1970), 383 Mich 50, petitioner was not entitled to what he here asserts was his right. The issuance of a writ of mandamus is dependent on a showing that petitioner has a clear legal right to performance of a specific duty by the defendant and that defendant has a clear legal duty to act. Mardiros v. Secretary of State (1968), 11 Mich App 541. Neither element is established on this record. Writ denied. All concurred.	[ 81, 43, 6, 70, -77, -23, -22, -35, -45, 12, -42, -13, -16, -46, 23, 28, 3, 27, -30, 29, 30, -39, -8, 11, 45, 20, 8, 28, -36, 2, 17, -27, 38, -48, -22, -26, 23, -46, 81, 62, -30, -4, -3, 30, -39, -7, -17, 40, 53, -35, -23, 28, 28, 43, 8, 16, -6, -38, 32, 6, -4, 2, -20, -32, -3, 20, 22, -6, -35, -53, 52, 16, 20, -31, 8, 38, 68, 1, 35, -17, -17, 13, -17, -32, -21, 7, 3, 0, 61, -20, -11, 7, -48, -30, 8, 9, -37, -4, 26, -55, -76, -42, -97, -26, 19, -23, 0, -31, -22, 49, 26, 24, 45, 3, -31, -36, -7, 12, 8, 8, 25, -7, 20, 51, 9, -18, -16, 6, 25, 18, 1, 19, 43, -20, -28, 18, -8, 20, 21, -29, -57, 1, 24, 34, 65, -27, 11, 39, 90, 3, -19, 0, -41, 54, 33, 7, -27, 20, -42, 23, -18, 30, -3, 4, 23, -32, 6, 1, 15, 14, -21, 19, 33, 5, 10, 0, -17, 34, 20, 29, -51, 45, -13, 11, -18, -39, -2, -52, -38, -32, 12, 1, 2, 4, 70, -9, 47, 6, 0, 10, -15, 22, 58, 30, 34, -25, 63, -8, -1, 40, -20, -21, 31, 7, -104, -11, 5, 34, 24, 41, -50, -52, -25, -38, 69, -22, 36, 12, 3, -33, 19, -45, 56, -9, 0, 14, 26, 36, -11, 26, -11, -35, -24, -13, 26, 0, 9, -4, 9, 3, -18, -22, -26, 4, -75, -34, 9, -14, -22, -11, -30, 29, -4, -19, -52, 60, -53, 4, -11, -3, 0, 38, -6, -9, -19, -8, -32, 43, 16, -34, 52, -13, -9, 41, 12, -67, -1, -3, 2, -10, 6, 8, -1, 2, 20, -8, -17, -9, 21, 45, -13, 21, 0, -35, -6, -14, 15, -46, 41, -7, 58, 40, -28, -22, -42, -19, 16, 50, 16, 18, -35, 7, -13, -21, 4, -51, 42, 3, 7, -5, 72, -24, -48, -3, -23, 10, 4, -6, 47, 36, 30, -13, 47, -18, -30, 34, -2, 19, -31, -28, -3, 56, 35, 11, -17, -6, -38, -24, -1, 16, 17, -31, 14, -19, 27, -14, -44, -21, 16, 7, 40, -26, -16, -19, -17, 93, 56, -32, -14, -5, 34, -16, 16, -30, 10, -65, -44, -43, 11, -6, -68, 17, -53, -89, -19, -8, 19, 4, 44, -29, -10, -22, 10, 13, 28, -47, -59, 50, 2, 8, -4, 10, 43, 66, 20, 11, -15, -13, 42, -108, 32, 26, 41, -26, 0, -16, -6, -1, -23, 12, -2, -1, -8, 25, -26, 3, -60, -52, 15, -28, -1, -32, -4, 13, 6, 17, -24, -69, 25, -2, 17, 14, -44, 3, -43, 27, -10, 25, -13, -14, -20, -36, -19, 51, 39, 5, -71, -17, 36, 21, 3, 14, 16, 34, -50, -43, 6, 32, 20, -15, 13, -16, -20, 3, -22, -10, 0, -17, -19, -12, 0, -1, -20, 12, 3, 38, -74, 17, 24, 26, -46, -32, 8, 25, 41, 16, 71, -55, 26, 42, -52, -3, -25, 68, 43, -53, -15, -46, -12, 15, -26, -23, 18, -3, -40, -5, -1, -32, -85, -14, 48, -36, -6, 5, 8, -24, -44, -50, -39, -39, 36, -7, 21, 43, 5, -18, -15, -41, -16, 12, -26, 35, -20, -22, 14, -27, 5, 6, -8, -10, -24, -16, 18, 34, -16, 11, -25, 30, -5, -12, 3, 15, 0, -6, -19, 27, 49, -15, -6, 5, 29, 48, -49, 4, -24, -10, -5, 23, 19, -4, -26, -8, -7, -14, -4, 42, 0, -16, 29, 18, 11, -2, 2, 20, 52, -10, 6, -4, 16, -52, -3, 0, -13, -4, -89, 28, -25, 0, -40, 70, 5, -28, 36, -13, -56, -8, -4, -29, 5, -27, -30, 11, 11, -33, 2, -6, -29, 37, -10, -4, -21, 12, 16, -32, 14, -1, -6, 31, 17, 18, 2, 9, -28, 3, -37, -7, -7, 35, -4, -23, -3, 30, -60, 11, 13, -12, 13, -11, 12, -42, 31, 7, 22, -17, 0, 2, -60, -12, 41, -35, -79, -15, -11, 27, 16, 4, 16, -15, -28, 39, -26, 50, 44, 46, 41, 7, 54, 23, -46, 78, -11, 20, 16, 28, -29, -34, 4, -49, 38, -36, -54, 23, -24, 18, 21, 10, 1, -33, -10, -4, -27, -27, -32, 54, 19, 6, -7, -45, 26, -13, 8, -34, -18, -42, 14, 10, -46, -3, -37, 1, 0, 5, -60, -6, -8, -11, 6, 9, 0, 43, 29, 12, -27, 35, -41, 33, 32, -11, -34, 10, 3, 28, -35, 24, -46, 1, -39, -61, 74, -1, 7, -14, -21, 5, 34, 32, -49, 29, 37, -14, -46, 60, -44, -12, -28, -43, -19, -32, 21, -15, -30, -3, -15, 3, -22, 25, 61, -26, 0, -28, 8, 20, 25, 1, -13, -37, 14, 2, -35, 12, -13, 98, -21, 38, -44, 26, -49, 15, 28, 31, 25, -38, -15, -7, 13, 34, -6, -20, -9, 38, 10, 14, 32, 32, 0, -1, -35, 6, -4, -23, 59, -53, 21, -8, -31, 12, -3, 1, 30, 46, 7, -6, -71, 22, -27, 6, 15, -18, 22, -57, -17, 15, -15, 1, 7, 36, -32, -38, 16, 20, -1, 8, 48, 24, -64, 31, 25, -22, 2, -30, -30, -13, 47, 28, 7, -6, -46, -14, -25, 14, -3, 16, -60, -5, -21, 17, 20, 13, 17, -19, -9, 27, -50, -14, 8, 23, 18, -4, 3, 8, 1, 28, -42, 2, -6, -55, -35, 29, 5, -9, -19, 26, 60, 3, -20, 14, -2, 10, -20, 39, -34, -34, -5, -71, -6, 9, 71, -77, 82, 33, 18, -33, -30, 51, -12, 75, -36, -19, -5, 6, -10, 1, 18, 9, -7, 12, 42, 1, 21, -16, 10, -22, 16, -22, 28, 43, 27, -32, -33, -5, -6, -36, -43, 10, 20, 4, -3, 42, 20, -2, 36, -5, -34, -3, 11, 20, 41, 30, -62, 40, 43, 32, -13, 15, 24, 30, 58, -25, -4, 40, 36, -7, 13, -14, 33, 14, 14, -9, -39, -7, -5, -35, 32, -27, 17, 42, -18, 27, 0, 18, -43, 8, -14, 54 ]
Bronson, J. Plaintiffs and defendant Knorr are the respective owners of adjoining lots located in Rochester, Michigan. The gist of plaintiffs’ complaint is that they had constructed upon their lot, in addition to a permanent building, a retention wall which ran along the north boundary of the plaintiffs’ property and immediately adjacent to the defendant’s property; that defendant had a building constructed and an asphalt parking lot installed upon his property; that in so building these structures the defendant, without making any provisions for the protection of plaintiffs’ building, undertook to fill his property which resulted in elevating the level of defendant’s property as well as depositing the filling material against the plaintiffs’ wall; that by reason of the pressure so resulting as well as the vibrations from large equipment utilized by the defendant in the construction of the building and parking lot, the plaintiffs’ building has been damaged. Defendant denies that he changed the relative elevation of the property in connection with the construction of his building, and that in fact, the relative elevation of the two parcels was substantially the same after the construction of his building as before plaintiffs began construction of their building. Defendant further alleges that the damages to the plaintiffs’ building resulted from the construction of plaintiffs’ building without sufficient precautions to stand the stress of the earth against it. Both parties introduced evidence (by way of personal testimony and the use of expert witnesses) to support their respective contentions. Following a full trial on the merits, the trial court, sitting without a jury, found as follows: “There is just absolutely no question in the court’s mind that the defendant is responsible for the damage to the building by a combination of circumstances; the additional fill, plus the pounding and compacting of the soil at the time of the parking lot construction. “Defendant maintains that the plaintiff in part was responsible for this, that this building wasn’t properly constructed, and that he had removed the retaining wall that was there 40 years. It is claimed that this is the cause of damage, that plaintiff, in fact, put himself in this position. But the court just doesn’t buy that claim. The court has to maintain the legal position that plaintiff is entitled on construction of his - building to use and support of his property as it existed at that time. And the defendant, if he is going to change his property in any way, is responsible and has a legal duty for the lateral support of the adjoining property owners. Therefore, the court does find that the defendant is liable for the damage to plaintiff’s property.” The court then proceeded to award the plaintiffs a judgment of $6,000, an amount somewhat less than that which would be required completely to restore the plaintiffs’ property to its original condition, because in the court’s own wording, “the equities * # * [do not] require complete return to the pre-existing circumstances”. It is recognized law that a party has a legal duty to adjacent property owners; changing the level of one’s property which causes damage by pressure from soil fill against a building or adjacent property results in liability. See Abrey v. City of Detroit (1901), 127 Mich 374. See, generally, 2 CJS, Adjoining Landowners, § 33, p 29; Anno: “Liability of adjoining landowner for using neighbor’s wall to support fill”, 10 ALR, 1321. The following quotation from Miller v. McClelland (Iowa, 1919), 173 NW 910, is particularly applicable to the instant case: “Assuming that plaintiff’s wall is wholly on her own premises — and we think it must be so treated for the purpose of this case — defendant had no right to use it as an artificial support for a fill made upon his own premises above the natural surface of his lot. That he did so use it is shown by the evidence of several witnesses. “Defendant was doubtless entitled to build up a foundation for his proposed building to such height as pleased him, but in the absence of a party wall such foundation should be laid and built upon and supported by his own premises. If he in fact supported his foundation or fill above the natural surface by pressure against plaintiff’s building, it was not a mere temporary or passing trespass, which a court of equity would decline to consider, but was a permanent encroachment upon plaintiff’s property, long acquiescence in which might perhaps give rise in time to a presumptive right in defendant constituting a permanent burden upon plaintiff’s property.” Likewise, liability can result from pounding, compacting soil, vibrations, etc. See Anno: “Vibrations — Property Damage — Liability”, 79 ALR2d 966; 2 CJS, Adjoining Landowners, § 45c, p 39. See, also, Grzelka v. Chevrolet Motor Car Co. (1938), 286 Mich 141. Having thus determined that the trial court properly applied existing law, we now turn to the court’s finding of fact. This Court gives considerable weight to the fact findings of the trial judge, sitting without a jury, because of his advantageous position which enables the judge to observe the testifying witnesses and their demeanor. This Court will not reverse the trial court’s finding unless we determine it to be “clearly erroneous”. GCR 1963, 517.1; State Bank of Sandusky v. Boddy (1969), 17 Mich App 466; Tann v. Allied Van Lines, Inc. (1966), 5 Mich App 309. A careful review of the record discloses sufficient evidence to support the trial court’s determination. One remaining issue merits consideration on this appeal. Under Count II of plaintiffs’ complaint, plaintiffs sought a judgment establishing an easement and a right of prescription to use defendant’s alley which adjoined the property. Plaintiffs further sought to enjoin defendant from blocking or interfering with plaintiffs’ use of the alley. The defendant claimed record title to the alley and denied that plaintiffs were entitled to an easement or right of prescription to use defendant’s land for driveway purposes. The trial judge found, in effect, that an implied common-law dedication of the alley was made, and thus declared the parcel of land a public alley for the following reasons: “As to Count II, there is just no question in the court’s mind, as a result of the substantial testimony by five or six witnesses regarding the 16-foot strip of land on plaintiffs’ exhibit 2, that at this time and place the land is presently a public alley. The court bases its decision upon the following: First, the admission by the village or city of Rochester that the land is not on the tax rolls and that it has maintained the strip in the past, also the testimony of various witnesses that the city had maintained it by snow removal and grading and that the land had been used not only by the abutting property owners but by the general public, at least to go to the A & P grocery store from a period of 1949 to 1962. The property was barricaded in 1962 by the defendant and, obviously, if nothing had been done for another eight years, it probably would be necessary for the court to declare at that time that it was not a public alley. The overall circumstances, also including a sign, I believe, calling it Albertson Court some years ago, indicate that, at least until 1962, the 16-foot strip of land was used not only by the abutting property owners but by the general public to a certain degree. There is no strong testimony as to great throngs of the public using the alley, but it is uncontradicted that the public did use the alley. The court will declare that the 16-foot strip of land in question is and shall be a public alley.” In Bain v. Fry (1958), 352 Mich 299, 305, the elements necessary for a common-law dedication were stated in the following manner: “In order to have a common-law dedication there must be: (1) an intent by the owners of the property to offer it to the public for use; (2) there must be acceptance of this offer by the public officials in maintenance of the alley, street or.highway-by the public officials; (3) there must be a use by the public generally.” With respect to determining’ the intention of the owners to offer the property to the public for use, the Michigan Supreme Court in Hawkins v. Dillman (1934), 268 Mich 483, 491, quoting from Vance v. Village of Pewamo (1910), 161 Mich 528, 535, stated: “ ‘The facts and circumstances relied upon to prove the existence of an intent on the part of the dedicator must be of a positive and unequivocal character. Since, by a dedication, valuable rights in lands pass from the owner, no presumption of an intent to dedicate arises, unless it is clearly ancl expressly shown by his acts and declarations, or by a line of conduct the only reasonable explanation of which is that a dedication was intended.’ ” (Emphasis added.) A careful review of the record supports the trial court’s conclusion that the acts and conduct of the defendant, as well as previous owners of the property, could only reasonably be construed as an intention to make a dedication of the parcel of property in question. See, generally, Chapman v. City of Sault Ste. Marie (1906), 146 Mich 23. For the foregoing reasons, the decision of the trial court should be, and is, affirmed. All concurred.	[ -19, 59, 3, -47, 16, 4, 19, 37, 8, 15, 36, 7, 29, -34, 20, -18, -22, -1, -21, -24, -68, -21, 23, 2, -13, -23, 4, -14, 17, 34, -4, -15, -51, 9, -22, 28, 28, -8, -3, 26, 61, -18, -3, -94, 32, 19, 20, -13, 30, 28, 36, 50, 6, -46, -44, -31, -7, 51, 18, -18, -34, 11, 3, 7, 78, 25, 8, -15, 13, -5, -55, 42, 40, -48, -2, 5, -36, 36, -20, -24, 34, 12, 55, 18, -34, 6, -29, -7, -28, -13, -46, -11, -18, 69, -27, 23, -3, 8, -3, -9, 23, 32, -16, -28, -41, 15, -26, -68, 20, -16, 1, 31, 40, 26, -46, 20, 8, 2, -35, -27, 12, -2, -46, -5, -19, 14, -8, -45, -11, -33, 15, -24, -20, 15, -41, -10, -8, 3, -7, 22, 7, 3, 16, -20, -44, 26, 3, -10, -25, -29, -18, -33, -9, 13, 2, -5, -11, -38, 28, -30, 53, 3, 1, -11, -7, -10, -23, 14, 18, -6, 88, -3, 33, -51, 12, -22, 5, 6, -39, -24, 36, -6, 59, 20, -40, -16, -40, -8, -34, 13, 16, -19, -13, 33, -10, 45, -40, 35, 9, -33, -14, -1, 0, -46, -13, 17, 9, -34, 12, 29, 23, 30, -22, -57, 30, -47, 30, -25, -1, -11, -5, -94, 9, 23, -5, -8, -23, -18, -25, -24, 3, -71, 43, 35, -9, -32, 92, 10, 27, 4, 48, 43, -55, 30, 14, 0, -52, 16, 17, 6, 1, -26, -34, 0, -11, -18, -8, 36, -38, -16, 25, -5, -30, -20, 45, 7, -65, 25, -45, 9, -38, 60, -17, 0, -55, -66, -60, 13, 1, 13, 31, 8, 38, -14, 24, 34, 22, 36, -34, -18, 20, -20, 4, -22, 1, 30, 21, 8, 27, -12, -15, 3, -17, 4, 54, 7, 9, 56, 13, 28, 5, 21, 42, 10, -6, 30, 20, 8, 48, -60, 43, 11, 0, -18, 17, 20, 38, -32, -18, -22, -18, 24, 2, 18, 21, -39, 20, -65, -66, -8, 38, 23, 32, -7, 29, -3, -16, -17, 6, 26, 2, -1, -39, 6, -20, -23, 8, -11, -21, 52, 64, 12, 35, -26, -40, -41, -45, -26, 3, 34, -30, -1, -19, 57, 34, -59, 11, 28, -14, 47, 9, -16, 40, -3, 41, -5, -44, -31, -36, 8, -28, -33, 44, 7, -33, -18, -29, 3, -5, -15, 15, 7, -7, 13, -34, 18, 20, -13, -3, 22, 11, -52, -15, -13, -25, 3, 57, 6, 31, 30, 24, 8, 11, -12, 1, -45, 32, -7, -61, 16, -25, 16, -10, 19, 32, 2, -44, -19, -46, 25, -77, 18, -37, -20, -27, 34, -11, 29, 72, -7, -5, 71, -36, -24, 11, 23, 36, -19, 60, -3, 37, -43, -35, -28, 20, -13, -30, -33, -3, 21, 3, 55, -2, 53, 17, 24, 2, 11, -17, 5, 38, 11, 20, -20, -14, -19, 15, 42, -47, 41, -13, 50, -15, -32, -7, 7, -29, 32, -21, -36, -10, 40, -1, 18, 60, -14, -7, -53, -18, 60, -58, -13, 2, 47, 1, 21, 17, -31, -4, -11, -5, -3, -31, -53, 29, 39, 12, 62, -7, 12, 19, -58, -2, 21, -30, -11, 7, 2, -1, -11, -1, 44, 57, 28, -2, 6, 29, 32, 0, -12, 30, 4, 0, 54, -36, -44, -4, -36, 5, -8, 10, 42, 13, 7, 34, 1, -8, -51, 22, 4, -42, -10, 35, -46, -29, 15, -44, -1, -25, 3, -60, -14, -36, -31, -22, 42, 53, 13, 59, 27, -19, -12, 4, -34, 19, -25, -18, -13, 34, -24, 26, -29, -29, -20, 39, 0, -11, -7, 4, 2, 29, 11, -26, 43, 29, 40, 13, -44, 64, 13, 27, -42, 7, 25, -23, -32, 0, -2, -77, -4, -70, 14, -26, 16, 41, -47, 31, -34, -29, -3, 13, 37, -40, 34, -18, -27, 0, 19, -49, -4, -44, 51, 68, -19, 31, -49, -19, -30, -7, -49, 16, -27, -14, -21, -39, -6, 50, -9, 4, -6, -14, 19, -22, 58, 2, -2, 0, 45, 0, 21, 32, -17, 25, 16, 47, -11, 9, -1, 39, 16, 0, -35, 20, -7, 32, 21, -23, -14, -6, 1, -12, 5, 54, -9, 0, 31, 14, -48, 0, 4, 34, 33, 20, -16, 5, 18, -4, -53, -65, 54, 40, -40, 3, -38, 11, -27, 7, -4, -32, 17, -5, 15, -10, -8, -51, 25, 43, -19, -20, -35, 39, -45, 3, -35, -18, -25, 76, 21, -7, 9, -43, -24, 2, 7, 15, -19, -22, -12, -28, 33, 30, -8, -34, -43, -48, -87, 27, -39, -22, -65, -41, 14, 18, -2, 34, 38, 10, -42, 57, -10, 7, -12, 31, -18, -22, 32, 23, -30, 14, 50, -4, 18, -9, -6, -29, -18, -29, 38, -14, -14, 1, 16, -2, 46, 14, -7, -53, 33, -7, 56, 32, -37, -30, -28, -10, 20, 1, 58, 4, 1, -57, 28, -39, -34, 8, 4, 4, -56, 13, 11, 84, -43, -33, 22, 0, 3, -20, 43, -32, 12, 1, 21, -22, 22, 39, -13, -17, -6, -15, 27, -48, 0, 27, 0, 7, 1, -20, 16, -50, 34, 80, 0, -40, 29, 26, -5, -21, 10, -3, 34, 39, 26, -9, 44, 33, 1, -33, -61, 4, 0, 3, 56, 36, 8, -34, -43, 68, 2, -26, 78, 27, 41, -3, -23, -33, -13, 0, 0, 3, -24, -34, 30, 0, 28, -10, -2, -11, 0, -24, -68, -37, -39, -38, -19, -42, 29, -24, -14, 10, 49, 0, 39, -18, -60, -61, 16, -29, 19, -22, 61, -31, -28, -56, 9, 36, 12, -2, -35, -54, -39, 1, -53, -12, 44, -24, -33, 3, -12, 14, -5, 8, 47, -25, 6, 28, -68, -24, -1, -24, -16, 25, 11, -17, -60, 53, -26, 22, 20, -14, 3, -14, -21, -7, -14, 34, -7, -15, 31, -36, -9, -23, -13, 15, -4, -25, -22, 0, 16, -10, 1, -1, 29, -2, 39, -43, 12, 7, 19, 10, 2, 0, -19, 7, 32, 7, 11, 39, 18, 58, -29, -29, 54, 40, -25, 8, 71, -21, -4, 25, -34, 38, -8, -3, 25 ]
T. M. Burns, P. J. Defendant was charged, along with others, with the crime of armed robbery (MCLA § 750.529 [Stat Ann 1970 Cum Supp § 28-.797]). He was arraigned along with the others on August 31, 1967, at which time the information was read to him in presence of counsel. On October 24, 1967, defendant represented by his appointed counsel, appeared in. Recorder’s Court before Judge George W. Crockett, Jr., along with codefendant Ronald Dent. Both defendants tendered pleas of guilty to the lesser-included offense of assault with intent to commit robbery armed (MCLA § 750.89 [Stat Ann 1962 Rev § 28.284]). Following an examination of codefendant Dent and acceptance of his guilty plea, the court examined defendant Wade. The testimony of the hearing at which defendant pled guilty is as follows: “Mr. Gold: I have had several discussions with Mr. Wade and his mother. He wishes to withdraw his original plea of not guilty and offer a plea of guilty — withdraw his plea of not guilty to the original charge of robbery armed, and offer a plea of guilty to the lesser and included offense of assault with intent to conimit robbery armed.” “The Court: Mr. Wade, you understand if I accept this plea you could be given a sentence up to life imprisonment! “Defendant Wade: Yes. “The Court: Has anyone made any threats or promises to get you to plead guilty! “Defendant Wade: No. “The Court: Why do you want to plead guilty! “Defendant Wade: Because I am guilty. “The Court: What did you do! “Defendant Wade: Robbed a bar. “The Court: Tell me about it. “Defendant Wade: We was over my friend’s house and he suggested that we go get some money. So we was riding around, and— “The Court (Interposing): So you did what! “Defendant Wade: We was riding around. And we came past this bar on Twelfth and Lafayette and he suggested, you know, that we go in and rob it. So we all walked in and I walked up to the bar and said it was a hold-up. And I went over the bar and it was a drawer and I took some money out of the drawer. “The Court: That was here in Detroit! “Defendant Wade: Yes. “The Court: Were any people in the bar! “Defendant Wade: Sir! “The Court: Were there any people in the bar! “Defendant Wade: Yes. “The Court: What did you people do? “Defendant Wade: One of the guys who — one of the guys threw something and — at one of my friends that was in the bar with me. “The Court: The court will accept the plea.” On December 11, 1967, Wade and Dent, with their respective counsel, appeared for their sentencing. The court pronounced sentence of 15 to 25 years imprisonment for Wade, and also Dent. A motion to withdraw the plea and for new trial was denied by the trial court on December 27, 1967. The appeal to this Court is of right. There are two issues with which we must concern ourselves. 1: Was defendant informed of the consequences of his plea as required by GCR 1963, 785.3? 2: Did the examination of defendant at the time of his plea establish the crime to which he pleaded guilty? Defendant asserts on appeal that the court failed to advise the defendant that by entering his guilty plea, he was waiving his right to jury trial or court trial as required by GCR 1963, 785.3, and such failure is reversible error. We consider that the colloquy between the court and defendant was sufficiently extensive to inform the defendant of the consequences of his plea. “The Court: Mr. Wade, you understand if I accept this plea, you could be given a sentence up to life imprisonment? “Defendant Wade: Yes.” The question of voluntariness was brought in too, with distinct adequacy. The defendant was asked precisely what he did, and he told the court about himself and his friends wanting money and going to the bar, and stating that “it was a hold-up”. The defendant further stated that he (Wade) took money out of a drawer in the bar. The procedure regarding acceptance of guilty pleas has been set forth in G-CR 1963, 785.3 and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). The requirements have been interpreted by the Supreme Court and Court of Appeals to include an examination of the defendant to establish the crime and defendant’s participation therein whether or not defendant is represented by counsel. The failure to make such an examination constitutes grounds for setting aside the plea of guilty. People v. Barrows (1959), 358 Mich 267; People v. Carlisle (1969), 19 Mich App 680, 684; People v. Johnson (1966), 2 Mich App 182; People v. Perine (1967), 7 Mich App 292; and People v. Mason (1968), 13 Mich App 277. But see People v. Donald T. Moore (1970), 21 Mich App 150. Also, where the defendant’s responses during such an examination give reason to doubt the truth of the plea, the court may not accept said plea. People v. Richard E. Johnson (1967), 8 Mich App 204; People v. Stewart (1968), 10 Mich App 553; People v. Mason (1968), 13 Mich App 277. The first issue raised by defendant on appeal is in essence the prejudicial effect, if any, of the failure of the trial court judge to inform defendant of his right to a jury trial when defendant was represented by counsel. Although People v. Totty (1968), 10 Mich App 462, held otherwise, another panel of this Court held, in People v. La Roe (1969), 18 Mich App 262, that GCR 1963, 785.3(1), which (in part) requires the court to advise defendant “he is entitled to a trial by jury”, has no application where the defendant was represented by counsel. The opinion by Judge Quinn, in which Chief Judge Lesinski and Judge Danhoe concurred, in effect, accepted the same interpretation as held by Judge Robert B. Burns who dissented in People v. Totty, supra, p 467. Since there has been no Michigan Supreme Court decision on this exact point to this interpretation of GrCR 1963, 785.3(1), we are free to adopt either Totty or La Roe. Although we would prefer to have the defendant over-advised as to his rights rather than unadvised, we do not consider the likelihood of prejudice to the defendant very-great under the circumstances present here as to issue one. Therefore, we adopt the holding in the La Roe case for our own here. With respect to the second issue raised, defendant argues that the examination did not establish the crime to which defendant pleaded guilty. It is defendant’s position that there was a failure to establish that he was armed or that he was aware that his companions were armed; and therefore, defendant concludes the court improperly accepted his plea to the crime of assault with intent to commit robbery armed. While the court is required, whether defendant is represented by counsel or not, to conduct an examination into the truth of the plea, the form and manner of such examination lies within the discretion of the judge; and it is to be exercised in the manner best suited to the parties and the offense. People v. Barrows, supra; People v. Bumpus (1959), 355 Mich 374; People v. Schwartz (1967), 6 Mich App 581; and People v. Gill (1967), 8 Mich App 89. During this examination of one seeking to enter a plea of guilty, the prosecution is under no obligation to prove anything. People v. Paul (1968), 13 Mich App 175. Indeed, the judge need only satisfy himself that the plea was made freely and understandingly with knowledge of its consequences and without undue influence or promise of leniency. We find no abuse of discretion here. Furthermore, when one seeks to set aside a plea of guilty, he: “has the burden of showing more than technical noncomplianee with a rule. Absent a showing of violation or denial of constitutional rights, he has the obligation of alleging * * * such facts as would, if true, substantiate a finding that there was noncompliance which resulted in a miscarriage of justice.” People v. Winegar (1968), 380 Mich 719, 733. See also People v. Dunn (1968), 380 Mich 693, 701, wherein the Court stated: “In conclusion, we cite again the court rule and statute cited in People v. Winegar (1968) 380 Mich 719; GrCR 1963, 529.1; and CL 1948, §769.26 (Stat Ann 1954 Rev § 28.1096). The import of both the rule and the statute is that on review courts should be concerned with substance, not with form; that the fundamental inquiry is whether there has been a miscarriage of justice.” (Emphasis added.) Defendant does not contend that he was unarmed or was unaware of anyone else being armed during the robbery; indeed, defendant does not even allege he was innocent of the criminal charge for which he was convicted. Rather, defendant merely asserts that the record fails to disclose the presence of weapons. Such an assertion of technical noncompliance without any assertion of being unarmed or of being unaware of anyone else being armed does not establish a showing of miscarriage of justice as is required under the cases handed down by our Supreme Court. See People v. Stearns (1968), 380 Mich 704; People v. Dunn, supra; People v. Winegar, supra. In addition, there is no showing defendant was unaware of the nature of the crime to which he tendered a plea of guilty. He had been charged with robbery armed, and after consultation with his counsel and his parents, he tendered a guilty plea to assault with the intent to commit robbery armed, a lesser-included offense. See People v. Cherry (1968), 10 Mich App 420. Aside from the assertions of an unclear record, there is no protestation of innocence. Therefore, the cases of Bunn, Winegar, and Stearns would appear to establish no abuse in discretion on the part of the trial judge in accepting the plea and in denying defendant’s later motion to withdraw the guilty plea under Michigan precedents. The counsel for defendant on appeal, however, urges this Court to disregard these cases from our State Supreme Court, and rely instead upon Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274), which he says requires a reversal here. A careful reading of Boykin v. Alabama, supra, and its corollary case with regard to federal courts, McCarthy v. United States (1969), 394 US 459 (89 S Ct 1166, 22 L Ed 2d 418), does not convince us that a reversal is required in this case based upon Boykin. In McCarthy, supra, the Supreme Court held that failure to comply fully with the guilty plea inquiry requirements of Rule 11 of Federal Rules of Criminal Procedure requires reversal and a second opportunity for defendant to enter a plea. Federal Rule 11, as amended in 1966, requires the court to address the defendant personally and determine “that the plea is made voluntarily with understanding of the nature of the charge and the consequence of the plea;” and requires that the court must be satisfied “there is a factual basis for the plea.” See Advisory Committee Note to the 1966 amendment to Rule 11 in 1 Wright, Federal Practice and Procedure: Criminal, § 174, p 377 (note 75). Although the Supreme Court was careful to limit its decision in McCarthy to the construction of Federal Rule 11, the Court in Boykin, supra, (Harlan and Black dissenting), set aside a state conviction based upon a guilty plea, stating on p 242: “It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” In reference to the question of whether a guilty plea is knowingly and voluntarily made, the Court also said on p 243 that, “(t)he question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards”, (citation omitted) and that: “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one’s accusers. We cannot presume a waiver of these three important federal rights from a silent record.” (Citations omitted.) The Court refused in Boykin to presume waiver of federal rights on a silent record. The Court then, in footnote 5 on p 243, which cites the case of McCarthy v. United States, supra, quotes at length from McCarthy ending with, “it cannot he truly voluntary unless the defendant possesses an understanding of the law in relation to the facts”. The Court also said on pp 243, 244: “What is at stake for an accsued facing death or imprisonment demands utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v. Louisiana [1961], 368 US 157, 173 [82 S Ct 248, 257; 7 L Ed 2d 207, 219]; Specht v. Patterson [1967,] 386 US 605, 610 [87 S Ct 1209, 1212; 18 L Ed 2d 326, 330]), and forestalls the spinoff of collateral proceedings that seek to probe murky memories.” We note that although the majority in Boykin does not literally impose McCarthy and FR Crim P, 11, on the states, the effect of their decision appears to be to impose it in substance as the dissenting opinion points out. Boykin v. Alabama, supra, pp 244, 245. Even if Federal Rule 11 is not imposed upon the states by Boykin, it is clear that some standards are. From footnote 7 on p 244 of the majority opinion, it appears that Dunn, Stearns and Winegar, supra, are in serious question if they are interpreted to do away with what has been called in Michigan the Barrows requirement. See People v. Moore, supra; People v. Carlisle, supra (V. J. Brennan, J., dissenting), p 685. For as Justice Black says in his concurring opinion in People v. Taylor (1970), 383 Mich 338, 368 speaking for himself and Justice Dethmers: “There can be no doubt that Boykin has imposed upon State court trial judges additional duties as those judges go about the task of arraignment and sentencing, certainly in all cases of prosecution for felony.” Yet, as far as this case is concerned, even if Boykin has the effect which we believe it does, it does not necessarily mean that this case must be reversed, for we find that Boykin does not apply retroactively. People v. Taylor, supra (concurring opinion, Black, J.) and cases cited therein. See additionally, United States, ex rel. Wiggins, v. Pennsylvania (ED Pa, 1969), 302 F Supp 845, 846; Quillien v. Leeke (D SC, 1969), 303 F Supp 698, 711. These well-reasoned opinions rely on the decision of the United States Supreme Court that McCarthy should not be applied retroactively. Halliday v. United States (1969), 394 US 831, (89 S Ct 1498, 23 L Ed 2d 16). Since the plea questioned in this appeal was taken in December of 1967, the Boykin decision, no matter how it may affect pleas taken subsequent to it, does not void the plea taken in conformity to the less stringent requirements of our state decisions. Affirmed. Bronson, J., concurred. Holbrook, J., concurred in the result.	[ 30, 37, -4, 31, -11, -14, -28, -28, -13, 0, 28, -9, 27, -25, 10, 20, 2, 11, 8, -44, -26, -46, 16, 61, -20, -33, 7, 6, -15, 40, 14, 14, 24, -57, -4, -24, 2, -23, 1, 26, -20, 46, 20, 7, -4, 24, 7, -12, 54, -14, 0, -22, 39, 23, -19, 13, -6, -10, 41, -40, 37, 6, -51, -9, -10, -17, -10, 6, 21, 32, 12, -47, 30, -15, -28, 22, -8, 34, -6, -37, 2, 38, 44, 32, 14, -27, 21, 6, -8, -40, 12, 64, 10, 2, 34, -48, -4, 13, 18, -40, -73, -35, -38, -28, 8, 22, -38, -65, -17, 44, 7, 35, 57, -11, -10, -60, -41, -7, -19, 0, -11, 17, 8, 12, -16, 6, -4, 28, 29, 24, -7, 60, -14, 14, 15, -16, -5, 30, 8, 35, 4, 28, 19, 21, 32, 24, -2, 29, 23, 55, -53, -3, -4, -7, 8, 30, 6, -23, -30, -14, 8, -55, 41, 13, 1, -4, -28, -28, -31, -49, 31, -20, 28, 14, 38, -17, 14, -9, -18, 27, -12, 0, -16, -9, 4, -13, 19, -14, -34, 47, 28, 1, -34, -9, 21, -33, 3, -38, -14, 16, -17, -46, -18, -34, -9, -32, -1, -9, 39, -6, -14, 27, 25, -17, 0, 13, -10, 14, -5, -30, -70, -17, -2, 32, -21, -15, 20, 7, -32, -3, 10, 14, -28, 27, 38, 52, 11, -32, 39, 55, -11, -56, 3, 20, 12, 1, 0, 26, 0, 7, -25, 19, -21, 7, -37, 23, 24, -22, -33, 48, -39, 18, -9, -20, -6, 30, -80, -54, -34, -28, -12, -68, -8, -7, 48, -6, -55, 39, -30, -9, 1, 20, -36, 33, 6, -24, -26, 4, 27, -11, 3, -4, 4, -7, 65, 3, 27, -51, -36, 20, 23, -1, -13, -49, 42, -3, 70, -57, -67, 9, 78, -1, 35, 24, 44, -61, 47, 38, 28, -43, -4, 13, -37, 4, -14, -45, 44, 47, -7, -7, -7, -7, -10, 6, -54, 28, 4, 13, 27, 15, -49, -14, 6, -5, 34, 32, -7, 9, -58, -12, -13, -24, 37, -13, -7, -32, -27, -35, 50, -13, 53, -21, 13, 3, 28, -3, -3, -35, 58, 34, -4, -29, -46, -17, -9, -13, 80, 13, -22, -6, -42, -59, 58, 25, 25, -34, 12, -79, -30, 47, -57, 36, -4, -69, 34, -23, -23, -1, 5, -18, -40, -5, 82, -44, -15, -27, -26, -34, -22, -78, -15, 5, 54, 48, 1, -23, 21, -3, 12, 2, -10, 11, 28, -23, 34, -10, -2, 16, 3, 8, 60, 52, 21, -18, 0, 3, -23, 3, 7, -19, -23, -35, 17, 32, 50, -49, -32, -71, 9, 28, 35, 7, 21, -25, -62, 31, -2, 46, 26, 3, 23, 6, -30, -41, 21, -51, -67, -17, 38, 10, 18, 17, -19, 4, -69, -45, 34, -19, 26, -4, 25, 39, -21, 44, -29, -43, -59, -60, 16, -6, -1, 3, -19, -5, 15, 61, -61, 5, -45, 16, -49, -20, -41, -10, 50, 41, 12, 2, 28, 44, -2, -8, -46, 7, 54, -23, 18, -8, -58, 37, 50, -18, -3, -11, 6, -36, -19, -13, -42, 5, 6, -63, -10, -78, -1, 45, 0, 7, -18, -6, 24, -10, 19, -4, -16, -19, 23, 9, 10, -11, -20, 23, 54, -32, -33, 17, -50, -14, -18, 6, -11, 11, 79, 3, -41, 24, -14, -38, 44, -30, -36, 32, 26, 13, -9, 42, -27, 2, -17, 91, 56, 56, -67, 39, -23, 46, 54, -5, -38, 23, -29, 42, 10, 18, 19, -10, -32, -36, -31, 0, 86, -54, 14, 22, 36, -11, -36, -14, 35, -14, 50, -26, -23, -25, -1, -18, -8, -3, -40, 60, -5, -39, -4, -10, 21, -74, -38, -32, -13, -27, 13, -17, 7, 62, 13, -34, -42, 37, -26, -15, 6, 96, 24, 1, 34, 14, -58, -22, 2, -46, -20, 1, 0, -9, 31, -63, 5, 36, -13, -6, 55, 48, -64, 14, -21, -13, -13, 19, 38, 5, -17, -49, 30, -5, 26, 14, -39, 13, 50, -13, 18, -18, 11, -36, 23, -15, 29, 7, -26, 38, -24, -7, 17, -17, 46, 6, 56, 35, -30, -2, 16, -81, -31, -29, 18, -28, 23, -14, 27, 10, -3, -3, 4, -13, 12, -28, -41, -17, -18, 52, -41, -10, -18, 22, -10, 28, 55, 2, 21, -28, 40, 22, 3, -15, 55, 64, -107, 18, -13, 7, -49, 4, -22, -22, -60, -45, -7, 8, 57, -11, 11, 10, 47, 12, -3, 23, 6, -3, -42, -17, -61, 20, 26, -52, -37, 36, 26, 24, 11, -17, -22, -47, -22, 4, -58, 11, 3, -5, 34, -3, 35, 41, -50, 6, 39, -24, -4, -26, 27, -2, -10, -42, -22, 11, -29, -8, 4, 52, 13, -10, -22, -16, 50, 16, 34, -6, 36, -6, 9, -8, 0, 3, 0, 15, -18, 40, -10, -45, -7, -16, -1, -23, -19, -13, -32, 64, 15, -32, -49, -44, -4, 3, 65, 76, -27, -34, 36, 0, -4, 24, 32, 22, 3, 5, -12, -7, 47, 8, -25, -29, 40, -34, -9, -25, -38, 2, 8, 15, 21, -59, -18, -11, -32, -27, 7, 45, 45, 18, 8, 25, -1, 61, 9, 6, 42, 47, 7, 26, -3, -41, -8, -40, 55, 45, -8, -4, 0, -70, -24, 41, -16, 40, -28, 8, -24, -67, -17, -1, 30, -47, 34, -8, -27, 18, 27, -4, 19, -8, -2, 19, -15, 41, 6, 3, 0, -30, -29, 36, -19, 34, -12, 23, 29, 44, 47, -38, 0, 24, 3, 37, -3, 52, -15, -92, -41, 3, 62, -69, -14, 16, -70, 17, -39, 30, -9, 14, 2, -36, -35, 36, -25, 8, -38, 44, 13, 4, -9, 55, -7, -10, -18, 39, -29, -19, 31, 17, 77, -49, -11, 0, 2, -17, -44, 4, 56, -39, 1, -41, 4, -23, -18, -18, -61, -12, 70, 7, 7, 49, 15, 15, 21, -29, -4, 71, -4, 3, 19, 16, -60, -5, -56, 23, 2, 3, -3, -3, 8, 19, 57, -28, 20, 2, -20, -8, -62, 11, -14, -2, -24, -6, -33, -13, -26, 50 ]
Quinn, J. Following the order of remand in Chrysler Corporation v. Losada (1965), 376 Mich 209, plaintiff’s claim for unemployment compensation was allowed by the referee; the appeal board reversed the referee and the circuit court affirmed the appeal board. We review to determine whether the appeal board’s decision was authorized by law and was supported by competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28, Williams v. Lakeland Convalescent Center, Inc. (1966), 4 Mich App 477. The decision of the appeal board was authorized by law if plaintiff was disqualified for benefits under CLS 1961, §421.29(1)(a)(5) (Stat Ann 1960 Rev § 17.531 [1] [a] [5]). The determination of disqualification requires the application of the statute to the facts involved. The pertinent language of the statute is : “An individual shall be disqualified for benefits for the duration of his unemployment in all cases where the individual has failed without good cause to accept suitable work when offered him * * * .” Section 421.29(1) (a), supra, defines suitable work as “An offer of employment in the individual’s customary occupation, under the conditions of employment and remuneration substantially equivalent to those under which the individual has been customarily employed in such occupation, shall be deemed suitable work. In determining whether or not any work is suitable for an individual, the commission shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.” Plaintiff was employed by defendant November 29, 1954 as an assembler in the trim department of the assembly division. His employment by defendant continued until April 13, 1960, when he was laid off because of lack of work. During his employment, plaintiff worked at various nonskilled jobs in the trim department of the Dodge main plant assembly division, and his employment had been reclassified several times. April 13,1960, plaintiff was classified as a cutter in the trim department with a base pay of $2.52 per hour. April 15, 1960, defendant offered plaintiff his choice of two jobs, namely: medium press operator at a base pay of $2.32 per hour or as a spot welder at a base pay of $2.37 per hour. (Plaintiff had worked as a welder before his employment with defendant.) Employment was available on these jobs on either the first or second shifts, and the second shift received a five percent pay premium. Both jobs were in tbe same plant where plaintiff had been working and both were nonskilled work. Plaintiff’s seniority rights and his rights to all fringe benefits would have been transferred with him had he accepted either job. Plaintiff would not have been recalled to his former job from the new job so long as there was work on the latter. If plaintiff had been laid off from one of the new jobs, he could have been recalled to the trim division or to the stamping division (location of new jobs) for available work. Plaintiff refused to accept either job. The referee found that plaintiff had been offered “suitable work,” but that he refused it with “good cause” because he was not given a reasonable time to find other work. The appeal board reversed on the theory that “length of unemployment” related to “suitability of work” rather than to “good cause”, and the appeal board held that plaintiff was disqualified for refusing “suitable work” without “good cause”. Plaintiff concedes that the “length of unemployment” factor properly relates to “suitability of work” rather than to “good cause”. Plaintiff argues, however, that by misapplying the “length of unemployment” factor to “good cause” rather than to suitability of work”, the referee failed to consider “length of unemployment” in determining “suitability”, hence his finding of “suitability” was erroneous and it remained erroneous when the appeal board adopted such finding. We accept the logic of this reasoning, but not the conclusion it reaches. Applying the statutory criteria for determining “suitability of work” to the record before us, we find ample, competent, material and substantial evidence to support the finding that the work offered to plaintiff was suitable. The pay differential between the former job and offered jobs is not sufficient to alter this finding. Heater v. Corsi (1946), 270 App Div 311 (59 NYS2d 793), Pennington v. Dudley (1967), 10 Ohio St 2d 90 (226 NE2d 738). As plaintiff testified before the referee, his basic reason for refusing to accept the offered employment was that it would take him out of trim and prevent him from returning to trim. Acceptance of this personal reason as “good cause” is precluded by the policy of the employment security act, CL 1948, § 421.2 (Stat Ann 1968 Rev § 17.502), namely: “For the benefit of persons unemployed through no fault of their own.” Affirmed with costs to defendant. All concurred.	[ 2, 17, -1, 5, 31, 39, 3, -42, -15, 26, -2, -3, 13, -37, 45, 2, -3, 16, -38, -16, 8, 34, -12, 15, -7, -66, 44, -33, -15, 11, -19, -14, 0, -17, -34, -28, 6, -35, 29, 32, 17, 14, -29, -2, -29, -31, -13, -24, 45, -41, -5, 20, -15, 8, 32, 44, 27, 23, -19, 34, -24, 6, 42, 15, 46, 8, -18, 15, 23, 10, -36, 9, -15, -12, -19, -47, 18, 48, 3, 1, 28, -29, 37, -5, -29, 77, 34, 38, 3, -56, -43, 22, 21, -31, -33, -12, -9, 30, 33, -3, -56, 3, 43, 1, 11, -8, -7, -10, -45, 2, 33, -1, 1, 7, -58, 22, 41, 26, 29, 11, 1, -11, -19, 22, 20, -45, -13, -18, -59, 10, 0, 54, 17, 5, -14, 22, 66, -10, -76, 26, 7, 34, -25, -17, -38, -7, 21, 14, -3, 0, -13, 34, 6, 5, -23, 7, 27, -18, 81, -3, -14, -3, 11, 29, 7, -4, -19, 25, 41, -7, 9, -17, 26, 20, 12, 39, 48, -8, -31, 37, -54, 12, -30, 60, -8, 4, 1, -10, 27, 27, 49, 24, 23, 19, 14, -31, 51, 21, -24, 15, -19, -30, 10, -27, 18, 42, -16, -35, 4, 22, -10, -10, 0, -19, -5, 18, -2, 2, 35, 7, -6, 14, -15, -1, -18, -6, -29, 40, 7, 30, -45, 10, 73, -17, -13, -34, 6, -28, 68, 5, 25, 9, 23, 35, -46, -44, -6, -21, 69, 17, 19, 59, 20, 3, -17, -48, -4, 8, -44, -22, 43, 48, -6, 31, -18, 23, -52, 56, 3, -4, -13, -43, 34, 20, 8, -20, -5, -18, 75, -71, -41, 34, -42, -34, -92, 3, -10, -40, -1, 3, 50, -3, -3, 28, -7, -40, 34, 52, 1, 27, 5, -45, -38, -20, 20, 12, -47, -15, -35, 17, -8, -45, 30, -8, 61, -41, -36, -24, -8, -5, 3, 30, 24, -44, -14, 4, 0, -7, -28, -63, 1, -40, -22, 33, 22, 25, 23, 34, 49, 15, 10, -22, -5, -27, 32, 1, 0, -10, 102, -21, 6, 39, -9, -23, 30, 26, 64, -31, -56, 28, 15, -8, 1, 12, 1, 10, -17, 6, 39, -7, 38, -33, 45, -60, 8, -9, -1, -6, -18, 5, -5, 33, 36, -61, -29, -17, 52, 9, -43, -2, -38, -17, -25, -10, -49, 33, 12, -3, -7, 2, -34, 24, -14, -11, 5, -48, -3, -70, -32, 5, -63, 8, 16, 21, -18, -29, 57, -5, -61, -5, -4, -30, 13, -3, 20, -11, -15, 32, -3, -10, -1, -62, 10, -22, -64, 57, 6, -58, -37, 6, -23, -20, -50, -2, 4, 19, -14, -43, -8, 0, 37, -39, -5, 16, 0, -36, 11, 20, -32, -16, -13, -11, 36, 17, 29, -11, -26, 15, 23, -21, -4, 3, 27, 19, 8, 0, 1, -12, 21, -42, 16, 28, 35, -17, 11, -16, -18, -20, -37, -7, 19, -25, -66, -28, -24, -39, 6, 20, -12, -7, -55, 16, 94, -77, 24, -70, 2, -94, 20, -5, 3, -12, 29, 61, -7, -12, -58, 54, 1, -12, -22, -23, -8, -13, 8, -33, -71, -6, 9, -54, 38, 15, 111, 7, 12, 32, -34, -26, -75, -60, -37, 18, 22, 32, -42, -7, 22, 24, 44, 16, 1, 0, -2, -53, -4, -21, 17, 29, 15, 19, 4, 33, 12, 71, -9, -4, -5, 12, 47, 13, 14, -20, 30, 11, 4, 33, 3, 6, -16, 0, -2, 42, 6, -10, 4, -55, 6, 4, 24, -60, -23, -15, -12, -2, 31, -48, -15, 13, -23, 28, 11, 43, -37, 22, -22, -13, -25, 78, 9, 32, -17, 13, -9, -20, -34, -41, 23, 36, 24, 44, 10, 73, -39, -12, -70, 3, 36, 7, 7, -8, 5, 36, -44, -50, -30, -26, 10, 13, 1, -14, 29, 30, 41, -2, -14, -35, 6, 13, -19, -15, -14, 25, -8, -44, 0, -15, 16, -28, -64, -20, -17, -32, 5, 6, 4, -3, -12, -12, 3, -42, -6, -1, 48, 61, 72, 20, -53, 15, -26, 37, -9, -52, 2, 15, -21, -5, 9, -15, 39, -31, -23, 80, -9, 10, 19, 21, 0, 0, -19, -41, -17, 13, 42, 16, 33, 5, 3, -10, 59, 40, 40, -12, -1, 6, 35, 23, -11, -54, -50, -26, -20, 21, -6, 5, 7, 75, 32, -36, -29, -11, 10, 17, -5, -15, -29, -50, 8, -25, -37, 22, 31, -17, 40, -2, -65, 34, 0, -16, 10, 2, -48, -22, 5, -20, -3, 30, 12, -6, -67, -9, -47, -47, 5, 56, -29, 20, -7, 11, 45, -13, -40, 19, 59, -53, 1, 16, 24, -15, -17, -21, -14, -40, 20, 28, -33, -79, -58, -37, -16, -19, -25, -1, 2, 15, 0, -7, 75, -26, -11, -26, -38, -9, -56, 41, 52, -18, 2, 8, 35, -57, 53, -14, -32, 7, -1, -13, 39, 6, -43, -26, 6, 31, -19, -47, 1, -13, 9, -4, 34, -1, -9, 9, 20, 73, -12, 21, 71, -1, 36, -18, -2, -30, -9, 11, -4, 3, -35, 58, 14, 9, -19, -25, -16, 37, 29, 1, -3, 0, -13, -52, 34, -10, -9, 50, -32, 66, -80, 10, 64, -10, -7, -31, 3, -20, -77, 15, -11, -8, 3, 2, 52, -78, 49, 0, 12, -31, 0, -34, 10, 46, 58, 30, -1, -27, -8, -11, -14, 16, -14, -39, 9, 20, 5, 23, 53, 10, -16, -12, -44, 18, -30, 12, 41, -8, 35, 8, -14, 22, 54, -4, -12, 7, 9, 7, 1, -28, 15, -1, -9, 5, -3, 12, -13, 6, 23, -2, -40, -6, -6, -28, -21, -7, -42, 9, -54, -70, -48, 22, 21, -21, -14, 53, 16, 13, 73, -36, -40, 53, -7, 23, -20, 47, -1, 54, 57, 9, 15, -41, -25, 6, 50, -36, 24, -20, 26, 22, 16, 19, -21, -10, -30, -17, -27, 22, 16, -54, -2, -26, -18, -2, -26, -4, 48, 23, -37, -3, -40, 16, 35, -25, 38, 2, -9, 0, 34, 9, -13, 4, -47, -7, 22, 23, -12, 47, -9, 36, -10, -37, -48, -17, -1, -10, -35, -21 ]
Van Domelen, J. The Hillsdale Community Schools Principals’ and Supervisory Association (PSA) petitioned the Michigan Labor Mediation Board (MLMB) for an election of a unit of employees of the Hillsdale Community Schools. The unit contained the following personnel: “High, school, junior high, and elementary school principals, curriculum coordinator, reading coordinator, ESEA coordinator, head librarian, and physical education director; excluding: teachers, superintendent, assistant superintendent, business manager and all non-certified employees.” The school district opposed the petition and the Labor Mediation Board (LMB) ruled that PSA was a proper unit. The district appealed this decision before the representation election was held. The PSA lost the election, but we granted leave to appeal as this is an important case with continuing application. The plaintiff is a public employer within the meaning of PA 1947, No 336 as amended by PA 1965, No 379 (PERA), MCLA § 423.201 et seq. (Stat Ann 1968 Rev § 17.455[1] et seq.) The personnel composing the PSA membership are public employees within the provisions of § 2 PERA, MCLA § 423-.202 (Stat Ann 1968 Rev § 17.455 [2]). The LMB found that they are all supervisory personnel, but are not “employees who formulate, determine, and effectuate management policies.” We are bound by this determination as it is supported by competent, material, and substantial evidence. Villella v. Employment Security Commission (1969), 16 Mich App 187; Williams v. Lakeland Convalescent Center (1966), 4 Mich App 477. PSA is a labor organization within the meaning of §§ 9 and 12 PERA, MCLA §§423.209, 212 (Stat Ann 1968 Rev §§ 17.455[2], [9]). The main issue raised in this appeal is whether under the provisions of PERA, supervisory personnel who are public employees constitute a proper collective bargaining unit and are entitled to be represented by representatives of their own choosing. The preamble to the PERA shows one of its purposes is “to declare and protect the rights and privileges of public employees”. This policy has been effectuated by permitting public employees to engage in collective bargaining. MCLA § 423.209 (Stat Ann 1968 Rev § 17.455 [9]) provides: “It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.” The legislature designated the MLMB as the agency to determine the appropriate bargaining units, MCLA § 423.213 (Stat Ann 1968 Rev § 17.455 [13]). The determination of the bargaining unit is based upon criteria set forth in PA 1939, No 176, § 9e as last amended by PA 1965, No 282, MCLA § 423.9e (Stat Ann 1968 Rev § 17.454[10.4]). This section is a part of the Michigan Labor Mediation Act (MLMA), MCLA § 423.1 et seq. (Stat Ann 1968 Rev § 14.454[1] et seq.) and states: “Sec. 9e. The board, after consultation with the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be either the employees of 1 employer in 1 plant or business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units: Provided, however, that if the group of employees involved in the dispute has been recognized by the employer or identified by certification, contract or past practice, as a unit for collective bargaining, the board may adopt such unit.” Plaintiff and defendants disagree as to the correct interpretation of § 9e. An examination of that section’s structure shows that there are four choices of bargaining units; (1) a unit consisting of all of the employees employed in one plant or business enterprise within the state, (2) a craft unit, (3) a plant unit, and (4) a subdivision of any of the foregoing-units. The language in § 9e * * not holding executive or supervisory positions, # # *” is a modification of only the first type of unit listed. It does not modify the remaining- units defined, nor is it in itself a prohibition against executive or supervisory employees constituting a bargaining unit. In its decision in Saginaw County Road Commission, MLMB Case No R 66 E-204, 1967 Labor Opinions, pp 196, 201, the LMB held supervisory personnel to be covered by the terms of PERA: “The words ‘public employee’ are to identify the employees other than private and does not define public employee so as to exclude supervisory personnel.” We have reached a similar conclusion in School District of the City of Dearborn v. Labor Mediation Board (1970), 22 Mich App 222. In City of Dearborn, supra, we held that engineers and assistant engineers employed by the school district, even though supervisory personnel, were nonetheless entitled by PERA to organize for collective bargaining purposes. Plaintiff further argues that it is against public policy to allow public employees who are supervisors, such as those involved in the instant action, to organize. As we stated in City of Escanaba v. Labor Mediation Board (1969), 19 Mich App 273, the legislature by the enactment of PERA has determined what the public policy of this state will be in regard to allowing public employees to organize. PEBA was passed pursuant to Const 1963, art 4, § 48, which directly authorizes the legislature to “enact laws providing for the resolution of disputes concerning public employees”. If appellant is in disagreement with the current public policy of this state, its remedy lies with the legislature and not with the courts. We have considered appellant’s claim that the interests and goals of the principals and the rest of the membership of PSA are too unrelated to warrant their inclusion in a single unit. We find, as we did in City of Dearborn, supra, that sufficient community of interest does in fact exist. Uyeda v. Brooks (CA6, 1966), 365 F2d 326. Appellant urges as a fourth ground for reversal that the affiliation of the PSA with the MEA precludes it from being recognized as a collective bargaining agent. Such a determination not being necessary to the decision in this case, we decline to make it. The decision and order of the Labor Mediation Board is affirmed. No costs are allowed, a public question being involved. All concurred.	[ 57, -51, -41, 9, 36, 47, -2, -21, -49, 24, -48, 0, 22, 51, -10, -10, 45, 82, -23, 1, 24, -1, 41, -9, -7, 10, 46, 7, -43, 13, -63, 2, -10, -51, -68, -25, 27, 41, 14, -43, 39, 6, -22, -38, -24, 35, 9, 36, 35, 9, -15, 73, -27, 14, 27, 29, 40, -9, -2, 2, -59, 54, 22, -17, 41, -54, -7, 30, 11, -84, -29, 39, 1, -36, 33, 33, -18, 8, 21, 45, 30, 11, 24, -63, 1, 36, -18, 55, -18, 36, 30, 47, -48, 26, 22, 15, 29, 6, 45, -30, 5, 28, -12, 1, -75, -7, 25, 23, 17, 36, -2, 38, -1, -16, 24, 18, 6, 11, 81, 26, 64, -18, -27, 44, -17, 13, 7, 56, -51, -5, -15, 49, 11, -16, 37, 36, 10, 8, 91, 17, -47, 65, 33, -53, -19, -29, -40, -18, 8, -55, 36, 13, 25, 7, -51, -20, 63, -24, 9, 16, -42, -32, -66, -20, 15, -38, -10, -22, -12, -9, 5, 7, 15, -43, -48, -43, -74, 16, -12, -14, -16, -73, -5, 2, -59, -34, -18, -29, -16, -40, 9, -33, 6, -33, 28, -24, -10, 56, -17, 6, 32, 14, -30, 16, 24, -2, -25, -61, -37, 15, 20, -13, 7, -48, -27, 3, 4, 16, 10, -48, 22, -8, -11, 7, -10, -61, -2, -31, 7, -18, 30, 48, 43, -8, 36, 29, -38, 2, 96, -4, -2, -42, -44, 37, 5, -52, -43, -1, 10, 51, -45, 4, 67, -21, -35, -12, -31, 9, -52, 4, 9, 8, -11, 6, -33, 43, 37, 43, -37, 10, -34, 43, 25, -38, -37, -27, 0, -49, 15, -8, -28, 17, -7, -28, -17, 1, -29, -57, -6, -23, -29, 8, -4, 12, 33, -14, 69, -10, 19, 11, -34, 58, 3, -13, -44, 27, -42, -12, 6, -8, 19, -21, 9, 6, 18, -34, -50, -18, -13, -46, -40, -6, 3, 11, 5, -48, -16, 46, 20, -26, 37, -32, -9, 22, 32, 22, 19, 43, 18, -39, 25, 37, 91, 7, -52, -62, -15, 3, -3, -43, 71, -35, 16, 15, 21, 22, 30, 13, -44, -11, -8, 53, -55, -2, -39, 13, 22, 46, 21, 0, 39, -5, 14, 0, -43, -7, 19, 58, 3, 29, -49, 27, 1, -41, 23, -35, -8, 50, 13, -24, -18, -39, -55, 46, -32, 29, 58, 47, 0, 10, 68, 0, 24, 19, 22, 4, -20, -54, -31, 78, -3, 41, -46, -3, -37, -35, 28, -51, 72, 14, 25, 0, -20, 28, -1, 4, -32, 42, 13, 79, -72, -46, -2, -55, -21, -48, -26, -52, -43, -32, 21, -4, 22, -44, -36, -31, -16, 16, -12, -1, -49, 11, -53, 27, 6, -10, -48, -14, 38, 24, -35, -44, -21, -9, 40, -15, -22, 44, 33, 15, -68, -30, -5, -1, 7, -51, -32, 1, 50, -3, 79, 3, -4, -45, -62, 28, 18, 9, -21, -14, 28, 5, 5, -6, 55, 0, 109, 11, 5, 19, 21, 53, 26, -4, -14, -3, -40, 3, 14, -66, -28, -13, 15, 85, 3, 27, -46, 10, 12, 5, -6, -14, -36, -37, 16, 8, -18, -31, -29, -5, 2, 6, 78, 31, 13, 16, 7, 30, 2, -29, 33, 18, -67, 45, 13, 24, -10, -36, 88, -29, 86, -40, -28, -46, 14, -47, -2, 27, 41, -15, -33, 4, 87, 40, -3, 28, -42, 35, 51, 14, 23, 28, -23, -14, 3, 37, 84, 1, -2, 15, 9, -1, -5, -10, -7, -53, 48, -36, 26, -23, -32, -71, -33, -2, -5, -7, -31, 46, 8, 17, 42, -3, -44, -46, -18, -19, 12, 21, -18, -42, -2, -63, 5, -45, -15, -32, 0, 39, 65, -10, 13, 38, 20, -36, -37, 45, 75, -1, 46, 12, -5, -34, -18, -46, 5, 0, -49, 45, 3, 9, 0, -40, 33, -24, -20, -26, -5, 28, 2, -6, -23, 35, 56, -16, -34, 9, -32, 16, -10, -26, 15, 0, -24, 31, -20, 31, 30, 7, 14, -36, -20, 28, 41, 6, 48, -22, 52, 20, -48, -16, -24, -28, -50, 12, 41, 6, 36, 53, -60, -55, 42, 49, -6, -45, 35, -75, 1, -26, -40, -26, -20, 34, -27, 8, -41, 18, -39, -16, 11, -2, 10, -61, -34, 14, 14, 2, 8, 17, 13, 33, -34, -10, -35, 19, 59, 67, 49, -45, -5, -15, -21, -10, 21, 5, 19, -3, 39, 76, -39, -21, 16, -13, -26, -35, 11, 32, -46, -46, -9, 45, -30, -69, -15, 7, -14, -21, -2, -17, -13, 44, -49, 0, -55, 65, 61, 2, -32, 26, 4, -44, 62, 19, -35, 2, 29, -17, 6, -36, -71, -15, 10, 35, -3, -12, -43, -26, -1, -34, -82, 4, -33, -1, 11, -8, 21, 48, 49, -47, 15, -58, -22, 18, 0, 17, -13, 14, -27, 29, 6, 14, 1, -21, -18, 15, 6, 72, -24, 56, -48, -22, 14, -2, -15, 18, 5, -29, 30, 29, -41, 18, -11, 74, -6, -4, -47, -33, -36, 9, 18, 28, 18, -44, -47, -24, 6, 25, -46, 47, 30, -61, 9, 8, -40, 37, 66, 10, 11, -13, 30, 0, 55, 64, -33, 16, -37, 44, -47, -10, 11, 37, -23, -38, 42, 59, 32, -3, -58, -2, -16, -19, -31, -15, 26, -90, 75, 62, 20, -22, -2, 18, -31, 29, -38, 4, -8, -20, 25, -8, -43, 2, 6, 22, -25, -47, -11, 39, 19, -40, -60, 23, -34, 43, 7, -65, -17, 45, -11, 37, 40, 24, -24, -10, 17, -59, 0, 18, -29, 28, -21, 23, 11, -32, 48, -43, 52, 43, 70, -15, -17, 12, -27, -7, -57, -65, 24, 12, -1, 56, -61, -7, -15, -38, 56, -25, -13, -20, -9, 52, 4, 0, 2, -31, 48, 42, 0, -81, -49, -21, -12, -29, 36, -3, 19, -27, 14, -22, -56, -22, 30, 56, -47, -28, -3, 38, -35, -12, 3, 22, -56, -12, 23, -25, 56, -30, -22, -28, -52, -11, 48, -14, 34, 88, -15, 6, 10, -5, -6, -59, 40, 86, 48, -13, 69, -6, 54, -20, -10, -16, -45, -7, 10, -19, -18, -6 ]
Davidson, J. Plaintiff submitted a suggestion under defendant’s Employee Suggestion Plan, proposing the use of “Plastic or the type builders use, Paper or what is suitable and less costly” in packing brakeshoes instead of the heavy cardboard then in use. The suggestion was turned down. A fellow employee subsequently suggested using “lighter weight cardboard.” This was adopted and an award made to him under the plan. Plaintiff instituted suit, asking for a similar award to him on the basis that his suggestion was the same and had priority under the plan. Defendant alleged that the suggestions were substantially different and that plaintiff’s suggestion was not used. The trial court properly determined that in order to allow plaintiff to recover, it was required to find that the defendant’s Award Committee did not make its decision within the framework of the rules of the plan or that the decision was based upon gross or palpable mistake. Carlini v. United States Rubber Company (1967), 8 Mich App 501. This was the trial court’s conclusion. Defendant asserts that the trial court’s findings were clearly erroneous. GCR 1963, 517.1; Weeks v. Conservation Department (1968), 9 Mich App 429; Shaw v. Wiepartz (1965), 1 Mich App 271. In Hughson v. O’Reilly (1967), 7 Mich App 324, 326, we adopted the following definition of this term: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co. (1948), 333 US 364, 395 (68 S Ct 525, 542, 92 L Ed 746, 766).” It is not disputed that the two suggestions related to the same problem. The plan, however, requires that the suggestion not only define the problem, but also propose a solution. The testimony and exhibits reveal that the solution proposed by plaintiff was not the same as that proposed by the fellow employee. In fact the plaintiff did not propose a definite solution but in reality only called attention to the problem and then alluded in general terms to various classes of material which might be used to form a solution. The suggestion of the fellow employee to whom the award was given was adopted, namely, lighter weight cardboard. As a result, plaintiff’s suggestion did not meet the requirements of the plan, and the decision of the defendant’s Award Committee in denying recovery was within the framework of the rules and not based upon gross or palpable mistake. Thus, upon a review of the entire record, we are convinced that the findings of the trial court are not supported therein. Reversed and remanded for entry of judgment for the defendant with costs. All concurred.	[ -1, -39, 29, -20, -50, -25, 1, 39, -50, 84, 24, 3, 51, 51, -48, -36, -6, -17, -57, 5, 12, 30, 10, 13, -14, 26, -39, -6, 52, 21, -4, 0, -6, -31, -18, -30, 4, 20, -36, -5, 59, -13, 46, -26, -39, 3, 52, -7, 16, -34, 82, 4, 15, -48, 40, 16, 19, 10, 3, -16, -24, 17, 32, 4, 42, -9, 6, 3, -8, 18, -35, 22, -20, -38, 7, -48, 25, 11, -48, -6, -7, 14, 22, 6, -5, -1, 31, -5, 56, 29, -7, -13, -17, -10, 6, -8, 9, -3, -8, -2, -30, 6, 17, -39, -52, 13, -6, -9, 14, 30, 16, 7, -15, -28, -25, -30, 43, 49, -27, -41, 36, 10, -37, 7, -57, 8, 71, -47, 17, 20, 50, 27, -11, 7, 41, 10, 4, 11, -43, 34, -51, 53, 6, -12, -72, 34, 4, -17, -62, -20, 48, -51, -67, -29, 4, -2, 1, -47, 83, -48, -20, 61, -8, 43, -21, -22, -23, 47, -7, -10, 10, 6, 14, 6, 35, 82, 31, 1, -17, -9, -14, -36, 28, -2, -48, 30, -15, 38, -1, 0, 46, -28, -49, 34, -16, 11, -15, 56, 34, -31, 3, -33, -37, -8, -4, 8, -94, -46, 15, -15, -22, 64, -50, -15, -2, 3, 8, -58, -7, 9, -14, -17, -19, -10, -30, -20, 12, 9, -25, 20, -55, 43, 1, -14, 40, -40, 4, -24, 16, -7, 55, -62, -45, -15, -31, -30, -18, 30, -13, -8, -6, 13, -14, 11, -24, -23, -43, 27, 13, 18, -43, 3, -22, 24, -21, 20, -26, 12, -55, 61, -6, -37, -44, 31, 9, 14, -30, 0, 17, -22, -15, 24, -1, -42, -31, 60, -40, -14, 5, 27, 59, 6, 37, 10, 67, 23, 64, 6, -26, -52, -5, 15, 32, -49, 31, 48, -30, 32, 13, -2, -9, -4, 9, 3, -26, -1, -28, 0, 46, -41, -38, 39, 41, -13, 0, -69, -5, -37, 33, -6, -19, 16, 1, 38, 6, -15, 15, -15, -9, 17, -26, 7, -9, -16, -35, -8, -7, -30, -51, -28, 33, 12, 5, -9, 55, -12, 21, -27, -18, 2, 36, 15, 3, -33, 23, -31, 6, -30, -15, 48, -30, -54, -7, -24, -4, -47, 24, 57, -3, 34, -39, 59, 17, -70, -22, 7, -38, 10, -8, 16, -60, -17, 21, 17, 7, 20, -11, 41, 24, 34, 5, -22, -17, -18, -33, 12, -34, -102, -37, -16, -6, -28, -16, 1, -20, -56, 61, -32, 4, -26, 39, -8, 19, -45, 5, -44, -5, -33, 23, -29, -40, 23, -13, -57, -2, 18, -35, 2, 0, -40, -48, 23, -42, 47, 16, 21, -6, 51, 14, -4, -4, 9, -27, 8, 36, 25, 27, -37, 33, -6, 12, -16, -31, 21, 39, 10, -37, -41, 9, 9, -11, -24, 79, 9, 31, 19, -26, 7, -10, -10, 9, 58, 13, -7, 26, 5, 4, -13, -26, 15, -11, -3, -52, -71, -78, 12, -12, 11, 5, 5, -50, 40, 34, -19, 28, -3, 9, -7, 15, 53, -30, 15, 20, 28, 6, 59, 21, -21, -32, 64, -58, -1, -72, 28, -6, -4, -35, -7, -6, 0, 96, -8, 34, -22, 46, 42, -12, -50, 3, -12, -22, 5, 9, -7, 0, 17, -38, 43, -15, -6, -4, 38, 8, 40, 21, -2, -7, 26, -9, -3, 8, 33, -16, 4, 38, 8, -3, -52, 118, 19, 11, -48, -71, 78, -46, 46, -20, 38, -25, -17, 0, 21, -6, -23, -9, -28, 14, 18, -8, 20, 2, -58, 13, -29, 22, 13, 26, -40, 24, -4, 35, 23, -53, -7, 3, -39, -4, -7, 19, -34, 4, -50, -9, -16, -37, 1, -19, 19, 40, -11, -22, 30, 20, 45, -5, -24, 46, 29, 16, -6, 33, -46, 44, 7, 14, 51, -10, 72, -17, -13, 11, 16, 23, 3, 4, -44, -41, 57, -3, -21, 40, 40, 15, -36, -6, 12, -46, 69, -38, -10, -33, 14, 3, -34, -5, 65, -32, -21, 3, -32, 2, 4, -16, 11, 9, 19, 64, -20, 0, -20, 14, 31, 13, -37, 4, 16, 15, 16, 17, -19, 11, -21, 29, -4, 0, 31, 40, -28, 39, -39, -22, -55, -7, 31, -2, -25, -46, 1, -19, 8, -16, 38, -2, -15, 3, 36, -8, -3, -42, -43, -5, -19, 46, 33, -23, 15, 49, -3, 22, -69, -40, 30, -12, 37, 2, 45, 28, -33, 14, -2, 12, -25, -38, -41, -15, 14, 57, 0, 3, 22, 5, -32, 10, -21, -2, 31, 15, -16, 2, -3, 28, -23, -39, -12, -23, 21, 47, 9, 45, 9, -38, -25, 21, 15, -47, 68, 12, -33, 14, 44, -24, 0, 13, 26, -44, -54, -3, -5, -20, 1, -15, 13, -67, 34, 15, 1, -42, 2, -30, -29, -35, -55, 34, 32, -60, -7, 3, 49, 10, -43, -21, 19, -21, -7, 57, -2, -27, 26, -20, 10, 51, 44, -77, -9, 18, -30, -3, -18, -2, 3, 33, -13, -54, 27, -30, 42, -2, 22, 60, -11, 38, -29, -14, 33, 32, -68, -74, 29, 15, 6, 5, -29, -33, -29, 37, -17, 25, -9, 25, 19, -10, 19, -29, -3, -13, 8, -35, -58, 22, -40, 7, 21, -16, -46, 27, 44, -105, -13, 17, 24, 25, -22, 1, 8, -13, -58, -38, 19, 7, 46, 4, 10, 10, 35, 34, -57, 15, 7, 21, 11, 32, 29, -4, 26, 3, 2, -21, 15, -44, 20, 8, -28, 57, 62, 13, 0, 3, 30, 21, 53, 17, 0, 2, -20, 6, 6, 3, 57, -10, 72, -13, 17, 40, 13, -2, -12, -76, -52, -19, 12, -20, -19, 5, 11, -15, -96, 5, 15, 5, 0, 13, 26, -6, 23, -11, -47, -29, -2, -18, 2, -26, 15, 4, 45, 27, 57, -5, -19, -58, -8, 33, -24, 33, -20, 2, 2, 30, -25, -35, 26, 25, -20, 19, -31, -13, -26, 1, 10, 0, 47, -18, -19, 28, 6, -37, -26, 13, -29, -21, -21, 8, 21, 4, 16, -38, -11, 25, 15, -22, 3, -9, 0, 19, 55, 4, -7, -46, -15, -81, -51, 51, 34, 30, 42 ]
T. M. Burns, P. J. In this canse, the people have not filed a brief in opposition to the defendants’ briefs. We, therefore, will consider the case in the light of facts as stated by the defendants in their briefs, which are substantially the same. “On September 7, 1969, defendant Lloyd George Primeau, with his brother Archibald P. Primeau, broke and entered Bud’s Bar in St. Clair County, Michigan. Unfortunately for these two men they were rather careless in that they left their automobile across the street from the tavern and kicked in the tavern window within a short eye distance of two fishermen, who casually observed the whole thing. Two patrol cars from the Algonac and New Baltimore police departments sped to the scene and again our defendants displayed a remarkable lack of quick wittedness in calmly remaining inside the tavern awaiting arrest. Defendants admittedly and obviously had been engaged in considerable drinking prior to these activities. “The very next day, September 8, 1969, both defendants were rapidly processed through the 72nd Judicial District Court, St. Clair county and were then taken upstairs to the St. Clair county circuit court for arraignment on a charge of breaking and entering with intent to commit a felony or larceny. (M.S.A. 28.305). Neither defendant was represented by counsel. Following the obligingly cooperative plea of guilty by defendant Lloyd George Primeau to this ten year felony, the following colloquy transpired: “The Court: You are Lloyd George Primeau, is that right? “Lloyd G. Primeau: Right. “The Court: I wish to advise you you are entitled to a trial by jury or a trial before the court without a jury, if you prefer. You are entitled to have a lawyer to defend you. In case you are not financially able to hire a lawyer, the court will appoint one for you at public expense. In case of a trial, your guilt must be proved beyond a reasonable doubt. “Do you wish an attorney to defend you? “Lloyd G. Primeau: No, sir. “The Court: Do you wish to plead to the charge? “Lloyd G. Primeau: Yes, sir. “The Court: Were any threats or duress or anything of that nature used to cause you to plead? “Lloyd G. Primeau: No, sir. “The Court: Was there any promise of leniency or any other promise? “Lloyd G. Primeau: No, sir. “The Court: Will your plea be voluntarily made? “Lloyd G. Primeau: Yes, sir. “The Court: What is your plea? “Lloyd G. Primeau: Guilty. “The Court: Tell me what happened. “Lloyd G. Primeau: We come over here— “The Court: Whereabouts did you come from? “Lloyd G. Primeau: Chatham, Ontario. Really, there was no need for this because I have my own business and why I ever tried something like this, I don’t know. “The Court: Where had you been before you came to Bud’s Bar? “Lloyd G. Primeau: Robert’s Landing. “The Court: What is at Robert’s Landing? “Lloyd G. Primeau: There is a bar there. “The Court: You left that bar and went to Bud’s? “Lloyd G. Primeau: Yes. “The Court: What happened after you left Robert’s Landing? “Lloyd G. Primeau: We went for a drive and this happened. “The Court: Tell me what happened. “Lloyd G. Primeau: We just had too much to drink. There was no need for that. I have money in the bank and in my shop. I don’t even know what possessed me to do it. “The Court: What did you do? “Lloyd G. Primeau: We broke into this restaurant and bar. “The Court: How did you get in? “Lloyd G. Primeau: Through the window. “The Court: What did you do after you got in there? “Lloyd G. Primeau: Actually, nothing. “The Court: How come you went out after you got in? “Lloyd G. Primeau: How come we went out? “The Court: Yes. “Lloyd G. Primeau: The police come there. “The Court: They came while you were in the bar, is that it? “Lloyd G. Primeau: That’s right. “The Court: And they took you out of the bar? “Lloyd G. Primeau: That’s right. “The Court: What were you doing when they got there ? “Lloyd G. Primeau: What were we doing? “The Court: Yes. “Lloyd G. Primeau: Actually, we had nothing in our hands even. “The Court: How long had you been in there? “Lloyd G. Primeau: I don’t know. I really don’t know. It could have been 15 minutes. It could have been 20 minutes. I don’t know. “The Court: You don’t remember what you did while you were in there? “Lloyd G. Primeau: No, I don’t. “The Court: Did you get anything to drink while you were in there? “Lloyd G. Primeau: I might have taken a drink, but I have my doubts if I did. “The Court: Who drove the car? “Lloyd G. Primeau: I did. “The Court: I will accept your pleas of guilty. “Despite the overwhelmingly clear lack of the intent expressly required by the statute, the guilty plea was accepted. On October 9, 1969, defendant Lloyd George Primean was sentenced to serve from three to ten years at Jackson Prison. “Claim of appeal was filed December 1, 1969. On December 7, 1969 appellant moved in circuit court for bail pending appeal. Denial of this motion resulted in the filing of a similar motion in this Court of Appeals, which motion was decided and order issued by the Court of Appeals on the 19th day of January, 1970, being Court of Appeals ease No 8537 stating as follows: “ ‘It is ordered that the motion for immediate consideration be, and the same is hereby granted. “ ‘It is further ordered that the motion for stay of sentence and to fix bail be, and the same hereby is granted and the sentence of the lower court is stayed pending determination of this appeal. Defendant is to be released on his own recognizance. “ ‘It is further ordered that this appeal be, and the same is hereby consolidated with Court of Appeals No 8714 for purposes of appeal.’ ” The defendants claim that the trial court erred in accepting their plea as it appeared from their statements that they denied possessing a material element of the crime of which they were charged. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). They assert that they did not have the intent to commit any felony in the building which they admitted breaking. They argue and admit now on appeal that they are guilty of the crime of breaking and entering under MCLA § 750.115 (Stat Ann 1954 Rev § 28.310), which is a misdemeanor and requires no specific intent. Under the facts of this case, we consider that the trial court erred in accepting the plea of guilty to the felony when it appeared that defendants denied having the necessary intent. Reversed and remanded. All concurred. MOLA § 750.110 (Stat Ann 1962 Rev § 28.305).—Reporter.	[ 44, 53, 5, 55, -16, -38, -10, 40, -30, 16, 27, -26, -8, 8, 30, -10, 29, 10, -23, -35, 9, -32, 30, 6, 7, -24, 37, 52, -15, 28, 60, 27, -6, -9, -18, 3, 2, -39, -10, 52, -20, 30, 53, -36, 13, 7, -11, -7, 49, -8, -4, -19, 26, 26, 14, 1, -31, 39, 10, -13, 44, 9, -25, -25, -25, -60, 3, 30, -8, 30, 1, -22, -19, 72, 10, -25, 3, 4, 24, 0, 0, 65, 38, 41, -10, -71, -29, -56, -20, -16, 24, 17, -19, -29, 21, -38, -26, 7, -6, -25, -50, -26, 12, -66, 6, 58, 0, -38, -30, 7, -21, 44, 65, -17, 12, -96, -24, -33, -18, 49, -41, -17, 71, -18, -21, -62, -72, 17, 8, -10, 28, 17, -16, -26, 0, 20, -33, 40, -30, 1, 7, 4, -1, 24, 54, -41, -9, 10, 67, 31, -48, -38, -16, -8, -19, 58, -4, -20, 12, 28, -3, -50, 14, -12, 25, -16, -4, 0, 4, -22, 1, 11, 49, 43, 61, 35, 7, 2, -17, 42, 19, 21, -4, 4, 43, -43, -43, -62, 26, -24, 0, -20, -42, -15, 1, -4, 2, 6, -10, 20, -22, -21, -38, 10, 61, -25, 43, 46, -5, -10, 10, -3, -32, -31, -20, -14, -8, -65, 52, -62, -34, -19, -29, -27, -49, 1, 1, 4, -19, -38, -59, -36, 9, 6, 31, -75, 26, -6, 17, 26, -2, -14, -5, -19, 1, 22, -14, 0, -74, 36, 20, -32, -24, -62, -50, 8, 48, 7, -24, 34, -31, 0, 0, -12, -28, -1, -9, -6, -53, -3, 15, -36, 16, 0, -33, 33, -30, 69, 23, 27, 35, 8, 13, 49, 19, -43, -17, 9, -22, 21, -42, 13, -11, -27, 71, 13, 19, -11, 37, 71, 3, 64, -30, -5, -27, -16, -37, 8, -15, -15, -6, 25, -35, 37, 41, -32, 23, 13, 18, -19, 3, -23, -15, 15, -58, -19, 30, 79, 7, 7, 0, -5, -16, 4, -75, -14, 19, 0, 38, 39, -27, -19, -25, -5, 33, 38, 25, 21, -52, -73, -9, -9, 52, 6, -4, -30, -46, 0, 23, -5, 14, -49, 18, 76, 23, 13, -37, 25, 34, 62, 6, -15, -43, -25, -26, -11, 73, 15, -69, 11, 70, -77, 10, 24, -8, 39, -21, -51, -38, -12, -18, -14, 8, -44, -30, 0, -16, 35, 9, -37, 38, -24, 38, -42, -13, -15, -33, 46, 72, -64, 12, -4, 55, 38, -14, 6, -9, 9, -25, -26, 9, 41, 25, -31, 21, 13, 2, 24, 38, 12, 41, 28, 30, 17, 51, 26, -42, 35, 84, -31, -13, 12, 28, 5, 50, 31, -16, -9, 12, -5, -21, 40, 7, 39, -89, 42, 8, 40, -25, -26, -20, 0, -10, -26, -4, -19, -93, -4, -19, -2, 8, 23, 12, -16, -69, 8, 64, 46, 33, 23, 21, 16, 2, 25, -47, -75, -4, -30, 28, 22, 37, -8, -24, 32, -25, 23, -15, -8, -51, 11, -45, -20, -74, 7, 31, 10, 35, 28, 11, 20, -10, 17, 20, -30, -10, -3, 42, -27, 4, 17, -23, 20, 2, 72, -7, -36, 3, -72, -55, -52, -14, -83, -27, -59, 1, 10, 26, 9, -43, -12, 30, -24, 29, -25, 11, 9, -35, -14, 29, 6, -36, 42, 18, -30, -45, 27, -43, -14, -31, -33, -23, -15, 28, 57, -11, 4, -34, 20, 27, -27, 2, 31, 13, 27, -18, 39, -8, -9, -1, 38, 28, 3, -56, 28, -56, 15, 35, -48, -63, -45, -33, 37, 2, 0, -17, 22, -17, -7, -27, 35, 23, -12, 36, -11, -21, 3, 4, 15, 10, 29, 57, -12, -24, 4, -1, 2, -48, -60, -13, 11, 30, -9, -1, 47, -17, -30, -26, -69, 14, 20, -21, -7, 18, -3, -5, 40, 3, 28, -25, 25, -34, 6, -34, 18, 29, 32, -30, 17, -15, -24, -47, -23, -6, 47, -12, -26, -46, 20, -3, -48, 8, 48, -11, 41, 7, -2, -5, -1, 16, 40, 2, -17, -9, -5, -1, -38, 25, 30, -2, 21, 2, -18, 31, -17, 14, -25, -29, -22, -16, 8, -56, 40, -35, -2, 13, 25, 24, 18, -27, -16, -28, -51, 12, 18, -35, 6, 48, -50, 3, 9, 9, 24, -5, 11, 21, -61, -32, 2, -19, 25, -61, -32, -2, 9, 60, -4, -54, -35, -6, -10, 39, -29, 24, -25, 14, 5, -22, -24, 12, 34, -65, -73, -37, -21, -18, -62, 0, -37, 57, -12, -12, 37, 24, 16, 49, 3, 13, 9, -73, 60, -15, 0, -3, -76, -39, 6, -5, 43, 12, -13, -58, -50, -38, 0, -43, 26, -23, -5, 56, 36, 34, 8, -6, -3, 36, -26, 31, -3, 7, 15, 20, -45, -46, 50, -13, 7, 30, -13, 16, 21, -8, -16, 41, -15, 10, -19, 43, 14, 25, 17, 4, 20, -19, 0, -80, 37, 1, -52, 38, 34, -12, -42, 31, -30, -4, 30, -20, -46, -23, -60, 14, -1, 41, 47, 10, -29, -4, -57, -25, 89, 37, 1, 2, 71, 20, -11, 13, -16, -23, 19, 10, -28, 10, -50, -13, 54, -14, -10, 30, -13, 22, -16, 0, -33, -16, 1, 33, 12, -39, -5, -9, 6, 80, 59, 11, 33, 30, 5, 0, 3, -32, 16, 13, 32, -7, 27, 3, -58, -39, 20, 45, 16, -17, -5, -8, -39, -11, -35, 11, 2, 24, -3, -49, 5, 29, -24, 20, -31, 2, 17, 9, 43, -16, 52, -34, 14, -56, 35, 5, -41, -16, 11, 19, 44, 14, -35, -25, -29, 5, 40, -2, 7, -6, -89, -44, 18, 71, -15, 39, 6, -4, 53, -36, 27, -13, 32, 39, -14, -2, 69, -45, 0, -3, 47, 41, 22, -15, 0, 14, 32, -101, 41, 11, -32, 1, -35, -40, -45, 49, 38, -12, 13, 17, 35, 33, -31, 4, 14, 52, -37, -31, -62, -1, 19, -15, -20, -6, 27, -20, -24, -44, 1, -8, 62, 23, 13, -7, -26, -7, -4, -8, 21, 31, 62, 67, 10, -9, 51, -36, -4, -48, -17, -3, -29, -22, 26, 10, -40, 6, 41, -17, 13, -4, 42 ]
Davidson, J. Following a jury verdict rendered against him on October 1, 1968 and a judgment entered thereon on October 23, 1968, appellant filed a motion for judgment notwithstanding the verdict on November 12, 1968. That motion was denied by the Honorable Robert L. Templin on January 15, 1969 and the court’s order was entered on February 5, 1969. This case is here as of right, appellant having filed his claim of appeal from the order denying his motion for judgment notwithstanding the verdict on February 24, 1969. The parties are in substantial agreement as to the facts, having stipulated thereto pursuant to GrCR 1963, 812.10. Suit was filed by the plaintiff in Oakland County Circuit Court on May 11, 1966 on the basis of an alleged cause of action arising on June 3,1963 as a result of an automobile accident wherein the plaintiffs and defendant were involved. Service was made at Oxford in Oakland County, Michigan by William H. Kindred, a police officer for the City of Dearborn in Wayne County, Michigan. The process server experienced difficulty in effecting service which was not made until August 4, 1966 when a copy of the summons and complaint was left with the appellant’s wife; on August 18, 1966 a copy was personally served upon defendant at the same place. On August 29,1966, appellant filed an appearance, answer and affirmative defense raising the statute of limitations as a defense for the alleged reason that the summons and complaint were not placed in the hands of an officer for immediate service prior to June 4, 1966 in conformance with the Revised Judicature Act’s 90-day tolling provision. PA 1961, No 236 § 5856, MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856). Appellant states that the process server received the summons and complaint for service as a private citizen, while appellee maintains that he was an officer. In his affidavit of proof of service filed on August 22, 1969, Mr. Kindred described himself as a police officer for the City of Dearborn and stated that he had been so employed for approximately 20 years. On July 20,1967 defendant filed a motion for summary judgment on the ground that the action was barred by the statute of limitations. The pre-trial summary filed on July 20,1967 noted that the motion was to be decided before trial; the motion was denied on February 26, 1968. Defendant again moved for summary judgment on the day before trial and his motion was again denied. Issues A. Whether a police officer of the City of Dear-born, Wayne County, is an officer for immediate service of process issued from the Oakland County Circuit Court within the meaning of RJA § 5856(3)¶ B. Whether, in a case where the manner in which service of process was effected is not in dispute, the timeliness thereof under RJA § 5856 can be first attacked in defendant’s answerf Discussion A. Officer for immediate service The applicable section of the Revised Judicature Act establishes a method whereby the statute of limitations may be tolled for a maximum period of 90 days. It provides: “The statutes of limitations are tolled when (1) The complaint is filed and a copy of the summons and complaint are served on the defendant, or when (2) Jurisdiction over the defendant is otherwise acquired, or when (3) The complaint is filed and a copy of the summons and complaint, in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” The Committee Comments following RJA § 5856 show that the purpose of the statute was to enable a plaintiff to avoid the bar of a statute of limitation by taking the proper steps of establishing a court record and complying with the requirements of a method reasonably calculated to give a defendant notice. The comment contains the following statement: “It should also be noted that in order to secure the benefit of subsection (3), a copy of the summons and complaint must be placed in the hands of an ‘officer’ and not just any person of suitable age and discretion.” Service of process may be made by any person of suitable age and discretion not a party to the suit, GCR 1963, 103.1; but such service must be made within the period provided by the statute of limitations. The statute can be tolled by delivering the summons and complaint to an officer for immediate service, but Michigan courts have not clearly defined the terms “officer for immediate service.” An attorney, though an officer of the court, is not such an officer. Constantin v. Hofer (1967), 5 Mich App 597. In that case the court could have enumerated those persons who would come within the statutory classification, but decided instead to “* * * await either legislation or a case which requires such denomination for proper adjudication.” To draw the line of demarcation then between an ordinary person and one who is an “officer” within the meaning of the statute requires this court first to determine what is meant by the term “officer” and then to analyze the relationship between such a person and the courts of this state. After noting that the words “office” and “officer” are terms of vag-ue and variable import, one publication says: “Within the ordinary acceptation of the term, one who is engaged to render service in a particular transaction is not an ‘officer.’ That word implies continuity of service, and excludes those employed for a special and single transaction.” 29 Words and Phrases, Officer, p 289. Such a person is designated further as: “One who is invested with some portion of functions of government to be exercised for public benefit.” Black’s Law Dictionary (4th ed), p 1235. William Kindred, while certainly an officer of the Dearborn Police Department, did not bring with him the above attributes of an officer when serving process for plaintiff’s attorney. There is no doubt that a sheriff or his deputies are empowered to serve process, MCLA § 600.582 (Stat Ann 1962 Rev § 27A.582) as are bailiffs in common pleas court; MCLA § 728.23 (Stat Ann 1962 Rev § 27.3674), and constables or court officers of the district courts, MCLA 1970 Cum Supp § 600-.8321 (Stat Ann 1970 Cum Supp § 27A.8321). As appellant points out, a factor of paramount importance is the legal responsibility of these officers to the court issuing process. Any sheriff or constable who neglects to execute any process assigned to him is subject to disciplinary action, MCLA § 600.587 (Stat Ann 1962 Rev § 27A.587); and he is required to execute a bond in favor of the people of the State of Michigan to secure the faithful performance of his duties, MCLA § 51.68 ' (Stat Ann 1961 Rev § 5.861). Similarly, a bailiff of the Common Pleas Court of Detroit who fails to serve process issued to him is subject to disciplinary action, including suspension or removal, MCLA § 728.28 (Stat Ann 1962 Rev § 27.3679). He must also execute a bond securing the faithful performance of his duties, MCLA § 728.23 (Stat Ann 1962 Rev § 27.3674). While William Kindred is of suitable age and discretion to serve process, he is not subject to supervision by the court as are the enumerated officers. Another section of the Revised Judicature Act, PA 1961, No 236, §1811, MCLA § 600.1811 (Stat Ann 1962 Rev § 27A.1811) does provide that a disinterested person such as William Kindred may be appointed by a judge of the circuit court to serve process upon the following conditions: 1) The sheriff and coroners of the court, are parties, interested or incapacitated to act; 2) The appointment is in writing, signed by the judge; and 3) Such person execute a bond in favor of the people of the state of Michigan if the judge so requires. A special appointment is necessary to enable such a person to serve process and the person appointed is deemed a coroner of the county, and is liable in all respects to all the provisions of law respecting sheriffs where applicable. The only reasons for invoking this statute as stated in the Practice Commentary following MCLA § 600.1811, are when (1) service by an officer is required for process involving arrest or seizure of property, or (2) service by an officer is desired to toll the statute of limitations. Appellees argue that they did, in good faith, place the summons and copy of the complaint in the hands of an officer for service several weeks before the statute expired. It is asserted that extreme difficulty was experienced in serving appellant and that several summonses and complaints were given to other process servers in hopes of locating appellant. The case of Hoseney v. Zantop (1969), 17 Mich App 141, presented this court with somewhat the same situation. The statute of limitations had only three days to run when plaintiff’s attorney delivered the summons and complaint to the Wayne County sheriff’s office with instructions to hold such documents until notified. Two days prior thereto, process had also been delivered to one Robert Howard, a private process server with instructions to effect service on defendants as soon as possible. Robert Howard did make service on March 17, 27 days after delivery of process to the sheriff. In discussing the question of whether the delivery of process to the sheriff was in good faith and for immediate service, this court said at 145: “* * * While the legislature requires delivery of a copy of the summons and complaint to the officer to show that the plaintiff desires to invoke RJA § 5856 and thereby obtain the advantage of its 90-day tolling period, there is no reason to believe that the legislature preferred diligent efforts by an officer to diligent efforts of a private process server. Indeed, where there is difficulty in effecting personal service, service may be more likely to be effected by a private process server. * * The language indicates that this court is sympathetic to the plight of plaintiffs faced with the prospect of evasive defendants on the eve of the statute’s expiration. This is not, however, a case of balancing the equities or even of procedural due process as appellee suggests, but rather of statutory construction. In Hoseney plaintiff’s attorney had taken the one step necessary to invoke the 90-day tolling period— that of placing copies of the process in the hands of an officer (the sheriff). This court, in approving the method employed, said at 146: “If plaintiff had not delivered copies to the officer, she would not have been entitled to invoke the 90-day tolling period under RJA § 5856.” This crucial step was not taken in the instant case. Similar statutes of sister states shed some light on how the phrase “officer for immediate service” should be construed. Most states, however, have not had occasion to litigate the question of who is and who is not such an “officer.” Instead, questions arising under their respective statutes concern the time when the action commenced or what acts constitute delivery or “placing in the hands” of the officer. Others, such as Missouri, have statutes that provide that only the sheriff of the county in which suit is instituted is empowered to serve process. RS Mo (1949) § 506.110 (VAMS § 506.110). That the authority of the person serving process is paramount and a statute providing for the appointment of private process servers must be strictly complied with is shown by the Wisconsin case of Moulton v. Williams (1898), 101 Wis 236 (77 NW 918). In that case, failure of plaintiff's attorney to make the affidavit of necessity required by statute for the appointment of a person to serve a summons from a justice court rendered the service made by the server void. After the statute of limitations had expired, a constable did make valid service, but the court held that the action was void as the first process server was without power to serve the summons. Of the decisions of other states near the point, that of the Wisconsin Court in Rhode v. Quinn Construction Company (1935), 219 Wis 452 (263 NW 200), is the most helpful. The Wisconsin statute setting the time for the commencement of an action provided as follows: “Attempt To Commence Action. An attempt to commence an action shall he deemed equivalent to the commencement thereof, within the meaning of any provision of law which limits the time for the commencement of an action when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other proper officer of the county in which the defendant * * * resides.” That statute had been borrowed from New York. NY Code Civ Proc (1850) ch 4, §582. The Wisconsin court could find no New York decision construing the words “or other proper person” and looked to the pre-code law of New York for clarification. The court noted at 461: “It was clearly the common law of the State of New York that the delivery of a proper writ to the sheriff or other proper officer, such as a coroner with a hona fide and absolute intention to have it served was a commencement of an action within the meaning of the law * '* * . “So we may say with all confidence that the section which we borrowed from New York in 1858 had a clear and well defined meaning and had been given a definite construction.” (Emphasis added.) It should be noted that officer Kindred was a police officer in the City of Dearborn making service outside of the city limits of Dearborn and in fact in a different county, namely, Oakland, which is the county from which process issued. As a general proposition a city police officer has authority only within the limits of the city employing him and beyond the boundaries of the City of Dearborn he would be acting only as a private person, particularly for the purpose of serving civil process. B. Pleading the statute A motion to quash is the accepted manner of attacking* defects of service of process. It may he ground for abating or quashing a writ that is not in the proper form; that it is issued in the wrong county; that it was not served in a proper place; that the copy served varies materially from the original, etc. There was no defect in the process in this case nor in the service thereof; Kindred was a disinterested person of suitable age and discretion as required by GCR 1963, 103. The defense raised in defendant’s answer was that of the statute of limitations. No claim was made that Kindred was not a suitable person to serve process, but that since he was not an “officer for immediate service” the statute of limitations had expired. This was an affirmative defense, and was properly raised in defendant’s answer. The process server employed by plaintiff’s attorney was not an officer for immediate service within the meaning of RJA § 5856 and the statute’s tolling provisions did not apply. The accident occurred on June 3, 1963 and the statute of limitations expires three years thereafter, on June 4,1966. The statute of limitations is an affirmative defense and was properly raised in defendant’s answer. Appellant’s motions for accelerated judgment (erroneously called motions for summary judgment) should have been granted. Likewise, his motion for judgment notwithstanding the verdict should have been granted. The decision of the trial court in denying that motion was in error and is reversed with costs to appellant. All concurred. Hoseney was not followed by this court in Buscaino v. Rhodes (1969), 20 Mich App 329.	[ -32, -20, 14, 49, 5, 10, -8, -58, -43, 36, -55, -30, 38, 17, -7, -20, 22, 12, 15, -9, 1, -74, 0, 24, -14, -19, -10, 43, -18, 6, -40, -27, 13, 0, -35, -1, -7, -12, 25, 14, 44, 11, 13, -1, -26, -36, 43, 18, 18, 11, 20, 14, -55, 22, 5, 21, 26, -13, 10, 10, -51, 14, -25, -14, 11, -25, -34, 39, 10, -49, -5, -22, -9, -21, -4, 26, -16, -10, 8, 3, -25, -1, 44, 3, 11, 6, 15, 1, 27, -21, 5, 53, -36, -43, -31, -29, 14, -22, 24, -50, -58, 3, 26, 17, -7, 7, 0, -39, -12, -59, 25, 17, 59, -22, -17, -70, 11, -11, 31, 6, 14, -37, 78, -14, 22, -26, -10, -16, 46, 31, 6, -6, 70, -6, 19, 30, 51, -34, 14, 9, -10, -17, 8, -40, 42, 5, 13, 5, 12, -26, -21, 28, 5, 44, -12, 23, 16, -27, 16, -14, -4, -7, 17, -36, 7, -57, -21, 61, 0, 2, 3, -2, 58, -26, 24, 2, -47, 15, -33, 7, -42, 11, 36, -16, -3, -54, -1, -27, 8, -8, -1, -27, -4, 27, 28, 10, 15, -23, -27, -4, 15, -47, 26, -14, 7, 6, 74, -29, -18, 40, -36, -39, -1, -17, -31, -34, 9, 2, -14, -4, 21, 11, -3, -8, -5, -27, -35, 17, 7, -12, 12, 5, 11, 25, -47, 8, 15, 23, 28, 12, -37, -30, 0, 0, -13, 7, -3, -76, 2, -9, -18, 2, -34, -37, -18, -44, -9, -9, 37, 25, 32, 34, -6, 2, -4, 33, 11, 25, -32, -31, -2, 0, 14, -5, -20, -30, -26, 25, 31, 54, -44, 44, 0, -3, -32, -3, 65, -8, -22, 11, 21, -14, -50, 1, 11, -18, 40, -31, -8, 69, -15, 9, 6, 19, -18, -44, -31, -7, 26, -3, 3, -6, 23, -18, 34, -13, 27, -20, 56, -70, -55, 32, -10, 16, -22, -53, 12, 29, -38, -36, 15, 16, 5, 15, -5, -58, 26, 15, 26, 49, -20, 16, -20, 14, 4, 12, 50, -38, 20, -17, -9, 14, 31, 28, -24, 42, 1, -62, -2, 4, 3, -86, -43, 33, 1, -13, 19, -74, -19, 47, -28, 15, -13, -31, -23, -33, 25, 29, -7, 70, 31, -13, -24, -11, 6, -27, 5, -20, -7, -5, -48, 23, 6, 1, 4, -28, 15, 56, 13, 52, 15, -21, 12, 44, -44, 37, -46, 17, -8, 0, -6, -34, 18, 6, -13, 14, 47, 19, 27, -37, 49, 8, 3, -18, 39, -28, 2, 15, 75, 1, 16, 26, 16, -33, 24, 12, -32, -13, -18, 28, -23, -12, -18, -29, -29, -19, -24, 46, 10, 27, 27, -66, 4, -28, -52, 69, 18, -50, -4, -17, 3, -57, -47, 20, -6, 16, -23, -14, 11, -7, 6, 0, -25, 9, -28, -19, -10, -1, 8, -43, 49, 25, -5, -30, -35, -17, -16, -12, 32, 21, 2, 9, -37, 8, -18, 21, -70, 29, -21, -17, -6, 14, 10, 45, 12, -42, -1, -31, -36, 31, -3, 62, -9, -5, -23, 13, 42, 44, 34, -12, 32, 14, 3, 22, -6, -11, -5, -33, -27, -68, 47, 6, 12, -10, 38, 8, -36, -7, -15, -46, 27, 18, 21, 41, -27, -21, -70, -19, -2, -4, 3, 12, -5, 15, -25, -68, -17, -1, -12, -9, 19, -21, 18, 12, -4, -16, -2, 1, 27, -33, 8, 41, 3, -33, 38, 13, 14, 15, -29, -9, -28, -5, 51, 8, -12, -23, 47, 10, -25, -24, -19, 32, 7, -37, 32, 23, -52, -10, 20, -39, 83, -7, -41, 42, 51, -21, 25, 23, 2, -30, 27, 0, -34, -35, -24, -15, -39, -30, 26, 43, -19, 45, -12, 55, -24, 19, -6, -41, -14, -7, 26, 7, -44, -1, -1, 16, -9, 34, -31, -21, 5, 16, 59, -8, -20, -3, 6, 18, 6, 6, -16, 13, -11, 12, -19, -17, 15, -14, -5, -25, -4, 4, -53, 13, -25, -7, -3, -31, 66, 4, -17, -33, 36, -44, 1, -10, -16, -25, 11, 24, -17, 19, 0, 16, 27, -6, -2, 18, 19, -28, -34, -7, 0, 7, 3, 34, -32, 60, 0, -25, -4, 0, -43, 25, -44, 15, -13, -3, 39, -4, -74, -26, 51, -21, -12, 32, 19, -49, 12, -2, -9, 21, -52, -30, 17, 15, -9, -46, 16, -27, 4, 64, 18, 10, 12, -26, -19, -31, -85, -10, 4, -19, 12, -32, -25, -18, 28, 20, -6, 23, 46, 38, -1, -26, -14, 34, 39, 23, -42, -1, 38, 6, 9, -48, -9, 1, -27, 26, 34, 36, 0, -3, -3, -26, -41, 31, -1, -12, 13, -5, 44, 19, -18, -7, -37, -10, 0, 22, -33, 22, -3, -66, -2, -6, -8, -6, 7, 24, 51, -6, 14, 56, 61, 18, 6, 5, 30, -30, 8, -24, 35, 59, -2, -9, -26, 3, -9, 2, 1, -3, 10, 0, -14, 24, -22, -35, 60, -17, -44, 56, 2, -35, 18, 8, -63, -2, -3, 2, -21, 9, 21, 26, -10, 23, 2, 25, -24, 18, -3, 15, -2, 13, -39, -2, -10, 23, 12, -3, -47, -22, 24, 3, -30, -37, -7, 28, -12, -55, 33, 34, 44, 9, 23, 25, -9, 6, 15, -17, 22, -7, -30, -33, 1, -27, 10, 30, 13, -23, -26, 18, -8, 4, -9, -7, -34, 8, -15, 24, 6, -59, 36, 42, 3, 8, -1, 7, 36, 36, -44, 4, 9, -40, 11, -3, 29, 20, -25, 34, 48, -6, 20, 36, -31, -32, -11, 14, 13, -15, 2, 21, -20, -33, 15, -27, -16, -1, 57, -58, -22, 52, -26, -33, -43, 24, -7, -3, -43, 52, -16, 44, 18, -30, 11, -17, -16, 56, -4, -31, 23, 8, -20, 45, 27, 8, 23, -16, 35, -30, -10, 25, 16, -1, 13, -33, 21, -15, 0, 24, -11, -6, -23, -27, 0, 4, 8, -10, -44, 12, -43, 42, 4, 14, 4, -5, -7, 22, 5, 8, 23, 28, 46, 3, -5, 2, 25, -16, 56, -1, -12, 59, 9, 13, -14, 15, 16, 20, -16, 5, -49, 37, 4, -5, -8, 21 ]
Steere, J. Between 4 and 5 o’clock on the afternoon of January 17, 1914, plaintiff, while on his way south to a nearby grocery store, went upon defendant’s double main track railroad, at its right-angled intersection with Washington avenue, which runs north and south through the city of Lansing, just as the crossing gates were being lowered, and stood between the rails of the north, or west-bound, track, awaiting the passage into the passenger station immediately to the east, of defendant’s No. 8 fast Pullman express train from the west. While so standing he was struck and injured by a freight train of two or three cars, going westward unobserved by him upon the west-bound track. The case was tried in the circuit court of Ingham county before a jury, and resulted in a verdict .for plaintiff for $600 damages. At conclusion of plaintiff’s testimony defendant offered no proofs, its counsel contending that defendant was entitled to, and moved for, a directed verdict by the court in its favor, because plaintiff’s own evidence disclosed that he was guilty of contributory negligence, precluding recovery, as a matter of law, and because “no evidence had been introduced on the trial which showed or tended to show that the defendant company was guilty of any gross negligence.” This motion was denied, and the court, while charging the jury as a matter of law that plaintiff was guilty of contributory negligence in standing between the rails on the westbound track, refused to charge that there was no evidence tending to show gross negligence on the part of defendant’s servants — leaving that question to the jury as an issue of fact. Defendant, in bringing the case to this court for review on writ of error, relies on three assignments, which practically involve but the one question of whether there was any evidence tending to prove gross negligence, and which are as follows: “That it was error for the trial judge to hold on our motion for a directed verdict that the question of gross negligence on the part of the defendant was for the jury; secondly, in refusing to give our request to charge numbered 1 to the effect that there was ,no evidence in the case of gross negligence upon the part of the defendant; thirdj in submitting the question of gross negligence to the jury in paragraph No. 3 of the general charge.” Defendant’s motion and requests are in substance and effect a demurrer to plaintiff’s evidence, admitting the truth of the testimony and those conclusions of fact which may legitimately be drawn from it, but denying that there is any evidence from which a jury can properly proceed to find the fact of gross or discovered negligence, without which plaintiff, upon whom the onus of proof is imposed, cannot recover. That a jury has no right to assume the truth of any material fact, unless it is established by legal evidence, and it is therefore error for the court to instruct the jury they may find a claimed fact of which no, evidence is produced from which it may legally be inferred, is a well-settled rule of ancient origin. Plaintiff’s testimony clearly shows that his was the primary negligence, and his counsel, in support of the theory that defendant’s employees were guilty of subsequent, discovered, or gross negligence superseding that of plaintiff, says in his brief: , “There is but one question in this case. The plaintiff negligently went upon the sidewalk between the rails of the west-bound track at this crossing, stood there intently watching the passenger train going by. It was broad daylight. The depot was a few rods east. The freight engine and two cars were switching and running west. The engineer and fireman, or the person running that engine, must have seen the danger which the plaintiff was. in. No extraordinary effort was made to attract plaintiff’s attention, as Mr. Williams would have noticed it, if there had been.” At the place and under the surrounding circumstances the party running that engine at this guarded crossing near by the station was not guilty of even ordinary negligence in assuming persons crossing or standing upon the track as he approached would exercise commensurate vigilance to pare for their own safety, and the only pertinent question in that connection would be whether the person running the engine must have seen or anticipated that plaintiff would cling to this danger zone until the approaching engine struck him. That the train was not moving rapidly, and the engineer acted promptly when plaintiff’s negligence was actually discovered by him, is indicated in the following circumstances of the accident as related by plaintiff’s counsel: “As he was about to start from the place where he had stood all the time looking at the incoming and passing train from the west, and without warning or signal, a freight engine with two cars, coming from the east and running on the -west-bound track, ran upon him, jostling and tumbling him across the street to the west side thereof, some 20 feet, when the engine stopped and the plaintiff was picked up by the engineer and fireman at the side of the engine in an unconscious condition.” How long he stood there, or just where he stood, is not very satisfactorily shown, either by his testimony or that of Williams, who were the only witnesses to the accident; neither does their evidence show that warning signals were not given. Williams was walking south on the easterly side of Washington avenue, two or three rods behind plaintiff, and waited on the walk just north' of the north track for the two trains to. pass. The passenger train reached the crossing about the time he arrived, and he saw the freight train also. “It was in plain sight, approaching the crossing and moving right along.” . He knew plaintiff by sight, having seen him working on the streets and noticed that, like himself, he stopped for a train or trains to pass; that when he last noticed him he stood on the track. “ * * * Q. The north track? “A. Yes, he stood there; I do not know how long, because I was paying no attention and not thinking of any such thing” —for he had no idea that he was in danger' when witness saw the freight train approaching. Of this he testifies: “He (plaintiff) stopped for a little space, and of course I turned my head to see the other train. I knew I would have to wait for that to pass before I could go on. That was the freight train coming from the east. * * * “Q. You paid no attention to him, did you? “A. Of course not; I didn’t pay any attention to him. “Q. And whether or not he stepped there between the two rails, the two tracks, and stood in between the two tracks, you don’t know; you don’t know whether he did that or not? “A. No.” Williams did not see the accident, his attention being attracted to the passing trains, which compelled him to stop, and his first knowledge of it was the sudden stopping of the freight train, and he first saw plaintiff again when either the engineer or fireman of the train was picking him up. Questioned as to signals, he said: “I don’t know as I heard the engine of that freight train sound any bell or whistle before it struck Mr. Bonner. There was a bell going all the while on the other train, and I possibly would not have noticed. * * * “Q. (on cross-examination). And you would not say that the bell on this engine was not rung; when I say this engine, I mean that freight, west-bound? “A. No, sir. “Q. You were not paying any attention to it, whether it was or not? ‘■‘A. No; I saw the freight coming; I was in a place of safety, and was not paying any attention to what the engine was doing. * * *” Plaintiff’s testimony showed that he was a man over 70 years of age at that time, living on the first east and west street north of these tracks, and had been employed by the city as a street sweeper, working ten hours a day, on that section of Washington avenue, for about a year before the accident; his territory extending across defendant’s tracks, which he passed over several times each day while engaged in his work. He was familiar with conditions there, knowing that many trains passed in each direction daily, and a train was liable to go over that crossing from either direction at any time. He also knew which track was used by the east and which by the west bound trains, and understood the use and purpose of the crossing gates. They were lowered oh that occasion just as he reached the tracks, the north gate not being yet down when he passed it, and he stopped inside the gates to wait for the nassenger train from the west, which he saw approaching from the Grand river bridge near by. He at first testified that he stopped upon the walk running between the two tracks, .which were about ten feet apart, and stood still there, although he might have stepped back a little — “might have stepped back somewhere.” This, however, he corrected upon the following day, with the explanation, “I didn’t have my head right yesterday,” and testified that he stopped on the west-bound track, standing there until the train passed by, or until he was struck; that it was broad daylight, not cold, and he was not in a hurry; that he had nothing over his ears, his hearing was good, and ■sight all right, though he saw clearest with the right eye, but subsequently changed this to his left, and asserted that he had not said his right eye was his good eye; that he looked all around him when he first arrived at the crossing, and there was nothing in sight, except the train coming from the west, and he did not look to the east after he had looked to the west and seen No. 8 coming; that while waiting for the eastbound passenger train to pass, and watching it, he was struck by the other train, which he had not seen or heard or known anything about. Plaintiff’s evidence contains no showing as to improper speed of the freight train when it approached the crossing, or of inattentive conduct of those upon the engine, nor of anything, except that he was watching the other train, to indicate or give notice to the engineer that he could not or would not look out for his own safety and step out of the way. The engineer had a right to assume plaintiff had exercised reasonable precautions to observe if a train was approaching along the track on which he stood and would seasonably step aside. Until it became apparent that he would not do so, there could be no discovered negligence. Neither is it shown that, after plaintiff’s negligence and resulting actual danger was or should have been discovered by the engineer, he did not promptly make every effort possible to stop and avoid the accident. We find nothing in any of plaintiff’s evidence which, under the rules of law and definition of gross negligence recognized and declared by this court, shows or tends to show that there was on the part of the engineer of this freight train, “after the discovery of plaintiff’s negligence,” any “intentional failure to perform a manifest duty, in reckless disregard of consequences as affecting the life or property of another,” nor a “thoughtless disregard of consequences without the exercise of any effort to avoid them.” After a careful examination of this record, in the light of the following decisions, we are unable to discover any probative support in plaintiff’s evidence for the charge that defendant’s agents were guilty of wanton or gross negligence, which raised an issue for the jury, or would as a matter of law sustain a judgment entered by the court on a verdict in which the jury so found: Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, 278, 279; Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594) ; Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504) ; Putt v. Railway Co., 171 Mich. 216 (137 N. W. 13) ; Berry v. Railway Co., 173 Mich. 181 (138 N. W. 1038) ; Cardinal v. Railway Co., 174 Mich. 22 (140 N. W. 530). Defendant was entitled to a directed verdict on the grounds stated in its counsel’s motion and requests, timely made therefor. The judgment is therefore reversed, without a new trial. Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.	[ -48, -6, 33, -37, -22, 3, 58, -13, -16, 31, -36, -14, 20, -22, 1, -22, -27, 2, -27, -32, 12, -28, -14, 0, -36, -45, -22, 5, -28, -48, 51, 19, -13, 20, -5, 9, 34, -3, 6, -3, 25, -7, -3, -37, 31, 0, 13, -20, -19, -45, 39, 9, -23, -29, -10, -1, 32, 35, -36, -10, 27, -22, 6, -45, -21, 24, 38, -36, -47, -8, -59, 26, 23, -14, 34, -9, -44, 7, 0, -11, 7, -7, 16, 2, -3, 34, -8, -17, -21, -8, 3, -18, -53, 16, 62, 13, -35, -3, 14, -11, -20, 58, -41, -22, -2, -31, -36, -30, -8, 0, 3, -1, -4, -1, 1, -35, 29, -43, -4, 7, 19, -15, 11, 47, 4, 0, 19, 23, -24, 27, 31, -3, -23, 13, 40, -14, -6, -67, -19, -4, -6, 0, 10, -17, -35, 7, -41, 49, 22, 16, 3, 0, 13, -56, -11, 35, 17, -14, 50, 17, 6, 37, 38, 0, -15, 9, -9, 8, -34, 2, -55, -26, 56, -60, 55, 49, -7, -18, -48, -8, -17, -16, 14, -8, -81, -33, 22, 4, -40, -18, 13, 30, -25, -50, -29, 76, 0, -45, 25, 31, 46, -45, -8, -15, -87, -4, 32, -27, 27, -12, 10, -12, -26, 12, 9, 4, 15, -46, 29, -21, -23, 55, 29, -3, 18, -15, -12, 10, -58, 13, 35, -24, -3, -4, 6, -32, 4, -50, 43, -11, 34, -12, 27, -36, 13, -12, -28, -21, -32, 47, 18, 13, -46, -8, 4, -42, 43, 4, -49, -42, 33, 58, -37, 62, -32, 0, -12, 37, -15, -32, 0, 14, 26, 12, -1, -45, 24, 43, 60, 53, 20, -29, -23, -40, -29, 0, -26, 2, 11, 10, 6, -44, 0, 13, 1, 61, 19, 31, -31, -22, 21, -29, -7, 33, 15, 42, -48, -14, 9, -5, 13, 35, 3, -28, 44, 27, 35, -5, 31, -40, -77, 5, -38, -65, -2, 13, 1, -26, -5, 9, 13, 39, 18, 10, -44, -31, 16, 16, 64, -31, 49, 49, -24, -19, -19, 17, 13, 8, 24, -19, -14, -38, 35, -47, -10, -16, 15, -36, 22, 23, -12, -45, 8, 24, 9, -60, -21, -14, 7, -6, 15, -54, 18, -24, -58, -50, 9, 32, 14, 74, -16, -26, 14, -48, 7, -28, -12, -18, -72, 71, -11, -38, 71, 8, 24, 40, -37, 22, -28, -35, -12, 30, 14, 33, -3, 1, 1, -16, 9, 18, 30, -16, 39, -18, 19, -5, 16, 10, -1, 6, 49, 39, 11, -14, 16, -2, -6, -5, -11, -40, 22, 12, 61, -26, 8, 44, 21, -33, -20, -18, -39, 12, 25, 2, -22, -18, -27, 11, 10, -4, -3, 4, 6, 29, -19, 0, 47, -1, 60, 37, 29, -24, 10, 34, -2, 20, -16, -21, 44, 19, 0, 25, -25, 2, -8, 2, -4, 3, -13, -22, -34, -7, 13, -21, 10, -17, 37, -22, 34, -13, 27, 78, -6, -3, -20, -2, -23, 4, 6, 0, -54, -14, -13, -58, 21, -12, 39, -52, -30, 27, 14, 1, 38, -40, -9, 31, -16, -27, -29, -31, 20, 35, -17, -30, -20, 16, 17, -29, -4, -26, 51, 6, 1, 15, 32, -40, 14, -27, 4, 7, -19, -5, 15, -14, 9, -28, -28, -6, 23, -1, 36, 37, 13, -38, 5, -33, -14, -16, 14, 23, 0, -23, 13, -28, 22, 42, 15, -1, 28, -71, 18, 60, 38, -21, -12, 18, 10, 30, -15, -7, -14, 12, -26, -60, 13, -2, 0, -14, -36, 52, -35, -9, -18, -9, 13, -5, 14, 35, 51, -2, 15, -18, -37, 57, 24, 15, -55, 3, 38, -12, 31, -10, 10, 26, -3, 15, 7, -6, -20, -16, -37, -7, 0, 14, -27, -33, 9, 25, -38, -48, -30, 59, -40, 16, -33, 14, 28, -7, 0, -27, 26, 7, 1, -40, 13, -59, -50, -9, -25, 14, -29, 43, 28, -20, -18, 31, 16, 66, -28, -19, -3, 5, -31, -16, -35, 1, 19, -44, 34, 39, 46, -38, -26, 12, -11, -38, -4, 37, 32, 29, 40, -3, 53, -44, 10, -35, -14, 60, 57, -67, -51, 50, -32, 28, -4, -17, 26, 4, 15, -11, 0, 19, 11, 17, 5, -17, -12, -28, 25, 19, 20, 10, 10, -3, 23, 44, 17, 6, -18, 1, 29, 20, 10, -42, 21, -20, 53, -9, 12, -25, 10, -1, 16, 11, -25, 16, 16, -21, -50, 16, 19, -20, 23, 15, -55, 26, 53, 19, -47, 23, 20, 22, 58, 10, 0, -11, 36, 41, -13, -46, 29, -17, 30, -33, -60, 52, -1, -14, -16, 28, 0, 17, 11, -52, 2, 56, -5, -36, 15, 3, 29, -13, 2, 18, 21, 26, -12, 17, 23, 0, -15, -57, -17, 0, 3, -15, 20, -4, -23, 15, -9, -7, 3, 1, -32, 36, 9, 38, 9, 46, 11, 28, -49, -25, 6, -17, -7, -14, -29, -8, 19, 42, 32, -11, -23, 23, 12, -52, 26, -6, 6, 3, -24, 8, -2, -6, 35, -12, -36, 42, 21, 0, -32, -1, -2, 7, -32, 3, 17, -14, -22, 9, -2, -46, -26, -19, 23, 6, 7, 43, -20, 4, -62, -5, -14, -15, -45, -58, -8, -23, 16, 23, -27, 21, 2, -10, 30, -24, 40, -2, -9, -65, 36, 40, -9, -13, -49, -36, 27, 42, -19, 14, -1, -4, -30, -52, -43, -11, -6, 22, -6, 11, 30, -13, -1, -55, -4, 4, -51, 60, -24, -22, -33, -1, -4, 13, -42, 4, 21, -5, 37, 52, 8, 27, -27, 35, 8, 46, -25, 45, -33, -5, -7, -51, 54, -18, 14, -62, 42, 40, -6, -33, -53, 5, 10, -44, -21, 9, -17, 46, -20, -13, -32, 50, 9, 3, 11, -3, 0, -12, 45, 41, 28, -9, 2, 16, -7, -9, -7, 4, -12, -8, 5, -77, 12, -8, 25, 9, -14, 10, 55, -22, 6, 32, 24, -17, -7, -38, -58, 47, -12, 10, 4, -3, -35, 2, 9, -11, 5, -49, 10, -36, -5, 21, 24, -16, 28, 21, -41, 23, -30, 29, 46, 22, 29, 40, -50, -40, -49, -44, -19, 53, 29, 27 ]
Steere, J. This action was brought to recover damages for breach of a contract for sale to plaintiff by defendant of a garage business and stock in the city of Allegan. Defendant denied the contract. The case was tried in the Allegan county circuit court before a jury. At close of the testimony defendant moved for a directed verdict for the reason no contract had been proven. The court reserved decision under the statute and submitted the case to the jury, which rendered a verdict for plaintiff in the sum of $500. Defendant then moved for a judgment non obstante. The court concluded there was no testimony tending to show the minds of the parties met upon the kind of note to be given, time of payment or rate of interest, and therefore no binding contract, but finding it admitted “plaintiff paid defendant $50 to apply on the purchase price” the court ordered “the verdict of the jury in excess of that amount be set aside and a judgment be entered for the plaintiff for the sum of $50 and interest at 5% from date of payment to date.” Judgment was entered accordingly on February 13, 1924. On July 7, 1923, Martin, who was then living in Detroit with permanent employment in the traffic department of the Pere Marquette Railway Company at $200 per month, learned through an acquaintance that DeYoung was running a garage business in Allegan, selling Maxwell and Chandler autos with accessories, gasoline, etc., and had offered the business for sale. He went to Allegan and saw DeYoung about it. The latter told him he wanted to go to California and would sell him the business for just what the property would inventory at, on the prices he had purchased it for. Negotiations followed resulting in an admitted tentative agreement under which DeYoung was to make an inventory of the property, which he said would run to about $3,500, and send it to Martin. Just what further was then said or agreed upon is somewhat in dispute. Martin testified that in their negotiations on July 7th DeYoung told him inventory would run about $3,500 and he explained his financial circumstances to DeYoung, telling him he could pay down $1,000 in cash, and would give his note for the balance with chattel mortgage on the stock and new stock that came in to make the note good; that DeYoung replied, “Any way you say. I want to go to California. I promised my wife I would go and take her. I want to know the business was sold.” That Martin looked over the town and business prospects and finally told DeYoung if he would take $1,000 cash and Martin’s note for a reasonable length of time protected by a chattel mortgage he would take over the business, but before final decision he wanted to know somewhere near what the figures would be in the inventory, saying: “He told me on the night of July 7th that $1,000 cash and my personal note, secured by chattel mortgage, would be satisfactory.” DeYoung testified that nothing was said about the terms of payment, because Martin wanted the inventory first, and he promised to send him an inventory, but no mention was made at that time of any note or mortgage or how much cash he would pay down; cash was not mentioned but he “presumed likely it was going to be a cash deal.” Whatever may have passed between them on July 7th, on July 9th DeYoung wrote Martin inclosing an inventory of the property amounting to $3,950, stating in part: “I am willing to stay until August 1st and deduct everything sold from this inventory, but of course want to make sure of it, at that time, but would like it sooner if possible for it will take me some time to get ready and I know the Maxwell people would like to close a dealer as soon as possible here, so if you will give me a definite answer, I can get in touch with them regarding agency, also , a check to bind the sale until August 1st, then I know wh.ere I am at.” On July 11th Martin wrote DeYoung acknowledging receipt of the inventory, etc., concluding: “Will advise you definitely very soon now and forward a check should I decide in the affirmative.” Three days later he wired DeYoung, saying: “Everything is satisfactory for August 1st letter and inclosure to follow.” On the 16th of July he sent DeYoung a letter inclosing a check for $50, saying: “Enclosed find my check for $50 as evidence of my good faith in the matter and taking over the business of the Allegan Motor Sales Company,” asking to be advised in regard to whether or not a certain sedan was sold. On July 14th, DeYoung wrote Martin: “Received your telegram this a. m. and note contents. Well, everything is satisfactory with me, I have sold the sedan and got cash proposition on it and no trade in.” Touching DeYoung’s understanding of the situation at this stage of the proceedings, he was asked and answered: “Q. You considered when you got that cheek you were selling the business? “A. Yes, sir, I thought I had the business sold when I got the $50 deposit. “Q. You considered at that time that you had sold it? “A. When I got the $50 I thought the deal was made then; that he bought the business. * * * “Q. You considered it a sale then? “A. When I got the $50 check I thought Martin was coming over to run the business. “Q. You thought you had sold it to him? “A. Yes, sir, I did.” On July 22d Martin went to Kalamazoo and secured the agency at Allegan for the Maxwell car. He gave up his position, had letter heads printed for the garage business and on July 29th moved to Allegan to take over the business. DeYoung introduced him to a Mr. Mosier from whom he had leased the building where the garage was, as his new landlord, and Martin paid Mosier $80 for the next month’s rent which was, however, later returned to him.. He offered DeYoung the $1,000 with his note secured by chattel mortgage according to the terms of their agreement as he claimed, but DeYoung refused to accept the same and demanded cash in full. Martin testifies that he then said to him, “You agreed to accept the thousand-dollars and my note for the balance covered by a chattel mortgage,” to which DeYoung merely replied, “Well, it has got to be cash.” As situated, Martin made further effort to induce DeYoung to carry out the deal, offering to increase the' payment to $1,500, but DeYoung positively refused to accept or to close the deal for anything besides cash, or a note which would be accepted by a bank as cash, and when asked to at least return the $50 which had been paid he refused to do so at that time. Claiming to have been put to expense in loss of time and money paid out of over $600, plaintiff brought this suit. The controlling question involved here is whether, after showing the parties had agreed upon the goods to be sold, price to be paid, time for delivery of possession and payment of $50 earnest money, plaintiff’s testimony, viewed in its most favorable light, failed to cover other essentials of a valid contract of purchase and sale between the parties. In submitting that question to the jury the court said: “In order to constitute a valid binding contract it is not necessary that all of the terms be embodied in the talk. There are many terms not actually expressed in an offer which may be implied as a matter of law, which are binding on both parties after acceptance, as though actually spoken or written into the contract. A contract may include not only what the parties actually write down or say, but all of those things which the law implies as a part of it, and likewise all matters which both the parties intend to express but do not. * * * “In order to make a binding contract in this case it was necessary for the parties to have agreed not only as to the property that was to be sold and the price that was to be paid, but also as to the terms and conditions of the payment and if you find in this case that the parties did agree upon the price and the property, but did not agree upon the manner of payment, that is, the time in which the payment was to be made, and the manner in which it was to be paid, then I charge you that there is no binding contract between the parties, and if you so find the plaintiff could not recover damages in this suit, except for the fifty dollars advance payment.” So instructed, the jury found in plaintiff’s favor on the questions of fact involved essential to a valid contract including “all those things which the law implies as a part of it, and likewise all matters which both the parties intend to express but do not.” The intent of the contracting parties and meeting of their minds, within the scope of fair inference and legitimate implication from What they said and did, was within the field of facts and for the jury. In McConnell v. Harrell & Nicholson Co., 188 Mich. 369, where there had been a series of letters and oral negotiations between the parties, it was said relative to intent: “Whether these letters constitute a complete contract or whether they were but steps in negotiations leading up to one, is a question of the intention of the parties” (citing cases). As to what the parties understood and intended in the instant case there can be no doubt, taking plaintiff’s testimony as true and giving it the most favorable construction as we must (Quigley v. Yellow Taxicab Co., 225 Mich. 275). They met on July 7th, negotiated and came to an agreement on the terms of a unilateral contract of sale and purchase, then left subject to plaintiff’s acceptance on approval of an inventory which defendant promised to and did send him two days later. To plaintiff the tentative agreement was in its nature an option to be accepted within a reasonable time after receiving the inventory and not binding on either party unless he gave a “definite answer” of acceptance and sent a “check to bind the sale” as requested. He timely accepted and sent a check as payment on the contract which defendant accepted and cashed. There can be no question as to the intent and belief of the parties at that time. DeYoung said that when he received plaintiff’s letter and the $50 he thought the deal was made, that Martin had “bought the business.” Martin believed he had bought the business. He not only so testified but resigned his employment, moved his family and household goods from Detroit to Allegan, paid $50 for the Maxwell agency, $80 for the first month’s rent of the building where the business was located, and offered DeYoung the cash payment of $1,000 with note and mortgage for the balance of the purchase price. The reasons given by the trial court for holding the contract was not binding were that— “The minds of the parties did not meet upon the kind of a note to be given for the balance of the purchase price, the time of payment of the note, nor the rate of interest.” Failure to specify the rate of interest on an indebtedness does not invalidate the contract. Janiszewski v. Shank, 230 Mich. 189, and cases there cited. Neither does it invalidate the note evidencing such indebtedness. The kind of note to be given was a note secured by mortgage, presumptively containing the essentials of a valid note representing the deferred payment under the contract made payable within a reasonable time or as the parties might agree. But this action is upon a breach of the contract itself. Taking plaintiff’s testimony as true, there was an agreement that the deferred payment on the contract, as evidenced by a note and secured by mortgage, should run for a reasonable length of time. He testified on direct-examination: “I told him I was in,a position to pay one thousand dollars cash and give him my note for the balance. Nothing was said about the time of the note. Any reasonable length of time I would be willing to give, and I would give him a chattel mortgage to make the note good on the stock and any. new stock that came in.” To this he states defendant replied, “Any way you say.” On cross-examination he repeated the statement as follows: “I told him if he would take one thousand cash and my note for a reasonable length of time covered by chattel mortgage, that I would take the business over. * * * “Q. Was anything said as to when that note was to be due? “A. Nothing more than its being a reasonable length of time; no set date.” The fact that no exact time for performance is set in a contract does not render it invalid. “It will be noted that the contract, enforcement of which is sought, is silent as to the time of performance. The law would, therefore, imply that the performance was intended by the parties within a reasonable time.” McArthur v. City of Cheboygan, 156 Mich. 152. “Where no time for performance is fixed by the contract, the law implies generally that the performance is to take place within a reasonable time.” 13 C. J. p. 683; citing many decisions from various jurisdictions, including this State. The court submitted the case to the jury on the legitimate issues raised by the testimony in a clear and careful charge fully as fair and favorable to defendant as the law entitled him to. • The damages awarded were not speculative nor excessive, and were such as under the circumstances shown might reasonably be presumed within contemplation of the parties as a probable result of a breach of the contract. The order setting the verdict aside and judgment following must be vacated, and judgment entered in plaintiff’s favor for the amount of the verdict. The case is therefore remanded to the trial court for further proceedings in harmony with this opinion, with costs of this court to plaintiff. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred.	[ -1, 34, -25, -18, -4, 14, 94, 48, -4, 14, -12, -19, 46, 41, -22, -7, 35, 40, -49, 6, 9, -53, -47, -10, 0, -17, -15, -37, -1, -11, -13, 18, -40, 29, -53, 24, -29, -34, 21, -51, 20, 14, 0, -3, 18, -19, -17, -58, 55, -20, 20, -10, 7, 7, -1, -29, 9, 39, -46, 0, 3, -22, 36, 17, -14, -21, -6, -24, -7, 7, -36, -11, -4, -23, 3, -14, -19, 9, -6, -37, 54, -21, 34, 24, -31, 17, -3, -27, -16, 26, -17, -15, -4, 43, 59, -13, 24, 13, 31, 0, -39, -25, -9, -8, 9, -20, -28, 0, -13, -24, -7, -26, 44, 12, 42, -18, -6, -5, 38, -20, 5, 30, -8, -12, 50, 47, -12, -22, -36, 24, 22, 0, -1, 18, 9, -1, -2, 15, -47, 0, 1, 21, -13, -37, 14, 48, 6, 15, -10, 32, -50, -19, 6, 43, -12, 6, -23, 11, 27, -27, -28, -34, 17, -30, -30, 12, -36, 39, -25, -11, -43, 21, -3, -44, 28, 25, -16, -7, -29, -35, -3, 14, -23, -2, 0, -19, 57, -8, 3, 30, 26, -4, -22, 13, -49, 29, 0, -25, -31, -1, 31, -55, -17, -13, -30, -22, 33, 17, -23, -15, -50, 1, -22, -29, -23, 39, 0, 15, 27, -11, 24, 6, -23, 45, 10, -29, 70, -3, 28, -1, -19, -23, -25, 20, -24, -49, 35, -17, 1, 29, -8, 6, 15, -1, -17, -52, -86, -17, 5, 26, -36, 8, -40, 29, -24, 13, -19, 9, -42, 7, 42, 75, -43, -21, -16, -20, -15, -19, -23, -8, 2, -3, 23, 57, 12, -41, 25, 48, 7, -14, 6, -70, -4, -27, 24, -8, 22, 10, -27, -11, -12, -24, 17, -33, 42, -5, 13, -1, 11, -6, -21, -48, -20, 4, 26, -1, -26, -19, -40, -3, -19, -20, 49, -17, 27, -27, 7, 30, -23, -29, -2, 5, -10, 28, 3, 14, 13, -24, 14, 9, 25, -9, -30, -33, -42, -19, 31, 18, 42, -13, -1, 61, 33, -33, 16, 0, -9, 12, 38, -1, -5, -101, -26, 18, -4, -2, 19, 3, -7, 14, 16, 1, -22, 17, 26, 33, -25, -14, 1, 28, 18, 25, -15, -7, -28, -42, -26, -63, -30, 32, 55, -4, 22, -17, 38, -39, -10, -67, -46, 35, -91, -19, 19, 11, 2, -20, 22, -46, -35, -90, -42, 17, -40, -33, -27, 29, 8, -27, -12, -7, 8, -39, -18, 15, 21, -24, 40, 20, -42, -30, 25, 29, -13, -33, -7, -64, 41, -35, -47, 23, 4, 27, 15, -34, 14, 27, 17, -44, -21, -27, 14, 22, 5, -9, 47, -7, -56, 6, 20, 3, 31, 4, 26, 14, 7, 35, 16, -18, -30, -33, 9, -34, 28, 14, -1, 13, -2, -30, 5, 17, -12, 36, 58, -29, -12, -23, 14, -38, -2, 69, -17, 51, 16, -12, -8, -47, -42, -28, 15, -13, 47, 1, 15, 2, -10, -13, 2, 27, 57, 11, -62, -31, -3, -2, 5, 4, 49, -42, -34, 23, -7, 28, 10, 27, -5, -27, -47, 31, -5, 48, 38, 30, -7, 0, 32, 2, 45, 11, 0, -24, -9, -20, 0, -17, 46, -48, 9, -14, 15, 0, -16, 6, -56, 21, -29, 11, -41, 8, 23, -9, -9, -10, 61, -8, 12, 37, 4, -34, 37, 37, 6, 12, 22, -41, 62, -37, 21, -6, 11, 41, -1, 22, 41, 0, 4, -64, -7, -24, 4, 6, -64, 6, 4, -49, -9, 17, -13, 7, -4, 33, -65, -43, -26, 13, -11, 30, 43, -5, 1, 13, 1, 4, -55, 29, -23, -39, -58, 0, 30, 27, 19, 0, -6, 3, 0, 12, -3, -14, 9, 28, 11, 6, 13, -13, 22, 13, 38, 6, -38, 34, -52, -8, 29, 19, -10, 19, 42, 7, -64, -37, -38, -2, 26, -44, -30, -16, -61, -17, -36, 16, -46, 7, 3, 24, 5, 30, 34, -16, 18, -30, 42, 11, -23, 4, 6, -5, 17, -22, 31, 13, 24, 8, 22, -10, 36, 2, 28, 77, 45, 66, 16, 3, -52, 16, -3, -54, 54, 2, 13, -19, -27, -1, -42, -11, 1, -1, -34, 47, -18, -40, 18, 0, -31, 36, -51, 38, 1, -22, -4, 11, -5, -42, -21, 54, 22, 26, 20, 27, -17, -29, 23, -39, -23, -19, 41, 15, 27, -15, -1, -3, 2, 25, 32, -10, 33, 58, -14, -52, -57, 30, 2, -5, 1, -12, -34, 15, 64, 73, 15, -20, 20, 14, 0, 58, 35, 5, 6, 32, -32, -8, -18, 9, 20, -5, -19, 66, 6, -41, 23, -38, -17, 20, 6, -5, 26, 25, -11, 9, 20, 4, 28, -32, 9, 3, -11, -17, -2, 15, 83, 64, 31, -34, -13, -37, -4, -9, 46, -16, 13, -29, 0, -3, -10, -28, -30, -48, 6, 6, 38, -6, -24, 33, -11, -30, 12, -4, -1, 10, -36, 23, -9, -1, -29, -37, -60, 0, -43, 6, -5, 44, 23, -34, -22, 14, -57, -27, 39, -40, 2, -12, 9, -34, -20, 61, 26, 20, -28, 23, -41, 20, -15, 6, -6, 30, -70, 41, 19, 7, 55, -6, 20, -11, -65, 11, 34, -26, -22, 1, 11, 17, 28, -15, -13, 18, -5, 24, 37, -8, 68, -13, 7, -2, 0, 34, -40, -16, 0, -33, 9, 61, -5, 20, -58, -52, -5, -27, 17, -49, 24, 5, 17, 0, 16, -4, 22, -39, 11, 63, 25, -1, 22, -17, -31, -6, -19, 15, 26, -10, 3, 1, 60, -20, -56, -20, 22, 11, -34, 39, -44, 30, -43, 17, 2, -46, 16, 15, 21, -68, 19, 8, 2, 13, -30, -8, 16, -31, 3, 0, 16, 64, 3, 10, 1, 45, 0, 3, -2, -19, 40, 13, 47, 46, 48, -95, -6, -15, 31, 16, -1, 1, 34, 19, 12, -45, -8, 6, 21, -18, -14, 1, 50, -13, -66, 26, 40, -55, 12, -24, -40, 10, 8, -13, 50, 23, -37, 21, 34, -4, 6, -43, 35, -20, -11, 0, 0, -36, 31, -5, -27, 30, -34, -5, 2, 7, -1, 24, 13, -1, 19, 37, -22, -38, -12, 59 ]

Lesinski, C. J. Plaintiffs Wolverine Golf Club and Joseph Comeau have filed the instant suit as an original action before this Court seeking a writ of mandamus ordering defendant Secretary of State to accept an initiative petition for canvass and immediate submission to the present session of the legislature. The facts giving rise to this suit are not disputed. In 1966 the Congress of the United States enacted the Uniform Time Act, 15 USCA, §§ 260-267, which required “Daylight Saving Time” in all time zones from the last Sunday in April until the last Sunday in October. Pursuant to a provision of the Uniform Time Act, the Michigan legislature exempted this state from the act, thus keeping Michigan on what was formerly standard time. MCLA § 435.211, et seq. (Stat Ann 1970 Cum Supp § 18.872[1] et seq.). The effect of MCLA § 435.211, et seq., supra, was suspended by the filing of referendum petitions. Michigan Farm Bureau v. Secretary of State (1967), 379 Mich 387. Michigan, therefore, went on daylight saving time during most of the summer of 1967 and all of the summer of 1968. However, when the referendum was presented to the voters during the general election held November 5, 1968, MCLA § 435.211, et seq., supra, was approved by a margin of 490 votes out of the 2,805,614 votes cast. MCLA §168.472 (Stat Ann 1956 Rev § 6.1472), provides: “Petitions to initiate legislation shall be filed with the Secretary of State not less than 10 days before the beginning of a session of the legislature.” The present session of the legislature convened on January 14, 1970. On February 12, 1970, counsel for plaintiffs inquired of the Secretary of State by letter whether initiative petitions would be accepted notwithstanding the statutory deadline. The Secretary of State replied that the statute prohibited acceptance of the petitions for submission to the 1970 session of the legislature or the electorate in the 1970 general elee tion. Subsequently, plaintiffs commenced the instant suit seeking a writ of mandamus. As mandamus is clearly the proper remedy if plaintiffs are entitled to relief, Solo v. City of Detroit (1942), 303 Mich 672; Toan v. McGinn (1935), 271 Mich 28, we turn to the merits of the case. The sole issue raised by plaintiffs is whether the statutory requirement that initiative petitions be filed not less than ten days before the start of a legislative session is an unconstitutional restriction of the right of initiative. Resolution of this question requires an understanding of the initiative process, its historical setting in Michigan, and the background of the statutory 10-day filing deadline. We, therefore, turn to a brief review of these points. Essentially, there are two types of initiative in Michigan. A direct method operates independent of the legislature wherein a proposal backed by a sufficient number of signatures is automatically placed on the ballot. This method is made available only to proposed constitutional amendments and is incorporated in Const 1963, art 12, § 2. Under constitutional initiative, signatures amounting to at least 10% of the total vote cast for all candidates for Governor in the last general election are required to place the proposal on the ballot. In addition, the petitions must be filed with the Secretary of State at least 120 days prior to the general election. The second type of initiative available in Michigan is the indirect method which requires that the proposal first be submitted to the legislature for approval, rejection or for an alternative proposal. After the expiration of 40 legislative session days, the proposal must be placed on the ballot of the next general election unless the legislature enacts the proposal into law without change. The indirect initiative method is available only for statutory proposals and is incorporated in Const 1963, art 2, § 9. Statutory initiative requires signature petitions amounting to only 8% as opposed to 10% for constitutional initiative. In this respect it is obvious that a statutory initiative petition drive is slightly less difficult than a constitutional initiative petition drive. Nevertheless, history has demonstrated that the statutory initiative process has been much less attractive to the electorate as a method of direct government. A study of direct government techniques in Michigan from 1913 to 1961 revealed that the constitutional initiative process was utilized by the electorate on 35 separate occasions, whereas the statutory initiative process was invoked only once. On that occasion in 1948 petitions qualified a statutory proposal which would render a 1901 statute prohibiting the sale of colored margarine of no effect. The legislature enacted the proposal which should have avoided the necessity of submitting the question to the electorate. However, opponents of the measure were able to qualify the legislation for referendum. Thus, the statute did not become operative until passed by the people in 1950. The dormant statutory initiative process, in sharp contrast to the frequently invoked constitutional initiative process, was a subject of discussion prior to the 1961 Constitutional Convention. “Why has the indirect statutory initiative been used so seldom? It would seem that the delay inherent in the process (and delay occurs unless legislative acquiescence is forthcoming and even then if opponents can gather sufficient signatures for a referendum petition) militates against the chance of successful promotion of such a measure. Then, too, the direct constitutional initiative requires only a slightly higher percentage of petition signatures and has the advantage of attracting more interest and receiving a direct popular vote. Whatever the reasons, the indirect initiative has been one of the least used of Michigan’s devices of direct legislation.” McHargue, Direct Government in Michigan, Michigan Constitutional Convention Studies, prepared for the Constitutional Convention Preparatory Commission (1961), No 17, p 30. “One may say, therefore, that the limited effect of the initiative and referendum has not been due to any inherent defects in the institutions themselves, but rather to the limitations and restrictions on their use imposed principally by the legislature.” Pollock, The Initiative and Eeferendum in Michigan, University of Michigan Press (Michigan Governmental Studies, No 6) p 68 (1940). California had a constitutional provision providing for indirect initiative as well as direct initiative. Even in that state, notorious for direct government activity, indirect initiative had been used only on four occasions from 1912 to 1966. The Ohio Constitution provided for a method of statutory initiative which like Michigan was indirect. It also provided for direct constitutional initiative and experienced similar inactivity with regard to the statutory initiative process. The initiative process was among the methods of direct government which gained considerable favor among the electorate during the progressive reform era of the early 1900’s. At the Constitutional Convention of 1907, the first effort to provide the people of the State of Michigan with a form of direct initiative came to fruition in Const 1908, art 17, § 2. It passed the convention by merely three votes, although its provisions were limited to constitutional initiative and the requirement that petitions be signed by at least 20% of the number of electors who had voted for Secretary of State in the last election made its accessibility virtually impossible. As it existed under the original draft of the 1908 Constitution, the constitutional provision was never used. In January of 1913 Senator Woodworth and Representative Kappler introduced almost identical bills proposing an amendment to the Constitution which would establish a more accessible constitutional initiative and a newly-created statutory initiative. These bills received almost unanimous support by the legislature and in April of the same year the electorate approved the amendments. The signature requirement of the constitutional initiative process was reduced to 10%. The statutory initiative process was incorporated into art 5, § 1 and provided in pertinent part: “Initiative petitions shall set forth in full the proposed measure, and shall be filed with the Secretary of State not less than ten days before the commencement of any session of the legislature. * * * Upon receipt of any initiative petition, the Secretary of State shall canvass the same to ascertain if such petition has been signed by the requisite number of qualified electors, and if the same has been so signed, the Secretary of State shall transmit such petition to the legislature as soon as it convenes and organizes. The law proposed by such petition shall be either enacted or rejected by the legislature without change or amendment within forty days from the time such petition is received by the legislature.” It should be noted that Constitution expressly required that statutory initiative petitions be filed with the Secretary of State not less than ten days before the commencement of any session of the legislature. The statutory initiative provision of the Constitution was amended hy a proposal which passed both houses of the legislature in 1941 and won approval by the electorate in the spring election. The procedure was changed only to the extent that the Secretary of State was granted constitutional authority to check the names appearing on petitions against the names of registered voters. In that same year the legislature enacted PA 1941, No 246, which implemented the changes brought about by the constitutional amendment. In addition to the implementing statutes passed in 1941, many of the requirements for initiative and referendum set forth in the highly detailed constitutional provision were reiterated in statutory form in PA 1941, No 246 (CL 1948, § 200.1 et seq.-, Stat Ann 1941 Cum Supp § 6.685[1] et seq.) Among the constitutional provisions so codified was PA 1941, No 246, § 2 (CL 1948, § 200.2; Stat Ann 1941 Cum Supp § 6.685[2]) which provided: “Petitions to initiate legislation shall be filed with the Secretary of State not less than 10 days before the beginning of a session of the legislature.” PA 1941, No 246 was repealed by PA 1954, No 116, commonly known as the Michigan Election Law. The 1954 act was the result of a major effort on the part of the legislature to reorganize, consolidate and add to the election laws. The above-quoted statute reappeared unchanged as MCLA § 168.472 (Stat Ann 1956 Rev § 6.1472). Due to the historical origin of the 10-day filing deadline and context of the statute in which it was first codified, it appears that it was first enacted as a notice provision of important constitutional details. It is against this background that the Constitutional Convention delegates formulated and the Michigan electorate adopted Const 1963, art 2, § 9. In pertinent part § 9 provides: “To invoke the initiative * * * , petitions signed by a number of registered electors, not less than eight percent for initiative * * * of the total votes cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required. “Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided. “If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election. # # # "The legislature shall implement the provisions of this section.” Among the several details eliminated from the Constitution is the 10-day filing deadline. Neverthe less this former constitutional requirement remains enshrined in the statute now under attack. The 10-day filing deadline was clearly necessary and reasonable in 1913, when it first became law. This was due to the combined effect of three factors then in existence. (1) Under the 1908 Constitution, as originally adopted, the legislature met only during the odd-numbered years. (2) During this period the sessions of the legislature were quite short, generally convening in January and adjourning in May.or June. (3) The statutory initiative provision in Const 1908, art 5, § 1 gave the legislature only “40 days” to accept or reject initiative proposals, unlike the “40 session days” in Const 1963, art 2, § 9. Clearly under the provisions of the 1908 Constitution and realities prior to 1951, if no deadline had been set to insure the early presentation of initiative proposals to the legislature after time was allowed for the necessary certification of the signatures, the legislature might not get a full 40 days before adjournment. And, since the legislature was given only “40 days” rather than “40 session days” the period would continue to run while the legislature was not meeting. Moreover, even if provision had been made to allow the period of legislative consideration to continue from one session to the next, it would mean a postponement of nearly 1-1/2 years dividing the 40 days into two shorter periods. Thus, the 10-day deadline was reasonable and necessary to insure that the legislature would have an opportunity to consider the proposal. All three of these factors no longer exist, however. The legislature now meets every year. The sessions of the legislature are much longer, often running from January to December. And the legislature now has “40 session days” rather than only “40 days” in which to consider the proposal. Thus, the petitions can be presented well after a session commences and still allow sufficient time for legislative consideration. If the legislature adjourns, the remainder of the “session days” will continue during the next session. And now the periods between sessions are generally only a matter of weeks, rather than the old 1-1/2 years, thus reducing the possibility that the deliberations held during the previous session will be no longer remembered. Although the original factual basis for the filing requirement no longer exists and although the reason for enactment of the requirement in statutory form (i.e., notice provision of constitutional detail) is no longer present, nevertheless, this Court is bound to recognize the statute as an expression of legislative intent by the clear command of Const 1963, art 3, § 7 which provides: “The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” Our only inquiry must be whether the statute is repugnant to the Constitution. It is settled law that the legislature may not act to impose additional obligations on a self-executing constitutional provision. Soutar v. St. Clair County Election Commission (1952), 334 Mich 258; Hamilton v. Secretary of State (1924), 227 Mich 111, 125: “ ‘The only limitation, unless otherwise expressly indicated, on legislation supplementary to self-executing constitutional provisions is that the right guaranteed shall not be curtailed or any undue burdens placed thereon.’ ” Whether a constitutional provision is self-executing is largely determined by whether legislation is a necessary prerequisite to the operation of the provision. See 42 Am Jur 2d, Initiative and Referendum, § 3. “A constitutional provision may be said to be self-executing, if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may he enforced, and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may he given the force of law.” Cooley, Constitutional Limitations (7th Ed) p 121, quoted in Thompson v. Secretary of State (1916), 192 Mich 512, 520, wherein the Court declared art 5, § 1 (initiative and referendum) of the Michigan Constitution of 1908 to he self-executing. Whether art 2, § 9 is self-executing has been questioned by Dr. Nord, a delegate to the Constitutional Convention of 1961-1962. His argument centered on the provision in § 9 that in the event the legislature failed to enact the proposal, the duty to place the proposal on the ballot was vested in the “state officer authorized by law”. “Section 9. (Initiative and referendum) : There are two principal changes in this section. One of them permits the legislature by a three-fourths vote to amend or repeal an act adopted by the people by direct initiative or referendum. The other change is the elimination of a considerable mass of so-called ‘legislative-type detail’ relating to the initiative and referendum procedures. While the ‘Address to the People’ asserts that this section continues to be self-executing, it is highly questionable whether or not this is true. The following examples will illustrate the problems raised: (1) In the fourth paragraph, the ‘state officer authorized by law’ is relied on to submit to the electors any legislation proposed by initiative hut not enacted by the legislature within forty days, and also to submit to the electors for ratification any modification adopted by the legislature. The 1908 Constitution placed this responsibility on the Secretary of State, except as otherwise provided by statute. At present, a statute placed the responsibility on a board composed of the State Board of Canvassers and the Attorney General, but this statute now requires revision. In the event that this statute should ever disappear, it is an interesting question as to how the initiative process could be effectuated.” Nord, The Michigan Constitution of 1963, 10 Wayne L Rev 309, 320 (1964). This objection to the otherwise self-executing provision was raised by Dr. Nord on the floor of the Constitutional Convention. At that time the following argument was presented in response: “Mr. Chairman, I suppose that as a very technical kind of a situation maybe Dr. Nord has a point, except I don’t think it is a very practical one. It’s inconceivable to me to believe that any legislature would refuse to empower or direct an official to handle this thing. As a matter of fact, we already have statutes on the books. The general election law is already there.” 2 Official Record, Constitutional Convention 1961, p 2393, remarks of Delegate Hutchinson. It is not inconceivable that the State judiciary would in such event be able to order the person charged with the ministerial responsibilities under the general election law to place the proposal on the ballot if this responsibility was not specifically delegated by statute. However, it is not necessary to resolve that issue. The question whether a constitutional provision is self-executing is “ultimately one of intention.” American Youth Foundation v. Township of Benona (1967), 8 Mich App 521, 528. The convention comment, which may properly be considered when attempting to discover the intent of the framers (Beech Grove Investment Company v. Civil Rights Commission [1968], 380 Mich 405; Burdick v. Secretary of State [1964], 373 Mich 578), expressly states that the provisions of art 2, § 9 are self-executing. “Matters of legislative detail contained in the present section of the Constitution are left to the leg islature. The language makes it clear, however, that this section is self-executing and the legislature cannot thwart the popular will by refusing to act.” (Emphasis supplied.) To hold that the right of initiative reserved to the people of the State of Michigan is not self-executing is to ignore the expressed intent of the framers. This conclusion is more compelling in light of the perceptive opinion of Justice Bird in Hamilton v. Secretary of State (1924), 227 Mich 111, 130: “The initiative found its birth in the fact that political parties repeatedly made promises to the electorate both in and out of their platforms to favor and pass certain legislation for which there was a popular demand. As soon as election was over their promises were forgotten, and no effort was made to redeem them. These promises were made so often and then forgotten that the electorate at last through sheer desperation took matters into its own hands and constructed a constitutional procedure by which it could effect changes in the Constitution and bring about desired legislation without the aid of the legislature. It was in this mood that the electorate gave birth to the constitutional provision under consideration. In view of this I am persuaded that it was not the intention of the electorate that the legislature should meddle in any way with the constitutional procedure to amend the State Constitution. It was fittingly said in the following cases that: “ ‘A constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on legislative will.’ ” We view the term “self-executing” to be more than an after-the-fact description of the operative effect of the constitutional provision. It is a term intended to cloak the provision with the necessary characteristics to render its express provisions free from legislative encroachment. And this is so irrespective of the implementing provision contained therein. The original language expressed in Committee Proposal 118b sought to make clear that the general implementing provision was not a blank check grant of legislative power. “The legislature by general law shall provide further necessary methods for the exercise of these powers not in conflict with the provisions of this section’ (Emphasis supplied.) Following passage of Committee Proposal 118b the last sentence was changed by the committee on style and drafting to the form which was ultimately enacted. The style change, however, was clearly not intended to be a substantive change. The stautory initiative process contained in art 2, § 9 expressly limits legislative consideration of the initiated proposal to a period of 40 session days. Yet due to the statute in question, which requires the initiative petitions to be filed no less than 10 days prior to commencement of the legislative session, and Const 1963, art 2, § 5 which provides that general elections shall be held on the first Tuesday after the first Monday in November during each even-numbered year, the statute effectively operates to prevent a statutory initiative proposal from appearing on the ballot within a period of time less than 10 months after it is submitted to the legislature. By restricting access to the legislature, the statute has effectively limited access to the statutory initiative process. And this restriction is in conflict with the express 40-day limitation contained in the Constitution. Any further delay of the proposal for the convenience of the legislature operates to restrict the right of initiative beyond permissible bounds. “In cases where a provision is self-executing, legislation may still be desirable, by way of providing a more specific and convenient remedy and facilitating the carrying into effect or executing of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses. Such legislation, however, must be in harmony with the spirit of the Constitution and its object to further the exercise of constitutional right and make it more available, and such laws must not curtail the rights reserved, or exceed the limitations specified.” State, ex ret. Caldwell, v. Hooker (1908), 22 Okla 712, 718 (98 p 964). Plaintiff notes that only two cases exist which deal with a situation similar to the present case. In State, ex rel. Kiehl, v. Howell (1914), 77 Wash 651 (138 P 286), the state constitution which expressly declared itself to be self-executing contained the following provision: “This section is self-executing but legislation may be enacted especially to facilitate its operation.” The section referred to expressly reserved to the people the right of initiative provided that petitions were filed at least four months prior to the election. (This was a direct initiative process.) Pursuant to the constitution, the legislature enacted laws “facilitating” the operation of the initiative process. Included among those statutes was a provision requiring all petitions to be filed not earlier than ten months before the election. The statute was challenged as an unconstitutional infringement of the initiative right since it limited the petition drive period to six months (between the tenth and fourth month preceding the election). The court upheld the statute noting that the statute allowed for greater certainty that the voters who signed the petition were, in fact, residents of the state on the date the petitions were filed. Six months was viewed as a reasonable period of time to garner the requisite signatures. A contrary result was reached in the more recent case of Yenter v. Baker (1952), 126 Colo 232 (248 P2d 311). The right of initiative was expressly reserved to the people by the constitution which was deemed to be self-executing. Included within its provisions was the requirement that all petitions be filed at least four months prior to the election. (The initiative process was direct.) By statute it was required that all petitions be filed at least eight months prior to the election. The court struck down the statutory filing requirement of eight months, concluding that the legislature may not impose additional filing requirements. The foregoing cases, although reaching different results, are not inconsistent. In Kiehl, supra, the challenged statute did not enlarge upon the minimum filing requirement which was included in the constitution. Rather, a different requirement was formulated. The court concluded that the statute did not conflict with the constitution or unreasonably limit the petition drive period, a maximum requirement imposed being considered necessary for assuring the validity of the signatures. In Yenter, supra, the now-defunct statute enlarged on the filing limitation already present in the constitution, increasing the difficulty of the existing requirement. In the present case the ten-day filing requirement imposes a time limitation for the convenience of the legislature in addition to the 40-session-day period expressed in the constitution. In this respect the statute conflicts with the express language of the constitution. It is, however, defendant’s position that the ten-day deadline is a reasonable exercise of the legislature’s general duty under Const 1963, art 2, § 9 to implement that section of the constitution. Plaintiffs, however, argue that the time limit is an unreasonable restraint on initiative. Unquestionably the ten-day deadline does act as a restraint on the right of initiative. As demonstrated above, the statute results in requiring that petitions be filed with the Secretary of State fully ten months prior to the general election. We note that defendant offers this Court no explanation whatsoever as to why such a period of time is needed. Even conceding that during the ten months some time is needed to give the legislature the constitutional 40 session days to accept or reject the proposal, there is no need for this extended minimum period required by the statute. Const 1963, art 12, § 2 provides for constitutional amendment by petition and vote of the people. That provision requires petitions signed by 10% of the voters compared with the art 2, § 9 requirement of 8%. Yet, although the percentage is greater, art 12, § 2 requires petitions to be filed only “120 days” or four months prior to the election. Significantly art 12, § 2 further provides that the sufficiency and validity of constitutional initiative petitions be certified “at least 60 days prior to the election.” Thus, the 120-day period provided in art 12, § 2 contemplates two months for certification of the sufficiency of the petitions and two more months for preparation of the ballots and presentation to the voters. Adding these same periods to the “40 session days” allowed for legislative consideration of the statutory initiative proposal would result in a period of substantially less than 10 months. Defendant argues that if the time limit is unreasonable, then statutes prohibiting the signing of fictitious or forged names to petitions would also be violative of the constitution. There is, however, an important distinction between statutes which protect the people from fraudulent attempts to bypass the legislature through initiative and those which create unnecessary obstacles to restrict the lawful use of initiative. Moreover, the legislature may undoubtedly place certain ground rules on the petitioning for initiative in order to facilitate the enormous task of verifying the signatures on the petitions. Markowitz v. State Canvassers (1965), 1 Mich App 12. This distinction was clearly noted in State v. Snell (1942), 168 Or 153, 160 (121 P2d 930, 934): “Any legislation which tends to ensure a fair, intelligent and impartial accomplishment may be said to aid or facilitate the purpose intended by the Constitution. Any safeguard against deception and fraud in the exercise of the initiative and referendum powers tends to assure to the electorate the benefits conferred by § 1 of article 4. “Such legislation, however, must be reasonable, not ‘curtailing the right or placing any undue burdens upon its exercise.’ Stevens v. Benson, supra [50 Or 269, 91 p 578], Nor may it ‘hamper or render ineffective the power reserved to the people.’ State, ex rel. Ayres, v. Amsberry [1920], 104 Neb 273 (177 NW 179, 180, 178 NW 822); State, ex rel. Elsas, v. Missouri Workmen’s Compensation [1928], 318 Mo 1004, (2 SW2d 796).” See, also, Yenter v. Baker, supra. As indicated above, Const 1908, art 5, § 1 contained a highly detailed provision for statutory initiative. Many of these details were dropped when the successor provision, Const 1963, art 2, § 9, was adopted. Defendant argues that the elimination of these points from the constitution was part of an effort to leave to legislative discretion matters of specialized and technical significance. In this regard defendant cites the 2 Official Record, Constitutional Convention 1961, p 2392, where the chairman of the committee on legislative powers stated: “Removed from constitutional status are the provisions on content and time of filing petitions, canvassing of names on petitions, type sizes, and right of the legislature to prescribe penalties. Also removed is the date of effectiveness of legislative acts which is covered in article 5, section 21. “All of these matters are left to the legislature in the last sentence. However, the language of the last sentence also makes it clear that the section is self-executing and the legislature cannot thwart popular will by refusing to act.” We agree with defendant’s argument. Agreement, however, does not resolve the issue. For while the Constitution places the duty of implementation on the legislature, it does so as an incident to the granting of a right to the people. Although administrative implementation is needed if the initiative process is to function smoothly, the administrative statutes may not create unnecessary burdens which tend to restrict the constitutional right. The spirit of the Constitution is not met if the rights it grants are unnecessarily impaired under the guise of implementation. Moreover, as noted above the original committee proposal 118b gave the legislature only the power to provide “necessary methods for the exercise of these powers [initiative] not in conflict with the provisions of this section”. (Emphasis supplied.) There was, thus, the clear intent on the part of the convention to limit the power of the legislature to that which is “necessary” to the effective implementation of the initiative right. Thus, while the legislature has the power to establish the time of filing, since any deadline will act as a restraint on a constitutional right, the legislature may only create those restrictions which are necessary. Any statute which is both unnecessary for the effective administration of the initiative process and restrictive of the initiative right is unreasonable and thus unconstitutional. When Const 1963, art 2, § 9 was reported out of committee at the Constitutional Convention, it stated that the legislature was to accept or reject the proposed law “within 40 days.” (2 Official Eecord, Constitutional Convention 1961, pp 2390-2392.) As noted above, this phrase was changed to read “40 session days.” The Constitutional Convention, thus, not only removed the ten-day deadline from the Consti tution but, as evidence by the record of the Constitutional Convention debate (see footnote 15), contemplated the filing of petitions much later in the legislative session. Defendant agrees that initiative petitions may be filed at any time, but argues that filing after the statutory deadline results in submission of the issue to the following legislative session. Thus, in the instant case initiative petitions filed in 1970 would be submitted to the 1971 session of the legislature. The weakness in defendant’s argument centers in the unnecessary delays it would cause in the use of initiative. Const 1963, art 2, § 9 requires any law proposed by initiative which was rejected by the legislature be submitted “to the people for approval or rejection at the next general election.” Under Const 1963, art 2, § 5, however, the elections are regularly scheduled on “the first Tuesday after the first Monday in November in each even numbered year.” Thus, under the defendant’s argument the petitions would be filed in 1970, go to the legislature in 1971 and finally be presented to the public for vote in November of 1972, nearly 2-1/2 years after the filing. There are two basic reasons why we do not think such delays are consistent with the Constitution. First, the Constitution gives the legislature only 40 session days to consider the proposed law. In light of such a restrictive limit on the legislature, we do not believe delays ranging from a minimum of 10 months to a maximum of 34 months between the time of filing and the time of the popular vote was intended. And if such extended delays had been approved by the convention, we doubt that the pe riod allowed for legislative consideration would have been so limited. Second, we believe that when the convention provided for petitions filed long after the opening of the session, it indicated an approval of the “last minute” exercise of initiative. Such exercise thus should be limited only to the extent necessary to allow for the efficient administration of the initiative process. One other difficulty remains with the delays inherent in defendant’s position. While the instant suit involves daylight saving time, the right of initiative may be invoked for other issues of far greater importance and moment. If extended and unnecessary delays are permitted, issues may become moot before the public is permitted to act. We do not believe that such was the intent of the Constitutional Convention. It might be argued, however, that since the ten-day filing deadline existed as a constitutional standard for half a century, that the same standard in statutory form cannot now be declared so unreasonable as to be unconstitutional. Despite its surface logic, however, the argument falls short for two reasons, both historical. First, the statutory initiative provision in Const 1908, art 5', § 1, originated in the legislature as a proposed constitutional amendment in 1913. It was not the result of a constitutional convention or of constitutional initiative. Thus when the electorate approved the ten-day deadline as a constitutional amendment in the April election of 1913, it was only one small part of a much larger provision. If they rejected the ten-day deadline, there would have been no statutory initiative provision at all. Thus, it would be a fiction to say that the ten-day rule has stood as an expression of the overriding will of the people. Second, as demonstrated above, when the ten-day limit first became law it was clearly necessary and reasonable due to circumstances then existing. As the circumstances which necessitated the rule have all changed, it cannot be said that reasonableness of the rule necessarily remains. We hold that MOLA § 168.472 (Stat Ann 1956 Rev § 6.1472), constitutes an unnecessary and, therefore, unreasonable restraint on the constitutional right of the people to initiative. The statute is, thus, unconstitutional. In so holding we do not intimate that a time limit necessary and reasonable for the effective administration of the initiative process after the legislature has considered the initiative petition, might be invalid. Such will withstand challenge so long as it does not constitute an unnecessary restraint on the right of initiative. The petition for a writ of mandamus is granted. Const 1963, art 2, § 9. On oral argument of this cause plaintiffs moved to amend their complaint to add the allegation that they have a sufficient number of signatures upon petitions for prima facie compliance with the requirements of Const 1963, art 2, § 9. Further, at oral argument the attorney for plaintiffs stated in open court and on the record that he had actual knowledge that this allegation was factually correct. The motion was granted. We take judicial notice of the fact that plaintiffs’ petitions allegedly bear approximately 206,000 signatures and were filed with the Secretary of State on June 17, 1970. While the complaint was pending in this Court, petitioners filed in the Supreme Court an application for leave to appeal prior to decision by the Court of Appeals. By order of the Supreme Court, the application was denied on March 31, 1970. McHargue, Direct Government in Michigan, Michigan Constitutional Convention Studies, prepared for Constitutional Convention Preparatory Commission (1961); Pollock, The Initiative and Referendum in Michigan, University of Michigan Press (Michigan Governmental Studies, No 6) (1940). Discussing this fact, it was noted: “The statewide indirect initiative has been used but four times since 1912 and would be eliminated entirely by a revision of article 4 of the Constitution which will appear on the November ballot. West’s California Legislative Service 416-417, 424-425 (1966); California Constitution Revision Commission, Proposed Revision of the California Constitution 52, 141-142 (1966) [hereinafter eited as Constitution Revision Commission]. For further discussion of the revision see note 29 infra. A possible explanation for the failure of persons to take advantage of the lower signature requirement for indirect initiatives may be the extreme delay which stands between the completion of signature gathering and final submission of the measure to the voters. Unless the governor should call a special election, a minimum of approximately 23 months passes before an indirect initiative is placed on a ballot. This delay results because the indirect initiative procedure calls for submission of the proposed measure to the legislature before it convenes (Cal Const art 4, § 1 [¶ 4]); the legislature convenes for general legislative sessions in January of every odd numbered year (Cal Const art 4, § 2[a]); the measure, if not enacted within 40 days, must be presented at the ensuing general election (Cal Const art 4, § 1 [¶ 4]), but that general election does not come until November of the next even numbered year (Cal Const art 4, §3). Under the proposed revision of article 4, the legislature would hold annual legislative sessions (Constitution Revision Commission 29-30), and, if the indirect initiative were retained, it might become a more viable tool. The period of delay could be reduced to as little as 10 months and a few days. Staff Memorandum for California Constitution Revision Commission, January 12, 1965, p 11.” Comment, The Scope of the Initiative and Referendum in California, 54 Cal L Rev 1717, N19 at 1720 (1966). “The record of direct legislation in Ohio discloses the interesting fact that the device has been employed more freely at the constitutional than the statutory level. Between 1912 and 1950, 29 constitutional amendments were proposed by the initiative. Nine were ratified. During the same period 15 of 29 amendments proposed by the general assembly were approved. Seventeen legislative measures have been proposed by the initiative. Of these, three were enacted by the general assembly. Three not so enacted were carried to the voters by supplemental petition; one was adopted.” Fordham and Leach, The Initiative and Referendum in Ohio, 11 Ohio State Law J 495, 497 (1950). McHargue, supra, p 21 et seq. PA 1913, Concurrent Resolution Nos 3-4, pp 780-86. PA 1941, Joint Resolution Nos 1 and 2, pp 781-85. Const 1908, art 5, § 1. PA 1941, No 246 restated the following constitutional requirements : No 246, § 1 enacted the Const 1908, art 17, § 2 requirement that constitutional initiative petitions be filed four months before the election at which the proposal was to go to the voters; No 246, § 2 enacted the art 5, § 1 requirement that statutory-initiative petitions be filed 10 days before the commencement of the legislative session; No 246, § 3 enacted the art 5, § 1 requirement that referendum petitions be filed within 90 days of the adjournment of the legislature; No 246, § 7 enacted the art 17, § 2 requirement that a declaration of the sufficiency of the petition be filed at least two months prior to the election ; No 246, § 12 enacts the art 5, § 1 provision regarding the form of the petition and provides further details not set forth in the Constitution. Const 1908, art 5, § 13 provided: “The legislature shall meet at the seat of government on the first Wednesday in January, nineteen hundred nine, and on the first Wednesday in January in every seeond year thereafter, and at no other place or time unless as provided in this Constitution; and shall adjourn without day, at such time as shall be determined by concurrent resolution, at twelve o’clock noon.” The practice of having regular sessions only during the odd numbered years was not changed until Const 1908, art 5, § 13 was amended by legislative proposal in 1951 and ratified at the biennial spring election of April 2, 1951. Michigan Manual, 1969-1970, p 98, sets forth the following dates: Bate of Meeting Bate of Adjournment January 4, 1899 June 24, 1899 January 2, 1901 June 6, 1901 January 7, 1903 June 18, 1903 January 4, 1905 June 17, 1905 January 2, 1907 June 29, 1907 January 6, 1909 June 2, 1909 January 4, 1911 May 2, 1911 January 1, 1913 May 15, 1913 Const 1963, art 4, § 13. During tlie debates the following exchange took place (2 Official Record, Constitutional Convention 1961, p 3085) : “Mr. Brake: Mr. President, ladies and gentlemen of the convention, I have a question. In column 2, page 3, line 38, where it is talking about legislative action on initiative petitions presented to the legislature, it says this must be done within 40 days. I wonder if that shouldn’t be 40 legislative days. Suppose this petition is presented the last day before the legislature adjourns, or while they’re completely in recess? “Vice President Sutchinson: Mr. Brake, are you directing a question to a particular person? “Mr. Brake: Tes, Dr. Pollock, please. “Mr. Pollock: Mr. President, this was not before our committee as a substantive matter. * * * Therefore, I’m not prepared to answer your question, although it seems to me your point is very well taken.” (Emphasis supplied.) In direct response to this problem the language of the article was amended to read “within 40 session days” to insure that if a petition is filed shortly before adjournment the time period does not continue to run during adjournment. 2 Official Record, Constitutional Convention 1961, p 2418. After proposal 118b returned from the style and drafting committee, the following statement was made at 2 Official Record, Constitutional Convention 1961, p 2927: ‘‘Mr. Hoxie: Mr. President, I move that we dispense with the reading of this proposal, and I would like to state that since the return of these proposals from style and drafting, the committee has reviewed all of them. The committee finds no change, no substantive change in this proposal and we recommend that it be passed.” Both percentages are of “the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected.” Const 1963, art 2, § 9; art 12, § 2. See Burdick v. Secretary of State (1964), 373 Mich 578, allowing resort to the constitutional convention debates for the purpose of ascertaining the intent of the provisions of the Constitution. The substance of this statement was reiterated in the Convention Comment for art 2, § 9: “Matters of legislative detail contained in the present section of the Constitution are left to the legislature. The language makes it clear, however, that this section is self-executing and the legislature cannot thwart the popular will by refusing to act.” As noted above this language was changed by the committee on style and drafting to the present form found in Const 1963, art 2, § 9, but no substantive change was intended. 2 Official Record, Constitutional Convention 1961, p 2927. For definition of “session days” see Smith v. Attorney General (1911), 165 Mich 140; Davock v. Moore (1895), 105 Mich 120; and OAG 1963-1964, No 4329, p 494 (November 3, 1964). Coincidentally it was the same proposal which resulted in reducing the signature requirement for constitutional initiative from an impossible 20% to an accessible 10%. Moreover, it is interesting to note that the first time the ten-day limit was submitted to a popularly elected constitutional convention, it was taken out of the Constitution.

[ -13, 53, -15, -55, -12, 25, 16, 9, -11, 86, -60, 7, 20, -13, 1, -9, 2, 13, 58, 54, 8, 0, -20, -31, -17, 17, 8, -51, 1, -1, -25, -17, -17, -13, -25, -73, 27, 8, 30, 22, 10, -40, -33, -35, -18, -51, 2, 38, 39, -5, 6, 14, -65, 47, -47, 36, -38, -87, -23, 34, -11, 12, 37, -26, 13, -12, 17, -2, 24, -38, 21, -8, 41, -18, -26, 43, 3, -23, -35, 31, -59, 17, -5, -60, -18, -30, -46, 21, 15, -14, -59, -43, -73, -49, 40, 6, -8, -27, 1, -39, -57, 10, 6, 23, -5, -2, 24, -69, -8, -15, 27, 2, -20, 28, 5, 35, -4, 26, 37, -30, -12, 10, 31, 45, -46, -29, -55, 1, -3, 24, -3, 21, 65, -19, -11, 69, 1, -23, 43, -55, 5, -1, 37, -15, 15, -9, 18, 7, 59, -9, -10, -7, -65, 27, 7, 8, 6, 0, 37, 29, 0, 14, 5, -32, 14, 4, -96, -30, 0, -7, 8, -60, 34, -12, 16, -16, 1, 26, -18, 22, -42, 14, 27, -12, -41, -2, 10, -75, 4, -2, 54, -60, 0, -19, 40, 32, -6, 23, -16, 13, 1, -38, 38, -12, -37, -8, 66, -13, -8, 38, -12, -45, -26, 14, -14, 7, 34, -8, -38, -3, 25, 14, 75, 36, 34, 20, 8, -46, 22, 5, 37, -22, 54, -9, 27, -28, -39, 28, 25, 19, -8, -27, 26, 5, 33, 34, 2, -25, 23, 18, 14, -12, 24, -43, 18, 7, 45, 1, 14, 13, -28, 17, -41, -27, -41, 64, -37, 23, 38, -26, -50, 31, 54, -18, -44, -37, -35, -8, 52, -32, 17, -1, -22, 44, -42, 25, -6, -36, -15, 34, -45, 33, 17, 15, 10, 20, 19, 5, 10, 42, 31, 60, 47, -6, -41, -30, -52, -37, 17, -27, 25, 21, -34, 14, -16, -16, 25, 32, 60, -11, -50, -22, 16, 24, -42, -27, 64, 4, -36, -29, -10, -11, 2, 20, 50, -52, 50, 4, -3, 14, 39, 25, 38, 32, -18, 39, 20, -22, -32, -36, 0, -13, -19, 15, 13, 5, -10, -27, -60, 4, 13, -21, -79, 38, 17, 34, -31, 19, 46, 34, -41, 14, -1, 21, -43, 5, -5, 46, -46, 23, -1, -79, -24, -30, 48, -34, -42, -11, -16, -5, -25, -49, -26, -11, -12, -7, -5, -22, -11, 23, 46, -14, -24, -15, 12, -19, 8, 5, 10, 61, 4, -10, 57, 15, -17, -30, 19, 6, 53, -15, -46, -12, -38, -68, -48, -16, -19, 25, 1, 14, 15, 20, -7, 11, -22, 36, -9, -52, -5, -8, 22, 41, -4, -19, -11, -36, -28, -18, 24, 30, 63, -33, -18, -44, -28, -4, -16, 27, 27, -52, -40, -19, -10, 17, -21, 18, -64, -5, 44, -19, 20, 31, 28, 101, -67, 5, 12, 22, 10, -27, -35, -22, -30, -38, -48, -58, 19, 13, 5, 31, 2, 11, -11, 65, -43, 31, -50, -9, -24, 14, -18, -17, -5, 18, 3, -43, 33, -23, -15, -25, -15, -46, 27, 82, 3, 14, 9, 20, 6, 14, -81, -1, -22, 2, -44, 5, 9, -9, -19, -38, 48, -35, 33, -13, -56, -1, 2, 0, -70, 9, 56, 9, -12, 42, 70, -37, -12, -37, -12, 0, 25, -19, -104, -48, -9, 5, -5, 18, -17, -59, 17, 27, 42, -6, -10, -35, -25, 42, 4, -7, -20, 8, 14, -28, 20, 70, 48, -5, -6, 29, 30, 50, -74, -16, -9, -51, -7, -20, 25, 17, -25, -23, -40, 35, 53, 43, 31, -3, 31, -21, -13, 25, -41, 7, -28, -4, -30, 30, 24, 2, -9, -26, -1, 28, -53, -20, -32, 43, 22, 11, 19, 32, 36, 28, 14, -2, 30, 28, -9, -6, 6, 4, -40, -29, 0, -65, 41, 20, 20, -60, -84, -15, 2, 18, -6, -5, -43, 12, -24, 34, 18, 19, -9, -35, -46, -35, 16, 0, -18, -8, 4, -18, 3, -13, 30, 13, 25, -32, 22, -15, 34, 44, 20, -11, 94, -28, -10, 9, -45, 79, -48, -39, -10, -54, 22, 1, 19, -2, -1, -23, -4, 17, 31, -37, 42, -9, 5, 6, 30, 33, -26, 94, 38, 13, -48, 8, -18, 6, 69, 19, -40, -3, 5, -31, 34, 20, -22, 15, -28, -9, -30, 40, 18, -6, -27, -10, -33, -58, 33, -19, -21, 44, -37, -23, 33, -4, 8, 7, 7, 3, 13, 42, -6, -35, -4, -32, -31, 10, 27, 45, -46, -13, 5, 40, 0, -19, -51, 23, 8, 33, 49, -4, 18, -31, 18, 0, 56, 10, 64, -28, 45, -35, -27, -20, 1, -26, -42, -27, -17, -29, 19, 34, -5, -47, -17, -35, 15, -30, -5, -17, -13, -48, -1, -19, -25, 59, 4, 3, 24, -27, -14, -4, 76, 32, -2, -15, -8, -48, -27, -8, -5, 18, 16, 1, -36, 16, -13, 61, -12, -9, 18, 9, 18, 25, 49, 0, 43, -4, 4, -3, 57, 17, 26, -12, 34, -30, 21, -18, -20, -3, -20, -19, -4, 17, -50, 57, -20, 26, -31, -54, -32, 53, -42, 1, 35, 0, -20, -22, -7, -33, 21, 14, -55, 28, 3, -21, -6, -7, 37, 23, -12, -40, 21, -1, 1, 0, -47, -27, 15, -44, -1, -10, 4, -2, -35, -51, 25, -1, 16, 19, -2, 19, -25, 60, 79, 30, 2, -21, 13, 5, -30, 51, 42, -47, 7, 25, 36, 39, -13, 28, 22, -6, -12, -26, -2, -22, -44, 26, -7, 3, -2, 17, 0, -27, -34, 9, 4, 26, -2, 52, 7, -37, -10, -22, -21, -31, 17, -40, 48, 14, -57, -14, -10, -64, 13, -2, -36, 17, 8, 0, -30, -7, 59, 30, 24, -11, 13, -1, 35, 1, 18, 6, 41, 33, 11, -43, 38, -42, 22, 23, 25, 19, -42, 28, -16, 44, -25, 48, -5, 20, 13, -14, 35, -29, 53, 16, 11, 10, -25, -10, 41, 43, -19, -35, 4, -18, 17, -23, 45, -3, 43, 21, 11, 14, 52, -21, 46, -7, -17, 47, -35, -14, 16, 4, 6, 4, 25, 13, -3, -56, -14, 23, -50, -1 ]

J. H. Gillis. J. Plaintiffs are citizens of South-gate, Wayne County, Michigan. They opposed a proposition in defendant city’s election, which was held on April 7, 1969. The proposition passed, and on May 2, 1969, plaintiffs filed a complaint in the Wayne County Circuit Court entitled “Complaint Objecting to Election”, seeking to invalidate the election for fraud pursuant to MCLA § 600.4545 (Stat Ann 1962 Bev § 27A.4545). The complaint was filed without obtaining leave of the court, but within 30 days of the disputed election. Defendant moved for summary judgment, alleging plaintiffs’ failure to comply with the statute by not seeking leave of the court to file the complaint. Plaintiff’s answer to defendant’s motion requested that the complaint be treated as an application for special leave to object to the election. The trial judge denied plaintiffs’ request, reasoning that he was without power to grant special leave, since the hearing on defendant city’s motion occurred more than 30 days after the disputed election. Summary judgment was entered in defendant’s favor and plaintiffs appeal. Two questions are presented: We quote the first from defendant’s brief: “May a private citizen bring an action alleging election fraud or error without obtaining special leave of court?” Our answer is that he may not. An action alleging election fraud under MCLA § 600.4545 (Stat Ann 1962 Rev § 27A.4545) is an action for quo warranto, an extraordinary writ. See Author’s Comments following GrCR 1963, 715, in 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 221. And although the forms of action have been abolished in Michigan, GrCR 1963, 110.3, the appropriate substantive remedy remains unaffected. See Committee Comment, OCR 1963,110.3. Where, as in the present case, plaintiffs seek to test the validity of an election: “To assail such proceedings [they] must do so in the manner pointed out by the statute. Youells v. Morrish (1922), 218 Mich 194, 197. The manner pointed out by the statute is as follows. We quote subparagraph (2) of § 4545 of the Revised Judicature Act (MCLA § 600.4545 [Stat Arm 1962 Rev § 27A.4545]): “Such action shall be brought within 30 days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or judge thereof. Such action shall be brought against the municipality wherein such fraud or error is alleged to have been committed.” (Emphasis supplied.) It is evident from the express language of the statute, italicized supra, that a private citizen must obtain leave of the court in order to contest an election. Only where the attorney general or the prosecutor on his own relation, or on the relation of any citizen of the proper county, institutes the action is leave unnecessary. Our construction is in accordance with OCR 1963, 715.2(2), which provides: “Actions by Prosecutor or Citizen. Other actions for quo warranto shall be brought by the prosecuting attorney of the proper county, without leave of court, or by any citizen of the county by special leave of the court or a judge thereof(Emphasis supplied.) And see 4 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 236: “Private citizens may bring actions for quo warranto only upon obtaining a special leave of the court.” The second issue raised on appeal is whether the trial court erred in ruling that it was without power to treat plaintiffs’ complaint as an application for special leave to challenge the election. Plaintiffs contend that defendant was not prejudiced by their failure to obtain leave of the court, since the action was brought within the 30-day period prescribed by statute. Defendant argues that, notwithstanding the absence of actual prejudice, the trial court correctly dismissed plaintiffs’ action since no application for leave was filed within 30 days of the election. On this issue, we side with plaintiffs. In Heidelmeyer v. Village of Oakwood (1923), 222 Mich 331, plaintiffs filed a bill in equity challenging the validity of an election. The trial judge dismissed the bill without considering the merits; he ruled that plaintiffs’ remedy was an action for quo war ranto and that an election could not be attacked in equity. An issue presented on appeal was whether the trial judge should have treated the bill as a proceeding in the nature of quo warranto, rather than dismissing outright. The Supreme Court held that the trial judge erred in dismissing’ the action, notwithstanding plaintiffs’ failure to proceed correctly. Although in Heidelmeyer plaintiffs had made a mistake, the Court was of the view that the procedural error was not one affecting the substantial rights of the parties, since plaintiffs had filed their action within 30 days of the election. Compare Finlayson v. Township of West Bloomfield (1948), 320 Mich 350, 355-358. In the present case, plaintiffs likewise filed their action within 30 days of the disputed election. Defendant does not contend that it was prejudiced because of plaintiffs’ failure to secure leave of court. We hold that the trial court should have disregarded the error. Heidelmeyer v. Village of Oakwood, supra; GCR 1963, 13. Plaintiffs’ complaint, although unauthorized, sought to accomplish something meaningful ; it sought to guarantee the purity of elections. Under the circumstances, the trial court should have allowed plaintiffs to amend their complaint, thereby requesting leave. See Author’s Comments following GCR 1963, 110.3, in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 181. The trial court erred in ruling that it had no power to do so. GCR 1963, 118.1; MCLA § 600.2301 (Stat Ann 1962 Rev § 27A.2301). Plaintiffs request that we remand for a determination on the merits. Such relief would, at this stage, be unwarranted. The trial court must first determine whether, treating plaintiffs’ complaint as an application for leave to contest the election, it should grant the requested leave. This matter rests within the sound discretion of the trial judge, since the grant or denial of leave to file in quo warranto is discretionary by the terms of GCR, 1963, 715.2(2). Cf. McDonald v. Jackson (1966), 3 Mich App 287. The judgment is reversed and the case is remanded for proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full. All concurred.

[ 2, 19, -30, -9, -11, 50, -2, -9, -26, 43, 9, -14, 5, 15, -19, -19, 28, 7, 30, -3, -37, -26, -7, 15, -3, -41, -8, 3, -20, -45, -38, -18, -31, -17, 23, -80, 30, -48, 18, -5, -22, -31, -2, 10, -34, -13, 1, 26, 15, 46, 25, 11, -61, 8, -21, -5, -15, -7, -22, -52, -30, 56, 13, 1, 27, -19, -25, 27, -10, -50, 1, 1, -27, -33, -33, 12, 9, -11, 1, 38, 30, 4, 22, -93, 20, 5, 0, 7, -10, -14, -19, 14, -53, -34, 55, -16, -2, -17, 42, 3, -14, 45, 8, -11, -8, 8, 29, -37, -30, -75, 3, -5, -22, 1, -7, 0, -1, 26, -27, -67, 29, 2, 17, 49, 1, 9, -6, 3, 16, -2, 28, 54, 72, -15, -7, 40, 8, -46, 49, -15, 19, 13, 24, -67, 43, -10, 39, 13, 20, -6, -25, 19, -29, 68, -33, 13, 14, -31, 46, 15, 33, 39, -56, -27, 16, -50, -36, 14, 65, -30, -2, -25, 4, -52, -13, -22, -21, 6, -14, -29, -22, 54, 22, -8, 10, -10, -19, -45, -10, -16, 72, -31, 22, 8, 15, 19, -1, 57, 15, -21, -18, -23, 6, -27, -22, -19, 53, -41, -11, -10, -36, -44, 2, -26, 43, -44, 46, -8, 1, 20, 15, 18, -22, 23, -1, 11, -4, -8, 11, 21, 29, 3, 54, 0, -11, -28, 10, -19, 23, 21, -33, 6, 29, 46, 25, 36, -12, -23, 0, 12, 73, 0, 8, -20, -47, 20, -61, -9, 25, 39, 4, 35, -44, -26, -74, -15, 35, 23, -20, 2, -26, 44, -15, -1, -26, -44, -10, -13, 21, -22, -25, -15, -21, 39, -18, 35, -17, -5, 29, 34, -60, -19, -36, 37, 8, 23, 32, -20, 27, -8, 6, 87, 12, 20, -34, -58, -52, -2, 5, -23, 59, 13, -12, -6, 25, 23, 36, -23, 24, -54, -12, 15, -3, 6, -69, 21, 29, -40, -36, -41, 32, 1, 10, -32, 50, 2, 16, 4, -39, -12, 45, -3, 0, 42, 29, 13, -4, -38, -31, 16, 17, -11, -23, -10, 9, 14, 0, -33, -65, -4, -18, 10, -16, 51, 37, 9, -6, -25, 16, 36, -64, -19, 10, 5, -19, -24, -41, 30, -26, 62, -2, -56, 8, -20, 15, -31, -4, -39, -14, -28, -53, -12, -17, 33, -7, -12, 3, -14, 1, 66, 14, 39, 0, 50, -55, -12, -16, 37, 9, 49, 23, 27, 3, -18, 8, -46, 43, 37, 67, -60, 9, -7, -54, -73, -18, 12, 25, 6, 47, 17, 30, -33, -5, -27, 19, 15, -30, -27, -31, 18, 34, 7, -4, -15, -18, -39, -18, 6, -19, 6, 39, 18, -15, -56, -2, 1, 29, -9, -17, -40, -37, -53, -67, 53, -22, 44, -7, 11, 14, 31, 26, 20, -11, 50, -92, -10, -56, 18, 10, -11, -25, 10, -27, -91, -12, -10, 20, 12, -8, 33, -4, 24, -1, 99, 1, 43, 3, -10, -2, 45, 21, 44, 15, 31, 43, -1, -13, -11, 0, 24, -31, -33, 7, 78, 4, 26, 17, -6, 8, -26, -24, -46, -33, -55, -34, 32, -5, -23, 9, -28, 18, 7, 9, 18, 4, 3, -3, -18, -17, -15, 50, 59, 74, 39, 45, -42, -65, -32, 51, 23, 38, -31, -72, -29, 20, 0, -33, 3, 27, -13, 4, -11, 34, 22, 13, -22, 22, -9, -15, 22, -2, 24, 37, 5, 11, 26, 42, 16, -1, -20, 25, -7, -14, -24, 35, -49, -31, -19, 23, -26, -3, -49, -25, -8, 54, 49, -30, -3, 24, -27, 35, 12, -43, 0, 17, -11, -22, 14, -10, -33, 8, 35, -23, -13, 23, 3, -36, -8, 15, 32, -8, -31, 35, 27, 10, -50, 41, -18, -36, -15, 14, 14, -30, -18, -17, -9, 8, 41, 24, -5, -6, 9, 38, -15, 8, -16, -9, -62, -9, -11, -4, 60, -11, -1, 6, -10, 14, -14, 24, -44, -14, -14, -20, -18, -24, 23, 25, 14, 0, 63, 37, -9, 45, -14, 23, -31, 18, 4, -15, 37, -35, -12, -15, 26, 33, -64, -4, -5, -18, -29, 16, -5, 28, -21, 9, 0, -24, 10, 39, -30, -1, 18, 24, 7, -54, 30, 31, -12, 43, 2, -25, -11, 10, -3, 12, -35, -11, 0, 7, 31, -41, 4, -15, -5, 41, 7, 0, -4, 40, 0, -1, 15, 16, -5, -25, 20, 37, 0, -39, 36, 30, -14, -6, -45, 57, 27, 11, 6, -14, 4, 10, -4, 44, 46, -29, -9, -18, 26, 0, -7, 30, 14, 46, -35, -2, -21, -1, 16, 33, -1, -2, -12, 41, -47, 29, 50, -5, -38, 22, -15, 33, 40, 20, -45, -2, -38, 11, 8, -20, -13, 0, -89, -22, -29, 0, 6, 29, -23, -21, 15, 31, -29, 34, 27, -32, 5, 0, 19, -8, 13, -26, 20, -16, -39, -37, -24, -33, 38, -20, -38, 21, -9, -28, 5, 1, 22, 7, 8, 19, 30, 15, 0, 55, -21, 9, -52, -13, 10, -24, 2, -7, -24, -41, -4, -6, 40, -56, -13, -2, -22, -10, 42, -36, 8, 26, 14, -5, -28, 5, 3, -1, 50, -9, -15, 6, -23, -4, -36, 32, 30, 40, -31, 7, 47, -2, 11, -9, -10, 0, -34, -35, 8, 24, 4, -21, -11, 23, -34, -55, 46, 67, 21, 38, 51, 5, 6, 17, -27, 6, -2, -14, -8, 13, -49, -19, -1, 21, -9, -69, 20, 8, -48, -17, -29, 18, -33, -18, 35, 31, -19, 14, -27, -41, -45, -40, -35, -13, 24, 38, 32, 2, -13, -68, 0, 4, -24, -10, -36, 23, 21, -17, -15, -34, -49, -19, 44, -72, 30, -38, 32, -38, -47, 61, 39, 12, 29, 22, -27, 8, -19, 7, 18, 54, 14, 34, -2, -12, -35, 5, 8, -13, 11, -6, -34, 4, 20, -29, 18, -4, 43, 26, -20, -18, -21, 48, -23, -14, -17, -52, -15, 62, 37, 29, -66, -3, 19, -18, -49, -19, 31, 54, 20, 41, -20, 29, -19, 35, -17, 13, 50, 0, -37, 58, 14, -37, 30, -16, 1, -45, -49, 1, 10, -9, 44 ]

Per Curiam. Defendant Yirlie E. McIntyre pleaded guilty to the crime of murder in the second degree contrary to MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). On appeal, defendant contends that she did not understandingly enter a guilty plea because, inter alia, she was not informed of the elements of first-degree murder. The appellee has filed a motion to affirm the conviction, GCR1963,817.5(3). A review of the plea transcript reveals that the trial judge fully complied with the requirements of GrCR 1963, 785.3 and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). People v. Carl (1968), 11 Mich App 226. The question presented here on appeal is unsubstantial and requires no argument or formal submission. The motion to affirm the defendant’s conviction is granted.

[ 20, 15, -5, -13, -23, -20, 25, -25, -42, 73, -7, -28, 22, -34, -9, -33, 27, 13, -20, -5, -30, -2, -78, 34, -37, -40, 1, 29, 19, 44, -21, 39, -56, -76, 39, -57, 13, 9, 26, 7, -16, 54, 19, -12, -71, -16, 14, -20, 12, -25, 29, 3, -14, 23, -11, 40, -2, -4, 2, 47, -8, 34, -63, -35, -62, -15, 3, 8, -26, 18, -21, 12, -29, -1, -15, 40, -11, 62, 29, 39, -23, 43, 10, -27, -2, -10, 0, -28, 35, -23, 36, 28, -42, -6, 11, -17, 8, -47, 28, -64, 6, 5, 41, 31, 8, -8, -21, 11, 39, 4, 4, -34, -9, -55, -13, -19, 53, 0, -81, -44, 6, 14, 56, 77, 8, -6, 13, 11, 0, 22, 11, 30, 13, -25, 31, 1, 2, -16, 50, 50, -8, 7, 35, 6, 33, 0, -3, -27, -17, 0, 27, 55, -33, -37, 1, -19, -4, -52, -23, 28, 9, 3, -21, 18, -6, -21, -17, 11, -8, -57, -6, -42, 59, 7, 39, -10, 16, -30, -15, 41, -21, 32, 11, -7, -36, 16, -38, 2, -29, -90, -39, 19, 22, -51, 60, 27, 5, 44, 13, 15, 7, -12, 30, 26, 0, -26, -53, -5, -13, -69, -14, -48, -65, 0, 0, -21, -14, -31, -28, 48, -64, -14, 40, -21, -18, -30, 8, 31, -30, 30, 30, -11, 6, 21, 16, 4, 17, 2, 41, 4, -22, -8, 55, -4, 46, 30, 7, 0, -38, -36, 59, -9, 35, 22, -40, -19, 34, -1, -47, -8, -11, 26, 25, 33, -96, 43, -50, -13, -63, -44, 15, 6, 26, 32, 2, -22, -16, 60, -19, -2, 18, 26, 17, -28, -57, 41, -57, 42, 29, 53, 39, -21, -53, 7, 59, 10, 5, -49, -64, -15, 48, -1, 17, -51, 27, 27, 58, -24, -35, -13, 7, 26, 21, -2, 41, 25, 1, -20, 52, 16, -50, -15, -2, -48, -2, 7, 15, -40, 10, -1, -60, 31, 12, 25, 18, 23, -6, 27, -10, 2, 52, -20, -24, -32, -22, -6, 9, 35, -25, -13, -9, -38, 11, -27, 24, -59, -1, -8, 29, -33, 5, 14, -24, -24, 16, 16, 20, 12, 28, 24, 5, -46, -13, 29, -13, -25, 55, -32, -23, 36, -28, -28, 15, -21, 27, -6, -12, -55, -11, 11, -33, -44, -4, -50, 13, 1, 26, -2, 12, -2, 8, -9, 19, 0, -42, -11, -24, -52, -8, 39, -27, 28, -12, 56, 21, -29, 30, -35, 84, -28, 5, -38, 31, 17, 13, 7, -11, 14, -16, -70, -9, 16, -1, -43, -7, 52, -34, 45, 69, 5, -5, -5, -10, -6, -8, -40, -32, 29, 1, -45, 6, 21, 24, -44, 12, 23, -27, 30, 4, -19, 45, -7, -26, 2, 38, 3, -18, 12, 50, -21, 8, 27, -20, 31, 31, 13, 19, 33, -5, 6, 30, -15, -38, -44, -26, -25, -13, -52, 37, -43, 1, 9, 3, -13, -17, 5, 16, -29, -11, 23, -41, -36, -8, 49, -3, -30, -16, 9, 65, 6, -20, 22, 3, 6, -3, -3, 20, -42, 3, 12, 40, -44, 2, 2, -14, 11, -24, -8, -5, 40, 40, -3, 23, -14, 55, 1, -27, -46, 10, 28, 25, 38, -22, -1, -7, 34, 4, 10, -9, 21, -28, -1, -44, -3, -13, -20, 27, 1, 1, -28, -25, 19, 50, 13, 37, -49, -12, -25, 53, 0, 28, 9, -35, 14, -20, -14, 8, 62, 13, 33, 60, 44, -6, -38, -30, -13, 12, 17, 0, -1, -82, 21, 64, -38, -15, -29, -65, -23, 6, 9, 15, 19, -54, 10, 28, 4, 35, 1, 36, -80, 26, -1, -11, 32, 7, -7, 12, -31, -5, -1, -3, 23, 3, -24, -37, -33, -42, 6, -28, 25, 31, -17, -19, -16, -14, 66, -16, 26, -36, -51, 0, 50, -4, 10, 46, -27, 49, 32, 5, 12, -17, 12, -32, -43, 16, -5, -16, 65, 3, -25, 44, 35, -7, -43, 35, 31, -5, 2, 33, 25, -32, 4, -8, -33, -14, 34, 5, 30, 15, -15, -15, -55, 0, -31, -4, -35, -10, 18, 7, -5, -32, 10, 61, -16, -15, -45, 46, 41, -25, 22, 39, 30, -24, 34, 21, -29, 21, -38, -14, 1, -82, 23, -7, 18, -15, 15, -43, -2, 4, 11, -11, 25, 42, 11, -5, -21, 21, -26, 91, 0, 46, -4, 54, 41, 52, -7, -22, -10, 14, 40, -6, -12, -75, -56, -4, -8, 14, -13, 7, -46, 19, 21, 4, 31, -24, 16, 72, -66, 0, 4, -39, 14, -24, 4, -17, 12, -24, 32, 3, 14, -18, 0, 17, 7, -36, 39, -10, -11, 21, 5, 40, -13, 9, -26, -16, -26, -22, -54, -26, -15, -8, 42, -22, 32, 30, 18, -6, 16, 5, 34, 17, -17, 2, -10, -27, 6, 5, 9, -8, 58, 72, 18, -42, -16, 20, -40, 39, -54, -14, 18, 24, 46, -2, -25, 41, -43, 55, -17, -2, -23, 0, -5, -14, 36, -35, -14, 23, -11, 13, -20, -34, 7, 22, 14, -1, 28, 41, 2, 39, 22, 31, -33, -21, -56, 8, -27, -31, 32, -21, 0, 31, 20, -44, -29, -5, 27, 5, -13, 29, -44, -8, 11, 4, 4, 12, 30, -40, 3, -31, 54, 17, -23, 10, 9, 9, -28, -31, -18, -46, -8, 46, 27, 0, 38, -36, -13, 16, -16, -5, 4, 32, -3, 8, -3, 12, 24, 23, 31, 11, 64, -30, -7, 19, 5, -3, 2, -41, -55, -9, 13, -12, 45, -1, -2, -2, -16, 24, -44, -54, -9, -13, -33, 19, -55, -22, -10, -10, -53, -39, 22, -20, -1, -21, -19, -17, 35, -59, 17, -1, -14, 23, -48, -40, -2, -17, 5, 22, -22, -54, -8, -25, 40, -14, 11, 61, -3, -36, -5, 52, 26, 1, -29, -11, -21, 47, -9, -6, -10, 19, -62, 46, -43, -1, -16, 14, -4, 12, 5, -15, -50, 49, -55, 17, -32, -16, 6, 12, -30, -11, -17, -32, 43, 4, 26, -28, -15, -6, -11, -22, 13, 1, -7, 29, -23, -1, -4, 0, 6, 9, 43, -18, 37, -29, 3 ]

Per Curiam. Defendant, Ernest G. Pullen, Jr., was driving his automobile in Van Burén County when, on May 20, 1967, he struck and killed Catherine Morrice. Defendant was charged with two counts of manslaughter: Count I for negligently driving a car while under the influence of intoxicating liquor; Count II for operating a motor vehicle recklessly at a high rate of speed, to-wit, 70 or 80 miles per hour in a 25-mile-per-hour zone. Defendant filed a motion requiring the prosecution to elect between Counts I and II of the information or alternatively to quash the information. As a result of that motion the information was amended to read as follows: “Heretofore, to-wit: on or about the 20th day of May, 1967, at the city of Hartford, in the county of Yan Burén, Ernest G. Pullen, Jr., late of the city of Hartford in said county, did then and there unlawfully and negligently drive a certain motor vehicle, to-wit: a 1966 Chevrolet Sport Coupe, Michigan license SP9121, upon a public highway of this state, at East Main and Wendell Street, in the city of Hartford, Yan Burén County, Michigan, while under the influence of intoxicating liquor, and/or while driving said motor vehicle recklessly at a high rate of speed, to-wit: 70 to 80 miles an hour in a 25 mile an hour zone, and while so unlawfully and negligently operating his motor vehicle as aforesaid, did negligently and unlawfully drive said vehicle upon and over one Catherine Morrice, who was then and there lawfully in said highway, and did inflict grievous wounds upon the body of the said Catherine Morrice, as a result of which said Catherine Morrice did then and there die, and wherefore the said Ernest G. Pullen, Jr., did unlawfully kill and slay the said Catherine Morrice, and did then and there commit manslaughter.” At a trial before jury in Van Burén county circuit court, defendant was found guilty. From this verdict, defendant appeals. At trial there was testimony to the effect that Catherine Morrice died as a result of being struck by a motor vehicle. It was further established that the defendant was the driver of the motor vehicle which struck the deceased. There was testimony that the defendant had been drinking prior to the accident. An expert witness testified that analysis and tests of defendant raised the presumption that he was under the influence of intoxicating liquor at the time of the accident. There was testimony at trial by the defendant that he had consumed a minimum of four to five beers the afternoon of the accident. There was testimony by an eyewitness who estimated the speed of defendant’s automobile at over 50 miles per hour. During the trial a medical pathologist was called as an expert witness and questioned regarding injuries sustained by the deceased. In the course of this examination the prosecution asked Dr. Glaser whether the injuries could have been caused by an automobile traveling at the speed of 25 miles per hour. Defense counsel objected to this question, and the objection was sustained by the court.. Before the medical pathologist was excused from the stand, the following exchange took place: “The Court: I have one question that I would like to ask you, Dr. Glaser. There has teen testimony in this case estimating the speed of this vehicle at fifty miles per hour. “The Witness: Yes, sir. “The Court: Now, based upon that and upon your examination of the body and your experience would you have an opinion amounting to a medical certainty that this body being struck by a motor vehicle at that rate of speed could or would sustain these injuries that you discoveredf “The Witness: It would be an estimate, your Honor. “The Court: Well, do you have an opinion as to whether it could or not? “The Witness: Yes, sir, I do, I think this is slow. “The Court: All right. “The Witness: I think the speed was in excess of this. “The Court: All right. “The Witness: Based solely upon my observations, yes, sir.” (Emphasis added.) Non-eyewitness expert opinion on the issue of speed of a vehicle in a criminal prosecution is admissible where speed is a material factor to the case being tried and where the expert is competent, has conducted scientifically-recognized tests based on the facts presented, and does not invade the province of the jury, by testifying as to the cause of the accident or liability therefor, and the jury, because of its inexpertise, would require such testimony so as to effectively interpret complicated facts in issue. People v. Zimmerman (1968), 12 Mich App 241; see, also, 2 Wharton’s Criminal Evidence (12th ed), § 553, p 416; 31 Am Jur 2d, Expert and Opinion Evidence, §§ 16, 157 pp 511, 719; 29 ALR3d 258; 8 Am Jur 2d Automobiles and Highway Traffic, §§ 981, 984, 992, pp 531, 536, 547. The determination of whether a witness has the qualifications of an expert is a question for the trial court. We will intervene only where such determination evidences a clear abuse of discretion. People v. Hawthorne (1940), 293 Mich 15; Accetola v. Hood (1967), 7 Mich App 83; Brummitt v. Chaney (1969), 18 Mich App 59. In the present case the trial judge refused to allow the prosecution to establish the speed of defendant’s automobile solely from conclusion of the pathologist based upon postmortem examination. However, upon questioning by the trial judge, Dr. Glaser was asked, after having been informed that testimony had been received estimating the speed of defendant’s automobile at over 50 miles per hour, whether a person struck at that speed would sustain the injuries suffered by the deceased pedestrian. The doctor testified that the approximated speed was, in his opinion, too slow. Dr. Glaser’s testimony was corroborative of the prior testimony. Assuming, arguendo, that the admission of the doctor’s testimony was erroneous, that erroneous admission would not require reversal, as that evidence was cumulative to evidence properly received by the court. Ford v. Maney’s Estate (1930), 251 Mich 461; People v. Kregger (1953), 335 Mich 457; People v. Wolke (1968), 10 Mich App 582. Affirmed. MOLA § 750.321 (Stat Ann 1954 Rev § 28.553).

[ -8, 51, 20, -30, -24, -44, 14, 1, -3, -3, -32, -38, -5, -38, 23, -12, 53, 0, -14, -4, -20, -48, -28, -11, -3, -39, 35, 1, -26, 7, -26, -9, 12, -50, 20, -28, 28, 18, -15, 41, -46, -9, 5, 3, 8, -5, 26, -53, 20, -3, -29, 16, -13, -18, 0, -5, 19, 29, -10, 64, 20, -7, -11, -14, -54, 30, -3, 59, -22, 20, 15, -15, -47, 39, 0, 3, 34, 17, 9, -10, -37, 27, 44, 73, -10, -48, -65, -33, -36, -42, 11, -23, -12, -34, 13, -4, -35, -55, 36, -43, -25, 8, 36, 22, 1, -26, -18, -19, 23, -36, 36, 33, 45, 23, -12, -27, -4, -10, -10, 0, -11, -40, 38, 26, 2, -59, -5, -11, 22, -12, 43, 27, 25, -55, 27, -31, -40, -35, -31, -10, -29, 8, 26, 24, 17, 28, 23, 21, 16, 23, -40, 31, -2, -19, 27, -12, 39, -32, -21, 29, -24, -11, 53, 3, -53, -14, -67, 7, -36, -16, -2, -12, 44, -8, 79, 16, -6, 7, -28, 69, 1, 30, -4, 19, -39, -30, 1, 24, -23, -15, -16, -4, 6, -56, -2, 65, 10, 15, -2, 52, 22, -10, 26, -39, -20, -8, -42, 3, -8, 12, 38, -46, 0, 19, -23, -9, 1, -53, 2, 4, -28, 28, 30, -18, 15, -24, -37, -6, -34, 0, 64, 0, 24, 9, -43, -38, 15, -8, 15, 17, -4, 5, 32, 2, 39, 44, -12, -66, -27, 32, 11, -38, -1, -12, -28, -6, 68, -1, 32, 29, 19, 13, 23, 65, -43, 36, -9, 6, -36, -33, -15, -55, -3, 5, -50, -4, 12, 51, 8, -14, 29, -18, -25, -36, 9, 26, -44, 42, -25, 10, 26, -26, -34, 4, -16, 24, 51, -35, -34, -2, 23, 9, 21, 40, 3, -8, -14, 3, 8, -9, -20, -18, 0, 21, 22, -1, 26, -10, 57, -1, -42, 16, -18, -4, -24, 33, 21, -6, -35, 35, -4, 26, -14, 12, -10, -78, -24, 23, -10, -9, 10, -45, -42, 46, -30, 4, 31, 46, -60, -39, -35, -13, 79, -8, -54, -24, 25, -25, 44, -20, 0, -13, -21, 69, 1, -8, 8, -31, -15, 52, 6, -11, -16, 9, -22, -4, 47, -10, 9, 59, 19, -14, -23, -32, -7, 57, -34, -32, -22, 17, -18, -8, -20, -37, -1, -33, 11, -7, 15, -33, 7, 31, 27, -23, -25, 30, -61, 30, 41, -18, -34, -55, 73, 18, 44, -2, 5, -3, -14, -56, 5, 42, 27, -34, 19, -11, -19, 21, 21, 25, 52, 22, 56, 0, -7, 1, -30, 0, 92, -18, -14, -39, 16, 9, 9, 12, -2, 30, 36, 1, 62, -4, 23, -9, -38, 42, 49, 35, -31, 16, -13, -9, -27, -46, 16, 33, -33, 5, 31, -67, -3, -8, -18, 8, 8, -25, 13, 4, 12, -3, 13, 0, 26, -43, -20, -22, -38, -26, -2, -6, 25, -15, -32, 0, -30, -5, -7, 41, -18, -37, -24, -24, -27, 32, -5, -40, -45, -11, 17, 33, 11, -8, -15, -5, -5, -15, 14, -20, 36, 29, -1, 24, -4, 15, -13, -19, 46, -10, -35, -57, 39, -15, 12, -10, 48, -6, -43, -28, -51, -36, 58, 19, 13, 17, -29, -29, -37, 11, 10, 14, -6, 12, -46, -63, -7, -16, 44, -12, -29, -6, -10, 3, 4, 27, 14, -28, -7, -39, 59, -53, -6, 20, -13, -13, -20, 49, 19, 3, -33, -3, 15, 43, -25, 62, -24, 1, 23, 35, -3, -29, -28, 56, 10, 15, 68, -6, -12, -8, -34, -48, -12, 30, 15, 83, 69, 0, -11, -6, -12, -39, 37, 21, 1, 47, 0, 0, -24, -55, -24, 13, 24, -3, -10, 39, 24, 2, 24, 15, -13, 39, -43, 14, -34, 15, -31, 30, 32, 35, -22, -65, -11, 15, 10, -16, 11, 11, -9, 34, 11, -20, -55, -19, -13, 0, -24, -22, 17, -17, -26, 3, 25, 27, -50, -14, -18, -2, -71, -24, -15, 3, 34, -8, -7, -32, -2, 24, -8, 37, 41, 10, -21, -50, 11, -18, -21, -1, -18, 21, 37, 4, -30, 46, -35, 22, -43, -2, 9, 16, -25, 9, 37, 36, -16, 31, -42, 9, 52, -61, -60, 10, -60, -13, -8, -4, -14, 8, 25, -17, -30, -6, -29, 4, -7, -58, 0, 37, -27, -16, -13, 0, 56, -12, 14, -3, 55, -25, 8, -1, -43, -13, -20, -20, 0, -1, -15, -40, -28, 32, 3, 18, 5, 93, 67, -21, -37, 10, 88, 9, -36, -34, 19, 0, 0, 29, -35, -7, -51, 32, 34, 38, -44, 0, 27, -38, -61, 11, -62, -13, -18, -13, -9, -1, 20, -20, 44, -3, -50, -8, 14, -3, 29, -3, 12, 48, -24, -8, 21, 31, 21, -4, 2, 61, 13, 36, 19, -26, 45, 35, -3, 28, 46, 45, -12, -29, 3, 15, 12, -42, -35, 4, 51, -21, -12, -2, 26, -14, 19, -13, -3, 7, 42, 12, -14, 4, -25, 10, 34, 6, -8, 5, -10, 65, 0, 18, -31, 22, 62, 45, 6, 38, -8, -38, -19, -11, -1, 21, -23, -2, -18, 44, -9, -53, -45, -32, -25, 33, 18, 27, -28, 17, -54, 4, 26, 82, -15, 15, 13, -15, -9, 17, 30, -62, 34, 15, -1, 21, 8, -19, 0, -14, 29, 0, 0, -23, -61, -7, -7, 29, 4, -47, -9, 4, -39, 6, -13, -48, 10, 10, 13, -13, -9, 3, -3, 40, -19, 1, -43, -6, 12, -47, 27, 9, 5, 24, 14, -2, -8, -28, -44, 0, -23, -35, 25, -37, 6, 25, 14, -23, 19, -28, 12, 24, -53, 40, 35, 5, 34, -30, -17, 21, 12, -17, -11, 38, 40, 21, -26, 5, -19, 57, -4, 3, 40, -4, 42, 19, -1, 8, 36, 72, 5, 8, -13, 20, 68, -52, 45, 53, 8, -27, -13, -21, -8, 39, 32, -17, -29, -14, -62, 33, -36, -51, -4, 29, -30, 20, 8, 5, -7, -21, -23, -40, 1, 53, 17, -42, -5, 14, -6, 23, -50, -12, -46, -33, 6, 36, -24, 4, -17, -10, -47, 43, -45, 27 ]

Y. J. Brennan, J. This is an action to enjoin the State of Michigan and its agents from interfering with a guardian’s general access to the medical records of her mentally incompetent ward. The trial court entered the injunction sought by the guardian, subject to the outcome of this appeal by the state, and we affirm. The records in question involve the treatment of the ward as an in-patient of the Lapeer and Fort Custer State Home and Training Schools between 1959 and 1968, and are presently in the possession of the latter home. In April, 1968, the guardian’s attorney requested copies of the records, submitting with the request a consent and waiver of the physician-patient privilege, signed by the guardian. The officials at the Fort Custer State Home forwarded the request to the Department of Mental Health, which in turn forwarded it to the Attorney General. The Attorney General, through his assistant, advised the Department of Mental Health to deny the request. The request was denied. The state’s principal contention, both below and on appeal, is that the physician-patient privilege created by MCLA § 600.2157 (Stat Ann 1962 Rev § 27A.2157) bars a guardian’s general access to the hospital records of his mentally incompetent ward. This contention is without merit. Clearly, the purpose of the statutory privilege is to protect the confidential relationship between a physician and his patient. However, the privilege belongs not to the physician but to the patient, Harvey v. Silber (1942), 300 Mich 510, 517, and may be waived by the patient. Storrs v. Scougale (1882), 48 Mich 387, 395. Thus the only question is whether the privilege may be waived by the patient’s guardian. It has been held that those who represent a patient’s interest after death may waive the statutory privilege. Harvey v. Silber, supra, at 518; Fraser v. Jennison (1879), 42 Mich 206. See Bassil v. Ford Motor Co. (1936), 278 Mich 173; In re Oldenberg’s Estate (1913), 177 Mich 150. Moreover, the guardian of a mental incompetent enjoys a relationship with respect to the affairs of his ward similar to that of the administrator and his decedent’s estate. Under the probate code, MCLA §704.2 (Stat Ann 1962 Eev § 27.3178[252]), the guardian of a incompetent is included within the term “fiduciary”. The statute provides: “Every fiduciary shall stand in a position of confidence and trust with respect to his cestuis que trustent, heirs, devisees, legatees, beneficiaries or wards, as the case may be, and except in response to any legal process or in cases expressly required by law or in the necessary or proper administration of the estate, no facts or knowledge pertaining to their property in his hands or to their affairs shall be disclosed by the fiduciary in any manner except with the consent of the cestui, heir, devisee, legatee, beneficiary or ward: Provided, however, That such consent may be given by the fiduciary of a minor or incompetent, in behalf of such minor or incompetent: And provided further, however. That such restriction shall not apply in any suit or proceeding in which the fiduciary and the cestui, heir, devisee, legatee, beneficiary or ward, as the case may be, are parties adverse to each other.” (Emphasis added.) In OAG 1941-1942, No 21030, pp 327, 328 (September 3, 1941), the Attorney General advised officials of the Traverse City State Hospital that this section of the code authorizes a guardian’s waiver of the physician-patient privilege: “In our opinion, the foregoing section of the statute gives the guardian authority to waive the privilege created by the general statute. This is a wise rule for there are often instances in which it is necessary for disclosures to be made in order to enforce certain rights to benefits due to the ward’s estate. The incompetent being incapable of making such disclosures, it seems just that his guardian should be permitted to act for him. “Accordingly, it is our opinion that you are within your rights in granting requests for full transcripts of the records of insane patients in yonr hospital if such requests are accompanied hy the written permission of the guardians of the patients involved.” (Emphasis added.) We concur with this analysis. The physician-patient privilege does not bar a guardian’s general access to the hospital records of his mentally incompetent ward once the guardian has executed a valid consent and waiver of the privilege. A secondary contention of the state involves the service of process in starting this action. The summons and complaint named only the State of Michigan as a party defendant and were served on both the Attorney General, personally and his assistant as agents of the state. Neither the director of the Department of Mental Health nor the superintendent of the Fort Custer State Home and Training School was named as a party, although the Attorney General filed an appearance in behalf of both. The state contends that under GCR 1963, 205.1 both the director and the superintendent are necessary parties to this action, that under GCR 1963, 201.3(5) both must be named as parties defendant by either their official or their own name, and that service upon the Attorney General alone was therefore insufficient. We do not agree in the first instance that the director and superintendent are necessary parties. Under GCR 1963, 205.1, a necessary party is one whose “presence in the action is essential to permit the court to render complete relief.” Although only the state was named as a party here, the director and the superintendent are but agents of the state and therefore are bound in their official capacity by any determination that might be made. Complete relief may be had without their presence. And, we add in passing, we are unable to say that the Attorney General, either personally or by his assistant, was not the person upon whom service against the state was to he made. See Edward Thompson Co. v. Maynard (1934), 269 Mich 97. The Attorney General’s reliance on GCR 1963, 201.3 is misplaced. The rule allows suit against the state or one of its units either in its own name or in the name of the officer authorized to he sued in its behalf unless the suit is brought to compel the performance by the officer of an official duty, in which case the officer must he named, at least by his official title. The instant suit was brought not to compel the performance of an official duty, hut to enjoin the state and necessarily its agents from interfering with the plaintiff’s right of access. It was not necessary to name the director or the superintendent as parties. The order enjoining the state and its agents from interfering with plaintiff’s right of access is affirmed. All concurred.

[ 22, 1, -19, 61, 11, 21, 24, 49, -48, -4, -25, -20, 78, 3, -4, 4, 12, 23, -47, -17, 45, 30, -48, 11, 10, -12, 34, 36, -53, 10, -1, -3, 0, -7, -22, -4, 64, -29, 53, 47, 19, 1, 33, -10, -40, -39, 7, 28, 0, -43, -3, 14, -10, 10, 3, 27, 28, -30, 19, -29, -84, -19, 61, -33, 45, 62, 6, -14, -36, -16, 0, 33, -43, -30, -6, 20, 51, 14, 87, 19, 80, 6, 17, 6, 44, -5, -6, 45, -28, -29, 16, -48, -40, 4, -7, 28, -17, -11, 76, -26, -31, 57, 43, -2, 26, -1, -2, 11, 34, -33, -47, -38, -55, -28, 6, -12, -15, 53, -29, 43, 12, -58, 31, -24, 36, -24, 23, -33, 52, 0, -39, 22, -14, 11, -42, 42, 25, -51, 61, -31, -37, -15, 50, 14, 3, -41, 15, -73, -13, -36, 13, 36, 5, 0, 11, 0, -7, 21, 15, 51, -25, 11, 46, 12, 27, -32, -1, 35, 32, 2, 7, 72, -28, -23, -48, -23, 7, 55, -29, -5, -35, 19, 52, -21, -14, -28, 8, -47, 3, -32, -32, 3, 33, 10, 19, 55, -26, 22, -9, -25, -7, 33, -9, 52, 59, 0, -25, -68, -10, -26, 5, 33, -33, -27, 31, -35, 29, 15, -66, 15, -18, -5, 48, 32, -9, 18, 14, -41, -17, -71, 33, 65, -12, 58, 1, 12, -5, -4, 64, -8, -38, 26, -4, -5, -6, 10, 6, -20, -14, -33, 31, -9, 1, -45, -81, 6, -10, 28, 18, -35, -33, 25, -48, 65, 13, -6, 28, 25, 52, -43, -63, -1, 29, -9, -39, -19, 26, -16, 27, -43, 6, -29, 6, 3, -17, 19, -33, -25, -10, -9, 25, -56, -41, -9, 19, 14, 25, -65, -52, 24, 0, 28, -9, 40, -33, -52, 16, 24, 42, -9, 35, 44, -26, 18, -42, -5, -18, -65, -9, 4, 32, 20, -59, 35, -36, -6, 16, -44, -1, 2, 26, 35, -7, -7, -14, 10, -34, -51, 2, 8, 32, 2, 7, -3, -35, -27, -28, 10, -32, -11, -13, 35, 2, 20, 20, 17, -13, -55, -27, -12, -22, -14, -32, 46, -25, 9, -8, -35, 57, 49, 24, -19, 3, 5, -31, 6, 29, -30, -7, 25, -24, 10, 15, 8, -22, 41, -83, 70, 50, 43, -11, -11, 3, 31, -9, -9, -10, 44, -4, -30, 44, 32, -31, 74, 61, -25, 12, 4, 48, 56, -37, 53, -11, 31, 16, -4, 58, -20, 13, -33, -1, -5, -56, -21, -4, 7, -21, 39, -27, 28, -16, -56, 11, 7, 41, -55, -5, 5, 12, -15, 4, -40, 0, 15, 23, 38, 17, 21, 29, -35, -10, 76, -26, -1, -47, -9, 20, 12, -80, -33, -33, -50, -4, 5, -5, 41, -14, -20, 30, 7, -36, -4, -27, 26, 7, -11, -10, 25, -25, 20, -41, 23, -13, -30, -12, 11, -38, -7, -3, -44, -24, -49, -64, 66, 54, 4, -20, 5, -26, -7, 52, 17, -18, 72, 45, -70, 14, -22, -34, -26, -27, -25, -11, 49, -20, 20, 59, -79, 28, -16, 28, 37, 18, -22, -13, -25, -19, 6, -1, 5, 21, 37, 58, 21, -34, -36, 4, 74, -27, -26, 16, 3, -6, 23, 34, -30, 7, 27, -3, -20, -48, -16, -25, 26, 6, -25, 12, 36, 25, -2, -47, -45, 34, 0, -32, 3, -40, 26, 31, -26, 46, -32, -22, 13, 21, 38, 48, 15, -18, -29, -19, 23, 70, 11, -47, -31, -6, -51, 13, -23, 20, -43, 4, -5, 9, 9, -11, -34, 2, 40, 24, -15, 14, 10, -21, 53, 26, -18, 39, -67, -14, 0, -39, -60, -77, 28, -18, -26, -13, 56, -40, 2, 12, -17, 42, -33, 12, -3, -14, -7, 2, 3, 24, -34, 37, 9, -28, -24, 16, -14, -6, 31, -23, -1, 60, 32, 107, -36, 4, -2, -54, 88, -75, 22, -22, -21, 21, -18, 60, 30, -3, -31, -51, 26, 15, 65, -4, -19, -4, 20, 33, 48, -21, -9, 29, -37, 21, -4, 55, -34, -83, 12, 44, 28, 43, 0, -29, 10, -11, 5, -6, 5, 26, -11, 14, -63, -57, 51, 25, 10, -43, 13, -33, 37, -58, -7, -33, -39, -44, -38, -9, -4, -16, 20, 42, 8, -18, 7, 16, -9, -32, -23, 6, -10, 26, -21, -6, -21, -23, -55, -17, -59, -3, 27, -15, 31, 11, 33, 2, 0, 28, 49, -10, -5, 35, -21, 41, -35, -5, 20, 3, -23, -40, 45, -20, 10, 13, -5, 15, 31, 2, 23, -41, -84, 25, -12, 7, 40, -43, 8, 37, -10, -29, 1, -43, -29, -71, -31, 7, -13, -3, -33, -20, -17, 9, -46, 0, -33, -13, 10, 6, 8, -44, -27, 67, 26, 38, -40, -18, -16, 71, 34, -1, 27, -8, 13, -36, 5, -17, 23, 81, 12, 28, -29, -22, -61, 35, -5, -9, 0, 63, -27, -39, 8, -28, -2, 15, -11, -16, -8, 1, 31, 13, -36, 37, -28, -6, 5, 2, 37, -9, -13, -2, 25, 5, -28, 27, -29, -1, -25, -6, -7, -27, 21, 16, -55, 12, -64, 34, 28, -32, 47, -9, -23, 23, 34, -45, -18, 83, -31, -46, 13, 10, -24, -33, -7, -2, -35, -26, 50, 32, -14, -31, -31, 30, 31, 32, -24, -40, -20, -1, 23, -15, 49, -36, 9, 26, 39, 5, 17, -2, -45, 22, -1, -26, 44, -8, -1, 24, -42, -18, -16, -8, 16, -2, -4, -18, 18, 11, 24, -38, 14, 9, -28, -5, 12, 6, 3, -53, 23, 17, -41, -5, -30, 78, -13, 64, 1, -44, -7, 24, -5, -50, 15, 8, 23, 26, -25, -1, 18, -27, -57, 8, -34, -56, 75, 2, -30, 15, 16, -49, -22, -39, 31, -5, -43, 23, -24, 29, 43, 13, 14, -70, 34, -10, -1, -38, -3, 5, 62, -52, -33, -17, -11, 16, 22, -22, 19, -4, -39, 18, 31, -90, -7, 40, 41, -9, 2, 81, 36, 1, -20, -26, 35, -21, -14, 18, -44, -5, -5, 74, -31, 74, -43, -21, -56, 1, 22, -58, -10, -10, -14, -3, 35 ]

Per Curiam. The defendant appeals his conviction by a judge sitting without a jury of entering or breaking into an automobile for the purpose of stealing property worth at least $5. MCLA § 750-.356a (Stat Ann 1954 Rev § 28.588[1]). The trial judge’s questioning of the defendant and another witness in this nonjury case did not exceed permissible bounds under the standard enunciated in People v. Wilder (1970), 383 Mich 122. A police officer testified that he saw the defendant enter and leave an automobile, and that when he apprehended the defendant shortly thereafter, he had with him a raincoat. Another witness testified that it was his automobile and his raincoat, the latter having been purchased a short time before for more than $5. The officer also testified that the value of the raincoat exceeded $5. The people’s evidence of value was not doubtful as in People v. Hanenberg (1936), 274 Mich 698, where there was a close question concerning the value of property over two years old at the time of the alleged crime. There was sufficient evidence of value even though the defendant said he had purchased the raincoat for less than $5. While the trial judge, in finding the defendant guilty, did say, “I could be wrong,” he also said that he found that the people had established their case “beyond a reasonable doubt”. The judge’s recognition that even though he was convinced beyond a reasonable doubt he could be mistaken is an acknowledgment of the obvious. Absolute certainty is not required, only that the trier of fact be convinced beyond a reasonable doubt. And the record affirmatively shows that the judge applied the reasonable doubt standard. Affirmed.

[ 14, 39, 2, -29, -30, -7, 31, 3, -21, 55, 66, -32, 12, -22, 1, -35, 22, 39, 76, -46, -21, -27, -50, 21, -21, -36, 31, 30, -52, 95, 17, 11, 19, -38, -13, 24, 8, 1, 0, 30, -6, -19, 21, -10, -36, -38, -43, -21, 15, -30, 21, -23, 22, -16, 37, 52, 39, 36, -17, -4, 32, 13, 5, -40, 9, 27, -33, 5, -37, 17, 17, -6, 4, -23, 11, -16, 30, 46, -22, 32, 7, -17, 29, 39, 46, -23, 32, -41, 10, -44, -30, 32, -4, -31, -20, -33, 48, -35, 53, -14, -69, -35, 15, 47, 6, 49, -64, -25, -44, -42, -7, 17, 39, -8, 0, 5, -23, -3, 24, -23, 17, -9, 33, 29, 20, -58, 28, -13, -24, -8, -4, 28, -11, 9, -3, -25, -13, -9, -25, 16, 32, 29, 6, 5, -3, 8, 25, 10, -15, 35, -33, 31, -9, -8, 8, -21, -58, -66, 7, -25, -31, 29, -42, -8, 26, -20, 11, 7, -10, -52, 10, -10, 44, 11, 58, 7, -20, -3, 9, -21, -25, 27, -5, 27, -17, -18, -33, 18, -13, -11, 9, 38, -27, -7, 23, 15, 11, 10, 39, -59, -25, 0, -3, 1, 11, 31, 20, -61, 13, 18, -21, 48, 42, -58, 10, -17, 3, -30, -27, -12, -8, -20, -16, 12, -10, -40, -10, 33, -2, 19, 10, 3, -4, -22, 25, 16, -11, -28, 7, -5, -17, -18, 19, -11, -5, -17, 10, -15, 30, 43, -18, -8, 5, 41, -40, -21, 29, -18, -4, 38, -28, 54, -21, 31, -53, -11, 18, 25, -48, 18, 3, 27, -31, 20, 12, -33, -56, 1, 0, -13, 0, -19, -5, 4, 22, 23, -21, 9, 58, -21, 50, 5, -41, -23, 11, 21, 24, 15, -39, 23, 9, 2, -12, 12, -2, -25, 22, 5, -65, 40, 5, 21, 0, 78, 32, 25, -31, -20, 13, -16, -50, -18, -28, 1, 9, -18, 47, -53, 0, -29, -13, 16, -16, 12, 32, -21, -1, -13, 4, 25, 13, -1, -4, -47, 36, 25, -30, 29, -62, -16, 24, -4, 9, 5, 0, -47, 5, 11, 18, -11, 47, 19, 5, 9, 18, 31, -31, -42, -16, 11, 36, -71, -28, -6, -6, -37, 35, -12, -39, 14, -18, -47, 4, -26, -16, -8, -22, -58, -41, 7, -54, 3, -4, -1, -8, 36, -9, -24, 34, -32, -61, 26, 20, -3, -28, -28, 10, 28, -21, -8, -27, 27, 50, 34, 7, 1, 58, 16, 21, -50, 0, -5, 22, 0, 24, -30, -43, 18, -22, -15, 49, -10, 0, -30, -1, -6, 11, -42, 12, -9, -13, 20, -25, 23, 42, 13, 7, 2, -9, 13, 23, -46, 36, -37, -2, 49, 48, -32, 25, 7, 18, -15, -6, -21, 36, -35, -48, -32, 70, -21, 56, 22, -7, 9, -26, 11, -3, -14, -14, 12, -10, 17, 22, -30, -15, -28, -37, -27, 46, 44, -26, 8, 23, -7, 28, 2, -14, 2, -7, -7, -30, 13, 8, -8, 9, -26, 4, -33, 37, -6, 24, 36, -30, 23, -47, -29, 4, -3, 37, 61, 12, -60, 1, -1, 4, 16, -23, -17, -40, -20, 17, 18, 1, -46, 62, 23, 15, -29, -15, 1, -21, 32, -24, -15, -7, -14, 36, -52, -6, 13, -3, 20, -12, -6, 17, -37, 13, -5, 15, 7, -9, 33, 49, 19, -5, -3, -2, 11, 55, -10, -9, 4, -12, -18, -25, -1, 13, 4, -12, 45, 23, 56, -2, -8, 6, 35, 10, 28, 3, -16, -34, 17, 23, -15, -39, -27, -31, -41, 23, 13, 14, 17, -30, -7, 70, -33, -17, -8, -39, -5, 67, 19, -11, -29, -8, 11, -44, -14, 34, 6, 19, -26, 10, -21, -5, -36, -17, 30, -39, -65, -36, -66, -6, 22, 2, 27, 33, 12, -78, -13, -17, 2, 10, -40, 0, 8, -20, 8, 10, -63, 25, -10, -6, -41, 43, 10, -14, -14, 8, -23, 39, 25, -67, -13, -26, 46, -38, -7, -13, 12, -3, -52, 0, 15, 18, 52, -14, 21, -9, 16, 5, -66, -2, 1, -4, 24, -49, 40, 57, -39, -8, -4, 56, -29, 28, -32, 42, 16, -17, -32, 16, -58, -10, -34, -15, 16, 37, 9, -52, 35, -64, 41, -44, 27, -27, -39, -17, 26, -15, 34, 5, -31, 33, 0, -6, 36, 23, 0, -1, -6, 22, -8, -7, -11, -29, 32, 2, 25, 0, -55, -57, 61, 79, -8, -48, -3, 57, -17, -11, 19, 18, 16, 71, 12, -22, 55, 15, 39, -3, -63, -5, 56, -58, -30, -6, 32, -29, -52, -6, 55, -51, -56, 44, 2, -13, 11, -19, -18, 66, -8, -45, 11, -46, 39, -13, -5, -37, -48, -11, 3, 43, 9, -47, 27, 19, -9, 16, -3, 36, -20, 32, 19, 19, -37, -29, -2, -7, 6, 16, -17, 84, -10, -13, -62, 39, 30, 39, 0, -33, -41, 39, 6, -24, -26, -15, -11, 11, -79, -1, 6, 3, -26, -11, 68, -52, 8, 13, -25, -5, -5, 0, 11, -16, 50, 47, 35, -11, -24, -11, 29, 39, 30, 11, 40, -10, -25, -16, 52, 34, -16, -34, 15, -31, -2, 35, 0, 21, -6, 17, -6, 21, 61, -29, 24, -9, 48, -5, 36, -20, 18, 16, -10, 13, 35, -6, 5, -11, -39, -21, 16, 3, 14, 3, -12, -1, -14, 8, -18, 10, -15, 16, -17, -43, 14, 62, -12, 8, -3, -22, -4, 5, -22, 26, -6, 58, -5, -28, 4, 19, -35, -10, 38, 8, 28, -1, -16, -17, -34, -38, 5, -61, -12, 34, -16, 26, -22, 0, -24, 32, -48, -17, -56, -34, 70, -12, -9, -30, 5, 4, 23, 23, 48, -44, 14, 16, -41, 25, -28, 5, -8, -49, 6, 28, -11, 35, 69, 64, 40, 1, 40, 40, -37, -24, -40, -1, -34, 0, 8, -54, 28, -2, -7, -6, 5, 48, -54, 0, 46, -27, 10, -22, -50, 28, 25, -38, 12, 1, 6, -21, -23, -30, 26, 18, -49, 26, -15, 2, -9, -5, -4, -16, -15, 22, 18, -43, -6, 15, -35, -15, -23, -35, 55, 6, 42 ]

Clark, J. Defendant was convicted of possessing intoxicating liquor. On error he contends that he was arrested unlawfully, that the officer, without warrant, had no reasonable and probable cause to believe that a felony had been or was being committed by him, and that the motion to quash, to suppress, and for discharge,. timely made, ought not to have been overruled. Of the arrest the officer testified: “About a month ago I saw Mr. Stewart upon the streets of Owosso. He came out of the National Hotel and went south on South Washington street and went down as far as number 206, if I am not mistaken. That would be in the second block in front of a little restaurant and soft drink parlor, as they call them. He was standing in the doorway. I arrested the gentleman thinking he had some liquor on him. A man named Walter Nimphie was also standing in this same doorway. I think this was on the 11th day of April, 1925. I was standing just south of the door on Washington street when he came out of the National Hotel. We had been watching him for quite a while. “Q. Were you there that night standing where you were, for the purpose of looking and watching for Mr. Stewart? “A. Not any more so than any one else. “Q. After he came out of the hotel what, if anything, did you do? “A. It looked to me as though there was something that wasn’t just right, which we often form ideas that are not correct. * * * I told Mr. Stewart he could consider himself under arrest. He stood there a minute, then we started to the jail or the city hall. * * * “Q. What was your object of following him on this particular night? “A. Well, sir, I followed him because I thought that he was handling liquor. “Q. You thought he was handling liquor? “A. Yes, sir. He had been under our eyes for quite a while. “Q. What information did you have at that particular time, at the time you started to follow him, which led you to believe that he had liquor? “A. His actions. “Q. Why did you allow him to proceed a distance of a block and a half before you made the arrest? “A. I wanted to satisfy myself in my own mind that he had it. “Q. Did you have a warrant for his arrest? “A. No, sir. “Q. Had any complaint been made to you in writing at that time? “A. No-, sir. “Q. Had any complaint been given to you orally regarding his actions on this particular day and night or this night time? “A. Please state that again. (Question read.) “A. Orally, what do you mean? “The Court: By word of mouth, spoken to you? “A. May I have the question, once more? (Question read.) “A. No, sir. “Q. And you didn’t have any information or complaint, either written or oral, at that particular time? “A. No, sir. “Q. Then this idea that you had about Mr. Stewart dealing with liquor in any way at all, was purely a guess on your part, wasn’t it? “A. A guess. We had had complaints coming in. “Q. I am talking about this particular night. “A. Yes, sir. “Q. What did he do that led you to believe that he had liquor? “A. He came out and walked down the street. I see another party walking down the street ahead of him. “Q. How far was this party ahead of Mr. Stewart? “A. Well, that would be very hard for me to give that distance. “Q. That is, he was on the same side of the street? “A. Yes, sir. “Q. And they both were walking on the sidewalk? “A. Yes, sir. “Q. Would that set of facts justify you at any time, a man following another man down the street or another man preceding him, that there was liquor involved in any way? “A. It looked very suspicious to me. “Q. What were the grounds that you based your suspicion on as to his having liquor? “A. The grounds would be that he was going down that way, and we had him under our supervision. “A. We had been watching this man for quite a while and watching every move that he made. “Q. There are other men that you watch, too, aren’t there? “A. Yes, sir. “Q. Would the fact that he should come out of a place of business at 10:20 at night and follow another man down the street, raise the same presumption that one of them had liquor? “A. Yes, sir. It would to me if they were watching him. “Q. These words you used, I believe, on your direct-examination, I think you used these words — possibly you recall them — ‘it looked to me as though there was something wrong and I followed.’ What I am attempting to get at, officer, what was the particular thing that looked wrong that caused you to follow him? “A. Just his general actions. “Q. Just his actions? “A. Yes, sir, coming out of the hotel. “Q. What did his actions consist of that aroused your suspicion? “A. Because we had watched this man’s step continuously. “Q. Was he intoxicated this evening? “A. Not to my knowledge, he wasn’t. “Q. You were near enough to place him under arrest? “A. Yes, sir. “Q. At the time you placed him under arrest, did you put handcuffs on him? “A. No, sir. “Q. How near were you to him? “A. I was right up so I could touch him. “Q. Did you detect the odor of liquor on his breath? “A. No, sir, I did not. “Q. Were you near enough so you could have done so? “A. Yes, sir. * * * “Q. Officer, why was it that you waited the length of time that you did to arrest Mr. Stewart, if you had grounds to base a suspicion on at the time he left the National Hotel? “A. I wanted to watch him to see what he was doing. “Q. Did you see him do anything up to the time you made the arrest? “A. No, sir.” This testimony does not show reasonable and probable cause to believe that defendant had committed or was committing a felony. It was said in People v. Burt, 51 Mich. 199: “But no one, whether private person or officer, has any right to make an arrest without warrant in the absence of actual belief, based on actual facts creating probable cause of guilt. Suspicion without cause can never be an excuse for such action. The two must both exist, and be reasonably well founded.” That it turned out later that the officer was right in his suspicion has no bearing on the question before us. The “reasonable and probable cause to believe” must be present at the moment of arrest. People v. Kamhout, 227 Mich. 172. The reason and the importance of preserving the rights of persons to be secure against unlawful arrest have been considered and stressed so often by the courts that further discussion would be idle. After arrest, on the way to the jail, defendant took from-his pocket and threw away a bottle of. whisky. The officer succeeded in recovering a part of the liquor and it was received in evidence over objection. It ought not to have been received. It was procured by means of the unlawful arrest. Had the officer-searched defendant after the arrest and taken the whisky and later offered it in evidence the situation,, in principle, would not be different. People v. Margelis, 217 Mich. 428. Reversed and defendant discharged. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ 37, -14, -9, 43, -28, -15, 2, 28, -4, 83, 37, -9, 9, -29, 43, 30, -7, 9, 34, -12, 48, -47, -59, 11, -14, -25, -41, 30, -46, 42, 20, 12, -5, -66, 33, 13, 64, -29, 43, 0, -10, 25, -9, -9, -42, -11, -65, -54, 7, -24, 22, -27, 41, 60, 41, 2, -13, 21, -3, 0, -18, 47, -16, -57, -41, 0, -56, 31, -11, 7, 21, 16, -28, 12, -8, 33, 5, -29, -16, 17, -33, 33, 0, 15, 0, -21, -16, -61, 49, -33, 68, 12, -33, -16, -14, -49, -25, 18, 29, -2, -1, -37, -52, -27, 48, 24, -54, 0, -13, 1, 0, -10, 75, 11, -2, -37, -9, -9, -22, -15, 58, 15, 33, 9, -16, -39, -9, -1, -26, -3, 41, 18, 7, -32, -10, -14, -55, 31, 14, -6, 5, 29, 23, -8, 36, 14, -5, 70, -16, 61, -48, 22, -12, 22, -41, 29, 4, -26, -41, -13, -72, -15, 9, -14, 12, -10, -25, 11, -33, 13, -18, 21, -24, 16, 51, 41, -12, -14, -28, -41, -32, 15, -9, -45, 37, -47, -22, 2, -5, 54, -11, 23, -14, 13, -23, 60, -6, 13, 17, -73, -13, 22, -2, -2, -37, -42, 20, -8, 54, 2, -28, -23, 16, -66, 12, -39, -59, -56, 16, 4, -20, 3, -19, 29, -15, -79, -14, 30, -54, 30, 18, 9, -19, 30, 28, -35, 45, 10, 46, 33, -20, 8, -35, -19, 49, -24, -51, -1, -10, 36, 8, 4, -5, 17, -29, -27, 23, -48, -14, -19, 19, 21, -3, 6, 1, -35, 35, 26, 10, 36, -3, 19, -11, 11, 3, -2, -39, 57, -12, 55, 15, -36, -9, 90, -13, -66, -11, 18, 8, -17, 57, -9, -35, -43, 19, 32, 17, 67, -33, 19, 5, -12, -18, 22, -35, -21, 45, 40, -22, -10, 21, -19, -34, 23, 46, -31, 21, 34, 0, -22, -68, -12, -39, -55, 15, 0, 13, 15, 18, -39, 5, 6, -24, 10, -30, 51, 22, -7, -23, 19, -26, -18, -10, -18, -26, 21, 4, -3, -7, -45, -26, -42, 26, 0, 24, 8, -42, -5, 35, -39, 34, -7, -7, 18, 13, -3, -9, -8, -10, 21, 25, -54, 6, -18, -11, -4, 24, -20, -67, 23, -23, -54, 26, 17, -31, -19, -19, -43, -30, 29, -3, 9, -5, 0, -19, 27, 1, 30, 34, -37, -65, 19, 67, 3, 2, -18, 26, 12, 62, 8, -23, 17, 33, 37, 24, 8, -20, 17, 25, -20, -12, -24, 35, 7, 64, 17, -19, -4, 37, -53, 10, -24, 12, 48, -30, -9, -52, -43, -1, -37, -40, -27, -46, 51, 50, -15, -48, -20, -22, 13, 17, 13, 20, 8, 0, 87, 0, 31, 26, 12, 28, -12, -10, -33, 22, 10, -24, -45, 9, 33, 15, -1, -13, -42, -58, 10, 8, 10, -1, -19, -44, 27, 53, -6, -25, -29, -11, -58, 52, 39, 48, 20, 0, -22, 2, -24, 34, 18, -61, 35, -30, -3, -69, -33, 11, -40, 12, 58, 20, 40, -33, 24, -34, -11, -30, -36, 11, 4, 4, 28, 103, 12, -10, 7, -39, 50, 17, -61, -13, -64, 16, -9, -20, 0, 44, 12, 42, 0, 18, 3, 9, -6, 36, 30, 12, 11, 1, -24, -18, 26, -3, 50, 5, -40, -16, -20, 22, -19, -69, 0, 2, -22, 27, 4, -14, 14, -34, 36, 27, 32, -23, 27, 30, 33, -65, 15, 1, 15, 4, 41, 56, 27, -16, 11, -19, 34, -54, -1, -52, 0, -75, 16, -6, 25, 37, 5, -20, 0, -21, 25, 13, 1, 21, 10, 12, 17, 26, 27, 14, -8, 52, 49, 16, 15, -33, 39, -38, 16, -34, 21, 26, -37, -49, 14, -18, -17, 14, 3, 3, -37, -52, -7, 3, 13, -4, 6, -35, 13, -25, 42, 31, -34, -1, 35, -1, 25, 34, 18, -6, -5, -19, 6, 35, 22, 4, -44, 1, 30, 35, -37, 8, 37, -17, 19, -23, 15, 11, 3, -5, 37, 38, -38, 7, 2, 39, 1, 19, -20, 4, 4, -13, 6, 30, -10, 56, 6, -47, 1, 0, 28, -25, -6, 48, -1, -15, 48, -22, 1, 29, -8, 4, -51, 56, -38, 18, -32, 31, -40, -60, -20, 1, 20, 19, 21, -6, 22, -1, 47, -9, 35, -6, -7, 40, 17, 40, 30, -25, -11, 30, -108, 35, -47, 48, -39, -20, 9, -35, -31, 17, -8, -23, 8, -28, -20, -16, -11, 21, 15, 0, 2, 12, 23, 54, 6, -4, 37, 26, -33, -42, -25, 2, -6, -39, -6, -62, 38, -20, 8, 8, 27, -15, -54, 24, -46, -13, 30, -7, -3, 9, -12, -5, 15, -58, 0, 6, 15, -16, 8, 13, 13, 2, -25, -4, 11, -16, -12, 59, -47, -8, 9, 30, -21, 30, 10, 26, -4, -10, 54, -37, 3, 11, 12, -5, -55, -46, -30, 4, -35, -1, -30, 16, 8, 28, -51, 20, 10, 27, -46, -16, -10, -67, -5, 13, 17, 21, 10, -5, -53, 4, 21, -9, 63, 5, 31, 1, -22, 28, -12, -34, 22, 11, 19, -21, -28, -28, 21, 5, 31, 7, -3, -54, -8, 3, -90, 33, -41, 4, -2, 7, 28, 24, -20, 22, 29, -45, 39, 33, -17, 22, -7, 34, 0, 28, 43, 16, 5, -28, -34, -6, 50, 8, 21, -15, -34, -51, 34, 20, 2, -12, -29, 3, -17, -17, 13, 24, -27, 34, 19, 0, -19, -33, 22, -33, -24, -2, 4, -78, -44, 4, -33, -25, 46, -18, 31, 8, 9, 0, 18, -15, 37, -45, -35, -43, -7, -29, -9, 31, 10, -19, 9, -61, -45, -3, 23, 14, 60, -10, -42, -18, 52, -29, 12, -63, 8, -12, -6, -17, -11, -9, -33, -11, 28, 10, 2, -26, 33, 6, 25, -10, 0, -15, -42, -42, 20, 1, 10, -10, -10, -5, 20, -7, 36, -13, 21, 16, 36, 61, 26, -38, 11, -33, 1, -9, 83, 2, 45, -62, -26, -26, 21, 4, 0, 24, 23, 74, -41, -17, 30, -55, -48, -54, -71, 17, 1, 12, 44, -13, -29, -27, 30, -7, 8, -6, 60 ]

Sharpe, J. Defendant reviews his conviction on exceptions before sentence of a violation of section 14 of Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11958), as amended by Act No. 404, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11958), which provides that: “It shall be unlawful for any investment company or dealer, or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner whatever in this State,, any stocks, bonds or other securities except as expressly exempted herein, unless and until said commission has approved thereof and issued its certificate in accordance with the provisions of this act.” * * * The gist of the information is that defendant,— “who was then and there a dealer * * * did then and there negotiate for the sale to the complainant and divers other persons to the complainant unknown, of stocks of a certain company known and designated as the Augustine Automatic Rotary Engine Company,”— without having complied with the provisions of the statute requiring the obtaining of a certificate of ap proval of such stocks from the securities commission. The Augustine company is a New York corporation, having its office and factory in the city of Buffalo. Defendant is its president. Sale of its stock had not been authorized in this State. Henry A. Goodrich, of Charlotte, had purchased some stock in 1911 in a company organized by Augustine. In the summer of 1921, Goodrich received a letter from Augustine. Accompanied by four residents of Charlotte, he went to Buffalo. They looked the plant over. They did not see Augustine. After their return, Augustine wrote Goodrich, who again went to Buffalo, accompanied by five of the business men of Charlotte. They looked over the factory and the motor. He gave them some booklets descriptive of the engine. He told them that the stock was all disposed of except 1,000 shares, which had been retained for stockholders of the old company, of which Goodrich was one. They brought some literature and blank applications back with them. A number of applications were made and forwarded by Goodrich, and the stock certificates sent direct to the subscribers. On October 26, 1921, Augustine came to Charlotte. He had a model of his engine, which he demonstrated to several persons. In the evening, he addressed a meeting, called, however, without his knowledge, at which he explained his rights under his patent, told about his plant and the orders which had been received. The particular incidents relied on by the prosecution to prove a violation of the law by defendant are thus stated by the prosecution in its brief: “Mr. S. E. Cook of Charlotte on October 26th went into Goodrich’s store to purchase one share of stock. Mr. Augustine was there in the room when he made his application; Goodrich told him that he did not know whether he could let him have the stock or not, that he would check up. Goodrich informed Augustine of Mr. Cook’s desire and told Augustine that the stock was over-subscribed. Augustine said: ‘Well, I will tell you Mr. Goodrich, you can let one hundred shares more go,, but no more until I get to Buffalo and make arrangements.’ Mr. Goodrich took Mr. Cook’s subscription that same day. “Joseph D. Powers of Charlotte saw Mr. Augustine in the front room of Goodrich’s store and afterwards had a talk with him in the back room. He advised Augustine that he desired to purchase some stock, but did not have the money to put into it at that time. He made a proposition to purchase stock on a partial payment plan. Augustine talked over this proposition with Powers and informed him that he might take it up with the board of directors and let him know, which he did. Powers had some correspondence with Mr. Augustine and received a letter stating that his proposition would be accepted. Powers made application on blanks obtained from Goodrich for ten shares of stock and made the first payment of $27. He received a contract and credit for his payment. The contract sent from Buffalo provided for monthly payments of $27 ‘which was the same amount talked over in the back room of Goodrich’s store’ between Powers and Augustine on October 26th.” There was proof, tending to show that Augustine appointed Goodrich an agent of the company to sell its stock and that he was afterwards paid a commission of $4,000, or more, for doing so. One hundred fifty-seven subscribers were listed in the book of sales kept by him. 1. Counsel differ as to the construction which shall be placed on the language of .the statute. The defense insist that to constitute an offense it must be shown that defendant negotiated for the sale of stock in this State, while the prosecution contend that if the negotiation be had in this State it is immaterial that the sale was to be consummated in some other State. The statute prohibits the sale by any person himself, or by others acting for him, the offering for sale, the taking subscriptions for or the negotiating for a sale in any manner whatever. The words “in this State” which follow would seem to apply with equal force to any of the acts which are prohibited. The statute has no application to acts performed without the State. It seeks to protect the citizens of this State in their investments by providing that securities offered for sale to them must first be approved by the commission. If it be charged that an unlawful sale has been made, it must appear that the sale was made in this State. If, however, the charge be that securities not approved by the commission were offered for sale, the fact that the sale was not completed within the State would be immaterial. The unlawful act was the “offering for sale.” If it was committed within the State, it would be immaterial whether it was intended that the sale would be finally consummated in this or some other State. The same reasoning, we think, applies to the act of negotiating for the sale of such securities. Such a negotiation is prohibited by the statute. The offense is committed when the negotiation is had, even though no sale be consummated as a result thereof. The purpose of this provision' is to prevent the citizens of the State from making investments in unapproved securities by inducements held out to them by those interested in the sale thereof. The negotiation must, of course, be conducted in this State. Liability for a violation of the provision may not be evaded by arranging that the subscription secured as a result of the negotiation is to be sent by the subscriber to a place without the State and the sale consummated by the mailing of the stock to him. 2. In his instructions to the jury the court said: “Now, going to the meaning of the word negotiations as contained in this statute. Negotiation is that deliberation which takes place by the parties touching a proposed agreement. • It means to treat with another or others, to arrange for or procure by discussion or bargaining. The term is sometimes used as meaning to discuss or arrange for sale or bargain, or the preliminaries of a business transaction. It means also to converse in arranging the terms of a contemplated contract. Negotiate, as defined by Webster, is to transact business, to treat with another respecting a purchase and sale, to hold intercourse, to bargain or treat, to conduct communications or conferences. It is that which passes between parties or their agents in the course of or incident to the making of a contract; and is also defined as conversation in arranging the terms of a contract. As used in this act, I instruct you that the word negotiate includes every act of the defendant, done directly or indirectly, which has for its ultimate purpose the sale of stock of the company; in other words, such acts as tend to promote the sale of stock.” Error is assigned upon the language used in the last sentence of the quotation. It is insisted that by saying “As used in this act,” after having defined the word “negotiate” generally, the jury were given to understand that it had a different meaning as here used from that which had been theretofore stated. Followed as it was by saying that it includes “such acts as tend to promote the sale of stock,” we are impressed with the force of counsel’s contention. After having deliberated for some time, the jury returned into court, and one of them said to the judge: “In regard to the negotiating for stock. Some of the boys don’t understand the definition of that word, and what constitutes negotiation for stock.” The instruction as above quoted was then read to them. It must be assumed that the legislature used the word “negotiate” in the sense and with the meaning ordinarily understood when applied to the matter under consideration. This the court had correctly stated. The word “promote” is defined by Webster: “To contribute to the growth, enlargement, or prosperity of; to forward; to further; to encourage; to advance.” In order to negotiate with another, there must be a purpose to bring about a purchase or sale, or to arrive at some kind of an understanding, bargain or agreement. At the time of defendant’s visit, there was talk about the establishment of a branch factory at Charlotte to manufacture the motors. In this the people of that city would naturally take much interest. The address delivered by the defendant at the meeting, which was attended by a considerable number of citizens, would have a tendency to interest the people in the company and thereby “tend to promote the sale of stock.” Its delivery, however, was not a negotiation by the defendant with those present for the sale of stock to them. We are impressed that the jury may have so understood. The testimony is in conflict as to what the defendant said to those with whom it is claimed that he negotiated. We feel constrained to hold that the instruction given constitutes reversible error. The conviction is set aside, and a new trial granted. McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ 37, 13, 53, -17, 23, 28, 3, -1, 41, -12, -29, 54, 0, 24, 32, -5, 70, 19, 0, 21, 4, -47, -14, -8, 8, -48, 5, -30, 18, 29, -22, -40, -34, -20, -41, 14, 3, 6, 12, -14, -16, 11, 9, 68, 2, 4, -7, -32, 47, -2, 73, 2, 58, -13, -16, -51, 19, 52, -9, 55, -4, -9, 44, -10, 15, 13, -37, 37, -10, 41, -44, -29, 7, 24, 8, -9, 21, 40, -2, -25, 22, -11, 33, -49, -72, 106, -21, -4, 12, -15, 4, -22, -23, -17, 20, -9, -20, 21, -11, 7, 3, -1, 11, -4, 4, 24, -31, -7, 29, 1, -27, 20, 31, 58, 26, -2, -104, 13, 0, -19, -17, 18, 0, 16, 29, 23, -35, -29, -53, 67, -21, -9, -11, -16, -11, -9, -33, -27, -10, -13, 11, 6, -37, 19, 34, 41, -22, -6, 4, 14, -54, 3, -20, 15, -6, -40, -28, -12, 39, -33, -15, -15, 11, 19, -37, 43, -8, -1, -65, 14, 21, 55, -36, 0, -31, -30, 6, -29, -48, 15, -23, 0, 19, 6, -10, -28, 51, 43, -10, 0, 60, -42, 35, 39, -40, -39, 9, 1, 28, 5, -9, 11, 2, -27, 14, -47, -21, 44, -6, 12, -8, 4, 10, -37, -15, 58, -48, -47, 62, 24, 17, -13, -36, 17, 24, -28, 38, 28, -21, 9, -41, 12, 18, 13, -49, 21, -6, 0, 34, 72, -44, -10, 7, 15, -14, 0, 37, 3, -14, 18, 0, -15, -56, -4, -29, -23, -42, -40, 14, 18, 31, 22, -39, 40, 18, -19, 14, -28, 2, -21, 11, -20, -37, 52, -39, -59, 47, -7, 20, -32, 47, -2, -22, 18, 0, -3, -21, 0, -45, -33, 12, 41, 61, -27, 19, 6, 1, 12, -29, -33, -22, -3, 13, 7, 67, -16, -27, -34, 0, -41, -43, -25, 6, -36, 28, -43, 37, 14, -25, -7, -2, 27, 5, 38, -18, -6, 75, -60, 97, 6, -16, -33, 3, -44, -34, 5, 43, -3, 23, 0, -29, 41, 34, -38, 4, -11, 16, 21, 0, -5, -8, -5, -7, 35, -9, 12, 32, 10, -11, 36, 71, 3, 30, -19, 7, 20, -28, 12, 3, 72, 9, 5, -42, 9, 33, 18, -22, -38, -22, 25, -2, 14, 41, 10, -20, 16, 19, -12, -33, 3, -23, 75, -29, -2, -21, -21, 10, -22, -7, -12, 0, 34, -42, 39, -2, -42, 21, 25, 7, -2, 6, -35, 48, -1, -42, -25, 12, 39, 38, -65, 2, -11, -25, -21, 8, -24, -14, 3, -51, -15, -15, 15, 11, -2, -18, -22, -41, 36, 39, -3, -7, -3, -23, 34, 23, 4, 14, -16, 34, 27, 24, -19, 39, 16, 9, 32, 38, -4, 10, -2, -18, -25, -34, -33, -9, -16, 50, -42, 24, 5, -32, 9, 2, 10, 10, 10, -4, 16, -26, -4, -32, 59, 13, -38, -24, -36, -49, 10, 29, 8, 4, -5, 2, -26, -14, -11, 18, -7, 13, 35, -51, -28, 49, -11, -43, 1, 3, -40, 41, 54, -21, -18, -24, 37, 18, -34, -64, 59, 19, 74, 53, -24, -79, 10, -40, -42, 35, 2, 4, -65, 36, 10, -27, -40, 44, -54, 1, -8, -6, 0, -60, 6, -23, -3, -13, -29, -14, 17, 11, -34, -28, 16, 48, -28, 28, -48, -9, -25, -31, 45, -28, 17, 3, -23, 12, -9, 10, -2, -18, 24, -8, 17, 29, 34, -56, 16, -11, 37, -24, -31, -21, 20, 13, -42, -55, 10, -57, 18, -40, -32, -10, 19, -9, 17, 51, 13, 41, 18, 2, -13, -50, -13, 14, -13, -40, -26, -61, 58, -3, 2, 36, 9, -18, -18, 2, -6, -14, 3, -23, -41, 7, 21, -25, -12, 29, 24, 40, 51, 7, 33, 28, -44, -21, 6, -28, 21, 1, 6, -27, -28, -7, -43, 30, -54, 15, 18, -22, 14, 29, 24, -27, -20, -5, -19, -11, 4, 11, -15, -8, -41, 10, -51, 11, 33, 65, -21, -4, 20, 5, -38, 40, -6, -3, -55, 40, 65, 15, 41, 7, 35, -11, -3, -39, 40, -36, -39, 21, 41, 35, -26, 11, 24, -22, -11, -8, 24, -24, -6, 24, -34, -15, -14, 30, 41, 10, -20, -16, -11, 20, -11, 32, -33, 4, 4, -6, -7, -6, -8, -39, -48, -20, 1, 25, -35, 9, 74, -7, -23, -30, -27, 2, 8, 13, 15, -19, 11, -37, -92, -20, -41, 25, 4, -2, 25, -73, -23, -4, 33, 34, -2, 10, 78, 30, 17, 44, 36, 13, 7, -45, -43, -25, 39, -27, -4, -48, 39, -41, -43, -35, 0, 11, 7, -33, -9, -15, -6, -8, -35, 28, -7, -2, -30, -4, -39, -10, -31, -31, 10, 73, 0, 24, -15, -17, 13, -25, -12, -8, -13, 24, -47, 11, -55, -15, -8, 12, -51, 71, 3, -12, -4, -39, 59, -34, -57, 34, -38, -22, -23, 17, -18, -27, 13, -32, -2, -27, 18, 4, 17, -33, 22, 46, -57, -26, 54, 0, -25, 43, -15, -7, -81, -10, 8, -6, 50, 26, -15, -21, 9, -31, -22, 5, 4, -15, -11, -9, 5, 2, 16, 14, 38, -9, -13, -25, -1, 33, -1, -45, 10, -9, 47, -19, 42, 4, -30, -46, 38, 5, -17, 7, 41, -20, -23, -9, 10, -64, 2, 15, -23, -8, 28, -14, -54, -40, -57, 16, -1, 3, 18, 41, -5, 0, 5, -4, 28, -7, 33, -11, -1, -11, 20, 29, -16, -29, -2, -90, 65, 33, -13, -9, 25, 18, -29, -5, 40, -6, -5, 19, -11, 25, 29, 6, -33, 33, -2, 46, -3, 17, -30, 31, 39, 34, 22, -17, 13, -23, -68, 2, 45, -16, -4, 36, -23, -52, 39, -22, 19, -29, -8, 21, -26, 11, 17, -15, 31, 31, -1, 19, 15, -6, -35, -10, -14, 39, 42, 17, 37, -3, 10, -2, 13, -20, 22, 2, 87, 44, -32, 1, 55, -33, 42, -18, 28, 3, 40, -17, 13, 32, 43, -9, -51, 13, -61, 0, 0, -1, 39, 1, -35, -17, -9, -23, 0, -9, 62, -12, 7, 45, -10, -29, -37, -23, 25, -26, 27 ]

Danhoe, J. Defendant was arrested on March 27, 1969. He was charged with robbery, unarmed, CL 1948, §750.530 (Stat Ann 1954 Rev § 28.798). At his arraignment defendant stood mute and the court entered a plea of not guilty for him. On September 15, 1969 a count of larceny in a building was added, CL 1948, § 750.360 (Stat Ann 1954 Rev § 28.592). Defendant, while represented by counsel, entered a plea of guilty to this lesser crime. On October 14, 1969 defendant moved to withdraw his plea of guilty. This motion was denied, and on October 30, 1969 defendant was sentenced to a term of three to four years in prison. He was given credit for 82 days spent in the county jail prior to his transfer to prison for a parole violation. He was not credited with the 136 days following his transfer to prison but prior to his sentencing in the present case. On appeal defendant argues that he should have been permitted to withdraw his guilty plea and stand his trial because he was not guilty, and the only reason he pled guilty was because he thought he would become eligible for parole earlier by doing so. The record in this case reveals that the defendant, after careful consultation with his attorney, was thoroughly advised of his rights by the court. The defendant signed a statement that he had a copy of the information; that he knew and understood the elements of the offense; that he knew he was entitled to a trial by jury or by the court at which he would he presumed innocent until proven guilty beyond a reasonable doubt; that he had full and adequate opportunity to converse with his lawyer, friends and relatives; that he knew the maximum sentence which could be imposed; and that he pled guilty because he was guilty and that he did so voluntarily, freely, understandingly, and without promise of leniency, and without any undue influence, compulsion, duress, threat or constraint. Defendant’s attorney certified that the defendant’s statement was voluntarily made and that the attorney agreed to it. Only then did the trial court accept defendant’s guilty plea. A motion to withdraw a plea of guilty is directed to the discretion of the court. There was no abuse of discretion in denying defendant’s motion to withdraw his change of plea. People v. Temple (1970), 23 Mich App 651. See also People v. Stewart (1970), 23 Mich App 589. Defendant also argues that he should have received credit for the 136 days following his transfer to prison but prior to his sentencing in the present case. We agree. The opinions in People v. Chattaway (1969), 18 Mich App 538, and People v. Hall (1969), 19 Mich App 95, state that the sentence credit statute, MCLA § 769.11b (Stat Ann 1970 Cum Supp § 28.1083 [2]) is remedial and should be liberally construed to effectuate its purpose. Cf. People v. Pruitt (1970), 23 Mich App 510. Pursuant to G-CB 1963, 820.1(7) it is ordered that the defendant’s sentence he amended specifically to grant him credit for a total of 218 days. Affirmed in part, and reversed in part. All concurred.

[ 36, 12, -3, 19, -40, -19, -26, -38, -39, 76, 23, -9, -29, -58, 2, -23, 17, 14, -31, -12, 17, -30, 39, 10, -15, -11, 11, 35, -1, 16, 36, 5, -14, -22, 21, 21, 19, -37, 17, 43, -37, -7, -24, -21, -24, -5, -39, -5, 34, -19, 34, 8, 19, 23, 4, 27, 25, -7, 24, 34, -9, 32, -80, -15, -27, -21, 1, 0, -54, -17, 15, -39, 29, 10, 28, 42, 7, 45, -2, 26, 30, 20, 17, 9, 45, 16, 31, -57, 18, -54, 28, 65, -17, 1, 10, -30, 7, -4, 17, -22, -39, -45, 5, -42, 43, -4, -10, -20, -17, 15, -29, 1, 36, 18, 30, -65, -19, -31, -10, -18, 14, -20, 60, 63, -2, -7, -11, -43, 53, -7, -7, 54, -20, -54, -6, 7, 26, 27, 23, -11, -27, 6, 48, -42, 26, 29, -72, 20, 7, 0, -24, 15, -42, 7, -25, 23, -53, 18, -53, 2, -6, 14, -19, 23, -16, -11, -25, 9, 13, 0, -13, -17, 32, -19, 22, 1, 4, 39, 20, 38, -6, 5, 8, 1, -9, 9, 63, 29, -36, 3, 0, -3, -46, -67, 87, 10, 0, 56, 23, 10, -29, -50, 55, 13, 0, -33, 25, -5, 42, 23, -55, -50, -5, -17, -39, 31, 16, 4, 19, 4, -29, 10, 10, 16, -44, 19, 2, 8, -17, 30, 24, 1, -13, 22, 0, -6, 20, 15, 47, 0, -69, -38, 45, 10, 65, -16, 16, 5, -15, -9, -29, 8, -56, 9, -34, -41, 33, -43, -68, 9, -28, 37, -13, 14, -10, 3, -7, -11, -60, -32, 37, -4, -41, -4, 16, -19, -20, 7, 21, -8, 56, -22, 13, 4, -29, -26, -3, 15, 4, 32, 56, -43, 9, -11, 22, -18, 35, 14, -47, 4, -1, -19, -33, -42, 10, -19, 16, 12, -5, -18, 9, 2, 3, 41, 53, -58, 15, 2, 2, 13, -64, -26, 2, -53, -17, 2, 45, 23, 11, -13, -25, 37, -6, -28, -42, 34, -18, -52, 5, 20, -35, -6, -26, -10, 43, 26, -53, -3, -26, -32, 17, -24, 0, -25, 36, -37, -37, -28, 20, 3, 31, -18, -30, 24, 42, -40, 1, 22, 38, 30, 49, -45, -11, -46, -8, 9, 30, -15, -16, -2, -38, -21, 33, 15, 8, -47, -38, -50, -26, 37, -50, 8, -43, -105, 36, 28, 34, -14, 34, -54, -3, 4, -3, -25, -44, -35, -18, 4, -14, -8, -3, 17, 69, 88, -1, -48, 20, -50, 38, -37, 11, 17, 16, -10, 3, 35, -7, 2, -27, -25, 7, 11, 45, -24, 65, 67, -47, -1, 43, 15, 2, -7, -16, 25, 58, -4, -51, -29, -18, -2, 3, 41, -20, -68, -50, 36, -11, 15, -22, -2, -13, 0, -27, 0, 27, -52, -58, -28, 48, -7, 25, -24, -31, 8, -6, -11, 17, -35, 30, 6, -28, 7, -48, -32, 1, -12, -31, -81, 18, -1, -7, -17, 27, -8, -32, 50, -27, -15, -20, 64, -74, 31, -45, -13, 63, 10, 35, -16, 73, 44, 1, 44, -36, 6, 14, -21, 10, 10, 22, 41, -23, -17, 17, -26, 4, 61, -19, -31, -30, 42, 65, -63, -29, -47, 22, -9, 10, -12, -3, -2, 43, 29, 30, 46, -23, 12, 3, -6, 3, 22, 60, 4, 10, -44, -9, -2, -35, -12, -10, -33, -19, 33, 62, 11, -26, 37, 20, 4, -33, 34, 23, 57, 1, 8, -1, 12, -7, 4, 17, -34, 51, 68, -9, -5, 4, -6, -6, 3, 11, -17, -77, 43, 16, -40, 7, -7, -43, -7, -18, 6, 16, 13, -46, 20, 54, 4, 42, 11, 23, -31, 67, 22, -53, 20, -30, 36, -11, -16, -28, 19, -27, -31, 0, -58, -23, -43, -30, 6, -24, -16, 9, 22, 10, -22, -37, 6, -33, 22, -35, 13, 0, 26, -10, -21, 29, 32, -13, -17, -1, -9, -40, -23, -9, -18, 68, -13, -35, 20, 44, -35, -12, 55, -43, -4, -3, 54, 13, -21, 18, -6, -33, -19, 18, -4, -5, 6, 12, 10, 15, 47, -7, -23, -23, -49, -23, -27, -6, 17, 16, 39, -43, 36, 5, 23, 46, 9, 46, 46, -2, 24, 24, -5, 51, -16, -18, -13, 0, -16, 11, 6, -46, 23, -4, 34, 10, -43, -66, 16, -32, 29, -36, -36, 15, 65, -9, 4, 36, -36, 23, -32, 11, 18, -3, -8, 24, -10, -35, -25, 16, 46, -30, -11, -47, -4, -26, 52, 15, -29, 24, -34, 63, -12, -15, 65, 2, 48, 45, 1, -68, -15, -5, 24, -8, -21, -43, 39, 6, -31, 83, 25, -38, -24, 3, 2, -54, 1, -44, 16, 4, 13, 29, 3, -33, -3, 17, -29, -14, -14, 2, 2, -14, 20, -44, 65, 25, 47, 17, 6, -22, -10, -42, -17, 16, 30, 0, -35, 39, 43, 0, -32, 32, 39, -25, -29, 1, -2, -3, -36, 18, -19, 16, 17, -43, 1, -12, 27, 11, -24, 23, 14, -29, -55, 94, 16, 2, -28, 26, 13, -33, 6, 15, 2, 7, 14, 13, -19, 16, -59, 6, 48, 17, -15, -62, -13, -43, 8, 25, 19, -17, -100, 10, 9, -17, -36, -5, 31, 20, 7, 18, -54, -24, 4, 53, 82, -10, 31, -8, 8, -1, -8, -3, -4, 38, 15, 13, 6, 0, -48, -34, 7, 39, 57, -52, 1, -24, 1, 0, -36, -7, -27, 79, -14, -6, -27, 63, -13, 3, 31, -22, 46, -19, 9, 1, -15, -21, -49, -18, 14, 42, -21, -6, 7, 13, 9, -4, -26, 34, 21, -23, 25, 21, 12, 14, -99, -11, -10, 48, -73, -11, 23, -18, 24, -57, -13, -20, 10, -43, -56, -9, 16, -33, -15, -17, -1, -2, 28, 6, -10, 12, -9, -15, 8, 9, -20, 3, 89, 2, -6, 6, 57, 22, -70, 13, -38, 36, -3, 22, 2, 14, -8, 25, -12, -58, -42, 22, 18, 50, 62, -26, -36, 13, -2, 5, 46, 17, 16, -10, -52, -24, -2, -34, -10, 17, 46, -24, -44, 4, 22, -5, 20, 31, 29, -6, 11, 6, 1, -2, -11, -39, 12, -33, -12, -50, 53 ]

Moore, J. The facts are not complicated. On April 29, 1914, and prior thereto, Gordon Beaudry, nearly 15 years of age, was employed by Watkins & Radcliffe as a delivery boy, and he was furnished a bicycle with which to do his work. On that date he was to make a delivery on Cass avenue. Permission was given him to get his luncheon at home, No. 997 Theodore street, and he was then to call for a package and return to the store. One of his employers testified he— “asked my permission to go. home to lunch from Theodore street, or whatever the call back might be. I reluctantly gave him permission to make that trip that way on the ground that he would hurry up and come back. I think it was about 20 minutes to 11 when I gave him this order, and he argued that he could go to Cass avenue first; that he could go and make the pick-up and get his lunch and get back early. “Q. Making this pick-up and making this delivery were in the course of his employment? “A. Oh, yes. “Q. He was employed to do this very thing, Mr. Watkins? “A. He was.” The boy called at his home at about 11:30 o’clock, and took 10 minutes for lunch. He told his mother he had another delivery to make and was in a hurry. As he was proceeding in a westerly direction on Can-field Avenue East, he caught on the right rear end of a motor truck, proceeding in the same direction. This truck overtook and passed another truck, also proceeding in a westerly direction. The boy was still hanging on the right rear end of the truck, which turned suddenly to the right. As a result of the truck making this sudden turn, the boy was thrown to the pavement a few feet in advance of the rear truck, and, before the driver in charge could stop, the left front wheel passed over the boy’s body. Death resulted soon. Deceased at the time of his death was earning $6 a week, which he gave to his mother each week for use in the family. Deceased was an expert bicyclist. We quote from the brief: “It is the claim of respondent: (1) Gordon Beaudry, deceased, did not receive a personal injury arising out of and in the course of his employment. (2) He was injured by reason of his intentional and wilful misconduct.” Sections 1, 2, pt. 2, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, §§ 5431, 5432), are quoted. Under the first grouping it is argued — we again quote: “After it is shown that the accident happened within the time during which he is employed, and at the place where he may reasonably be during that time, that is, within the period and the scope of the employment, the workman must also know [show] that it was a risk incident to the employment; that it arose because of something he was doing in the course of his employment, or because he was exposed by reason of the peculiar nature of his employment to the particular hazard which caused the injury” — and that as the accident happened in the instant case because of decedent taking hold of the truck, there could be no liability. Counsel cite many authorities which it is claimed support his contention. Under the second heading it is argued: “If the court should hold that in order to constitute intentional and wilful misconduct, it should appear that the workman intended or expected to injure himself, it would be interpolating into the statute a limitation upon the clause which cannot be gathered from a plain and obvious meaning of the word.” The authorities cited are chiefly those of foreign jurisdictions. This court had occasion to consider the language used in sections 1 ajid 2, pt. 2, of the act (2 Comp. Laws 1915, §§ 5431, 5432) in Clem v. Motor Co., 178 Mich. 340 (144 N. W. 848, L. R. A. 1916A, 352), and in Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665, L. R. A. 1916A, 22; Am. & Eng. Ann. Cas. 1916A, 386). A construction of section 2 was involved in Gignac v. Studebaker Corporation, 186 Mich. 574 (152 N. W. 1037). While the instant case is not on all fours with any one of those cases, we think it must be said that the reasoning used in deciding them justified the ruling of the Industrial Accident Board. The judgment is affirmed, .with costs. Stone, C. J., and Kuhn and Person, JJ., concurred with Moore, J. Ostrander,’J. In my opinion, the risk assumed by the boy, though the cause of the injury, was not a risk incident to his employment. Steere and Brooke, JJ., concurred with Ostrander, J. Bird, J., did not sit.

[ 24, 20, -6, 0, 36, -4, -3, -15, 30, 28, -44, -7, 54, -45, -13, 17, 41, 7, -17, -41, 28, -37, 20, -54, 12, -73, -17, -51, -36, 96, 26, 20, 14, -9, 8, 32, 23, -20, 32, 46, 5, -14, 4, 2, 76, 34, 45, 25, 19, -44, -34, -3, 33, -26, 29, -6, 18, 63, 7, -3, -18, -49, 16, -11, 0, -35, 9, 47, -14, 33, -58, -2, -8, 51, 35, -49, -10, 30, -17, -3, 8, -24, 47, -26, -27, 12, -34, 19, 8, -30, 34, -17, 19, -13, -33, -10, -1, 17, 0, -41, -16, 1, 62, -35, -30, 16, -22, -81, -20, 65, -25, 24, 15, -5, 61, -41, 0, 20, 57, 33, 36, -12, -17, -29, -34, -10, -54, 13, -43, 17, 4, 37, -11, -17, 52, 24, -59, 34, -19, -11, -3, -6, 0, 25, -49, -24, -8, 27, -43, 24, 4, 38, -24, -70, -54, -9, 15, -38, 69, 0, -5, -22, 42, 49, -20, 31, -48, 17, -17, 5, -17, -8, 2, -21, 83, 80, 17, -9, -11, -6, -91, 1, 8, 1, -18, -46, -39, 29, 57, 7, 21, -9, -33, 10, -25, 15, 19, -14, 23, -25, 20, 22, -2, -36, -52, 15, -6, 26, 4, 39, 38, -15, -4, -37, -13, 1, -14, -19, 27, -39, -3, -25, -14, -23, -27, -19, -44, -11, 8, 5, 34, 35, -33, 17, 19, 20, 64, -44, -29, 48, 60, 19, -2, -31, 9, 48, 11, -41, 19, 35, -10, -21, -12, -12, -30, -7, -11, 19, 5, -13, 35, 77, 29, 25, 95, -12, -16, 38, 0, 2, 37, -66, 13, -45, -49, -26, 44, 25, 31, -30, 14, -36, -38, 33, 12, -70, -17, -5, -1, -15, 42, -42, 41, 28, 38, 41, 85, 18, -43, -22, 33, -23, 0, 25, -25, 24, 1, -14, -33, 7, 3, -59, -22, 18, 35, -23, 20, -25, 38, 4, -18, 34, 23, -8, -9, 1, -33, 9, 46, -26, 52, 57, 3, -1, 18, -67, 43, 14, 29, -13, -14, 64, -13, 0, -22, 17, 56, 73, -44, 11, -2, -1, 40, -21, -19, 22, 28, 4, -7, 61, -4, -61, 7, 29, -17, 21, -9, -10, -56, 39, 0, -17, -42, -42, -2, -41, -25, -26, -32, 42, -10, -49, -13, -37, -16, -5, -55, -18, -19, 7, -26, 15, 27, 6, -28, 6, -9, 80, -3, -37, -51, 24, -31, 9, 54, 1, -32, -20, 49, -4, -31, -37, 63, -2, -1, -10, 14, -30, -38, 11, 8, 29, 3, -16, 7, -11, -7, -5, 14, -7, 2, -63, 2, -58, -22, -16, -5, -42, 23, -46, -32, -4, 2, 19, 9, 21, -23, -2, 9, -52, 31, 12, 37, 21, -9, -15, 4, 48, -9, -11, -23, 6, 31, -6, 14, 39, 32, -4, 37, 0, -44, -4, -50, 2, -16, 12, 19, -6, 1, 20, -74, 44, -7, 6, 8, -37, -31, 1, 11, 44, 30, -8, -97, 18, -36, 49, -3, 68, -35, 6, -48, 10, -19, 37, 24, -77, -2, -49, 2, -2, -29, 19, 1, -12, 31, 45, -7, 72, 20, -19, 59, -13, -36, 13, -51, -30, -2, 8, -65, -103, 29, -52, 16, -10, 12, -23, 16, 34, -19, -37, -21, 13, -29, -7, -42, -63, -9, 33, 1, 2, 39, 24, 27, -69, 28, -27, 14, -22, -25, 18, 0, 24, 15, 47, 12, -8, 4, -12, 9, -42, -75, -1, -23, 3, -47, 59, 28, -3, -38, -25, 9, 4, -24, 63, -6, -4, -5, 23, 11, -38, -18, 37, -17, 41, 70, -18, 7, -31, 24, -19, 15, 41, -18, 14, 28, -2, -38, -5, -8, -41, 6, 32, -24, 8, -40, -25, -41, -5, 28, 0, -31, 8, -42, 38, -49, -10, 28, 39, 23, 27, -9, 55, 6, 27, -26, -26, 4, 24, -23, -18, -6, 24, 46, -26, -21, 29, -40, 40, -43, -13, -66, 0, -20, 28, -27, -13, 10, 13, -72, 22, 12, -11, 28, -13, -55, -9, -80, 9, -15, -38, -8, -17, 2, 30, 22, 46, -6, 33, -1, 33, -21, 26, 26, -23, 20, 40, 53, -21, 38, -27, -38, -3, 18, -26, 25, 33, 11, -34, -9, -17, -37, -12, -70, 38, -45, 13, 13, -15, -24, 43, -42, 11, 6, -13, -7, -10, 20, 33, -5, -33, 10, -4, -3, -48, 46, 36, 34, 29, -35, -9, 34, -2, -28, -45, -13, -2, 7, -18, -3, -29, -5, -3, 14, 12, -67, -32, -31, 4, -8, 42, -1, 54, 62, -33, 18, -25, 60, 28, 15, -33, -3, -39, 44, 33, -33, 17, -10, -22, 14, -27, -17, -15, -26, 5, -43, 42, -18, -52, 43, -16, 10, -25, 28, 35, 6, -17, 13, -10, 15, 27, 25, -13, -11, 24, -5, 26, -7, -47, 26, -21, 11, 7, -7, 73, 63, -67, 55, 2, 14, -36, -15, 5, -35, -6, 7, 17, 38, 29, -18, 32, 32, -17, 3, -37, 46, -2, -2, -16, 10, 0, -9, -50, -11, -18, -47, 57, 19, -3, 18, -42, 38, 32, -13, 38, 25, -2, 25, 30, 0, 8, -2, -28, 32, -2, -8, 5, -15, -35, 6, 3, -61, -29, -24, 20, 8, 38, -48, -9, 21, -57, 41, 41, 67, -15, 15, -70, 4, 0, 36, 47, -2, -65, -2, 45, -51, 41, -13, -39, -9, 1, -39, -33, -35, -67, -34, -36, -44, 48, 30, -35, -4, 41, -13, -4, -46, -40, -13, -27, -32, -7, 22, -17, -2, -9, 11, -7, 16, 66, 22, -48, -16, -20, -7, 20, 63, 14, 0, -7, -4, 39, 41, 54, 40, 7, 29, -42, 26, -19, -62, -41, 22, 40, -17, 11, 23, -69, 11, -29, -27, -28, 11, 34, -23, -18, -7, 30, -36, 21, -13, -15, 14, 17, 15, 19, 53, 18, 57, -14, -60, -15, -13, -10, -32, -12, 53, -71, 31, -44, 0, 47, 0, 3, -11, 90, 35, 22, -13, -65, -14, -4, -19, -5, 15, 49, -18, -55, -27, 36, 28, -25, 5, -1, -37, 13, -14, -27, 22, 26, 22, -34, -38, 43, -30, 13, 22, 46, -31, -11, -7, -18, -19, -2, 38, 36 ]

Bird, J. (dissenting). Plaintiff brought suit to recover two annual assessments and interest on a fire policy which it issued and delivered to defendants on August 25, 1920. The assessment for 1921 was $15.60. If not paid when due, 10% a month was added for a period not to exceed one year. The assessment for 1922 was $12, and interest thereon, as in the previous item. The defendants conceded they were liable for the 1921 assessment and interest at the rate of 5% per annum. They, however, say they are not liable for the 1922 assessment because their policy was suspended on March 1, 1922, and they further say that 10% per month was a penalty and not liquidated damages, and therefore cannot be collected. The trial court held with defendants on both of these propositions, and judgment was rendered for plaintiff for $17.72, the amount tendered by defendants for the assessment of 1921, and interest thereon at 5% per annum. The same questions are before us for solution: (1) Was the 10% a penalty or liquidated damages? (2) Was the policy assessable in that part of 1922 while under- suspension? Was a charge of 10% per month for failure to pay the assessment when due usury or a penalty? It is not usury because the excessive rate was not absolutely payable. Where the payor can avoid the excessive rate by making payment of the demand when due it is not usury. While there is some authority to the contrary, the prevailing opinion is that whenever the debtor by the terms of a contract can avoid 'the payment of the larger by payment of a smaller sum at an earlier date the contract is not usurious, but conditional, and the larger sum becomes a mere penalty. Ruling Case Law states the rule as follows “Where a borrower has agreed to pay a rate of interest not forbidden by law, but has stipulated that in the event of his not making payment at the time specified, the obligation shall bear a higher rate of interest, either from default or from the date of its execution, or that some specific sum shall be paid in addition to the increased principal and interest contracted for, the increased rate is generally regarded as a penalty and not within the usury laws.” 27 R. C. L. p. 232. Cyc. makes a similar statement: “The agreement by the borrower that in case of default in payment at the time of maturity, there should be paid an additional sum in excess of legal interest, as liquidated damages is a penalty and generally unenforceable; but it is not usurious since it is not absolutely payable. But there is some authority holding such contracts usurious.” 39 Cyc. p. 985. The following cases are in accord with this statement of the rule: Lloyd v. Scott, 4 Pet. (U. S.) 205; Blake v. Yount, 42 Wash. 101 (84 Pac. 625, 7 Ann. Cas. 487, 114 Am. St. Rep. 106); Ward v. Cornett, 91 Va. 676 (22 S. E. 494, 49 L. R. A. 550). Valuable notes will be found in 55 Am. Dec. 396; 46 Am. St. Rep. 178; 81 Am. Dec. 737; 91 Am. Ct. Rep. 588. Inasmuch as defendants in the present case could have relieved themselves from the excessive rate by making payment of the assessment when due, we must conclude that the excessive charge was not usury but was a penalty and therefore not recoverable. Are defendants liable for the assessment during the period when the policy was suspended? Subdivision (/) of article 10 of the charter provides : “A member is liable for his ratable proportion of all liabilities of the company which may accrue during the time his policy is void or suspended, and until his policy is legally canceled.” This provision does not appear to be altogether unreasonable. During the period of suspension the insured has the right to reinstate himself by making payment of his arrears. This is not true if the policy is canceled as he is then obliged to make a new application and it is optional with the company whether it will again accept his risk. The validity of this charter provision perhaps might be challenged on account of the word “void” but we need not pass upon that question as there is no contention in the present case that the policy is void. The charter provision will control in so far as the policy was suspended on account of defendants’ default in payment. In -view of the plaintiff’s excessive and illegal demand the suspension was unauthorized and no recovery could be had for an assessment during that period. For that part of the year in which the policy was in force no basis appears in the record for computing the amount due. Therefore plaintiff should not be permitted to recover in this suit for any part of the assessment of 1922. This being in accord with the conclusion of the trial court, the judgment should be affirmed. Defendants should recover costs in both courts. Moore and Wiest, JJ. concurred with Bird, J. Sharpe, J. The plaintiff company was organized under Act No. 262, Pub. Acts 1895 (2 Comp. Laws 1915, § 9586 et seq.), and reorganized under Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 et seq.). Section 2 of chapter 1 of part 2 of the act provides, in the ninth subdivision (§ 9100 [46]), that mutual companies must set forth in their articles of association “in what manner assessments, premiums or payments are to be required from the members.” The articles must be executed in triplicate and on forms provided by the commissioner of insurance, and, before filing, must have indorsed thereon a certificate of the attorney general that they comply with the provisions of the act. Subdivision (e) of article 10 of plaintiffs articles of association reads as follows: “A member neglecting or refusing to pay a premium or assessment note when due, or an assessment on or before the last day of the month in which the assessment is levied, shall pay a stipulated damage of 10 per cent, of the amount of such premium or assessment note or assessment, and thereafter an additional stipulated damage of 10 per cent, on the first day of each month until paid, but not to exceed twelve months in all. Provided a member pays his premium or assessment note, or assessment before suit for collection is started, the secretary shall collect a stipulated damage of only five per cent, per month instead of 10 per cent, per month. The secretary may, with the approval of the president, give a longer time than is herein specified in which an assessment shall be paid or before a stipulated damage is added, if in their judgment the best interest of the company demands it.” In defendants’ application for insurance they agreed “that this application, together with the policy of said company, its charter and by-laws, are a part of the contract of insurance,” and the insurance was accepted “subject to the charter, by-laws, rules and regulations of said company.” It will thus be observed that the provision for the payment of the 10 per cent., if in default, was not a regulation of the company, but an integral part of the contract of insurance. The purpose of mutual companies, such as plaintiff, is to furnish insurance to its members at approximately the actual cost thereof. If considerable insurance be written, and all assessments be promptly paid, the expense of operation is trifling. Many such companies have been organized in this State. Several have failed. Some are prosperous. We may take judicial notice that the failures in most, if not all, cases have been due to the inability to collect the assessments made. The amounts are usually small, those here sued for being but $15.60 and $12. It is apparent that if suit must be brought to enforce collection, the company will receive but little, if any, benefit therefrom. This fact is well known to those who seek to organize such companies. It is for this reason that the provision for the payment of the 10 per cent, by those in default is inserted in the articles and becomes a part of the contract of insurance. Its purpose is not to secure interest on the delayed payment, but primarily to induce the members to make payment within the time limited therefor, and secondarily to cover in part the expense of collection. ' I am unable to conclude that such an agreement, entered into by a person when he becomes a member, is not enforceable. I agree with Mr. Justice Bird that the provision is not usurious. Neither do I think it a penalty unenforceable at law. I think. it may well be regarded as damages, stipulated and agreed upon by the defendants as a compensation to their fellow members for their failure to live up to the terms of their agreement. The actual damages which the company will sustain, due to their default, cannot be estimated to a certainty. If but one member be in default, the damage would be trifling; if many be, the condition of the company could but be serious. • Its standing is dependent upon the prompt payment of its losses, and such payment is dependent upon the collection of its assessments. It has no assets to pledge as security for a loan. In case it borrows money to pay losses, its only way to make payment is by additional assessments, and, if these are not paid, a receivership under the statute must follow. The contract entered into by the defendants was not one for the payment of a definite sum of money simply. It was an undertaking that if one or more of the members suffered a loss, they would contribute their ratable share of the sums necessary to reimburse them, and, in order to induce and secure prompt payment and to cover any expense due to the collection of arrears, they agreed with their fellow members that the percentage provided for should be collected as their additional share of the sums necessary to pay such losses and the expenses of operating the company. The percentage, when collected, goes into the treasury of the company. The entire membership receives the benefit, if there be any, incident to its payment. The relationship of lender and borrower does not exist. While there is an obligation resting on the insured member to' pay the assessments levied, this obligation is coupled with his agreement that, if not paid when due, he will pay the additional amount, plainly stated in the contract. The organizers of this company felt impelled to insert this provision in the articles to insure its stability. When the defendants and all others became members of the company, they agreed that it should become a part of the contract of insurance, binding alike with the other provisions therein. It operates on all alike. I can see no reason why it should not be enforced. My attention has not been called to, nor have I been able to find, any Michigan decision in which this question was considered. The general rule undoubtedly is that interest on moneys in default is compensation for the delay in securing payment. Damages in such cases, although agreed upon, will ordinarily be construed as penalties, and cannot be enforced. See Davidow v. Wadsworth Manfg. Co., 211 Mich. 90, 94 (12 A. L. R. 605), and cases cited. An exception to this rule, where the relation of borrower and lender did not exist, was pointed out in Flanders v. Chamberlain, 24 Mich. 305. A note, given on the sale of property, provided that it should draw no interest if paid at maturity, but, if not then paid, it should draw interest from date. Christiancy, C. J., said: “As this note shows upon its face, that it was to draw no interest before maturity, if then paid, it is. claimed that this is in the nature of a penalty; and in an ordinary case, when a note is given for a precedent debt, I am strongly inclined to think such a provision for interest from date, at ten per cent., if not paid when due, ought to> be treated as a penalty rather than stipulated damages, for nonpayment at the day. But it is shown that this note was given for property sold on these specific terms, such being the condition of the sale; and undoubtedly a' vendor has a right to refuse to sell except upon this or any other condition; and such being the condition of the sale in pursuance of which the note was given, I think it must draw interest from date at the rate mentioned.” This case is cited and quoted from with approval in Wrenn v. Land Co., 65 Or. 432 (133 Pac. 627, 46 L. R. A. [N. S.] 897), wherein the authorities are reviewed at length, and the same conclusion reached. See, also, note in 12 A. L. R. 374; 33 C. J. p. 221, and note. The effect of such agreements arising out of contract, where the relation of lender and borrower does not exist, is well illustrated in Hardee v. Howard, 33 Ga. 533 (83 Am. Dec. 176). Defendant drew on plaintiffs a draft for $2,870.85, payable at a bank, agreeing with the acceptors— “that if. they failed to send them in time cotton sufficient to satisfy the same at maturity, then, and in that case, they bind themselves, * * * to pay to the said acceptors ten per cent, on the principal and interest * * * as stated and liquidated damages therefor.” There was default in making shipment of the cotton, and it was held that the ten per cent, was collectible as stipulated damages. In United Shoe Machinery Co. v. Abbott, 86 C. C. A. 118, 158 Fed. 762, it was held (quoting from the syllabus): “But an agreement in a contract for the sale or lease of property to give the debtor a discount in excess of legal interest in the event of his payment of the agreed price or rental before it is due is not obnoxious to public policy, is not a contract for a penalty, and is enforceable in the courts.” The right of a public service corporation to exact a charge for delay in payment has been passed upon by several courts. In State, ex rel. MacMahon, v. Telephone Co., 59 Wash. 156 (109 Pac. 366, 31 L. R. A. [N. S.] 329), the validity of a regulation of the company requiring payment of rentals in advance, and providing that— “in case the monthly advance payment was not made, an additional charge of 50 cents each month would be paid by relator as compensation for the additional cost of collecting and handling the account,” —was involved. After alluding to the duty of the company to render efficient service, the court said: “Manifestly, if all the subscribers of appellant continuously refused to pay their rentals in advance, and thus necessitated the employment of collectors, additional office force, and the incurring of other expenses incident to the collection of such rentals, the .moneys thus expended must be taken from the revenues of the company, and thus impair a fund to which the company must look for the expenditure necessary to keep its plant in the highly efficient condition required and demanded because of the public nature of the service. It is therefore not unreasonable that the company adopt a rule and enforce a regulation providing for the payment of its rentals in advance, and for an additional charge in case such requirement is not complied with. Such a charge is not an addition to the maximum rate provided for in the franchise. It is rather a charge for default and delinquency, which may be avoided by a compliance with the reasonable regulation for the payment of rentals in advance.” It was further said: “There is some discussion in the briefs as to whether the 50-cent charge is in the nature of liquidated damages for the breach of contract to pay in advance, or whether it is a penalty. It is immaterial what it's nature may be and we shall not attempt to critically analyze or define it. It was a proper regulation, of the company, to assist in the prompt payment of the monthly rentals, and as such a proper and reasonable regulation it is sustained. It is not a fixed rate which must be paid to receive the service of the company, and which may not be increased from that fixed by the city in granting the franchise. It is rather in the nature of a regulation to insure the prompt payment of that fixed rate, beneficial alike to the company and its subscribers.” Cases from other States are reviewed in the note thereto. See, also, note to 43 L. R. A. (N. S.) 63. A similar question to that here considered was passed upon in People’s Mut. Fire Ins. Co. v. Groff, 154 Pa. St. 200 (26 Atl. 63). We quote from the syllabus: “A stipulation in the application of defendant for his policy that, if any assessment be not paid within 30 days after notice of the same, he will ‘pay 25 per cent, thereon for expense of collection,’ is not uncon scionable and illegal, and may be collected, in addition to the assessment.” Some of the cases hold that there is a distinction between an agreement to pay a stated sum which might be satisfied by the payment of a smaller sum if paid at a specified time and an agreement to pay a specified sum with a proviso that if not paid by a specified time a larger sum would be due. The tendency of the later decisions has been to hold that there is no distinction in legal effect between the forms of such contracts. In Longworth v. Askren, 15 Ohio St. 370, it is said: “Nor, in our view, does the order in which the sums are stated change their character, or the legal effect of the instrument; for, whether the amount to be paid is to be reduced upon compliance with the terms of payment, or to be increased on a default, is only a different mode of expressing the same’thing.” I agree with Mr. Justice Bird in holding that the provision in article 10 of the charter, quoted by him, is enforceable. I have expressed my views on this question at length in Johnson v. Insurance Co., ante, 204. In my opinion, defendants are liable for the assessment levied in 1922. The judgment is reversed and set aside, with costs to appellant, and a new trial granted. McDonald, C. J., and Clark, Steere, and Fellows, JJ., concurred with Sharpe, J.

[ -2, 28, -67, -13, 0, 8, 32, -10, 40, 17, -5, 23, 70, 8, -22, 4, 5, 1, -25, 45, -49, -35, 4, 2, -13, 41, 32, -2, 47, 27, 30, -4, -63, 21, -20, -17, -22, 1, 2, -10, 67, 0, 12, -5, -4, -20, -5, -51, 32, -1, 35, -26, 46, -19, -9, 42, 0, -11, -64, -3, -8, -18, -3, -11, -32, -6, 11, 5, 29, -20, -60, 0, -4, 19, -25, 5, -44, 21, -44, -12, -25, -50, -11, -16, -10, 32, -18, -15, -22, 43, -8, 51, 27, 20, -6, 4, -21, 7, 22, 16, 24, -73, 17, 37, -3, 30, -24, -57, 0, 1, -32, 54, 15, -25, -25, -33, -41, 16, -43, -43, 32, 3, 2, -34, -49, 40, -2, -27, -40, 1, -18, 1, -66, 17, -37, -27, 4, 7, -51, 15, -69, -52, -59, -48, -16, -10, 52, -50, -27, 0, -10, 10, 10, 15, -46, -28, 0, -13, 29, -47, 37, -37, -7, 4, -7, 1, -29, 43, 42, -37, 53, 12, 6, -7, 17, 41, -2, -82, 2, 36, -14, 10, -30, -26, 63, -21, -80, 10, 54, -23, -2, -26, -23, 15, -16, 16, 18, 26, -6, -18, -41, -38, 21, 25, -24, -14, -17, 10, 11, 9, 3, 5, -21, 1, -9, 32, -24, -16, -55, 20, -3, 10, -14, -6, 5, -43, -16, -5, 19, -11, -43, -4, 38, 41, -10, 60, -23, 57, -18, 55, 18, 48, -31, -42, -44, 0, -15, 1, -11, -21, -14, 2, -32, 77, -27, -30, -3, -27, -15, -24, -83, 47, 8, 25, 21, -29, -25, 36, 22, 1, -4, -31, -21, 25, -3, -58, -48, -28, -31, -37, -6, -9, -17, 2, -35, -4, 20, 26, -34, -61, 50, -51, 24, -13, 61, 23, -1, 44, 12, -35, 10, -61, 12, 35, 88, -16, -5, 53, -12, -29, -46, -22, -23, -10, 70, -29, -7, 27, 29, 6, 47, -30, -5, -16, 40, -16, 47, -27, 12, 28, -79, -32, 23, 11, 22, 4, 8, 7, -7, -6, 31, 26, 1, -23, 26, 30, -33, -44, -47, 42, -50, 54, -33, 33, -10, 47, 47, 40, -20, 36, 66, 20, 24, -39, 21, 7, -16, -8, 31, 45, 37, 16, -22, -49, -22, 36, -6, 47, -33, 48, 9, -28, -48, 40, 32, 5, -32, -3, -32, -19, -53, 27, 1, 25, 4, -49, -19, -26, -57, -11, -12, -15, -34, -75, 8, -43, 11, 9, -41, -10, 0, 21, -27, -50, -14, 24, 45, -30, -3, -30, 86, -1, 58, -2, 5, -66, 12, 9, -35, -3, -21, -20, 8, -56, -27, -41, -40, 31, -24, -2, 41, 41, 32, 28, 43, -6, -61, 5, 22, 42, -5, -67, 37, -5, 8, 8, 40, -18, -4, -29, -3, -1, 24, 24, 39, -69, -32, -35, 45, -5, -9, -7, 12, 7, -3, 5, 7, -15, 5, 11, -30, 38, 34, 9, -18, 0, 0, -43, -18, 23, 15, -33, -47, -20, -20, 12, -3, -30, -41, 23, -50, 16, 20, 2, 35, -4, -22, -75, 41, 28, -45, 9, 50, 54, 35, -12, 64, -14, 24, 44, -19, 30, -65, -4, 8, 18, -27, 13, 1, -22, -6, -8, -19, -27, -4, 0, 45, 19, 23, -21, -59, 39, 43, 14, -2, -3, 17, 9, 11, 6, -55, -51, 44, 30, -56, -28, 8, -6, -19, 24, -15, 27, 3, -15, 1, -46, 10, -5, -2, -40, 16, 12, 1, 27, -55, -21, 0, -20, 38, -15, 9, 35, -21, -27, 16, 39, -43, 29, 0, 37, 43, 35, -2, 38, 11, -29, 10, -10, 4, 42, -21, 13, -30, -35, -8, 5, 11, 2, -5, -3, 65, 41, 12, 40, 16, 5, 26, 6, 30, 3, 22, 11, -5, 10, 10, 6, 38, -10, -16, 67, 17, -30, 17, 15, -61, 24, 21, 38, -8, -8, -27, -26, 13, 24, -24, 70, -62, -2, -19, -22, -28, 49, 7, -2, 2, -29, -30, 13, 23, -42, -24, 8, 26, 41, -78, 25, 9, 16, -4, 9, 36, -43, 23, -41, 27, 40, -64, 114, 63, 17, -44, -25, 13, 55, -8, -65, 6, 11, 31, -3, 14, -51, -23, -9, 33, 1, 37, 31, 24, -4, 17, -47, 2, 13, -36, -2, 30, 15, 5, 9, 59, 10, 24, -7, -39, -44, -17, -11, -37, 11, 4, -37, 45, -24, 14, -4, 36, -6, -72, -41, 1, 15, -19, -11, 26, 15, 20, 14, 32, -22, 7, -15, 25, 10, -34, -14, -28, 4, 34, 37, -4, -9, 27, -30, -21, -13, -22, -28, -5, 4, -14, 27, 11, 63, -19, -19, 17, -31, -6, -59, -20, -9, 16, -27, 14, 48, 3, -25, 31, 29, 3, 1, 28, 4, -29, -53, 0, -13, -19, 15, -22, 11, 17, -20, -12, 32, -2, 8, 15, -14, 4, -7, -17, -13, 39, -4, 41, -39, 13, -2, -54, -49, -13, 16, -1, 25, -15, -14, 36, -1, -32, 98, -9, 13, 10, 7, 30, -40, -5, -9, 3, -33, -29, 7, -9, -13, -20, 10, -5, 16, 27, -51, -29, 70, 21, -9, -67, 13, -42, 20, -18, -28, -12, 20, -51, -12, -13, -6, 7, -16, 11, -4, 4, 50, 58, 55, -42, 43, -32, -19, -17, 78, -37, -6, -6, 11, -8, -26, 19, -18, -4, 18, -13, 31, -15, 22, -6, -14, -57, 93, 53, 3, 41, 19, -5, -51, -33, 15, 44, 16, 5, -51, 8, -31, -3, 57, 8, -5, -29, 71, 9, -19, -5, -13, 20, 48, 0, -60, 23, 46, 19, -24, -30, -49, 5, -8, 21, 22, -10, 13, 21, 47, 44, 63, 45, -11, 11, -23, -18, -35, -10, -20, 13, 16, -41, 49, 41, -5, 55, -6, 4, 60, 31, 69, -10, -47, -43, 17, -18, 18, -37, 4, 7, -74, 65, 48, 20, -5, -40, -53, -21, -19, 15, -43, 41, 31, 57, -54, -48, -19, 0, -40, 7, -23, -45, -26, 3, 2, 3, 21, 45, -21, -17, 53, 18, -40, 15, -14, 45, -64, -16, -62, 39, -2, -6, -59, 49, 62, 19, -63, 10, 76, -2, 30, 9, 14, -28, 22, -30, -22, 58, 52, -31, 54 ]

Montgomery, J. This is an appeal from the Alpena circuit allowing a claim in favor of Abraham R. Blakley against the estate of Julia Farwell, deceased. Mr. Blakley was the business manager of the estate of Julia Far-well from the time she came into possession of her estate by inheritance from her mother until her death, which occurred February 29, 1896. This estate consisted of dwelling houses, a brick block, and unimproved property, or city lots, situated in Alpena, a portion of which had been sold on land contracts. Miss Farwell disposed of her property by will, dividing it into three equal parts. One-third she willed to George Grove Cochran, the contestant in this case; one-third to her sister, Mrs. Osborn; and one-third principally to charitable institutions. Mr. Blakley filed two claims in the probate court against the estate of Miss Farwell, — one for his personal services in managing the estate for the last few years, the other on a promissory note, which reads as follows: “$1,200. Alpena, August 14,1888. “One year after date I promise to pay to the order of Mrs. A. E. Montague twelve hundred dollars, at Alpena (value received), with interest at 8 per cent, per annum until paid. [Signed] “Julia Farwell, “By Abraham R. Blakley, Agent.” The note is indorsed: “A. R. Blakley. A. E. Montague.” Both of these claims were allowed in the probate court, and from that order Mr. Cochran appealed to the circuit court. Mr. Blakley presented no evidence on the trial in the circuit court in support of his claim for services, but his claim upon the note was allowed by the jury at $1,966, and the case is brought to this court for review. In 1887 the house occupied by Mr. Blakley, and the one adjoining it, were partially destroyed by fire. Mr. Blakley collected the insurance, and commenced to repair the one he lived in. He also repaired the corner house, and on June 1, 1888, the comer house was completed and rented to Mr. Gilchrist. August 14, 1888, Mr. Blakley gave Mrs. Montague the note presented against Miss Far-well’s estate. In the spring of 1889 he sold Mrs. Montague a farm, and took this note in payment. Miss Far-well resided in St. Paul, Minn., from October, 1885, until April 5, 1889, when she visited Alpena. She returned to St. Paul, May 16, 1889, and remained until September, 1892, from which time she made Alpena her home. She was absent from Alpena when the fire occurred and when the houses were repaired. No claim is made that Mr. Blakley had any authority whatever, under his power of attorney or otherwise, to make this note. It is contended that Miss Farwell recognized her liability on the note, and ratified the transaction. Defendant contends that there was no evidence of ratification; and, further, that no recovery should have been permitted until the claimant accounted with the estate as to all his transactions, and showed affirmatively that he did not owe deceased on account of such dealings. Claimant could not himself give testimony as to facts equally within the knowledge of deceased. He, however, called his wife as a witness. She testified that she saw and read a letter to claimant written by deceased while she -was in St. Paul, in answer to a letter written by Mr. Blakley, in which deceased wrote that she was glad he (Mr. Blakley) was able to raise the means to fix over the house and to pay for the repairs, and that it was all satisfactory to her; that she was glad it was done. Mrs. Blakley further testified that at a later date, in a conversation between deceased and herself, relating to the note in suit, deceased said there were some missionary causes she wanted to give more money to. “Said she would like to give more money to those missionaries, or some cause they had, but said that she didn’t think she could on account of this note of Abraham that she owed; she must pay that first.” It is contended that, before a ratification can be shown, it must appear that the principal has full knowledge of the transaction. This knowledge may be inferred from the circumstances proven. At the time of this last conversation, deceased was a resident of Alpena, living in the family of claimant, and the jury might well have drawn the inference that she had informed herself of the situation before making the statements shown. No claim of set-off was filed, nor was there any definite showing as to the amount of money that came to the hands of claimant as agent of deceased. The note in question, if a valid obligation, came to claimant by transfer from the payee, and was a distinct item by itself. It was not incumbent in a suit on this note to show affirmatively that in all the dealings between the parties, for all the years in which he acted as her agent, he had properly accounted to her. This was matter of defense. The charge of the circuit judge was sufficiently favorable to the estate. Judgment affirmed. The other Justices concurred.

[ 31, 32, -10, 11, -7, 16, 62, 29, 36, -7, -13, -65, 11, -19, -14, -12, -13, -14, 33, -15, -13, -30, -34, -8, 14, 8, 27, -3, -62, -13, 18, -5, -54, 20, -6, 3, -21, 4, -27, 11, 6, 56, 43, 28, 25, 26, 10, 5, 33, -7, -10, -9, 34, 14, 7, -15, -14, 46, 37, 2, -19, -44, -12, -13, 30, 44, 48, 0, -34, -5, 6, -4, 20, -3, 28, -11, 25, -8, 18, 33, -6, -18, -6, -58, -17, -101, -19, 6, 45, 19, -56, 0, -49, 46, 14, -10, -14, 9, 15, 22, 40, 4, 47, 62, -71, -7, 5, -13, 14, -10, -73, -5, 37, -18, 1, -5, 33, -73, -1, 33, -18, -29, 21, -18, 6, 19, -42, 44, 26, 0, -26, 28, -52, 1, -18, 34, -24, -38, 14, -13, 19, 30, 23, -21, -15, 26, 25, -40, -6, 51, -22, 28, 15, 49, 49, -3, 66, -26, -15, 2, -11, -27, 18, -46, -56, -51, 45, 9, 33, 25, 13, 7, 12, -23, 4, 19, 41, -23, -66, 44, -6, -7, 16, -14, 4, -70, 10, 6, -2, -32, 37, -26, 14, 19, -20, 5, 20, -29, 7, -32, 40, 1, 4, -18, 21, -4, -37, -35, -16, -51, 0, -1, -12, -7, -38, 51, 25, -1, -20, 15, 9, 15, 27, 49, -52, -55, -25, -39, 31, -20, -39, -31, -34, -39, -12, 23, -49, -2, -47, -45, 1, -8, 9, -7, -11, -20, -29, -14, 7, 53, -8, -10, -20, 61, 1, -9, 26, 7, -14, -21, -36, 9, -24, 31, 65, 0, 10, 32, -1, 51, 0, 28, 43, -24, -6, -47, 6, -2, 19, -48, 26, -51, 17, 4, 0, 23, -1, -20, -19, 26, -30, -4, 1, -43, 5, 6, -20, -26, -3, -29, 24, 0, -13, -9, 17, -25, 19, -77, 2, 4, 7, 38, -6, 45, 9, 0, -12, -25, -21, -45, 16, -42, -35, 4, 11, 1, 2, 27, -16, 66, 24, -2, -6, 18, -20, -7, 36, 39, -3, -24, 16, -20, 19, 33, -18, -20, 7, 34, 0, -15, -22, -10, -44, 37, -60, -4, 70, 27, -30, 24, -7, 0, 30, -24, 25, 10, -31, -18, 3, -20, -7, 38, -7, -6, 33, -10, -50, -22, -15, 47, -11, 1, 27, 46, 30, -3, -7, -32, -1, 31, -21, 36, 21, 49, 32, 28, 3, 14, -53, -19, -28, 49, -53, -33, -62, -15, -22, 10, -26, 29, 20, -11, 10, -14, 30, -32, -4, -7, 7, 27, 6, 42, -19, -19, 20, -3, 49, 51, 14, -62, -32, 54, 24, 33, -2, -20, -20, 0, -2, -42, 0, 54, 13, 12, -29, -12, -25, 21, 38, -34, -20, 7, -19, 0, 29, 0, 104, 27, -3, 6, -7, -3, 38, 51, -11, 36, 28, 5, 26, 12, 1, 39, -24, -84, 9, 25, -1, 29, 27, 25, 10, 3, 5, 18, 13, -27, -19, -33, -50, -50, 65, -48, -35, 0, 13, -31, -13, -2, 49, -27, -36, 8, 67, 19, -40, -13, 1, 22, 35, 27, -18, -57, 37, 28, -7, 23, 27, -5, -2, -37, -8, -10, -60, 40, 36, 27, 48, 12, 29, -35, -45, -22, -17, -32, -47, -19, 21, 23, 21, 21, -9, 44, 38, -5, -98, 36, 15, 13, 36, -3, 16, -59, -19, 19, 16, 25, -21, -30, 1, 40, 39, -44, 21, -51, 19, -33, 35, -31, -9, 23, -46, -46, 33, -53, -12, -50, 19, -22, -21, 52, -1, -25, -2, -17, 20, 40, 19, -10, -40, 34, -23, 38, -20, 24, -8, -24, 1, 30, 24, -35, -22, 8, -33, -19, -18, 14, -43, 2, 7, -21, 11, 3, -38, -7, 19, 23, 21, -50, 46, 0, 11, 47, 20, -6, 0, -8, 4, 38, -23, 5, 24, -45, -61, 28, -2, -29, 33, 21, -77, 29, -63, 7, 2, -6, -30, -16, 2, -19, -14, -31, -54, -19, -8, 27, 13, -4, 67, 81, -1, -24, 61, -9, -3, -14, 8, 36, 1, -23, -18, 34, -50, -33, -28, 3, -75, -41, 12, 34, 29, 63, 22, -8, 31, 71, 31, 2, -25, 15, -12, -52, -19, -20, 14, -3, -34, 19, 17, -25, 89, -11, 24, 6, 25, 50, -25, 12, 39, -28, -6, -80, -75, -16, 74, 34, -43, 3, -2, 7, 73, -8, 24, -26, 11, 0, 2, 22, 48, 21, -33, -35, 9, 44, -38, 24, 28, 17, 4, -56, -44, -22, -62, -7, -40, 24, 31, -14, 54, 14, -34, -41, -2, 55, 56, 16, 41, -40, -34, 1, -27, 1, -28, 12, -45, -9, -1, 8, 24, -10, -20, 7, -14, 69, -28, -21, 9, -16, 1, 14, 67, -38, 34, -32, -56, -13, -13, -13, 7, -12, 12, 26, -72, -17, 5, 6, -76, -30, -32, -37, -34, 23, 3, -3, 23, 66, -23, 4, -80, 24, -37, 7, 2, 45, -15, -69, -29, -29, 0, 26, -5, 45, -44, -22, -9, 43, 21, -13, 21, 23, 0, -19, 28, -23, -64, -20, 7, -32, 23, 11, 7, -36, -65, -8, -7, -7, -60, -55, -28, 62, -11, 20, -6, 4, -20, -10, -48, -51, -10, -23, -62, 24, -6, -20, -26, -8, -28, 8, 37, 19, -19, 0, -18, 26, -46, 11, 44, 26, -37, -25, -1, 32, -32, -52, -48, 14, 11, 74, 68, 26, 12, 9, 7, 1, 5, 34, -45, -21, -13, 7, 26, -28, -9, -15, 24, -6, 14, 13, 7, 39, 29, 16, 51, -35, -38, -46, -1, 35, -39, 35, -61, 64, 23, -29, -29, 25, -15, 43, 29, -4, -16, 42, -28, -32, 16, -52, -30, -35, 8, -63, -36, -8, 70, -12, -1, -10, 23, 26, 66, -13, -4, 40, 35, 0, 20, 52, -1, 25, -11, -13, 13, 15, -32, 3, -4, -9, 51, -25, 7, 29, 19, 9, -11, -76, -49, -30, -12, -7, 58, 22, 29, -68, 11, -7, -9, 12, 0, -23, -27, -34, -24, -12, 3, -23, -31, 34, 51, 10, -13, 12, -46, 0, 8, -33, 13, 28, -6, 24, 42, 5, 4, 27, -36, -38, 30, 38, 39, 15, 31, 17, 49, -11, 13, -42, 8, 14 ]

Montgomery, J. The respondent was prosecuted for a violation of Act No. 184, Pub. Acts 1895, known as the “Factory Inspection Law.” This law provides (section 12) that “the commissioner of labor * * * and deputy factory inspectors shall be factory inspectors in the meaning of this act, and are hereby empowered to visit and inspect at all reasonable hours, and as often as practicable or required, the factories, workshops, and other manufacturing establishments in the State,” etc. A further provision is that any person who violates or omits to comply with any of the provisions of the act, or any person who interferes in any manner with the factory inspector in the discharge of his duties, shall be punished, etc. The charge preferred against this respondent is that he did unlawfully interfere with one Otto Reinhardt, a deputy state factory inspector, in the discharge of his duties, “by Refusing him access to the machinery department of the Edison Illuminating Company, of which said Alexander Dow was then and there the general manager. ” The evidence on the trial disclosed that the inspector visited the premises of the Edison Illuminating Company, and was referred by the person in charge of the office to the engineer. The office was upstairs. He then went downstairs, and found a door which he assumed to be the door leading into the engine room. It appears by the undisputed testimony that, as a matter of fact, this was not the regular door used for that purpose; that, while it led indirectly to the engine room by means of a flight of steps, yet there was a regular door to the engine room. While standing near this door the respondent entered the other door. The parties are not agreed as to just what the con versation was, but both do agree that respondent directed Mr. Reinhardt to the engineer, and directed him to go around to the other door. This the inspector refused to do, but demanded admission at the door in question. The prosecuting attorney in his brief says that the question to be decided is whether the factory inspector or his deputy has the right, at all reasonable times, to enter at any door or entrance that is open, and through which access may be gained to the machinery, in any factory that the duties of the factory inspector or his deputy, as set forth in the statute under which the warrant in this case was issued, may call him, or whether the factory inspector or his deputy may be compelled to enter such factory through such opening or door as the proprietor or person in charge may ■see fit to designate. We have no hesitancy in answering this question, and affirming that it is the duty of the factory inspector to observe the reasonable regulations of the proprietor. The authority conferred by this statute is extraordinary, and due regard to the rights of others would suggest to the officers that the authority be exercised in such a way as to avoid collison with the owner or occupant, if possible. It is not suggested that the door to which this factor inspector was directed did not afford access to the department which he sought to inspect. This being so, it cannot be said that the respondent interfered with the inspector by refusing him access to the machinery department of the company, unless it be held that the inspctor is to be the judge of the aperture through which he is to enter. It would, of course, be a physical possibility to enter through an open window, but, if the proprietor had provided a door to admit persons to the premises, he would not be bound to permit the inspector to enter at the window. The case would have been quite different if the refusal had been captious, or if the door to which the inspector had been directed would not have afforded him full access to all parts of the factory which he desired to inspect. The provisions of the law are wise and salutary, and we would by no means be disposed to place such a construction on the statute as would be calculated to unnecessarily hamper officers in the discharge of their duty; but, on the other hand, the power to enter upon private premises for the purpose of inspecting property is a delicate power, and should be exercised with great caution. We think the evidence in this case did not warrant a conviction. Judgment will be reversed, and a new trial ordered. The other Justices concurred.

[ 1, -33, 9, -12, 0, 3, -51, 19, -54, 26, -19, 38, 20, -29, 35, -30, 40, 32, 19, 25, 94, 9, -27, -7, -24, 3, 2, 27, -49, 50, 12, 20, -6, 8, 13, 26, 89, -25, 47, -16, -45, 26, 23, -74, 7, 14, -14, 48, 20, -12, -17, 33, 12, 40, 75, -57, -13, 34, -18, 23, -25, 3, 40, -20, 41, -14, 15, 15, -31, -3, 15, -13, -16, -14, 21, -12, 55, -25, 9, 21, 6, -22, 0, -71, 11, 8, 20, 17, -29, -19, 33, 22, -35, -3, 7, 8, -28, 27, 37, 10, -9, 24, -30, 37, 8, 35, -18, 40, -15, 31, 19, -7, 13, 1, -19, 22, 36, -20, -28, 0, 73, 1, 33, 42, -12, -30, 0, -50, -11, 27, 0, 74, 4, -73, -13, 3, -22, 3, 4, 34, 12, 6, 4, -17, -26, 11, -36, 46, -11, -29, -31, -38, -17, -12, -1, 13, 35, -24, 8, 53, -16, 54, -26, -2, 2, -18, -28, 0, -9, 0, -34, 42, -16, -8, 59, -38, -26, 2, -31, 22, -23, -63, -36, -9, 21, 19, 51, 30, 8, -18, 3, 14, 2, 2, 26, 28, 0, 15, 18, 2, 2, 42, 0, 22, 7, -18, -47, 74, -39, -7, -14, 49, -11, -16, 0, 0, -27, 30, 21, 39, -53, -31, -33, 21, 6, -42, -16, 26, 70, -5, -5, 8, 62, 28, -2, -1, -13, -60, 44, -10, -34, 47, 5, 22, 6, -48, -31, 2, 28, 21, 6, -34, 60, -8, -20, 0, -29, -14, 60, -27, 31, 6, 1, 2, 35, -31, 26, 28, -39, 6, -30, 21, 20, -1, -43, -15, 14, 53, 14, -55, -26, -23, -18, 43, -19, 9, 21, -5, -76, -36, 25, -46, -31, 1, 31, 9, 15, 1, -68, 20, -15, 11, 1, -51, 49, 27, -10, -13, 16, -20, -42, -8, -33, -7, 41, 5, 8, 13, 14, -27, -39, 20, -5, -26, -5, -33, 1, -11, 14, -40, 25, -18, 15, 49, -63, 34, 15, 1, 29, -4, -1, 8, 23, -45, -34, 36, 15, 7, 31, -62, 74, -76, -10, -28, 8, 22, -7, 12, -15, 6, 22, 19, -14, -10, -53, -41, -53, -44, -6, 11, -4, -69, 10, 12, -21, -40, 12, -32, -17, 37, -7, -40, -25, -13, -17, -1, 13, -9, -35, 24, -30, -9, -8, 8, -38, 6, 54, -16, -12, -13, -17, 14, -5, 20, -4, -34, 16, 10, 5, 7, -16, -1, 10, 42, 30, -53, 25, -42, 65, -20, 26, -8, 50, 3, 77, -9, -10, -10, 6, -1, -7, -63, -8, 17, -45, -47, -16, -8, 31, 12, -47, 16, -54, 29, 36, -1, -8, 12, 16, -22, 22, 3, 10, 19, 29, 13, 6, 46, 79, 47, -5, 11, 8, -14, -3, -17, 44, -16, 29, 13, -28, -11, -20, -18, 0, -57, 4, 53, 23, -4, -2, -18, 55, 27, -47, -47, -30, -17, 5, 20, 35, 76, 4, -16, 30, 44, -8, -18, 0, 36, -83, 0, -18, -3, -9, -31, 29, 14, 62, -5, -44, 1, 0, 4, 0, -34, -3, 10, 39, -14, 57, -47, -2, 5, -10, 30, -20, -28, 6, -23, 45, -10, 20, -36, 54, -44, 15, -7, -10, -10, 26, 0, 69, 35, 5, -61, -4, 34, 8, -7, 45, 27, 0, -30, 11, -4, -25, 61, -18, 65, -18, -29, 19, 6, 2, -23, -35, 51, 77, 19, 14, 59, -16, 31, 33, 23, 8, 3, 22, 1, 23, -16, 20, -10, -36, 17, -24, -8, 4, -30, -71, -46, -34, -26, -8, -18, -7, 56, 36, 31, 1, -24, -15, 22, -20, 11, -22, 22, -14, -6, 2, -43, -16, -37, -20, 41, -76, -20, 20, 15, 24, -15, -22, 21, -35, 15, -9, -8, 9, -22, -54, -13, -18, 30, 8, -6, 72, 1, -13, 32, 27, -22, -39, -52, -29, 23, 59, 19, 19, -7, 0, 6, 29, -7, 29, 9, 9, 25, 16, -16, 34, -21, 41, 0, 62, 0, -70, -19, -73, -35, 45, 31, 16, 56, 0, -25, 35, -19, -24, -4, 6, -14, -8, 22, 11, -9, 16, 0, -25, -49, 17, -3, 40, -59, -10, 40, 53, -75, -10, -17, -41, -21, 21, 45, 10, 11, 23, -27, 38, -18, 43, -8, 1, 24, 15, -9, -16, 0, -9, -28, -24, -8, -7, 31, 4, 51, -28, -16, -12, -42, 26, -11, -5, -9, -16, 44, -69, -48, -21, -44, 41, 46, 11, 32, -1, -35, 39, 6, -27, 14, 10, 68, 11, -28, -4, 12, 0, -6, -62, 38, -10, 0, 12, -2, -24, 17, -40, -39, 21, -4, -33, 25, 31, -14, 2, 64, -3, -43, -15, -22, -23, -16, -5, -1, -4, -30, -36, 15, 26, -11, 2, -14, -8, -13, -2, -9, 35, -56, 16, 3, 20, -71, -27, 39, -34, -73, 18, 14, 1, -20, -6, -11, -59, -57, 16, -27, 24, 7, -12, -13, -20, 23, 34, -22, -1, -19, 33, -39, 32, -21, 6, 50, -16, 38, -8, -10, 2, 15, -8, -26, -35, 24, 19, 61, -10, 10, -13, 24, 8, 23, -10, -8, -50, -29, 27, 0, 55, -5, 32, 44, -25, 0, -21, 22, -12, -53, -51, -58, -15, -53, -4, 12, 37, -38, -35, 10, -28, -57, 19, 72, -14, -46, 41, -26, 25, 15, -30, -28, -9, 36, 2, 25, -7, 60, -38, -6, 51, -30, 51, -10, -4, 24, -3, 18, 6, 13, 3, -34, -24, -7, 11, 22, -28, -1, 8, 34, -44, 2, 8, -29, -40, -8, -7, 59, -10, -17, 13, -41, 19, 14, 13, -80, 38, -44, 5, -39, -12, -33, 19, -14, 15, 19, -68, -6, -14, -20, 20, 12, 15, 3, -1, 37, -51, -27, -8, 11, -12, -36, -52, -1, -20, 12, 32, 32, -32, 1, 45, -11, -24, -49, 7, -20, 11, 22, -1, 22, -31, 21, 32, 14, -5, -2, -8, 56, -36, -37, 1, -35, -17, -42, -33, 25, -17, 45, -16, 19, -78, -4, 71, 28, 9, -12, 11, -16, 40, 25, -3, 1, -20, 3, -4, -43, 3, -4, -2, 9, -48, -30, -58, -42, -11, -5, -54, 17 ]

Holbrook, P. J. This is an appeal by plaintiff, Victoria Ann Ross, wife, from the alimony, children’s support, property settlement, and attorney fees provisions contained in a judgment of divorce granted her from defendant husband, Harry Stewart Ross. Both plaintiff and defendant were residents of Berrien County before their marriage, and were members of very fine families. They were married in 1954 while they were studying in England. Both parties have enjoyed the benefits of higher education, the husband being an ordained minister, and the wife having graduated from college and having been awarded a Fulbright scholarship for study at the Old Vic Theatre school in London. • Before their marriage, defendant’s father gave him 3,500 shares of the common stock of Clark Equipment Company which has appreciated over the years and through stock dividends the number of shares have multiplied several times. There are four children of the marriage, Sarah C. B., Deborah H. (St. Andrew), Harry Beach and James Patrick Stewart, respectively 12, 10, 9 and 7 years of age. In 1959 defendant’s father deeded to defendant six acres of valuable land on Lake Michigan together with a very fine house situated thereon. This has been their family homestead since that time. The defendant husband, held the important position of pastor of one of the churches in St. Joseph, and because of his health and the publicity occasioned by the divorce proceedings, he resigned that position. His salary and expenses while serving in that capacity amounted to $725 per month. Since the divorce defendant has not been employed. The wife has not actively been engaged in her profession of acting, but did accept a contract for a few weeks in 1966 and received $650 as salary. The father of defendant husband during the marriage and until his death in 1966 was very kind to all members of the family. Unknown acts of kindness may have been many, but those brought to light in this case include gifts of life insurance policies and payment of premiums to the son; gift of stocks and three $50,000 life insurance policies on the life of defendant assigned to the wife, in- eluding the payment of premiums to the extent that the cash values of the policies at the time of the divorce were worth more than $32,000 (defendant’s mother paid premiums on these policies subsequent to defendant’s father’s death); gifts of stocks, cash, life insurance policies, including payment of premiums to each of the grandchildren, and an irrevocable trust for each of the grandchildren consisting of substantial stocks and cash. The proceeds of the trusts are payable to the children as they arrive at age 21 with the provision that the proceeds may be used if needed before that time. The defendant father and a bank in Benton Harbor are at the present time co-trustees of these trusts. The assets owned by the. children in their own right and the holding of the trusts are substantial and assure the caring for the needs of the children if other sources fail. The assets of the defendant husband as of May 24, 1968 and shown in plaintiff’s exhibit 1 are as follows: Stocks and cash Real estate (including house $677,614.70 and 6 acres of land) $122,500.00 Cash surrender value of life insurance policies $ 35,000.00 Other receivables $ 11,000.00 $846,114.70 with liabilities of $100,790.78 made up of loans from banks, leaving net assets of $745,323.92. The assets of plaintiff, Victoria Ann Ross, were automobile $1,500 (estimated), stocks and bonds $7,600, cash value of three $50,000 life insurance policies on life of defendant husband $32,563, for a total of $42,663. The net assets of both plaintiff and defendant together totaled $788,149.92. The trial court granted plaintiff a judgment of divorce on the grounds of extreme cruelty which provided in part for plaintiff to have custody of the children and for defendant to pay for children’s support $600 per month ($150 per month for each child) and, in addition, to pay any extraordinary educational expenses (including, but not limited to, costs of private schooling) and/or medical expenses (including, but not limited to, costs of neurological treatment and orthodontia) incurred for and on behalf of said minor children. The court reserved all questions relating to the payment of costs and expenses incidental to the college education of the children for determination upon application of either party at the proper time thérefor. The court awarded alimony to plaintiff wife in the sum of $400 per month, such payments to be terminated upon the death or remarriage of the plaintiff, and should defendant predecease plaintiff and she is not remarried the award shall be a claim and lien against the estate of the defendant. The court in providing for the property settlement and provision in lieu of dower awarded to plaintiff wife the family homestead located on six acres and household goods and furniture (mutually agreed to be of the value of $100,000); an automobile; $85,000 cash; three life insurance policies on the life of defendant, each in the face value of $50,000 and stocks and bonds of the value of $7,600. The trial court further required defendant husband to place marketable assets of the value of $100,000-in escrow with a bank in Niles, Michigan, the purpose of said escrow account being to secure alimony and support payments to said plaintiff and to provide for payment to said plaintiff by the escrow agent out of the escrow account any sum or sums of money in default for more than 30 days. The balance of the assets were awarded to the defendant husband. Attorney fees were awarded to the plaintiff in the sum of $5,000, together with costs of $602.50. The trial judge in his written opinion stated in reference to these provisions: “The court sincerely feels that the above provisions made for the plaintiff, Mrs. Ross, and for the children will give the family the security that it needs and will not substantially alter the standard of living that the family has enjoyed.” Plaintiff raises three issues for determination on this appeal. 1. Did the court abuse its discretion in awarding plaintiff $400 per month as alimony and $150 per month (total $600) for each of their four children as support? 2. Did the court abuse its discretion in awarding attorney fees to the wife of $5,000 plus costs of $602.50? 3. Did the court abuse its discretion in awarding to plaintiff for a property settlement the award of the automobile, the family homestead including household goods and furniture, stock and life insurance policies held in her own name, and $85,000 in cash for a total value of $227,663? I The alimony and support payments for the children are to assure suitable support and maintenance of herself and the children of the marriage, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case. MCLA § 552.23 (Stat Ann 1970 Cum Supp § 25.103). Plaintiff asked the trial court to award $300 per month alimony and $2,600 per annum for each child for support until age 14 and then $4,200 per child. Had the court so ordered as requested it would have ordered a total of $14,000 per annum instead of the $12,000. The income for 1967 of defendant as shown on his income tax return is as follows: dividends, $26,718; salary as pastor $5,500; interest, $1,612; and undistributed capital gain of regulated investment companies, $4,423, for a total of income of $37,279. This income was subject to be reduced by $5,500 because defendant was not employed at the time of the judgment of divorce (the cause of his unemployment was found by the trial court to be ill health and the publicity occasioned by the divorce) and a further sum representing reduced dividends of $3,500 caused by the payment of $85,000 to plaintiff wife as part of the property settlement. After these reductions the gross income of defendant would be $28,279 per year with the following expenses: interest $4,986; medical expenses (1/2) $2,530; and estimated state taxes $800; and estimated federal taxes $2,000 for a total of $10,316. Under these facts the usable income of defendant would amount to $17,963. Out of this sum defendant was required to pay plaintiff $12,000 as allowance and support for herself and the children plus extraordinary medical and educational expenses for the children. It is evident that the alimony and support to be paid by defendant is possibly more than he can pay out of his income. Unless defendant obtains employment or sells some of his assets he will not be able to make ends meet and provide a necessary living for himself. In the case of Ackerman v. Ackerman (1966), 5 Mich App 338, 349, we quoted from the case of Bialy v. Bialy (1911), 167 Mich 559, 565, 566: “Alimony * # * is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily it signifies, not a certain portion of his estate, but an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life during their separation, whether it be for life or for years.” In the case of Socha v. Socha (1966), 5 Mich App 404, 412, 413, we stated: “The right to alimony arises out of the husband’s duty to support the wife under the marriage contract. Johnson v. Johnson (1956), 346 Mich 418. Although the court’s power to grant alimony is not inherent but statutory, Ritzer v. Ritzer (1928), 243 Mich 406, the statute rests discretion in the court. “CL 1948, § 552.23, as amended by PA 1964, No 11 (Stat Ann 1965 Cum Supp § 25.103) provides: “ ‘Upon every divorce from the bond of matrimony for any cause except that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate real and personal, to be paid to her in gross or otherwise as it shall deem just and reasonable, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case.’ ” Considering all the facts in this case as we are required to do under the rule of law hereinabove stated we must conclude that the trial court did not abuse its discretion in awarding alimony and support payments in the sums ordered. II The plaintiff claims she should have been awarded $7,500 attorney fees, the amount her attorneys charged her, instead of the $5,000 ordered by the court. Factors to be considered in setting attorney fees are: the needs of the wife, the ability of the husband to pay, and the difficulty of the case. 1 Moore and Moore, Michigan Practice: Marriage, Divorce and Separation (2d), § 1364 pp 457, 458. This case took one day to try and we recognize the fact that considerable property was involved and the law applicable to the division thereof was somewhat complicated and that extensive briefs were filed. However, attorney fees have been consistently referred to as being in the discretion of the trial court. Socha v. Socha, supra, and Maynard, v. Maynard (1950), 329 Mich 247. The court awarded attorney fees of a few dollars more an hour than the amount specified in the minimum fee schedule for the county of Berrien. Under the circumstances present in this case we cannot say that the court abused its discretion in the setting of the attorney fees. Ill The plaintiff asserts that she should have been awarded one-half of defendant’s assets. In plaintiff’s brief it is stated: “A careful analysis of the more recent cases compels one to conclude that there is no rigid rule of one-third or one-half which our Supreme Court follows (Smith v. Smith [1952], 334 Mich 56; Johnson v. Johnson [1956], 346 Mich 418). Obviously, the ‘ability’ of the husband to pay alimony and sup port and the assets he is permitted to retain are interdependent. That the legislature contemplated this result is made clear by our Supreme Court in DeMay v. DeMay (1949), 326 Mich 72, 76, when it said: “ ‘the court will provide a property settlement and alimony allowance so that the plaintiff can live under the conditions that they had hoped would exist when they came to the later years of their married life.’ ” Plaintiff further claims that the trial judge should not only have carefully considered the vested interest of defendant of 10% in his father’s estate but in any event should have at least awarded her one-half of defendant’s assets in the event the court disregarded the defendant’s interest in the estate of his father. As we stated in the case of Socha v. Socha, supra, p 410: “The rule to be followed in divorces pertaining to division of the property is aptly stated in Johnson v. Johnson (1956), 346 Mich 418, at p 431, wherein the court stated: “ ‘The portion of property awarded to each party depends upon all the equitable factors involved, including the following: source of property, contribution towards its acquisition, the years of married life, the needs of the parties, their earning ability and also the cause for divorce. Even the needs of children may affect the property settlement.’ “See, also, Stalker v. Stalker (1945), 313 Mich 209; Wells v. Wells (1951), 330 Mich 448; Cosher v. Cosher (1959), 356 Mich 567; Wojcik v. Wojcik (1965), 375 Mich 616.” In the instant case we have a 40-year-old plaintiff and a 42-year-old defendant. They were married 14 years at the time of the divorce judgment. All of the property both real and personal owned by each was acquired through gift or gifts from the defendant’s father. There are four children of the marriage. There was testimony taken from plaintiff to show what sum would be needed to provide her and the children with a living comparable to what they had been accustomed. Specific necessary items that plaintiff testified to showed a need for $1,045 per month. Some items were not mentioned, but needful — such as upkeep and repairs to the home and depreciation on an automobile. The trial judge ascertained that plaintiff under the judgment would be enjoying an $18,250 annual income which would be quite adequate to maintain their present standard of living. Taking into consideration the property of the children and the provision for their welfare from the irrevocable trusts created by their grandfather, we must agree. However, in figuring the $18,250 annual income figure for the plaintiff and the children the court considered that the plaintiff would have $125,000 to invest at 5%, i.e., $85,000 cash and $32,500 cash value of life insurance policies, and $7,600 of stocks and bonds. This presumes that plaintiff would cash in the life insurance policies which we feel she should not be required to do. These policies of insurance are valuable investments and it should be her choice as to whether they should be retained or cashed in, even though to keep them requires payment of about $2,000 per year. Computing plaintiff’s annual income on this basis we find she will have $12,000 from alimony and support awards, plus 5% on $92,600, or $4,630, for a total income of $16,630 per year. The total net assets of both plaintiff and defendant amounted to $788,149.92 and plaintiff was awarded assets by the trial court valued at $227,663 or 28.8%. In Paul v. Paul (1960), 362 Mich 43, the Supreme Court modified the decree of divorce as to property settlement so as to “provide a fairer result”. On page 47 the Court stated in part: “While this Court hears appeals in chancery matters de novo, it generally does not reverse or modify unless convinced that it would have had to reach another result had it occupied the position of the trial court. Wells v. Wells (1951), 330 Mich 448; Ethridge v. Ethridge (1948), 322 Mich 578. For the reasons we have given, we are convinced of this in this case.” We adopt this reasoning of the Supreme Court in the instant case so as to assure plaintiff and the children the income deemed sufficient and necessary by the trial court to live in the manner to which they had been accustomed when living with the defendant. We therefore modify the judgment of divorce insofar as the property settlement is concerned to provide for an additional $32,500 to be paid by defendant to plaintiff within 30 days. This will assure plaintiff and the children, $18,250 annually, heretofore determined by the trial court to be a fully adequate income, and raise her share of the total net assets to approximately one-third. Plaintiff cites cases for the rule that under certain circumstances a wife may be entitled to share in property inherited by the husband after marriage. Zimmers v. Zimmers (1956), 346 Mich 28, 35. Also, in Zimmers the case of Reitz v. Reitz (1953), 338 Mich 309, is referred to for the rule: “It is the accepted rule in this state that there is no rigid rule of division of property in divorce proceedings, the major consideration being the security of living for the wife. See Mayer v. Mayer (1934), 266 Mich 241.” Each case must be decided upon its own facts. In the instant case practically all of the assets of de fendant were acquired as a gift to him from his father; approximately seven-eighths before marriage and one-eighth subsequent thereto. Defendant’s father died in July, 1966, and this divorce was commenced in October, 1967, at a time when the estate of the father was being probated and at the date of the hearing before this Court, the probating of the estate was still in progress. We conclude that the living of the plaintiff and the children have been adequately secured and although the trial court carefully considered the 10% interest of defendant in his father’s estate, as it was rightfully permitted to do, the facts did not require it to award a portion of the said estate to the plaintiff. A judgment will enter here modifying the judgment of the trial court in the particular mentioned and otherwise it is affirmed. Plaintiff may have costs including an attorney fee in the sum of $1,500 payable to counsel representing her on this appeal. Such judgment shall further provide that the cause be remanded to the circuit court for enforcement and for such further proceedings as may be required or advisable. Affirmed as modified. All concurred.

[ 7, 37, 19, -2, -18, -17, 3, -6, 41, -35, -21, -17, 24, 19, -14, -34, -13, -57, -14, -29, -43, -27, -8, 5, 44, 22, 35, -7, 22, -8, -12, -6, -43, -57, -41, 44, -13, -35, 10, 0, -49, -52, 72, 30, -5, 37, 39, -38, -23, 0, 4, -43, 42, -5, 29, -20, 22, 35, -7, -31, 22, -15, 34, 55, 57, 39, 3, 44, 71, -21, 0, -36, 7, -4, 0, -1, 0, 32, -11, -11, -18, -11, 16, 24, -39, 2, -24, 41, -12, 9, -57, 24, -24, 7, -13, -6, -34, -19, -17, 35, -44, -5, 0, -16, 10, 37, 13, -5, -25, -39, 55, -10, 31, 18, 17, 10, -39, -70, -22, 15, 15, 16, 45, -19, 51, 19, 33, -12, 5, -3, 11, 68, 36, -5, 25, -64, 11, -30, 1, -64, 6, 1, -12, 17, 37, 10, -15, -90, 0, -50, -28, -14, -3, 25, 84, -40, 8, -19, 43, -28, -18, -36, -41, 33, 0, -51, 26, 25, 33, 4, 38, 18, -27, -45, -2, 47, 29, 0, -20, 18, 12, 43, -12, -11, -43, -28, 57, -29, -56, -28, 30, -29, 44, 22, -21, 26, 23, 30, -13, -6, 5, -36, 46, 39, 43, -19, 34, 5, 6, -13, 31, 34, 34, -47, -27, 28, -86, -37, 13, -31, 63, -31, -6, 26, -45, -19, -15, -34, -26, -22, -60, -16, -9, -47, -41, 25, -20, -12, 10, -6, -15, -69, 54, 21, -9, 0, -26, 2, -27, 85, -32, 29, -71, 7, 8, 13, 28, 39, -30, 47, -17, 14, -77, 44, 46, -11, 3, -20, -5, -16, 0, -13, -3, -38, -25, -27, -11, 42, 18, -25, 25, 16, -8, -24, 0, -19, -6, -30, 18, 0, 15, -3, 40, -52, 58, 19, 35, -4, -49, 30, 4, 6, -4, 27, 16, -16, -54, -27, -9, 20, -18, -61, 16, -80, -7, -22, -48, 6, -46, 13, 24, 0, -28, 42, -31, 24, 12, -24, 15, 38, -26, -35, -24, 11, 17, -18, -4, 11, 14, 6, 16, -1, 37, 15, -33, -30, -47, -19, 4, 4, -2, 32, -6, -1, -50, -10, 27, -8, -23, 38, 32, 20, 49, -37, -20, 3, 29, -47, -37, 34, 21, 47, -31, 8, 9, 39, -64, 55, 18, 12, -5, -14, 29, 1, -39, -46, 8, 5, 5, 30, -37, 27, 45, -3, 2, 34, 1, 13, -27, 4, -24, 8, -26, 13, 8, -22, -14, -9, -34, 18, -40, -1, 64, 41, 58, 0, 38, -18, -15, 52, 35, 46, 19, -7, -12, -4, 4, -66, -29, 2, 10, 63, 31, -4, 59, -10, -36, 38, -8, 28, 23, 32, 12, -10, -43, 1, 10, 3, 54, -51, 1, 24, 16, 25, -46, -35, 17, 16, -34, -46, 38, -20, 27, 36, 40, -33, -24, 48, 23, 12, -13, 9, -31, 36, 16, 2, -16, -12, -12, 4, -28, 11, -55, 29, -8, 46, -47, -14, -26, 25, 28, 9, -40, 8, 60, -34, -15, -23, 25, -74, -31, 6, 44, -11, 13, -12, -3, 3, -32, -9, 2, -63, 18, 42, -12, -14, -12, 11, 29, 50, -21, 33, 1, 22, -5, -9, 39, -17, -14, 33, -18, 23, -40, -52, -9, -28, 11, -17, -33, -39, 13, 13, -24, 13, -36, 6, 5, -46, -39, 16, -37, -29, -7, 4, 17, 4, -52, -15, -20, -50, 33, 13, -23, -8, 32, -38, -19, -28, 31, 51, -21, -42, 31, -7, 35, 28, -4, 29, -39, 3, 18, 16, -31, -23, -19, 7, 16, 37, 10, 13, -26, 31, 11, -1, 20, -85, -10, -51, 18, -24, 0, -10, 2, -11, -64, 6, -32, 28, 25, -27, 14, -10, 2, -14, -1, -12, 7, -6, -51, -54, 37, 10, 41, -41, 9, -1, 29, 12, -7, 8, 40, -5, 15, 37, 53, 30, -18, 34, 0, -32, 24, -1, -32, 27, 4, -36, 18, -52, -15, -49, 15, -4, -27, 13, 10, -37, 0, -38, -70, -12, -1, -43, 21, 66, 4, 8, 48, 42, 6, 29, -41, -25, 49, 31, 31, 31, -32, 22, 39, 9, 4, 15, -29, 24, -59, 23, -9, -7, 23, -9, -5, 4, -45, 6, -40, -4, 21, 24, 6, 23, 1, 2, 6, 8, -1, 32, 32, -4, -26, 8, -21, 11, 11, 12, -46, 25, 31, -45, -16, -3, -19, -12, -27, -33, 31, 13, 8, 1, 6, 22, 7, -12, -20, 7, -47, 0, 17, -59, -18, -5, 19, 14, 1, 18, 3, 25, 9, 23, 39, 6, -10, 38, -15, 11, -17, 20, 0, 29, 21, -30, -31, 9, -76, -24, -29, 38, -8, 15, 32, -16, -30, 18, -40, 1, -40, -14, -40, 20, -16, -18, -2, 4, 9, -15, 4, -7, 62, -71, 5, 19, -38, -60, -7, 2, -7, 0, 18, 0, 25, -68, -17, 54, 33, -17, -3, 23, -65, -9, -9, 10, -18, 14, -6, 4, -26, 12, -33, 4, 14, 22, 2, -31, -10, 68, 24, 19, -20, 12, -18, -11, -3, 19, 20, 46, -34, 16, 24, -30, -37, -20, 66, -12, -48, 15, 36, 22, 57, -18, 45, -36, -10, -31, 40, 24, -35, 2, -11, 9, -11, -16, 0, 2, -25, 14, -8, 3, 35, -5, 15, 2, -30, -25, -11, 6, -1, 25, 26, -23, -15, 13, -51, 38, 23, -6, -35, 9, 5, 14, -36, -19, -31, 36, -22, -44, -19, -24, -3, -14, -17, -40, 23, -41, 7, 1, 25, -19, -17, -4, 24, -5, -10, 18, -1, -1, -54, 31, 47, 24, 2, -2, 27, -65, -26, 0, -21, -19, 16, -13, -46, 30, 15, 3, -61, 24, 56, -24, 51, -4, 39, 34, 13, 29, -28, 0, 12, 19, -15, -19, 7, 11, -2, -27, -15, 81, -10, -19, 0, 39, -28, 26, -20, 17, -44, 16, 46, -36, -4, 41, -15, 19, -22, -53, -21, -12, -18, -68, 35, 33, 7, -16, 27, 30, -6, 28, 5, -1, -39, 35, -37, 0, -10, 11, 36, -1, 41, -13, 16, -17, 5, -13, 40, -12, 19, 67, 15, -28, 0, 51, -11, -3, -22, 13, 23, 2, -30, 51, -36, -42, 21, -4, 20, 12, 22, 10 ]

Long, J. Action of ejectment. The court below made findings of fact and law, from which it appears that on the 16th day of August, 1873, the plaintiff was in possession of, and the owner in fee simple of, the N. of the N. E. £ of section 33, town 6 S., range 6 E. On that day he conveyed the strip in dispute to the Chicago & Canada Southern Railroad Company, by the following description and terms: •“ The right to enter upon, construct, maintain, and operate its railroad and appurtenances in and upon the following-described premises, to wit: The north one-half of the northeast quarter of section thirty-three, town six south, range six east,— and to use and occupy for its railroad a strip of land one hundred feet in width across said above-described premises, as the same is now located thereon by said company; reference being had for a more definite description of the said strip of land to the map of the route of said company on file. ” This grant was made upon the condition that the said railroad should be completed through said premises within three years from the date thereof, or, if such railroad should cease to be occupied for railroad purposes, then the right of way granted under such conveyance should terminate. It is admitted that the said strip has been abandoned by the railroad company, and ceased to be used for railroad purposes, and that the defendant took actual possession thereof. On March 14, 1881, the plaintiff conveyed the following premises to the defendant, to wit: “The north one-half of the ¡northeast quarter, except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad, in section thirty-three, town six south, range six east.” Each of the parties to this suit now claims to own the tract so abandoned by the railroad company, so excepted as aforesaid in defendant’s deed. The court found in his conclusions of law that the deed from plaintiff to defendant conveyed the fee of said strip to the defendant, and that the defendant was entitled to retain possession of the same. The plaintiff claims that the strip in question was excepted in the deed, and that no interest therein passed to the defendant, and that on its abandonment by the company it reverted to him. The contention of counsel for defendant is that the conveyance to the railroad company was only of a right of way; — -an easement, — and that the company was not entitled to take and hold more than that, and that the plaintiff, in his deed to the defendant^ meant to except only that which was granted to the railroad company, to wit, the easement. The deed is not susceptible of such construction. The language, “except two and forty-six hundredths acres to the Chicago & Canada Southern Railroad,” means that the plaintiff conveyed to the defendant all the land described, excepting therefrom the 2.46 acres. It is the general rule that, where a general description in a deed is followed by a clause stating the intention of the parties as to the premises conveyed, such clause will have a controlling effect upon all prior phrases used in the description. Plummer v. Gould, 92 Mich. 1 (31 Am. St. Rep. 567). In Wait v. Baldwin, 60 Mich. 622 (1 Am. St. Rep. 551), it appeared that the plaintiff conveyed the land, and inserted in the deed, after the description, the.words, “excepting timber therein.” It was held that the title to the timber remained in the plaintiff. In Vincent v. City of Kalamazoo, 111 Mich. 230, it appeared that the deed conveyed a lot in the defendant city, except so much thereof as was “set apart for sidewalk purposes.” It was held that the land excepted was not included in the deed. See, also, Reidinger v. Cleveland Iron Mining Co., 39 Mich. 30. Under the facts found by the court below, the judgment should have passed in favor of plaintiff. Judgment reversed, and judgment entered here for the plaintiff on the findings, and case remanded for further proceedings under-the statute. The other Justices concurred.

[ -14, 27, 46, 24, 14, 45, 34, -4, 71, 26, -41, 67, -5, -46, 41, 17, -18, 3, -5, 21, 0, -34, 25, -24, 22, -10, 24, 51, -21, -2, 28, 14, -40, 33, -5, 36, -14, -21, 17, 6, -7, 27, -16, 5, 39, 36, -6, -4, 4, -6, 37, 19, 10, -13, -43, -22, -43, -5, -7, 38, -3, -57, -19, 10, 1, 21, 24, -30, -2, -26, -51, 15, -15, 23, 47, 24, 10, -11, -5, -22, -20, -4, 21, -67, -22, 28, -4, -15, 21, 21, -19, -26, -24, 15, -2, 51, 15, -14, -45, -25, 8, -1, -5, -6, -1, -32, -21, -11, -12, -80, -27, -32, 31, -52, -15, 2, -11, -39, 23, 2, 7, -20, 46, 28, -1, 7, -9, 41, -37, 23, -39, -23, -23, 7, 59, -12, 0, 5, 59, 10, -22, 18, 39, -29, 0, -2, -9, 48, 15, -19, -29, 2, 13, -2, 10, -8, 30, -8, 41, 0, 34, -21, 52, -19, -46, 2, -1, -21, 0, 77, 9, 1, 26, -29, 6, 40, 12, 8, -46, 10, 27, 14, 5, -22, 5, -12, 29, 25, -10, -2, 59, -16, 13, -44, -55, 32, -24, -1, -24, 11, 20, -39, -39, 11, -57, 7, 39, 25, 23, 3, 16, 41, -19, -49, 28, -4, -5, -59, 34, -54, 42, 6, -32, 2, -15, -33, 1, 36, -21, 9, 40, -4, -13, -29, -53, -15, -22, -25, -26, 8, 51, 39, -50, -51, -3, 0, -12, -5, -31, 52, -49, -51, -65, 55, 52, -6, 14, -21, 0, -15, 27, 43, -47, 15, 44, 0, -33, -34, -23, 40, 20, 13, 7, 46, -9, -30, 18, -26, 5, -26, 54, -29, 3, 30, -56, 26, -32, -2, 0, 68, 8, -18, -6, 39, -19, 39, 47, 46, 28, 11, -5, 0, -28, 8, 2, 18, -33, 0, 24, -37, -26, 9, 23, -23, 53, 17, 6, -30, -8, -78, -18, 17, -6, -3, 55, 24, 45, 21, -12, 21, 82, -30, 22, 31, -31, 19, -64, 7, 31, -31, 4, 5, -34, -2, 24, -14, 11, -82, 56, 7, -28, -34, -1, 14, -18, 3, -18, -34, -15, 12, 62, -20, 71, -49, 44, -77, -37, -26, 10, -27, 4, 19, -2, 4, -17, -11, 26, -11, -25, 33, 12, -13, 20, 28, 23, 22, -75, -48, -52, 30, -24, -12, -12, 44, 26, 11, -5, 67, -14, -41, 21, -3, 3, 42, -27, -60, -21, 40, 2, 51, 5, -7, 43, -28, 11, 15, 13, 15, 48, 40, 8, 15, 25, -25, -21, -5, 6, -12, -32, -46, -27, -2, 47, 16, 0, 33, -23, -21, -18, 6, -38, -4, 19, 41, -18, 32, -39, -3, 0, -19, -12, 14, -11, -6, -42, 15, -22, -25, 44, 45, 47, 17, -1, 48, -14, -21, -25, -22, 13, 36, 7, 42, 23, 9, -55, -25, -21, 3, -37, 12, 6, -33, -27, -8, -14, -43, -47, -10, 36, 41, 50, 9, 30, -41, 28, -58, 13, -17, 8, 14, -13, 6, 41, -12, -23, 38, -17, -18, -6, 74, 31, -27, 19, -10, 14, 34, -42, 12, -7, -18, 19, -1, -10, 8, 7, -24, 35, -22, 10, -30, 26, -39, -2, -20, -42, 54, -6, 1, 8, -47, -32, 53, 20, -19, -51, 27, 28, -2, 8, 19, -22, 1, 21, -11, 0, -11, -56, -58, 9, -1, -34, -37, 46, -63, 39, 14, -15, -45, 11, -25, -16, 33, 43, -39, -20, -5, -3, -14, -14, 44, -25, -35, 14, -21, 11, 13, -1, -10, -36, 37, -4, 21, -21, -36, 24, -6, 6, 81, 7, 5, -1, -24, -43, 15, 29, 28, -69, 5, 15, 45, 26, 9, 12, 61, 46, 7, 4, 26, 7, -16, -4, -17, -18, -12, -33, -24, -18, 53, -10, 12, -4, 13, -27, 40, 21, 10, 38, -1, 52, 5, -29, -17, -2, -25, -58, -2, -62, 22, -17, 13, -43, 44, 47, 14, 28, 43, -15, 40, -7, -22, 32, -27, 38, -10, 0, -18, 23, -42, 2, 7, 11, -34, 0, 40, -42, 13, 7, 22, 45, 44, -1, 1, 24, 10, 28, 3, -13, 2, 21, 30, 0, -43, -6, 9, 10, 31, -3, -13, 19, 3, 23, 59, 48, 27, 5, -5, -9, -8, -17, 15, 38, -46, 41, -13, 13, 14, 10, -16, 9, -18, 86, 23, -51, -37, 18, 55, 10, -9, -34, -24, -7, 22, -36, -72, -16, 14, -3, -14, -30, -42, -28, -37, -4, 62, -33, 23, 7, -1, -52, -1, 11, -15, 25, 27, 39, -28, -28, 14, -9, -84, -7, -38, -52, -3, -25, -18, -69, -7, -16, -12, 0, 2, -31, -22, 14, 13, 0, 28, -7, 3, 18, -6, 38, -3, -7, -31, -24, 26, 28, -2, -32, -28, 0, -8, -70, -24, -6, -17, -7, 4, -71, 5, -55, -14, -49, 20, -23, 42, -14, 10, -50, 4, -41, -42, -46, 22, -15, 29, -9, -11, -30, 48, -17, 13, 23, 34, 27, -19, 5, 35, 31, -2, -13, 25, 23, -65, 18, -5, 3, -33, -16, -8, -58, -45, 8, -34, -26, 5, 18, -14, -53, -12, -42, -73, -35, -53, 18, -4, 9, 22, 8, 30, -21, -15, -22, -41, -26, -28, 1, 26, -32, 26, -9, 6, -12, 4, -25, -61, 27, 25, -9, -30, -3, 6, -18, -23, 0, -16, 26, 39, -12, -13, -21, -4, -21, -10, 27, -32, 27, 7, -21, 30, 29, -8, 55, -6, 40, -7, 9, 3, -6, -12, -6, -17, -7, 7, -39, 23, -8, 35, 21, 56, -19, -9, -23, 29, 20, 21, 21, 25, -52, 5, -30, -40, 32, 0, -39, -97, 37, -7, 16, 9, -26, 61, -3, 13, -9, -37, 15, 29, -17, -15, 0, 22, -18, -39, -32, 37, -57, -34, 36, 25, 28, -22, -1, -8, 39, 9, -10, -47, -45, -41, -17, 26, 27, 8, 25, 24, -25, -35, 70, -36, -50, 12, 50, 9, 1, 18, -9, -18, 13, 28, 1, -7, 37, 25, 10, 24, -24, -25, 13, -53, 9, 6, 19, -8, 25, 36, 28, -33, -33, -28, 78, 36, 51, 25, 0, -9, -6, -6, 31, -28, -5, 33 ]

Lesinski, C. J. On December 12, 1967, a Montgomery Ward private security officer observed Leroy Morgan and a female accomplice approach the sweater counter in the Livonia Ward store, place two sweaters in a bag, and leave without paying. The guard called a fellow officer and followed defendant and the girl outside. The first officer testified that she stopped the pair and accused them of taking some merchandise without paying. Defendant replied, “Yes.” The pair were taken, to the store security office and questioned about the crime. The defendant stated that the girl was pregnant and that he took the sweaters to sell to obtain food money. The Livonia police were called and arrested the two persons. After trial by jury the defendant was convicted of larceny in a building and sentenced to a prison term of three to four years. He appeals as of right. At the outset we note that no objections were raised below concerning the issues raised on appeal. While, as a general rule, this Court will not review matters not properly preserved for review, we will, in the exercise of onr discretion, search the record to determine whether the errors indicate manifest injustice depriving defendant of a fair trial. People v. Reynold (1969), 20 Mich App 397; People v. Owens (1968), 13 Mich App 469; People v. Willis (1965), 1 Mich App 428. See, also, People v. Kelsey (1942) 303 Mich 715. The first allegation of error concerns the security officer’s testimony relating to defendant’s statement in the security office. Defendant argues that the statement was inadmissible because the officer failed to advise defendant of his constitutional rights, before interrogation, as required by Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694). Defendant correctly recognizes that this Court discussed this issue in People v. Omell (1968), 15 Mich App 154, 157, where we held that “a private investigator is not an officer of the law in such capacity that he is required to render a constitutional warning precedent to the taking of a statement in the nature of a confession.” However, defendant attempts to distinguish Omell on the grounds that the security officers here were acting “in concert with the police” while in Omell they were not. We disagree. In Omell the officers, private detectives hired by defendant’s employer to investigate possible embezzlement, suspected defendant of wrongdoing, confronted him at his office, and persuaded him to write a letter to his employer admitting wrongdoing. We discern no practical difference between the facts r.of Omell and the facts of the instant case. Omell controls. Defendant’s second allegation of error is that the prosecutor’s remarks during closing argument violated defendant’s right against self-incrimination. The prosecutor stated first that “[w]e have uncontroverted evidence here on the stand, and I want to emphasize ‘uncontroverted evidence,’ that the defendant here went into the store with a female friend”. Again in rebuttal the prosecutor said: “Now, as I told you before, there is uncontroverted evidence here. The case is that simple. There is no defensive testimony here showing otherwise than what had occurred”. Defendant argues that the statements concerning “uncontroverted evidence” were made for the purpose of emphasizing to the jury that defendant failed to take the stand and controvert the evidence against him. This issue was decided adversely to defendant in People v. Alexander (1969), 17 Mich App 497. See, also, Leak v. Follette (CA2, 1969), 418 F2d 1266, where the court, per Friendly, J., held similar remarks permissible: “Neither the language, the history, nor the policy of the self-incrimination clause affords support for the surprising proposition that in declaring that no person ‘shall be compelled in any criminal case to be a witness against himself,’ the authors of the Bill of Rights intended to prohibit proper advocacy concerning the strength of the prosecution’s case. “We would not want this opinion to be taken as issuing any roving commission to prosecutors. Inflections and gestures may have an effect the cold record cannot convey, and trial judges must be alert to prevent abuses of that sort. We hold only that where the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant’s failure to testify even if in practical fact, although not in theory, no one else could controvert them.” Defendant’s third allegation of error concerns the failure of the prosecution to call, as a res gestae witness, the defendant’s female accomplice. Although the prosecutor is under a general obligation to indorse on the information and call as witnesses all noncumulative res gestae witnesses, this duty does not extend to the calling of accomplices. People v. Chaney (1970), 21 Mich App 120; People v. Virgil Brown (1969), 15 Mich App 600. No error occurred. Defendant’s final allegation of error concerns the trial court’s alleged failure to consider the possibility of sentencing defendant, a narcotics addict, to probation conditioned upon commitment to the Narcotics Rehabilitation Center in Lexington, Kentucky. Without deciding whether the trial court had the power to issue such an order, we find that the record indicates that the trial judge did, in fact, consider many possible alternatives to a prison term for this defendant. However, after determining that no adequate facilities for the treatment of convicted criminals, suffering from addiction, exist in the State of Michigan and that other charges were pending against this defendant, the trial court reluctantly imposed a prison sentence. The sentence was within the maximum provided by law and cannot be disturbed on appeal. People v. Guillett (1955), 342 Mich 1; People v. Pate (1965), 2 Mich App 66. We also reach this decision somewhat reluctantly because we recognize the dilemma of the trial judge. The de fendant here was convicted of a crime. However, it is apparent that the driving force behind defendant’s actions is his insatiable and expensive narcotics habit. Unless the defendant receives proper medical treatment aimed at controlling or curing his sickness, he can be expected to steal again. Unfortunately treatment facilities do not exist in Michigan. The trial judge was aware of this fact, as is this Court; however, as courts we are powerless to erect the proper drug treatment facilities. Having found no error in the proceedings below the conviction and sentence of the defendant are affirmed. Affirmed. All concurred. MCLA § 750.360 (Stat Ann 1954 Eev § 28.592). Leroy Morgan’s eodefendant entered a plea of guilty of attempted larceny in a building and was sentenced to one year in the Detroit House of Correction. No objection was raised. The trial judge denied the prosecutor’s request to charge the jury on the uncontroverted nature of the evidence and told them instead: “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 the 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 evidence of his guilt or innocence. The failure of the defendant to testify is not even a circumstance against him, and no presumption of guilt can be indulged in by the jury because of this failure on his part.”

[ -11, 6, 0, -20, -35, -3, -41, -31, -21, 47, 33, -5, 0, 27, 60, 0, 33, 27, 38, -12, 57, -58, -41, 8, -41, -41, 13, 42, 0, 76, -29, 29, 52, -62, 39, 35, 35, -5, -27, -1, 7, 41, 37, -28, -35, -16, 44, -20, 18, -39, 52, -15, 4, 17, 0, -5, 11, -8, 51, -29, -26, -17, 21, -11, -13, -31, -39, 20, -30, -44, 51, 23, -47, -40, 5, 0, 18, 1, -42, 11, 32, -5, 47, -29, 41, -43, 0, 0, -3, -10, -5, 32, -50, -23, -4, -40, 11, -27, -8, -67, -39, 1, -12, 41, -8, 60, -21, -45, -11, 2, -26, -5, 30, -21, -24, -23, 0, -11, 30, -25, 41, 10, 60, 5, -6, -23, 11, -7, 0, -40, 20, 48, 31, -30, -34, 5, -17, 44, 22, 35, -55, 52, -6, -14, 49, -1, 2, 19, -11, 1, -2, -38, 13, 35, 12, -2, -20, -35, -27, 31, -21, -15, -41, -6, -4, -25, -17, -32, -3, -13, 12, 21, -1, 41, 3, -38, -46, 21, -1, 5, -6, -26, -31, 15, -17, -7, 34, -49, 4, -28, 0, 13, -17, 41, 22, 53, -24, 51, 4, -71, 7, -29, 3, -6, -5, -34, 29, -39, -27, -14, -24, 21, 8, -22, 11, -35, -28, 0, -29, -25, -48, -10, -52, 14, -28, -43, 4, 33, -37, 26, 56, -2, 0, -27, -9, 0, 20, 2, 56, 36, -10, -14, -21, -17, 23, -1, 0, -36, -21, -18, -2, 2, -2, -18, -20, -19, 19, -35, 37, 45, -25, 44, -25, 64, -5, 26, -3, 27, -85, -15, -38, -16, -13, 10, 13, -5, -24, 29, 33, 0, 6, 13, -43, 38, -7, -77, -32, 23, 15, 14, 16, 20, -41, 0, 69, 4, 23, 6, -71, 14, 11, 55, -5, -35, -21, 12, 27, -1, -16, -1, 25, 30, -23, 33, -9, 23, -13, -10, 54, 25, -43, -32, -9, 24, 41, -27, 6, -30, 38, -93, 12, -9, 1, 29, -10, 25, 5, 17, 7, 22, -17, -5, 70, -62, 17, 39, -45, 47, -49, -22, 34, 3, 11, 17, 20, 20, -17, -11, -8, -19, 8, -46, -30, 23, -18, 27, -45, -46, 13, 41, -23, -50, -24, 6, -11, 6, 13, -65, -4, 73, -32, -13, -14, -54, -41, -68, -28, -7, -11, 15, -51, 0, 1, 13, 6, -24, -4, 12, 38, -14, 4, 5, 54, 24, -35, -37, -14, 13, 22, -4, 7, 26, 46, 29, -44, -36, 24, -14, 4, -19, 13, -32, 20, -5, 21, 38, -12, 44, 3, -36, 5, -11, 4, -65, 5, -27, -51, -6, 18, -29, -16, 19, -58, 36, 26, -25, -34, -8, 31, 0, 48, -6, 39, -86, -18, 25, 25, -21, -24, -18, -10, -16, -30, -5, 25, -23, -44, -87, 15, 14, 34, 3, -18, 25, -28, 27, 13, 8, 9, 7, 5, -21, 65, 5, -65, -25, 11, -53, 0, 31, 23, 2, -17, 7, 31, -6, 5, -7, 29, 18, -20, 29, 25, 25, 41, 4, -2, -21, 43, -19, -17, 67, -29, -1, -8, -26, 20, 16, 53, -16, 41, 1, -4, 54, -36, -3, -8, -11, -59, 1, 13, 3, 31, 10, 71, 16, 69, -35, -23, -30, 17, 7, 20, 70, 11, -26, 30, -49, 15, 0, 55, -3, -3, -34, -21, -36, -6, 32, -39, 4, -30, 1, 41, 50, 33, -2, -4, -3, 45, -19, -17, 36, -17, -8, 42, 47, 43, 17, 2, 16, 59, 31, -26, -11, 12, 22, 27, -5, -12, -32, -41, -25, -12, -2, 44, 30, -55, -32, 10, 0, 54, -15, -26, -1, 29, -65, 12, 37, 1, -27, 30, -19, 47, -22, -17, 23, -82, -3, -30, 5, -11, 18, -18, 67, 1, -5, 5, -11, -25, -19, 19, -8, 26, -6, 2, 0, 29, -5, -48, -23, 12, 7, 4, 45, 36, 0, -19, 42, 4, -35, -24, 19, 68, -20, 25, -42, -23, 6, 14, -22, -10, 46, -51, 40, 25, -25, -10, -22, 40, -25, 4, 12, -24, -15, 15, 5, 59, -26, -29, 11, 9, -13, 0, -17, 23, 17, 1, -21, -23, -19, -37, -34, 48, -23, 35, -11, 38, -4, -21, -18, 6, 0, 39, 1, 6, 2, 2, -65, -1, -12, 1, -4, -4, 11, 9, -4, -51, 34, 0, 36, -66, 24, 45, 21, 4, -28, 14, -25, -16, -1, -2, 29, 27, -19, 46, 31, -38, -14, -19, 5, -20, 46, -11, -48, -7, -18, 4, -3, 11, -6, 21, 82, 55, 15, -26, 13, 11, -14, -44, -67, -23, 32, 22, -48, -18, 10, -11, -20, 44, -6, -7, -57, -10, 2, -36, 30, 4, -42, -1, 0, 36, 7, -11, 0, 12, -4, -5, 0, -27, -16, 9, -14, -19, -14, -29, 23, 26, 30, -21, -32, 11, -12, 19, 32, -17, 11, -31, -8, 11, 4, 28, -28, 3, -52, -21, 30, 8, -4, 30, -41, -10, 8, 8, -5, -38, 34, 27, -16, -48, 7, -12, 39, 22, 4, -20, 13, -9, -28, 41, -12, 28, -5, -23, 44, 32, 65, -4, -14, -34, 39, -12, 4, -28, -4, 36, 3, 5, 27, -4, 7, -29, -12, -25, -41, -61, 46, 26, -49, 2, 14, 24, 57, 10, 18, 17, 12, -7, -31, 0, -3, 3, -43, 32, -2, 24, 13, -31, -51, -30, -7, -24, 39, -8, 48, -41, -22, -9, 0, 54, -38, 31, 7, -31, 10, 28, 13, 12, 30, -20, -39, 23, -64, 10, 24, 3, 32, -51, 9, 44, -33, -57, -7, 32, 53, 6, -6, 22, 39, -42, 37, -13, 28, 12, -29, 13, -21, 50, -29, 1, 8, -9, -9, -19, -7, -5, 44, -5, -15, 23, -19, 17, 10, 7, 10, -30, 2, -14, -25, -14, 29, -36, 25, -22, 25, 5, 35, 37, -28, 13, 8, 9, -51, -27, -80, 29, -4, 0, 19, -14, -26, -21, 0, -49, 39, 58, -10, 17, 18, -26, -7, 4, -7, 0, 18, -9, 37, -31, -51, -3, 10, 28, 20, 39, 0, -19, -37, 37, -12, 7, 32, 9, -72, 25, -16, -19, 0, -2, 49, -37, -26, -37, 29, -3, 60 ]

Fitzgerald, J. The present case is prefaced by an earlier action commenced by plaintiff Perry & Derrick Company, Inc. for an amount due on a contract for goods and services against the Farmer’s Exchange and Perfection Flour Mills Company and against Stanley Murawaski, individually, as surety on a guarantee note. The flour company did not appear and a default judgment was entered against it. A consent judgment was entered against Stanley Murawaski. There was an execution and sale of the property belonging to the flour company which satisfied only part of the judgment. Subsequent to the above judgments and the execution sale, discovery was had on Stanley Murawaski at which time it was learned that the flour company had failed to comply with the Michigan corporations law and was illicitutm collegium. In December 1965, plaintiff filed a complaint against the present defendants alleging that they were liable on the original debt as members of a joint venture or partnership because the corporation had never become a legal entity under Michigan law. In their answer, defendants alleged affirmative defenses of failure to join a party, splitting a cause of action, and res judicata. On July 15, 1966, plaintiff brought a motion for summary judgment denying defendants affirmative defenses. The motion was denied and on May 2, 1969, the court rendered a judgment in favor of defendants. The parties to the present case base much of their respective arguments upon G-CR 1963, 203 to 208, dealing with joinder of claims and parties. In spité of the detailed statement of questions involved and arguments presented, we find that the actual issue is whether the doctrine of res judicata precludes a party who has received a judgment against a corporation from subsequently suing the officers of that corporation based on the same claim and alleging that they are a partnership or joint venture because the corporation has been voided. Plaintiff argues that because the flour company was voided as a corporation the present defendants are liable, either as a partnership or joint venture. Presumably, this has the effect of making them a different party. However, despite the fact that the flour company was not a de jure corporation, plaintiff is estopped from denying it corporate status. The theory of corporations-by-estoppel is explained in 8 Fletcher, Cyclopedia of Corporations, § 3964, where it is stated: “Estoppel to deny the existence of a pretended corporation may arise from a judgment either for or against a corporation. So a person who has sued and recovered judgment against a company as a corporation cannot thereafter maintain a second suit against its members individually or as partners on the same cause of action; nor can he maintain a suit to charge its members as partners with the amount of the judgment, nor for damages for falsely representing that they were a corporation.” This rule has also been adopted in Michigan and is explained in Estey Manufacturing Co. v. Runnels (1884), 55 Mich 130. The question of whether the present defendants would have been liable as individuals hinges on whether the flour company could have been considered a de facto corporation. See Tisch Auto Supply Co. v. Nelson (1923), 222 Mich 196; Berlin State Bank v. Nelson (1925), 231 Mich 463; Campbell v. Rukamp (1932), 260 Mich 43. However, that issue should have been raised in the first suit and the doctrine of res judicata prevents plaintiff from raising it now. In Gursten v. Kenney (1965), 375 Mich 330, 335, the Supreme Court, faced with a similar situation, explained: “The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” Furthermore, the fact that plaintiff did not know of the voided status of the flour company until after the first judgment does not change the result. Through reasonable diligence, plaintiff could have investigated the company’s corporate status and, failing in this respect, they will not be heard to assert lack of knowledge of the character of the corporation. See Love v. Ramsey (1905) , 139 Mich 47. The fact that the original judgment against the flour company was obtained through default does not affect the result we now reach. A default judgment is just as conclusive an adjudication and as binding upon the parties of whatever is essential to support the judgment as one which has been rendered following answer and contest. As is true with a judgment on the merits, a default judgment will bar a second suit between the same parties and their privies on the same cause of action. (1961), 77 ALR 2d 1410. In recent years, the dockets of Michigan courts have become increasingly crowded and it is a situation such as this that the doctrine of res judicata is designed in part to control. In Knowlton v. City of Port Huron (1959), 355 Mich 448, 456, the Supreme Court stated: “This claimed right to ‘sue till something gives’ cannot he sound law. There must be an end of litigation, and out of sheer self-defense and considerations of broad public policy our courts cannot gladly permit repeated litigation of the same old question under the circumstances appearing in this case.” For the reasons stated above the decision of the trial court is affirmed. Costs to appellees. E. B. Burns, P. J., concurred.

[ -15, 34, -2, -34, 1, 28, -28, -28, 12, 28, -5, -11, 18, 14, 1, -12, 8, 50, 16, 16, 22, -49, -70, 14, -39, 1, 29, -21, 32, 2, -33, -27, 2, -30, -39, 25, 16, -35, 7, -10, 62, 36, 7, 5, -28, -11, 23, -53, 41, -25, 56, 12, -19, 16, 22, -3, 2, -5, 23, -26, -4, 10, 8, 11, 10, 13, 16, 35, -10, 11, -37, -33, 4, 16, -16, -30, -7, -5, 39, 0, 8, -12, 25, -43, -59, 46, 19, 14, 28, -26, -8, -43, -71, -14, 8, 39, 6, 4, -3, -3, -5, -3, -33, -7, 20, 52, 15, -12, -36, 55, -16, -1, -2, -35, 0, -22, -28, -26, 5, -43, 8, 26, -2, 31, 20, 0, -45, 1, -3, 6, 26, -31, -19, 28, -25, 21, -4, -2, -7, 5, 29, 67, -39, 35, 27, 74, -15, -13, -7, -56, -9, -25, 42, -5, -34, 8, -6, -11, 50, -72, 32, -9, 17, -1, -4, 7, -26, 35, -86, -14, -19, 24, -23, -25, -8, 7, 18, -62, -14, -14, -18, 3, -27, 13, 25, -28, 8, -3, 9, 0, 24, 2, -34, 50, 3, 15, -16, 80, 0, 45, -1, -11, -14, -1, -15, -19, 63, 14, -44, 49, -13, -20, 0, -17, -39, 10, -27, -51, -4, -23, 7, 9, -44, 14, -20, -1, 12, -11, -15, -8, 20, -3, -26, -5, -64, -61, 21, 31, 33, 15, -5, 0, -32, -5, -8, 11, -12, 26, 1, 42, -12, -62, 8, 16, -8, -24, -96, 10, 37, -28, -11, 55, -55, 7, -40, -13, 36, 29, -35, -15, -2, -2, 9, -6, -27, 1, -27, 6, 4, 20, 0, 23, 12, 7, -56, 1, -11, 17, -68, -27, 39, 17, 6, -49, 13, 6, 32, -74, 2, 51, -6, 4, 20, 7, -20, -1, -27, 33, 29, -39, -28, -23, -18, -62, 43, -22, -7, 74, 40, -39, 7, 53, 31, -18, 1, -6, 28, -41, 60, 20, -41, 40, 23, 19, -29, -37, 89, -17, -36, 29, 25, 14, -15, -33, 4, 58, -15, -6, 26, -24, -20, 11, -3, 17, 29, 39, -30, -13, -60, 30, -8, -29, -56, 5, -22, 69, -45, 17, 4, 62, -65, 21, -21, -3, 4, -33, -34, 8, -67, 53, -14, -59, 19, -37, 4, 12, -28, -16, -81, 10, -77, -6, 30, 16, 14, 11, 22, -3, -19, 3, -24, 44, 9, -2, -30, -38, 3, -61, -14, 17, 11, -24, 13, -8, -19, -31, 33, -46, 18, -15, 17, -38, -9, -17, 6, -61, 9, 25, -20, -17, -15, 19, 11, -37, 21, 18, -73, 11, 73, -1, -23, 58, -41, -20, 54, 25, -11, 2, -9, -3, 23, 35, 34, -1, -5, 14, -22, -3, 32, -10, -4, -28, 63, -23, -5, -15, 14, -65, -13, 30, -28, 1, 33, 69, -26, -1, 17, 46, -4, 0, 0, 65, -6, -22, -21, -7, -6, 20, -15, -9, -20, 24, 17, 15, -44, -15, 9, 3, 6, 30, 9, 0, -14, -32, -25, 19, 10, -37, -33, 37, -20, -31, 69, 26, -2, 33, -7, 58, 17, -2, -43, 8, -45, 22, -51, 12, 25, 24, 42, -33, 57, 12, 26, 8, -6, -1, 34, -35, -57, -26, -42, 1, -30, -22, 25, -6, -18, 8, -16, -12, -65, -24, 34, 29, 31, 10, 14, 5, -3, 33, -20, -7, 12, -25, 22, -21, 27, 21, 41, 35, -42, 7, 13, 35, 10, -15, 37, -12, 17, -38, 17, 6, 29, -84, -43, 30, -6, -47, 3, -11, -9, -13, -14, -63, -18, -1, 35, 0, 7, 7, 30, 16, -66, -53, -33, -27, 13, 39, 4, -13, -8, 10, -35, 15, 32, -1, 35, -23, -18, 27, 19, -13, -33, -45, 12, 0, 34, -2, -17, 10, 45, -20, -31, 48, -23, 26, 25, 25, -39, 8, 6, -31, 17, 15, 17, -57, 12, 23, 8, 27, 25, 24, 20, 9, -1, -6, 0, -26, 42, -41, -8, -6, 0, 26, 27, 33, 11, -13, 44, 11, 16, -28, 33, -13, 29, 17, 45, -9, 17, 67, 12, -40, -24, 4, 2, -34, 12, 2, 3, -53, -33, 25, -62, -31, 9, 44, 2, 8, 21, -4, -31, 5, -8, 61, -16, -2, -41, 32, 50, 13, 81, -54, 8, -22, -3, 60, -23, 35, 3, -26, -16, -66, 22, -12, -6, 0, 22, -20, -14, 23, 17, 12, 38, 6, 29, 19, 23, -75, -57, 7, 8, -44, 11, 5, 4, 12, 14, 25, -23, 27, -16, 7, 29, 58, 49, 11, -53, 11, -67, -16, 9, 24, -22, -28, -18, 59, -17, -28, 29, -13, -56, 6, -1, -3, 19, 10, 2, 38, 34, 3, 39, -2, 26, 15, -42, -69, 40, -21, 6, 34, 8, -15, 58, -24, -14, 13, 11, 16, -3, -17, 15, 1, -14, 19, -9, -30, -3, 25, 31, 2, -5, -27, -3, 5, 34, 24, -79, 3, 3, 5, -14, -42, 10, -6, -33, 15, 3, -6, 8, 16, 22, -14, -54, 26, 15, -3, 20, 43, -15, -79, -15, -46, -29, 6, 27, 37, -39, 32, -53, -26, -6, 34, 2, -8, 32, 6, -33, 32, -24, 32, 34, -13, -75, 21, 22, -42, -39, -30, -1, -1, 30, 24, -30, 49, 46, 1, 3, 7, 3, -25, -29, 71, -1, -16, -14, 2, 21, -11, -31, 12, 13, 19, -11, 0, 26, -9, -7, -51, 14, 21, -50, 8, 28, -6, -5, 45, 30, 9, -30, 39, 60, 29, 41, 45, -37, 25, 18, 30, 23, -16, -12, 17, -29, 0, -54, 28, -38, 42, 35, 35, 13, -8, -20, 26, -21, -26, -4, -7, 46, 26, 20, -19, -14, -17, -61, -32, 6, 22, 22, -27, -44, -12, 12, 19, -25, 7, 25, -36, -41, -49, 3, -2, -54, -2, -14, -12, 4, -50, 30, -16, -3, 29, -36, -40, -55, -7, 2, -1, -25, -12, 36, -13, -19, 65, 13, -64, -8, -44, -13, -37, 38, 40, 6, -10, 0, 11, 16, 3, 37, -21, -5, 2, -6, -10, 3, -21, 44, 0, 7, 18, -4, -4, 40, 46, 3, -17, -28, -6, 21, 22, -69, 28, 35, 31 ]

Steere, J. Plaintiff brought this suit in the circuit court of Genesee county to recover damages from defendant for the death of his son, Ralph June, a youth 19 years of age, who met his death on Saturday, November 4, 1922, in the collision of a Ford automobile in which he was riding with a train; of defendant at the intersection of its track with Stevenson street in the city of Flint. A trial by jury resulted in a verdict in favor of defendant by direction of the court. A motion was made by plaintiff for a new trial, on the grounds that the verdict and judgment were clearly against the weight of evidence and the court erred in directing the verdict in defendant’s favor. On the evening of November 4, 1922, some friends of Philip Reed, who was 20 years of age that day and lived with his parents, met socially at his home. It was decided that they take a little drive in his auto which was a Ford touring car. The six then there started out and soon met deceased and Beatrice June who were expected at the gathering and picked them up for the ride, making eight occupants of the car,, with four in each seat. Philip Reed was driving, and. sat on the left side of the front seat, in which were also three other young people. A Miss Ancompaugh, then 16 years old, sat in the seat beside him, and next to her sat a young man named Sherman Bean, with Miss June sitting on his lap. Ralph June, deceased, sat on the right-hand side of the rear seat. Miss Eva Main sat next to him, and J. G. Reed sat next to her, with a Miss Opal Babbit on his lap. Stevenson street runs approximately north and south, and crosses the Grand Trunk Western Railway nearly at right angles. At this crossing there are five switch tracks to the north of the main through track and north of the north switch track is the Flint river. The collision was on the main track. The Ford car in which the 8 young people were riding was going south along Stevenson street approaching the crossing .from the north and had to cross the five switch tracks before it came upon the main track. It is 8 feet from the north rail of the main track to the south rail of the first switch track north of it; the next switch track north is 26.9 feet from the main track, the next 47.2, the next 112.2, and the last farthest north 147 feet from the main track. De fendant’s line after crossing Stevenson street at about right angles extends straight west for approximately 200 feet, then curves to the south for a short distance and swings back west again, making a somewhat S-shaped curve. Stevenson street is shown upon the map introduced in evidence to be slightly over 50 feet in width. It is practically level from the north switch south over the crossing. The sidewalk on the west side is about four feet wide. The driveway over the crossing is planked 18 feet in width east and west, the westerly end of the planking being 12 feet from the easterly side of the west walk, and about the same distance on the other side. The automobile was struck on the right side near the center of the rear wheel by the engine of a train coming from the west on the main track. In the collision plaintiff’s decedent, Ralph June, was thrown against a telephone pole, causing his death. Philip Reed testified that the train went down the track so that the engine stopped about 350 feet from the accident. Plaintiff’s witness Hunt testified, “the engine and a couple of the cars, maybe three of them, passed the street before it stopped and there were cars on Stevenson street when it stopped.” The negligence charged against defendant is failure to give notice of the approaching train by bell or whistle, excessive speed at the crossing in violation of an ordinance of.the city of Flint, and leaving a string of freight cars on the switch track next adjacent to the main track extending so far west from Stevenson street as to shut off the view of an approaching eastbound train on the main track from an automobile as it approached the main track when going south on Stevenson street. Negligence cannot be predicated on omitting to sound the locomotive whistle, as its use in the city is prohibited by the ordinance plaintiff invokes. As to ringing the bell of the locomotive, the engineer, fireman and others of the train crew testified positively that it was rung continuously as they approached the crossing. A witness for defendant named Stanley who was walking south on Stevenson street toward the crossing and saw the accident testified that the automobile passed him near the first switch track going south and he heard voices of men and women singing in the auto as they passed, he then noticed a train coming from the west, saw. the reflection of its headlight play on the tracks and heard the bell ringing, but he couldn’t do anything and just watched the auto which had passed him, until the collision. Philip Eeed testified that he was driving from 6 to 10 miles an hour and as he approached the crossing looked both to the right and left for trains or engines coming, that his wife (then Miss Ancompaugh) who sat beside him remarked “for a wonder there wasn’t a train coming,” he was listening in particular as he approached for a bell because of the crossing and heard none, there was no talking in the back seat or any singing as they approached the crossing. Mrs. Eeed gave testimony to like effect. They were the only occupants of the auto called as witnesses although all survived except Ealph June. Plaintiff’s witness Hunt testified he was walking north towards the crossing along the west walk of Stevenson street and was about six rods from there when the accident happened. He saw both the auto and train approaching the crossing. While watching both of them he saw the reflection of the locomotive headlight from the approaching train, as it came around the curve, plainly visible across the street as it drew near, but he heard no bell or whistle. There was sufficient conflicting-testimony to raise an issue of fact on whether or not the bell was rung. The city ordinance limits the speed of trains over crossings within its limits to 12 miles an hour. De fendant’s evidence is positive that the train was moving slowly through the city and that speed was not exceeded. Aside from Philip Reed’s testimony that he was driving over the crossing at from 6 to 10 miles an hour and the front part of his auto was on the main track when he first saw the train which struck him, 200 feet away, plaintiff’s only evidence of excessive speed is that of Hunt, who, when asked if the train was going very fast, said, “not over 15 miles an hour or 20; I don’t know just how fast it was going. I know it wasn’t so awful fast or awful slow.” We are of opinion that this record furnishes sufficient evidence in support of plaintiff’s allegations of defendant’s negligence to carry that issue to the jury, and there is abundant evidence to carry to the jury the question of the negligence of Philip Reed, the driver of the automobile; but his negligence cannot be imputed to plaintiff’s decedent, Ralph June, who was.a minor. His negligence can only be predicated upon what he himself did or did not do. Hampel v. Railroad Co., 138 Mich. 1 (110 Am. St. Rep. 275); Donlin v. Railway, 198 Mich. 327; Davis v. Railroad Co., 222 Mich. 239. Beyond the fact that when invited Ralph got into this automobile with seven others and sat down on the back seat, no one testifies as to what he did or said or saw or should have seen or done. It was shown that he came from a farm and had only resided in Flint about a month, working in one of the automobile factories. The car in which he was riding was driven by a friend who had lived in Flint for years and could be presumed well acquainted with its streets and their dangers. He admitted familiarity with the location of the crossing where the accident occurred, but said he did not think he had crossed it over 15 times. There is no evidence deceased had any knowledge of the fact that they were approaching a crossing. The approach was planked and the speed of the auto was not changed as they approached it. Briefly summed up, the undisputed facts shown are that after deceased got into the back seat of the car that evening it was driven at a speed of from 6 to 10 miles an hour without stop or change of gears until the accident happened. He was sitting on the right-hand or west side of the car. The view to the west along the east-bound main track on which the accident occurred was obstructed by a line of cars standing next adjacent to the east-bound main track but back some 10 or 15 feet from the west line of the west sidewalk of the street, some 26 feet or more from the westerly end of the planking across which the automobile was being driven. Plaintiff’s testimony shows there was; no talking, outcry or warning of any nature given by any member of the party as they approached or crossed the crossing except Mrs. Reed’s remark to the driver next to whom she sat that “for a wonder there is no train coming,” and no evidence indicating Ralph heard her. While the trial court undoubtedly took into consideration all the facts and circumstances of the case the only announcement of reason for directing a verdict for the defense was: “I am inclined to think Mr. G— is right about that, that where one of a party of eight pile into an automobile and go across a railroad crossing as they did in this case, and an accident occurs, he is guilty of contributory negligence.” The number of young people who piled into this car beyond its seating capacity was a proper element of the case for the jury to consider as bearing on the question of deceased’s lack of reasonable caution, but in itself it was not, as a legal proposition, conclusive evidence of contributory negligence. It is not claimed that the weight of that number of people in the car made it more difficult to drive nor that they in any way obstructed the view of the driver. Both his and his wife’s testimony is to the contrary. He said only the string of freight cars north of the main track interfered with his view to the west, that he had his auto under control, was running only from 6 to 10 miles an hour and at 6 miles an hour he could stop “almost instantly.” It is the undoubted rule that the invited passenger is not absolved from the duty to exercise reasonable care for his own safety. Whether he had done so under the circumstances shown and situation in which he is placed usually becomes a question of fact for the jury. That proposition is fairly covered by Justice Weaver in Bradley v. Railway Co., 191 Iowa, 1351 (183 N. W. 493). In that case plaintiff was riding in an automobile as an invited guest sitting back of the driver and the plaintiff was injured in a collision of the auto with a train at a street crossing. The court there said in part: “The question as to what is reasonable care in such emergency is peculiarly a question for the jury. Within reasonable limits the invited passenger in an automobile may reasonably and lawfully rely on the skill and judgment of the driver. He cannot physically interfere with the driver’s control of the car without peril of disaster. He may, under proper circumstances, sound an alarm if he sees danger ahead of which the driver seems oblivious, but even then he must still to some extent place his reliance upon the driver to avoid it. There is no rule of law which obliges him to forcibly seize the steering wheel and wrest it from the hands of the owner, or to jump from the rapidly moving vehicle to certain injury or death. The appearance of danger of this character in almost every case comes in an instant of time, the peril is immediate, imminent, and if a collision occurs, the destruction is accomplished in a twinkling.” Deceased not only had no control or authority over the driver whose guest he was, but was sitting in the back seat of the auto with closed curtains. Under such circumstances the rule of reasonable care for his own safety does not apply with the same degree of strictness as it would were he in the front seat with like opportunity to observe as, and in close communication with, the driver. In Weidlich v. Railroad Co., 93 Conn. 438 (106 Atl. 323), it was said of a similar situation: “The intestate must have exercised due care, but this is the care that may be reasonably inferred from the circumstances. The guest on the rear seat of an automobile owes a very limited degree of care. He is not expected to direct the driver, nor to keep a lookout. Dangers or threatened dangers known to him, he must warn the driver of, and for his failure to do so be chargeable with having proximately. contributed to the accident, unless a reasonable person under all the circumstances would not have given the warning. * * * The intestate was seen a few moments before the accident and a short distance from the crossing, seated on the rear seat of the closed automobile. If he had been asleep, or reading a book, or in deep thought, he would not have 'been negligent because of this. Ordinary experience instances this as not infrequently the conduct of the ordinarily prudent person when riding as a guest on the rear seat of an automobile.” In Webber v. Billings, 184 Mich. 119, where the testimony tending to show that the passenger acquiesced or participated in overcrowding the car and recklessness of the driver was much stronger than here, this court held contributory negligence of the passenger was a question for the jury. The authorities on this question will be found instructingly reviewed in Berry on Automobiles (4th Ed.), § 591 et seq. The judgment is reversed, with costs to plaintiff, and a new trial granted. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred.

[ -18, 25, 13, 10, -2, -4, -3, -13, 40, -31, -14, -53, 16, 4, -9, 22, -12, -4, 4, -41, -45, -8, -5, -32, -11, 13, 18, 10, -21, -46, 20, 13, 11, 28, 1, -24, 16, -4, -13, 14, 0, -26, -26, -6, 42, -3, 53, -17, 34, -43, -33, -16, -24, -44, 16, -16, 23, 14, -67, 39, 8, -24, -3, -29, -39, 5, 39, 9, 16, 67, -23, -28, -14, 37, 16, 5, -7, -15, 1, 16, -23, 5, 38, 16, -29, -14, -11, 0, -38, 29, 10, -8, -31, -35, 50, 15, -29, -26, -11, -2, -44, 25, -1, 20, -1, 0, -20, -2, 4, -33, -39, 16, 29, -5, 36, -44, 21, 10, 38, 19, -18, -21, 19, 56, 0, 5, -41, -16, 30, -8, 43, 33, 30, 31, 30, 11, 14, 0, -54, -7, -17, 22, -31, 10, -73, 48, 10, 48, -11, 12, -61, 3, -5, -33, -4, -7, 1, -47, 57, 47, 1, 4, 35, -5, -89, -49, -30, 35, 37, 12, -67, 24, 31, -26, 59, 52, -29, -6, -65, 3, 28, 49, 34, 1, -40, -80, 33, 9, -26, -8, 38, 25, -15, -60, -40, 78, -13, -57, 2, 70, 50, -85, -27, -19, -62, 0, 31, -25, 30, -6, 12, 22, 5, 2, 9, 10, -11, -26, 23, -48, -5, 9, 51, 0, -24, -5, -14, 17, -33, 3, 25, -7, 1, 40, -42, -41, -8, -35, 0, -15, 5, -10, 61, -41, -21, 11, -32, 0, -21, 61, 15, 18, -13, 8, 29, 59, 29, 8, 36, -2, 22, 65, -34, 16, 26, 11, -11, 7, 22, -28, -4, -57, -4, 60, 5, -33, 15, 52, 53, 46, 20, -37, -51, -27, 40, 24, -34, -37, 20, -37, 16, -24, 12, -17, -33, 33, 34, 25, -17, -16, 3, 1, -25, -13, -16, 29, -4, 12, -29, 12, -3, 4, 6, 10, 68, 21, 13, 26, 59, -12, -52, 17, -21, -5, -9, 65, 5, -32, -24, 73, 28, 53, -4, -20, -17, -62, 24, 39, 4, -22, -8, 55, -49, 16, -31, -23, 63, 22, 7, -36, -47, -56, 57, -52, -56, 3, 48, -23, -39, 18, -18, 9, -17, 60, 17, -49, 18, 2, -26, 21, 16, 18, 20, -9, 8, -65, 10, 5, -4, 72, 11, -16, 1, -28, -6, 13, -27, -1, -54, 38, -1, -34, 8, 1, 40, 17, -1, 21, -73, -57, -11, 23, -4, 11, -26, 67, -31, 36, 15, -24, -2, -39, 55, -21, 46, -42, -14, 7, -20, 6, 9, 46, 21, -45, 11, 18, 33, -22, 61, 8, 12, 19, 2, -18, 30, 68, -22, -22, 18, -7, 2, -1, 85, 17, 7, -38, -16, -6, -1, -4, 28, 29, 3, 40, -9, -12, -17, 28, 2, -3, -41, -7, 3, -25, -5, 35, -40, 8, -8, 15, -22, 41, -12, -45, 8, -43, 39, -25, -8, -14, -3, -28, -11, -32, 22, -39, 17, -12, 34, -18, 54, 45, -17, -2, 28, -26, -30, 48, -29, -64, -27, -13, -34, -44, 33, 20, -34, -22, -40, -18, 47, -2, -22, -16, 2, -13, -8, -34, 21, -9, -3, 23, 38, 1, -9, -31, 41, 0, -3, -50, 25, -4, -23, 47, 8, -42, -58, 18, -11, 10, 11, 16, 43, -47, -33, -31, 0, -7, 35, 9, 15, -23, -13, -55, 23, 0, 20, -14, 13, -14, 7, -20, 46, -18, 3, -22, 12, -32, 78, -67, -55, 62, 23, -43, -49, 33, 7, 22, -26, 11, -16, -9, -36, 3, -3, 1, -4, 40, -51, 53, -30, -17, -26, 32, 36, 1, 40, -7, 14, -29, 54, 19, -24, 63, 31, 38, -52, 14, -36, 0, 53, -30, -6, -3, 10, -1, -6, 7, 14, 1, -1, -28, -18, 41, -14, -28, -3, 9, -52, -9, -80, 21, -84, 13, -14, -24, 21, 29, -6, 16, 0, 14, 42, -65, -43, -34, -37, -31, -58, 18, -71, 16, -14, -8, -54, 50, -9, 18, -37, 2, 7, -16, -42, -12, -49, -15, 56, -11, 12, 14, 18, -13, 14, 30, 2, -3, 17, 73, 12, 40, 19, 31, 19, -36, 41, 9, -13, 20, 5, -17, -29, 64, -79, 41, -50, 17, 24, 21, -31, -24, -13, 1, -23, 14, -49, -31, 1, 12, 9, 16, -25, 43, 52, 0, -11, 15, 41, -14, -11, -9, 19, 13, 10, -29, 10, -21, 20, -4, -38, -41, 26, 9, 16, -4, -26, -19, 13, 33, -42, -48, -5, -16, -16, -13, -65, 4, 30, -3, -11, 2, -10, 20, 58, 12, 4, -19, 47, 4, -19, -14, 20, 2, 28, -14, -35, 36, -8, 49, 20, 8, -18, 30, -23, -21, -29, 15, -24, -57, -16, -1, -7, -13, 29, 21, 14, -6, 34, 6, 18, -2, 16, -15, 9, -15, -12, -10, 40, 0, 31, -23, 12, 38, 5, 0, -6, -16, 10, 36, -8, 38, -7, 17, 1, -43, 1, -50, -3, -7, -40, 3, 33, 35, 21, 10, 0, 12, -1, -22, 1, -48, 18, 14, 2, -5, -26, 19, 66, 1, -1, 4, -9, 2, -48, -5, 43, 24, 18, 24, 33, 29, -8, -16, -26, -20, -41, 36, -41, -48, -25, 44, -26, -42, -82, -12, -4, -12, 1, -58, -42, -24, -31, -16, -19, 12, -35, -30, 46, -23, 18, -30, 13, -98, 55, 40, -23, -37, 5, -40, 24, 28, -44, 14, 49, -14, -27, -4, -46, 13, 49, 0, 29, 6, -33, -27, -64, -73, 11, -28, -24, 7, -16, -22, 5, -2, 8, -4, -36, -17, 1, 2, 8, -5, 10, 48, -15, 0, -11, 2, 4, 70, 2, -22, -24, -68, 32, 1, -6, -6, 24, -14, 44, -10, -53, 4, 17, -23, 15, 11, -44, 46, 29, -41, 16, 55, -4, -9, -8, -6, 36, -7, 45, 69, 37, -4, 11, -46, -14, -5, 22, 26, 4, 6, 31, -19, 7, -28, 64, 22, -24, -40, 21, -27, -28, 23, 4, -32, -24, -48, -19, 68, -45, 21, 15, -2, 7, 41, -9, -21, -17, -10, -16, -33, 11, 15, 30, -19, 3, 31, 10, 36, -39, 7, 30, 25, 56, 59, -40, -2, -2, -29, 19, 19, -5, 31 ]

Steere, J. This case was commenced in Wayne county circuit! court in April, 1921, under the title “Commercial Acceptance Trust, trustee under the laws of the State of Massachusetts, plaintiff, v. O. Mowat Mackie, defendant.” The declaration, filed April 13, 1921, was upon the common counts in assumpsit with notice that under the money counts plaintiff would give in evidence a certain contract, a copy of which was attached to the declaration. The purpose of the suit was to recover a balance claimed due under a conditional sale agreement for purchase of a Cadillac sedan automobile entered into between defendant Mackie and the Weisman Motor Sales Company of Detroit, Michigan, on May 27, 1920. The agreement of sale with a note of defendant for the unpaid balance attached were at once assigned by the Motor Sales Company to the Commercial Acceptance Trust. The list cash price of the car was $4,700. The Weisman Motor Sales Company sold it to Mackie under their deferred payment agreement for $4,982, upon which the latter paid in cash $1,992.80, giving his note and executing the conditional sale contract for $2,989.20, which was payable in 8 instalments of $378.65 each, distributed monthly over a period of 8 months, beginning one month from the date of the contract. The Motor Sales Company realized from this sale the list price of $4,700, selling the contract and note to plaintiff with a discount of $282. The Commercial Acceptance Trust had its main offices and headquarters in Chicago and dealt in conditional sales agreements of this kind. It maintained a branch office in Detroit under a manager named Franks who solicited business there. Mr. Weisman of the automobile firm testified that Franks solicited their business in that line and during the year 1920 his company had from 50 to 70 transactions of this nature with the Acceptance Trust which furnished its own blanks for the conditional agreements of sale and notes used in their transactions, and fixed the extra charges above the list price, saying of this sale: “Unless we charged $282 (more than the list price) they would never have bought the contract.” The $282 was divided into 8 payments which were included in those specified in the contract and note. The promissory note attached to the contract is enlarged by provisions waiving presentment, protest, and exemption laws. It irrevocably authorizes any attorney to appear for the maker after its maturity in whole or in part in any court of record in the United States, in term time or vacation, and there to waive issue and service of process, confess judgment against the maker in favor of the payee or any subsequent holder for the amount appearing unpaid, together with costs, expenses and. attorney fees. The contract is of the lengthy type customarily used in such cases, specifying that title does not pass by delivery, the note is but evidence of the debt, the seller may repossess the car without demand or notice upon any default in payment by the buyer who waives all right of action growing out of repossession and retaining of the car by the seller, upon default the entire unpaid balance becomes due with interest thereafter at the highest legal rate, the seller may retain all payments as liquidated damages, with right of action for deficiency, time is made of the essence of the contract, etc. Thirty-nine pages of the record are devoted to pleadings and other preliminary proceedings. The Commercial Acceptance Trust’s simple declaration on the common counts, filed April 13, 1921, was amended on May 16, 1921, by adding a special count covering the contract. On June 22, 1922, a certificate of conducting business under an assumed name was filed with the clerk of Wayne county by the nine persons constituting the members of the Commercial Acceptance Trust pursuant to Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6849 et seq.), stating in part that they— “the undersigned, trustees of Commercial Acceptance Trust, under a certain agreement and declaration of trust dated October 22, 1918 (copy of which is on file with the Old Colony Trust Company, of Boston, Massachusetts), * * * now intend to conduct and transact business in the city of Detroit, Michigan, under the name and style of Commercial Acceptance Trust.” On May 11, 1928, an ex parte order was obtained joining the Weisman Motor Sales Company “as a party defendant in the above entitled cause,” based upon an affidavit stating that “the above entitled case has been brought against O. Mowat Mackie upon a promissory note in which he appears as maker” and the Weisman Motor Sales Company is indorser. On the same date an order was made on motion of plaintiffs’ counsel that— “David B. Forgan, Charles W. Folds, Clive T. Jaffray, John D. Larkin, Stephen B. Strattan, Alexander E. Duncan, William H. Grimes, It. Walter Graham and James C. Fenhagen, trustees, doing business under the firm name. and style of Commercial Acceptance Trust, may be and are hereby joined as parties plaintiff in the above entitled cause.” The pleadings and other preliminary proceedings were concluded by defendants’ plea of the general issue, filed October 26, 1923, with 11 notices of special defense amplified on December 18, 1923, by the addition of four more special defenses. The case was tried by jury. At commencement of the trial plaintiffs’ counsel moved for and was granted an order, against defendants’ objection, discontinuing— “the cause of the Commercial Acceptance Trust, trustee under the laws of the State of Massachusetts, against Weisman Motor Sales Company, a Michigan corporation, and O. Mo wat Mackie, and retain (ing) the cause of David R. Forgan and eight others, who are described in the declaration, doing business under the style and firm name of Commercial Acceptance Trust against Weisman Motor Sales Company and O. Mowat Mackie.” The special defenses most appealingly pressed by the defense were payment in full before this action was brought; that discontinuance of the cause of action by the Commercial Acceptance Trust was a discontinuance of the entire case; filing notice by the trustees of said trust that they were doing business under an assumed name as partners was contrary to their articles of association creating the trust; and said trust company is in effect a quasi-foreign corporation forbidden to do business in this State without domesticating by applying to the secretary of State, paying the imposed fee and obtaining from him the prescribed certificate of authority. Mackie made four of the eight partial payments, which were sent to plaintiffs’ Chicago office where the papers were kept, but became delinquent as to further payments. In December, 1920, as plaintiffs claimed, the agreement and note were forwarded to the Detroit branch office for collection, but never reached there. In January, 1921, as defendant claimed, a man representing himself as collecting agent of the Commercial Acceptance Trust went to Mackie’s office with those papers and demanded payment of the balance due on them. On Mackie’s offering him a check for the amount he insisted on a certified check or the money, as it was after banking hours and he said he must return to Chicago that night. Mackie then obtained the cash and paid him the balance in full, receiving from him in return the original agreement and note. When he was later pressed for payment by plaintiffs’ representatives from its Detroit office Mackie insisted he had paid the amount in full to one of its collecting agents who; had come to him with the original papers and delivered them to him on receipt of the payment. They were produced in court by the defense and their genuineness admitted. The man was a total stranger to Mackie. He produced no evidence of his authority except the papers which were made payable to the Commercial Acceptance Trust and not indorsed by it, or marked in any way authorizing the payor to pay any one except the owner of the paper. It is urged for the defense that the possession and production of the note and contract, obtained by paying the amount due upon them to the person in possession of them who demanded payment as collector for the owner, is at least prima facie evidence of payment to carry that question to the jury. It is said for plaintiffs that “Mackie’s good faith in making payment is not questioned,” except that the paper was long past due, Mackie’s office was not far from plaintiffs’, he made no inquiry by telephone or otherwise to ascertain the identity or authority of the man demanding payment, but “the money was paid, if at all, to a total stranger,” to whose order the paper he produced was not payable, and its possession is no evidence of payment to plaintiffs. The trial court so held in directing a verdict for plaintiffs. While we do not discover that this exact question has been squarely passed upon in this jurisdiction, payment is made an affirmative defense in this State and a marked distinction is universally recognized under the law of payment, as to the duty of the payor, between negotiable instruments payable to bearer and those payable to order. The burden of proof rests upon the party seeking to establish payment to show the authority of the person in possession of an unindorsed instrument payable to order, to collect in behalf of the owner or payee specified therein. Conceding that unexplained or uncontroverted evidence of payment to any person in actual possession of the instrument is, standing alone, prima facie evidence of payment, under defendant’s own explanation of the circumstances and plaintiffs’ controverting evidence, it does not shift the burden of proof. “Where substantial controverting evidence is introduced, merely prima facie evidence is not, it has been held, sufficient to sustain the burden of proof and warrant a verdict.” 23 C. J. p. 9. Upon this subject it is said, with sustaining citations, in 2 Daniel on Negotiable Instruments (6th Ed.), 1390: “Such person in actual possession may perhaps be presumed to be agent of the holder prima facie. But even this is doubtful, and to us seems wrong, for nothing is more common than to indorse negotiable instruments to agents for collection; and if the bill or note be unindorsed in blank, or specially to the party having it in possession, it might be that the owner had withheld his indorsement for the very purpose of preventing collection by a person not entitled to receive the money; and if this were so, the presumption of agency (if, indeed, it be at all admitted) would be rebutted. The contrary doctrine destroys a great and salutary safeguard to the rights of proprietors of negotiable instruments, and to a large degree breaks down the distinction between those pay able to order, and those payable to bearer.” See, also, Eaton v. Knowles, 61 Mich. 625. While not prepared to reverse the ruling of the trial court on that question we are impressed that the court erred in not recognizing defendants’ motion for dismissal of the case and directed verdict on other grounds referred to. A certified copy of the declaration of trust and articles of agreement creating and naming the Commercial Acceptance Trust was introduced in evidence, against plaintiffs’ objection. They are dated October 22, 1918. In 1920, that legal entity was engaged in a commercial business with its headquarters and main office in Chicago, Illinois, and a branch office in charge of a manager established and doing business for it in Detroit, Michigan. The business done by it involved here was transacted in its name. Its blanks were used. Assignment of the conditional sale and indorsement of the note by the Auto Sales Company were to the Commercial Acceptance Trust, of Chicago, Illinois. Payments were made to it as such and this action was commenced by it against defendant Mackie in April, 1921, as the “Commercial Acceptance Trust, trustee under the laws of the State of Massachusetts, plaintiffs.” Over two years later, on May 11, 1923, the names of 9 persons were added as plaintiffs by an ex parte order. No indorsement of the note or assignment of the contract to them collectively or individually by the Commercial Acceptance Trust is . shown. What kind of legal entity other or differing from the Commercial Acceptance Trust they became or claimed tó be when they filed their certificate of intention to assume its name is not shown. They were all nonresidents of this State and then were in combination as trustees conducting the business of this plaintiff trust, in the trust name conferred on it when organized. Their certificate of doing business under an assumed name could not transfer to them any' property or property rights of the trust or effect its organization and existence as a legal entity. ’ Its articles of trust, “made in the city of Boston, Commonwealth of Massachusetts, on the 22d day of October, 1918,” first recite in part: “That whereas, the subscriber, in accordance with the terms of a certain agreement of even date herewith between the subscriber and the trustees, proposes to transfer, assign and deliver to the trustees, under the designation of ‘Commercial Acceptance Trust,’ certain assets formerly of the Agricultural Credit Company (Incorporated), a corporation of the Commonwealth of Virginia, and described in said agreement, and the trustees, for the purpose of defining the beneficial interests of the subscriber and its assigns in such property, have agreed to issue to the subscriber negotiable certificates for five thousand (5,000) shares of preferred beneficial’ interest and twenty thousand (20,000) shares of common beneficial interest in the said Commercial Acceptance Trust, each said preferred share to be expressed of the par value of one hundred dollars ($100.00) and. each said common share to be expressed of no par value, all of the said shares to be issued to the subscriber or to its nominees.” This voluntary association organized in Boston, under written articles of agreement and declaration of trust was admittedly what is known as a Massachusetts common-law trust, that State having enacted legislation expressly pertaining to and recognizing such legal entities. Scattered through the lengthy articles of the- Commercial Acceptance Trust agreement are various powers and provisions characteristic of corporations not applicable to partnerships or even to an individual trustee. A few of them are, that the trustees in their collective capacity shall be designated “Commercial Acceptance Trust” and under such name transact the business of the trust, execute instruments in writing, etc.; the trustees are given the legal title to all property owned by it with absolute management and control of the same, and may sue and be sued in the trust name; ownership of shares gives the beneficiary no title interest in the trust property and no right to a division of the same, or to an accounting; personal liability of both trustees and eestuis que trustent is expressly negatived; exclusive power is given the trustees to make loans of money belonging to the trust without collateral security, to mortgage or borrow money upon the same as they may determine “and generally to take any action or do anything not in the regular and usual course of business;” authority is given to adopt and use a common seal to be affixed to instruments executed by the trust; any trustee is authorized to acquire, own and dispose of shares in the beneficial interest of the trust the same as though he were not a trustee; such shares are made personal property; the trustees are forbidden to call upon' the beneficiaries for payment of assessments; a fiscal year is fixed for the trust, which is to “continue for a term of twenty-one (21) years after the death of the last survivor of the following persons, to wit:” (naming the 9 originally named as trustees). The chose in action upon which this case is founded was owned by the Commercial Acceptance Trust, which began this case as owner in its .own name. When it withdrew and discontinued the case by permission of the court it ended that case. There was nothing of the case left for the remaining nominal plaintiffs to litigate in any other capacity. Defendants’ motion to dismiss as to all parties should have been granted. The judgment is reversed without retrial, with costs to defendants. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred.

[ 3, 33, 35, -19, -2, 7, 59, 17, 6, 7, -25, -13, 12, 30, -38, 27, 30, 16, -26, -32, 12, -58, -58, -41, 23, 32, 3, -81, 15, -17, -38, 0, 3, 13, -37, -11, -33, -5, 23, -4, 5, 6, -17, 5, 2, -12, -6, -90, 20, -14, 17, 23, 30, 0, -31, -10, -10, -13, -30, 18, -5, -39, 69, 12, -55, 15, 20, 0, -10, 25, -37, -22, 28, 9, 7, -19, -10, 11, 13, -51, 34, -40, 62, 26, -37, 19, 4, -20, -6, -20, -19, -8, -7, 19, -6, 15, -17, -7, -3, 4, -38, -24, -5, 5, 32, 35, -12, -23, 11, 19, -43, -19, 35, 32, 8, 12, -11, 6, 16, -5, -23, 1, -21, 6, -26, 2, -17, -13, -26, 15, 38, -17, 13, 70, 3, 16, 3, -60, -31, 27, -12, 39, -62, -31, -8, 51, -2, -35, -6, 2, -35, 22, 20, 5, 13, 9, -14, -11, 0, -3, -29, -19, 26, -3, -45, 15, -40, 55, -7, 17, 15, 13, 6, -74, 3, 25, 0, 1, -43, -1, -7, -15, 17, -44, -12, -38, -29, 6, -4, -4, -1, -12, 0, 9, -15, -11, -34, -25, -22, 53, 42, -9, -5, -42, -79, -22, 22, -39, -30, -1, -30, 32, -1, -33, -17, 29, 48, -7, 12, -9, 36, 1, -20, 62, 11, -37, 2, 1, -22, 24, -9, 16, -22, 35, -25, 9, -1, 38, -21, 34, 20, -20, 15, -18, 0, -58, -38, 0, 48, -1, -9, -6, -26, 28, 13, -16, -18, 22, 11, 9, -22, 74, -30, -8, -41, 5, 0, -12, 7, -2, -23, -9, -27, 24, 15, -48, -19, -5, -12, -24, 8, -73, -26, -54, 23, 4, -60, -23, -72, 8, 4, 18, 77, -23, 4, 6, -54, 31, 9, -30, -4, 17, 16, -5, 26, 2, -38, -5, 7, -5, -17, -8, 8, -10, 42, -22, 16, 13, 35, -24, 5, 39, -15, 54, 2, -23, 33, -34, 6, -9, -9, -20, -7, -59, -35, -53, 30, 26, 39, 16, 18, 39, 41, -2, -16, -11, 0, -29, -33, 20, -7, -75, -23, 2, -36, 45, 90, 60, -30, 51, 19, 0, -32, 55, 41, 36, -23, 2, -8, 45, 14, 22, -16, -33, -39, -61, -44, -30, -58, 40, 7, -34, 12, -6, 38, -37, -18, -31, -30, 6, -35, 41, 9, 43, 9, -25, -16, -51, -41, -40, 19, 31, -25, -43, 4, 6, 36, 17, -17, -7, -13, -24, 6, -8, 4, -29, 33, -37, -53, -1, 30, -9, -10, -22, 34, -39, 81, 11, -46, -11, 8, 27, 42, -8, 2, -14, -13, -12, 35, -14, 28, 34, -10, 4, 51, -33, -1, 8, 5, -14, 60, 27, 13, 39, -11, 32, 46, 21, 3, 7, 16, -43, 53, -2, -23, -7, 6, 1, -6, 13, -19, 34, -1, -20, -7, 0, 3, -45, -20, -20, -41, 49, 10, -10, -6, -24, -61, -36, -9, -2, 24, 8, -24, 43, -32, -35, -23, -1, 6, -26, -12, -24, 6, 32, 11, -19, 14, -23, 10, -14, 8, 7, -6, 35, 49, 9, 6, 34, 19, 31, 24, 78, -4, -3, 25, 20, 51, 11, 26, -26, -19, 0, -5, 28, 12, -32, 9, 16, 0, -38, -7, -10, -34, -16, -28, 5, -34, 28, 38, 2, -9, -59, 26, -30, 31, 21, 49, -3, 7, 75, -20, 53, 41, -10, 24, -21, 2, -37, 34, 22, -22, 23, 31, 23, -25, -48, -13, -22, -1, -16, -5, 38, -1, -61, -23, 63, -4, 6, -57, 23, -6, -24, -11, 15, 34, 6, 56, 47, 0, 36, 20, 8, -61, 18, -24, -63, -11, 28, 3, -10, 28, 2, 13, 42, -17, -12, 3, -8, 8, 61, 21, 19, 16, 15, -15, 52, 13, -14, -17, 55, 0, -12, -16, 14, -9, 3, 30, 18, -47, -66, -48, 20, 17, -49, -19, -65, -75, 8, 0, -28, -68, -1, 29, 2, 0, 6, 1, 8, 35, 9, 22, -24, -46, -21, 25, -46, 6, -22, 11, 14, 15, -12, 5, 7, 39, 24, 2, 64, 66, 58, -25, 11, -20, 4, 6, -28, 42, 0, 5, 10, -13, -1, -38, -57, -51, -7, 4, 42, -13, -14, 9, 35, -21, 35, -39, 27, -9, 23, -5, 8, 30, 2, -10, -8, 5, 56, -9, 61, -38, -60, -25, -31, 30, -28, 15, -7, 7, -24, -68, -13, 28, 10, -12, -20, 21, 61, 35, -32, -32, -56, 6, 20, 40, 28, -11, -11, -9, 69, 11, 5, 11, -24, 30, 49, 85, 8, -11, 23, -20, -17, -60, 16, 30, 14, -38, 70, 19, -12, 9, -53, -20, 0, -6, 2, -5, -48, 8, 20, -1, -19, 12, -18, 5, 0, 3, -5, -56, -24, 12, 25, 3, -22, 22, -16, -44, 5, 46, -35, 15, -47, -49, 44, -35, 26, 34, -51, 19, 13, 56, -31, -51, 14, -12, -51, 17, -33, -21, -25, -47, -8, 20, 35, -25, -8, -49, -8, -22, 14, -17, -19, -4, 20, -6, -24, -43, 25, 30, -32, 14, -15, -26, -35, -61, 41, 8, 46, -53, 61, -2, -18, -18, 43, -58, 28, 0, -23, -8, -24, -14, -2, 2, -13, -59, 14, 33, -17, 16, -27, -8, -30, 5, -4, -16, -12, -23, 39, 40, -26, 37, 0, -4, -42, 31, 37, -23, -35, 81, -21, 3, 42, -4, -8, -78, -42, 11, -40, 21, -25, 86, -11, 2, -29, -9, -15, 3, -38, 26, 82, 27, 59, 46, 18, -12, -4, -6, 1, -4, 14, -11, 11, 65, -50, -67, -30, 25, 23, 9, 34, 28, 76, -27, -7, 43, 2, 13, 14, -33, -27, -2, -29, 7, -5, -29, -17, 1, -13, 16, 18, -12, 0, 12, 22, 69, 62, 10, -6, -32, -32, -22, 4, 20, -3, 24, -37, 0, 9, 18, 26, 21, 59, -10, 20, -9, -38, -5, 17, 36, -13, -22, -33, 35, 18, -15, 51, 29, -8, 0, 33, -69, 20, 57, -25, -20, 25, -1, 7, 85, 0, 28, -62, 7, -7, 15, 0, -55, -37, 44, 5, -20, -9, -26, -5, -16, 37, 28, 13, 14, -15, 5, -15, -19, 19, -22, 30 ]

Sharpe, J. Anna Dabudka, wife of defendant, made application to the plaintiff for insurance on her life, in the sum of $500, on April 8, 1918. Pursuant thereto, a policy was issued on April 24th, and delivered to her. The defendant was named as beneficiary therein. The insured died on October 31, 1918. Proofs of death were furnished. Plaintiff refused to pay. Defendant brought suit to recover. Plaintiff thereupon filed the bill in this case, praying for the cancellation of the policy on the ground of fraud, concealment and misrepresentation of material facts on the part of the insured in her application. The trial court entered a decree dismissing the bill, from which plaintiff appeals. The application was signed by the insured by her mark. A copy of it was attached to the policy .when delivered. It is not claimed that any false statement was made in the application as signed by her. Attached to and made a part of it were certain statements purported to have been made by her to plaintiff’s medical examiner, Dr. McKinley. This was also signed by her by mark, the doctor signing his name as a witness thereto. These statements were in answer to questions put to her by the doctor. These questions and answers contained statements that she had not theretofore been attended by a physician, and had never been under treatment in any hospital. • To maintain its case, plaintiff offered a certified copy of the death certificate, signed by Dr. Sherwood, who attended deceased “from Oct. 27, 1918, to Oct. 27, 1918,” in which the cause of death was stated to be “dilated heart and influenza.” Plaintiff’s counsel offered in evidence a paper, headed “Attending Physician’s Statement,” signed by Dr. C. E. Watson, which was received over the objection of defendant. This statement was made on a blank prepared by the plaintiff. Preceding it, on the same page, was a “Declaration Made by Claimant,” and signed by defendant as follows: “I desire to file the following statement by attending physician with and as part of the proofs of death submitted by me to your company on account of policy No. 2483707-C.” It was dated December 10, 1918. In this statement appeared certain questions and answers, written by the doctor, stating that he had treated the deceased in October, 1917, for “bronchial asthma and valvular heart trouble and dropsy.” Plaintiff’s assistant manager, Mr. Bozyk, testified that the company furnished blanks for proof of death to defendant. These were filled out and delivered to him. They do not appear in the record, but it may be inferred that one of them was a certified copy of the “Medical Certificate of Death” signed by Dr. Sherwood, above referred to. The only provision in the policy relative to such proof was the undertaking of the company to pay to the beneficiary the sum of five hundred dollars “upon receipt at the home office of the company in the city of New York of due proof of the death of Anna Dabudka.” There is no suggestion that the proof furnished by the defendant did not fully comply with this requirement. The manner in which the affidavit of Dr. Watson was secured is testified to by Mr. Bozyk as follows: “Q. When the claimant, Nicholas Dabudka, made this claim to your office after the death of his wife, you gave him that slip to fill out, didn’t you? “A. No, I took that to the doctor personally. “Q. Who furnished you with the name of the doctor? “A. Well, I got that by investigating in the neighborhood. I got that, I think, from Dr. Sherwood. He thought there was other doctors attending her. “Q. Well, Dr. Sherwood made the statement there were no other doctors to his knowledge? “A. He wasn’t sure, but he thought there was. When he told me that I inquired in the neighborhood and I found that there was this doctor attended her, so I called on this doctor and he completed the statement. After it was completed I took it to the claimant and he signed it. “Q. Then the information of the doctor was on there at the time the claimant signed? “A. Yes. “Q. Did the claimant know it was information? “A. I told him it was information from the doctor. “Q. He didn’t try to conceal it, did he? “A. No.” This court has decided that proofs of death are to be treated as evidence of the facts stated in them, being in the nature of an admission (John Hancock Mut. Life Ins. Co. v. Dick, 117 Mich. 518 [44 L. R. A. 846]), subject, however, to such explanation as the beneficiary may offer. Hubbell v. North American Union, 230 Mich. 668. In our opinion, the affidavit of Dr. Watson, procured in the manner above set forth, was not such a part of the proofs of death furnished by the beneficiary as entitled it to be treated as evidence within the rule above stated. It was not furnished voluntarily by the defendant. It was not read over by him, or to him, before he signed the declaration which preceded it. Had the affidavit not been procured, and had Dr. Watson been called as a witness, he would not have been permitted to testify to the facts therein stated, upon which plaintiff relies to establish misrepresenta tion. 3 Comp. Laws 1915, § 12550; Gilchrist v. Mystic Workers, 188 Mich. 466 (Ann. Cas. 1918C, 757). In the Gilchrist Case, a waiver of the statute, contained in the application for insurance, was held to be against public policy and void. A somewhat similar statement was considered and held not to be competent proof in Repala v. Insurance Co., 229 Mich. 463. In a “Notice to Policyholder,” indorsed on the policy, it is said: “It is not necessary to employ an attorney or any other person to collect the insurance under this policy, or to secure any of the benefits it provides.” A beneficiary may not thereby be lulled into security and advantage taken of his legal rights by the course here pursued to secure evidence on behalf of the company not otherwise admissible. Helen Wheelock, record clerk at the Harper hospital, was called as a witness. She was handed “a group of papers,” which she testified were “records of this case of Mrs. Anna Dabudka.” None of the entries on the exhibit were made by the witness, nor did she have any personal knowledge as to who made them. The record showed that “Mrs. Nicholas Dabudka (Anna),” residence, “93 Mercier street,” entered the hospital on February 23, 1918, and was discharged March 11,1918. We have no statute permitting such records to be used as original evidence. The witness had no personal knowledge relative to them. There was no showing that the person who made them, or that the doctor or other person who directed the entries to be made, might not have been produced as a witness. There was no proof that they were records made in the ordinary course of the business conducted by the hospital by a person whose duty it was to make them. The admissibility of such proof is discussed at length in Delaney v. Power Co., 202 Mass. 359 (88 N. E. 773). See, also, 22 C. J. p. 902, and cases cited in footnote. Even if we should apply the familiar “shop work rule” to such records, it is clear that under the proofs here submitted they were not admissible as evidence. The record is barren of any competent proof tending to support the allegations of fraud and misrepresentation. The decree is affirmed, with costs to- appellee. McDonald, C. J., and Clark, Bird, Steere, Fellows, and Wiest, JJ., concurred. Moore, J., did not sit.

[ 3, -52, 16, -18, 12, -16, 25, -21, 28, -13, -27, -5, 74, 67, 1, 9, -5, -3, 24, -25, -48, 3, -6, 7, -28, -20, -41, -28, 36, -19, 0, 43, -42, -12, 49, -16, 59, -25, -55, 37, -24, -31, 57, 41, -38, 19, -23, 29, -5, 20, 31, -8, 14, -41, -78, -31, 12, 36, -11, 6, -35, -56, 65, -8, -25, 58, 19, 35, -39, 46, 23, -27, 18, -38, -30, 6, -31, -10, -25, -52, 27, -37, 2, -24, -11, 61, -27, 0, 21, 25, -17, -17, 2, -10, -30, 35, -22, 49, 14, 93, 40, 23, -26, -1, 31, 40, -1, -30, -78, -6, -17, 11, 29, 18, 77, -1, -2, 39, 2, -27, 11, 48, 31, -39, 4, 60, 28, -19, -4, -13, 5, -35, 7, 4, 0, -32, -8, -71, 14, -62, -5, 44, -21, -12, 9, 37, -27, -8, -43, -29, -35, 42, -13, -11, 24, -21, 10, -21, -6, -48, 27, -26, 45, 25, -13, -6, 20, -14, 28, 7, 20, 12, -25, 19, 19, 11, 61, 11, -8, 13, -17, 31, 2, -29, -12, -31, 10, -17, 42, 53, 14, -86, -14, 33, 0, 20, 15, 34, 37, -33, 47, -23, 6, -35, 20, 24, -32, 20, -10, 18, 13, -32, 5, -26, -13, 38, -22, -53, -48, -11, -30, -3, 14, 48, -44, -23, -11, -37, -13, -51, -8, 24, -27, 98, -25, 26, -21, -24, 26, 10, -80, 31, 21, 9, 32, 43, -13, 1, -32, 14, 0, 49, 4, 63, -23, -49, 18, -8, 9, 12, -40, -1, -6, 23, 69, -21, 41, -36, 67, -32, 24, -15, 20, -61, 0, -91, 26, -22, 8, -11, 66, 13, -66, -44, -3, -20, -7, -33, 18, 21, -12, 13, 14, -16, 53, -18, 19, -45, -30, -27, 8, 3, 59, -6, 23, -17, -19, -36, -15, -35, -39, -10, 0, -35, 32, -7, 4, -58, -25, 13, -14, 35, -26, 10, -22, -9, -14, -12, 37, 19, -72, 8, 38, -13, 18, -45, -25, 13, -13, -14, 7, 8, -69, 30, -42, 48, 28, 43, 7, -50, -30, -14, 12, 7, -71, 30, 46, -4, 20, 64, -4, 8, -9, 33, 9, -36, 34, 18, -52, 40, 22, 14, -36, -55, -15, -2, -1, 70, 29, 15, -31, -8, 11, 43, -36, 26, 41, -13, 15, 29, -27, 41, -4, 19, -14, 14, -55, -20, -15, -39, -22, 30, 18, 26, -27, 11, -48, -20, -30, 57, -33, -5, -15, -31, 4, 33, 10, -8, -9, -8, 18, 18, -30, 16, -33, -34, 2, 30, -28, -75, 0, 43, -6, -6, 15, -39, -50, 11, 21, 21, -24, -10, 19, 24, -54, -20, -8, 0, 13, -39, 13, -13, 33, 12, -20, -6, -10, -9, 3, -17, -10, -25, -10, 3, -1, 48, -4, 9, 30, -51, -2, -20, -66, -46, 31, 0, -16, -6, -20, -28, -40, -26, 40, -26, 13, -3, -8, 15, -5, -8, 36, -75, -41, -40, -44, 9, -33, -25, -56, -25, -22, 2, 32, 18, -13, -36, -7, 4, 8, 23, -10, -13, -48, -12, 21, 20, 40, -6, -8, -22, 25, 3, -10, 0, 27, -22, 40, 0, 0, -2, 10, 10, -14, -62, 0, -10, -5, -35, -20, -27, -4, 31, 31, 31, -31, -26, 0, -1, 4, 4, 19, -33, 7, 30, 1, -28, 37, -14, -1, 16, -2, 5, -31, -7, 7, -16, 29, -9, -2, -49, -15, -15, 6, 18, -34, 26, -38, -4, -32, 51, -16, -1, 15, 14, -56, 34, 13, 37, -15, -32, 10, 4, 41, 8, 16, -23, 43, -17, -15, -23, -31, 5, -43, 23, -7, 15, -25, 26, 29, -67, 13, 2, -11, -16, 29, -16, 24, -14, -16, -52, 0, 58, 8, 14, 17, 49, 10, 50, -13, 18, 53, -52, 37, -32, -4, -60, -18, 40, 12, -34, -30, -13, 17, 6, -26, 33, 13, -17, -6, -26, -5, 5, 9, -20, -47, -35, 0, 11, -46, 39, -36, -34, 17, -10, 6, 31, 93, 5, -33, 1, 24, 30, 19, -34, -2, -23, 20, 21, -7, 9, 17, -6, 47, -10, -9, 11, -26, 0, 39, -10, -9, 15, -50, -26, -18, 9, -21, 14, 33, -2, 60, 14, -75, 3, -11, -44, 19, -46, -9, 24, -9, 27, 17, -29, -29, 37, 20, 42, 32, -44, 27, -39, 30, -11, -60, 23, 33, 15, -7, 0, 19, -11, -37, -19, -28, 7, 15, -47, 14, -11, 22, 30, 51, 42, -14, -35, 11, 0, 13, 13, -12, 44, -21, -32, 36, 30, 11, -12, 26, -31, -29, 10, 9, -3, -31, 39, 5, 10, -22, 1, 21, 21, 23, -11, -36, 0, 4, -49, -36, -10, 36, 31, -11, -9, 6, -13, -25, -2, 56, 11, 6, 0, 1, 4, 12, 29, -27, -36, -19, 1, 47, 15, 8, 31, 25, 34, -15, 8, -16, -28, -14, 38, 31, -9, -79, -5, -41, -20, -5, -20, 4, 44, 16, 47, 41, -24, -24, -19, 14, -5, -32, -56, -1, -9, -14, 49, 7, 10, -67, -43, -6, 35, 40, 73, 27, -2, 33, -12, 7, -64, -8, -30, 10, 35, -3, 1, 13, -24, -26, 20, 31, -63, -3, -21, 15, 17, 20, 54, 44, -23, -22, 13, -61, -14, -26, 52, 4, -51, 72, -24, -57, 30, -31, 42, -24, 12, 34, -9, -18, -17, 36, 56, 1, -27, -3, 18, -36, 35, 7, 12, -16, -9, 61, -19, -26, -14, 5, 6, -29, -26, 14, -54, -2, -42, -55, 66, 32, 5, -28, 23, -28, -29, 43, -17, 25, 17, 59, 51, -19, 13, 30, -10, -25, 48, 3, -21, -40, -44, 0, -4, 38, -10, 10, -1, -23, 9, 54, -44, 0, 26, 53, 4, -3, 47, -62, 1, -17, 0, -16, 40, 45, -3, -37, 42, 13, 1, 22, 47, 12, -6, 38, -15, -23, -43, -17, -75, 73, -3, -1, 21, 9, 1, -9, 31, -47, 33, -44, -10, -10, 41, 12, 44, -50, 50, 57, 6, 19, 11, -34, -25, 25, -31, 37, 69, -7, -3, 7, -25, 1, 16, -1, 64, -5, -1, 3, -10, 8, -8, -47, -19, 30, 13, 16, -19 ]

Clark, J. The action is replevin for certain certificates of stock. There was trial without a jury. Defendants had judgment. Plaintiff seeks review on error. The trial judge filed an opinion in writing which counsel have treated as findings of fact and law. No exception to any of them was filed. The assignments of error are upon the findings. In the circumstances we may treat the opinion, containing findings of fact and law, as such findings. Jackson v. Insurance Co., 211 Mich., 378; Messer v. Dornbos, 210 Mich. 46; Thurber v. Aldrich, 167 Mich. 656; White v. U. S. Gypsum Co., 168 Mich. 238. Because of the failure of appellant to file exceptions, the point being raised by appellees, we are precluded from considering whether the findings are against the clear weight of the evidence. Circuit Court Rule No. 45; 3 Comp. Laws 1915, §§ 12586, 12587; Curry v. Shears, 216 Mich. 699; Ironton Cross Tie Co. v. Evans, 146 Mich. 197; Cope-Swift Co. v. Schlaff Creamery Co., 223 Mich. 543. A question usually open, in the absence of exceptions to findings, is that the findings do not support the judgment, but as no assignment of error here presents the question, it cannot be considered. Weist v. Morlock, 116 Mich. 606; Dennison v. Carpenter, 213 Mich. 658; Curry v. Shears, supra; Messer v. Dornbos, supra. Appellant urges error in admitting and rejecting evidence. A reason, here sufficient, for declining to consider such matter is that it is covered by no assignment of error, and whether the matter, if presented by proper assignment of error, could be considered in the absence of exceptions to the findings, need not be discussed. There is nothing to review. Judgment affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ -23, -5, 35, -52, -20, 14, 44, -6, -22, 87, 36, -12, -9, 13, 19, -32, -2, -17, -19, -31, -12, -15, -40, 28, -42, -49, -6, 5, 43, 26, -7, -11, -45, -32, -35, 12, 9, 46, 8, 7, -9, -12, 50, -54, -39, -25, 9, -10, 22, -31, 53, 4, 3, 12, 9, 3, 12, 16, 2, -4, 13, -23, 57, -26, 12, 9, -15, 1, 11, 15, -43, 29, -26, 8, -37, -47, 48, 4, -63, -16, 14, -17, 48, 30, 29, 26, 25, 25, -4, 15, 16, -28, -62, -20, 7, 12, -7, -35, -10, -8, 43, 27, -37, 0, -42, 23, -43, -15, 29, 13, 41, 41, -17, 3, -53, -23, -18, 1, -56, -37, 33, 25, 11, 38, -14, 58, -1, -24, -32, 46, -20, 59, 1, 42, -11, -77, 0, -59, -30, -15, -3, -14, -12, -37, 6, 6, 16, -30, -8, 16, -1, 1, -9, 5, -20, -35, -6, -20, 48, -57, 31, 25, -46, 0, 3, 9, -16, -2, -14, -41, 0, -18, 2, -37, -24, 39, 28, -53, -21, -26, 1, 25, 21, -24, -19, 15, -23, -13, -27, -75, -2, -8, 21, 36, -8, 8, -3, 51, 95, 8, -40, -21, -7, -8, -34, 57, -25, -18, -11, -15, -18, 52, -35, -36, -13, -26, 1, -38, -7, -17, -29, -29, -7, -14, 30, -29, 20, -12, -96, 18, -11, 11, 24, -40, 48, -2, 21, -33, 58, 38, 71, -15, -21, -1, -17, -27, 3, -19, 13, 14, 10, 43, -6, -5, -2, -80, -24, 21, -73, 17, -15, 63, -39, 33, -39, -20, -4, 9, -13, 11, -25, 8, -5, -1, -14, -1, 1, -12, 30, -8, -32, 30, 12, 11, -75, 19, 14, 29, 0, 22, 25, -14, -1, -4, 48, 4, 18, 38, 0, -56, 17, -16, 0, 22, -2, -7, -49, 16, -16, -35, -19, 29, 0, 5, 4, -17, -22, -9, 57, -30, -14, 30, -8, -42, 15, 5, 22, -90, -24, 31, 17, 21, 19, 66, 25, -13, 25, -4, -27, 29, 8, -10, 10, -31, -4, -17, -8, -28, -37, 39, -20, 15, -24, 45, 11, -12, 21, -31, -27, 6, -7, 15, 39, -24, -31, 2, -12, -23, -1, 57, 41, -7, -3, -69, -11, 5, 18, -2, -11, 30, -58, 16, 28, 5, -7, 7, 13, 10, -15, 6, -41, -28, 8, 34, -91, 39, -40, -32, -11, 20, 1, 6, 20, 2, -21, 23, 18, -18, -6, 27, -33, 14, 36, -30, -31, -24, 49, 13, 29, -42, -13, -39, 21, -45, -23, -55, 36, -12, -11, 37, -44, -4, -4, -53, -13, -21, -23, -20, 39, 15, -63, 10, -47, -3, -13, -39, 50, 48, 38, -11, 30, 18, 20, -19, 16, 54, 52, -42, -17, -21, 62, -41, 12, 36, 14, -9, -4, -28, 65, -6, -22, 7, 10, 34, -53, 13, -31, 29, -28, 36, 6, 64, -24, -43, -51, 28, -17, -15, -19, 19, -9, 35, 24, -38, -58, -22, 11, -4, -45, 41, -23, -12, -7, -27, 45, 21, 12, -47, 20, 19, 0, 16, 17, 28, -13, -20, 22, 9, -10, 43, 11, 9, -76, 9, -99, -9, -51, -34, -1, 17, 60, 20, 0, 13, -21, 18, 7, -51, 1, 2, -17, 4, 4, 54, 42, -19, 20, 34, -9, -6, -16, -4, 26, -2, 7, -15, 32, 14, 3, -30, -40, 30, -16, 36, 62, -10, -21, -19, 39, -1, 67, -8, 18, -16, 0, -29, 37, 38, 25, -16, -8, 44, -2, -99, -12, -31, 23, -11, 13, -37, 9, -33, -31, -39, -39, -13, 22, -29, 63, 54, -10, -9, -15, 14, -11, 4, 9, 29, 8, -30, 19, -49, 0, 14, -2, 8, 13, 63, -36, 26, -39, 39, 5, -10, 12, -10, 1, 0, 32, -79, 60, -11, 14, -19, -42, 13, -15, -33, -20, -1, 34, 15, 32, 31, 49, -86, -38, -14, 21, 19, -8, 72, 4, -11, -7, -3, 39, 1, -11, -49, 30, -3, 2, 36, 7, 56, 18, -35, 46, 17, 13, 44, -23, 1, 14, 27, 58, 19, 13, 27, -13, -7, 12, 2, 20, -79, -16, 43, 10, -23, -18, 59, 18, 10, 7, -76, 52, 26, 17, -72, 9, -40, 5, 10, 22, -9, -9, 10, 23, 3, 3, 33, -33, 8, 0, -1, -31, 34, -38, -52, 20, -23, 45, -13, 9, 34, 43, 34, 27, -34, 9, -12, 3, 52, -32, 58, 55, -29, -20, -23, 47, 9, -22, -21, -50, 46, 54, 7, 50, 26, 20, 36, 4, -9, -35, 56, 26, 5, -9, -6, 1, -12, -38, -28, -44, 25, -9, -39, -7, -6, -29, -22, 20, -49, -13, 76, -8, -47, 32, 10, -18, 12, 14, 54, -20, -46, 0, -23, -37, 1, 40, 1, -5, 14, 41, -17, 9, 27, -25, 8, 27, -14, 2, -28, -17, 14, -9, 42, 24, 26, -16, -5, -36, -10, 46, -26, 12, 3, 4, -38, 19, 35, -8, -39, -57, 6, -10, -44, 37, 13, -9, -25, -45, 32, 22, -12, 0, -18, 10, -7, 28, -7, -23, 5, 17, 33, -61, -3, 19, 11, -2, -3, 28, -33, 1, -3, -25, -12, 31, 45, 20, 16, -29, -38, 58, -22, -29, -8, -10, 2, 1, 35, -33, -20, -35, 23, -34, -15, 17, 11, 24, -20, 57, 14, -30, -44, 9, 2, -1, 33, 44, 1, 21, 0, -30, -35, 8, -18, 5, 39, 11, 6, 5, 29, 48, 26, -12, -3, -30, 48, 21, 0, 15, 15, 25, 34, -34, -28, -3, -23, 17, 30, 0, -37, -12, -1, 9, 48, 0, 3, -9, 25, 2, -2, -3, -45, 9, -27, -56, 23, -22, -47, 14, -10, -28, -53, -36, 43, 8, -6, -4, -14, -29, 5, -8, -21, 13, 10, -1, 21, -8, 28, -47, 12, 21, 31, -2, 14, -52, -2, 23, -9, 37, -35, -7, 26, 0, -15, -52, 31, 0, -24, -34, 5, 6, -33, -36, -7, 3, 4, -13, -1, 20, 8, -46, 38, -9, -8, 36, 16, 23, 0, 26, 12, 4, -17, -9, 23, -74, 11, -1, 31, 72, 60, -8, 17, -27, -54, -44, -30, -2, 90, -7, 17 ]

Sharpe, J. Defendant expressed to plaintiff a desire to purchase a car load of Northern Spy apples. Plaintiff agreed to make an effort to secure them. Soon after he appeared at defendant’s place of business in Detroit with a basket of such apples. Defendant agreed to take a car load similar to the sample at a price then agreed upon. Plaintiff shipped to defendant at Detroit a car load of Northern Spy apples purchased by him in Lapeer county. Defendant advanced a part of the purchase price before shipment. When the car reached Detroit the apples were unloaded at the plant of the Detroit Refrigerator Company, agreeable to defendant’s orders. He soon after inspected them, and determined that they were not of the quality he had agreed to take. He at once telephoned plaintiff, who came to Detroit about a week later. The parties differ as to what was said at that time. No settlement was reached. Plaintiff began suit. A few days later, defendant notified plaintiff by letter that, unless plaintiff advised him to the contrary, he would dispose of the apples to the best advantage he could and recoup his loss in the suit plaintiff had begun. He made sale of the apples, receiving less therefor than he had advanced to plaintiff on the purchase. Plaintiff’s claim and defendant’s claim of recoupment were submitted to the jury, who found for plaintiff for the balance as claimed by him. The following special question was submitted: “Did the Northern Spy apples actually shipped by plaintiff to defendant in the month of November, 1922, come up to the grade of sample submitted ?” The jury answered it, “Yes.” Defendant reviews the judgment entered by writ of error. Both parties are agreed that the only question presented was whether the apples delivered conformed to the sample. The plaintiff testified that he attended to the loading of the car, that he “picked over the apples that were brought to me by those farmers, every crate.” He was asked, “Were they hand-picked?” and answered, “Yes.” “Mr. Sloman: Would like to move the statement ‘hand-picked apples’ be stricken out, unless he testified to being present when the apples were picked; otherwise it must necessarily be hearsay. “The Court: Not necessarily; an experienced fruit picker knows a hand-picked apple when he sees it. The court happens to know that to be a fact. Your motion is denied.” The witness then testified: “I have lived on a farm practically all my life. I have had considerable experience in the gathering of apples, covering a period of 20 years. * * * The apples that I showed him, that I could get at Columbia-ville and Lapeer, were the same brand of apples that I afterwards shipped him. They were as good. They were the same apples. Same as sample.” The court then suggested that the plaintiff, having proved the contract and delivery thereunder, might well rest, and, after cross-examination of the witness, he did so. Defendant’s counsel then moved for a directed verdict— “for the reason that the testimony of the plaintiff himself shows that the agreement made with Mr. Neumann regarding the Spy apples was a sale from sample, which sample were admitted to be fancy Spys and perfect Spys, and the testimony of this plaintiff is to the effect that the apples were good apples, good Spy apples, that he delivered; no showing here that he delivered the apples to correspond to the sample.” This motion was denied. Plaintiff had testified, as quoted above, that the apples shipped were “same as sample.” In his instruction to the jury, the court very clearly stated the issue of fact which they must decide. It was also specifically stated in the special question submitted. Error is assigned upon the statement: “There is no dispute but what the proper amount was delivered in the proper way.” This was followed by— “There is no dispute by the plaintiff in this case that if he failed, or did fail, and you find that he did fail, to deliver a car load of apples fairly in accordance with sample, that the defendant should recover. * * * Boiling it all down, the issue is a very plain one: Was, this car load of Spy apples in accordance with the sample?” The defendant had testified as to the grade of Northern Spy apples to which the apples shipped belonged. Other witnesses who examined them also so testified. The court said: “I will stop here to explain, that there has been a lot said about the grading of these apples, fancy, extra fancy, No. 1, No. 2, culls. You are not concerned with them at all. It’s not decisive in this issue. The court instructs you that this car load of apples was sold in accordance with a sample. There is no proof of any conversation had between the plaintiff and the defendant at any time or place whereby the plaintiff sold to this defendant a car load of apples in accordance with any grading whatsoever; so the only thing for you to consider is, Was the car load of apples fairly in accordance with the sample furnished? Call it what you like; call it hickory nuts, or anything else you see fit; there was apples, a bushel of apples or crate of apples, submitted as a sample.” We have quoted quite freely from the record as defendant’s argument is centered around the claim of error that— “The court erred in the attitude maintained by the trial judge, consciously or unconsciously, during the trial, as well as in his charge to the jury, which too clearly indicated the judge’s opinion regarding the facts of the case.” We find nothing in the record to indicate that the trial court had, or expressed to the jury, any opinion regarding the issue of fact in dispute. His purpose in the language complained of was to limit the consideration of the jury to the one question in dispute: Did the apples shipped “come up to grade of sample submitted?” There was no motion made for a new trial, so the weight of the evidence is not before us for consideration. The judgment is affirmed. . McDonald, C. J., and Clark, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ 3, 27, 21, -38, -50, -45, 24, 19, 8, 31, 16, 0, 21, 57, 2, -18, 45, -40, 69, -46, 49, -27, 21, 16, -28, -41, -8, -42, 14, -21, -32, 40, 8, -20, -16, -3, 35, 6, -15, -27, -16, -3, 42, 42, 28, -4, 12, -24, 36, -24, 53, 15, 15, -25, 1, -14, 4, 56, -16, 36, -2, -3, 10, -7, 31, 17, -13, -25, -26, 19, -44, -11, 12, -32, 40, -62, 0, 22, -1, -25, 46, 0, 27, 0, -33, 34, -10, -30, -44, -34, -20, 50, -40, -11, 62, 32, -16, 38, 6, 28, 27, 3, -13, -13, 44, 9, -13, -45, -53, 30, -2, 10, 46, 13, 9, -9, 14, -15, 15, 23, 0, 12, -17, -8, 31, -7, -25, -19, 3, 27, 88, 10, 47, 46, -17, 2, -43, -14, -44, 12, 41, 15, -25, 3, 46, -23, -40, 4, -24, -23, -35, -18, -43, -8, 21, 14, 9, -12, 33, -10, 42, 15, 11, 17, -31, 12, -49, -13, -8, 18, -2, 8, 8, -5, 14, -27, 19, 24, -52, -45, -1, 11, 6, -4, -26, 11, 3, 29, -20, -4, 27, -41, 32, -2, -44, 37, 22, -17, 8, 12, -5, -57, 20, -27, 1, -24, 10, -32, -10, 41, -40, -5, 3, -53, -15, -5, -1, -35, 32, -13, 42, -43, 17, 27, -36, -6, -5, 7, 22, -15, -43, 25, -7, 46, 12, 4, 6, -42, 53, -24, -1, -17, -25, -21, 10, 17, -46, 9, 9, 48, 4, 6, -13, -15, -5, -71, -2, 9, 45, -3, -13, 21, -27, 55, -19, 19, 2, 29, -18, 27, -65, -10, -20, 12, -41, -39, -12, -21, 21, -28, 28, -23, -27, -29, 14, 5, 5, 5, -32, 37, 9, 34, 3, -32, 13, 43, -26, -14, -5, 26, -23, 27, -16, -3, 17, 20, -2, -5, 5, -38, -17, -55, -1, -4, 41, -29, 38, 0, 3, 4, -35, 30, -14, 39, 3, -5, -3, -1, 13, -23, -1, 20, 32, 4, -27, -5, -6, 2, 5, 4, 43, 13, -7, 1, 34, 10, 14, 11, 6, -58, 22, -22, 18, -7, 30, 12, 47, 31, 7, 51, 24, -28, 32, 50, -8, 15, 8, -31, -42, 52, -45, 30, -32, 8, -28, -33, -32, -63, -1, 37, 4, -16, 14, -22, 3, 2, -25, -11, -24, -1, -13, -8, 0, 47, -31, -22, -18, -47, 1, -14, 27, 33, -12, -46, -16, -10, 5, -8, 48, -17, -23, -12, -7, 4, -13, -31, 21, 26, 4, 23, 35, 68, -48, -24, 68, -12, 28, -9, -54, 12, 6, -6, 46, -11, -11, 21, -36, -9, -13, 17, -23, 21, -51, 14, 5, -32, -44, 23, 44, 16, 39, -21, 6, -1, -12, 40, 48, -36, 32, -27, -12, -28, -23, -13, -51, -33, 8, -49, 23, -12, -8, 66, 10, -23, 22, 30, 32, 12, 27, 33, -67, 19, 53, -18, -65, -21, -51, 13, 7, 79, 30, -46, -8, 20, -43, 10, 18, -21, 32, 0, -29, -30, 0, -17, 6, 5, 41, -20, 55, -3, 20, 0, 24, -15, 4, -18, -7, 56, 2, 34, -8, -23, -18, 22, -15, 34, 51, -37, -23, -36, 2, 16, -17, -72, 40, -30, 26, -61, 25, -8, 4, -16, 20, -25, -36, -5, -24, -46, 6, 2, 46, -29, -1, -23, -7, 30, -34, 4, -30, -3, -19, 18, -20, 12, 72, 0, 3, 23, 71, 18, -3, -49, 73, 59, 13, -43, 1, -25, -44, -3, -44, 25, -59, -26, -35, 0, 28, -2, -1, -11, -38, 26, 16, -13, 43, 4, -1, 6, 42, -34, 0, 5, -44, -21, -29, -33, -56, 41, -1, -12, 1, 17, 21, -34, -8, 8, -38, -12, 0, 20, 22, -17, -24, -27, 36, -1, 43, -3, -17, 1, 10, -52, 15, 46, -28, -10, 40, 28, -40, -51, -27, -58, -22, 1, 14, -14, -37, 44, -54, -23, -10, -16, 23, -12, -7, -16, 0, -17, -20, 3, 27, -4, -25, -14, -13, 1, 7, -14, 15, 5, 29, -8, 4, -10, 17, -8, 2, 48, 15, 28, -1, -20, 13, -1, -16, -17, 4, -39, 15, -36, -33, -38, 3, -41, -17, -7, 54, -19, 16, -43, -1, -10, 9, 1, -13, 25, -24, 15, -1, 17, 33, -9, -9, 2, -13, 18, 8, 52, 24, -22, -11, 18, 72, -49, -24, -23, -25, -43, -41, 10, 18, 21, 31, -10, -14, 5, 18, -51, -8, -21, 5, 50, 20, -12, -14, -7, 43, 7, -48, 33, 3, 2, 51, 45, -7, -27, 3, 36, -51, -38, 7, 8, -39, -45, -16, 2, 48, -60, 34, 23, -50, -28, -14, 29, 13, -11, 0, 6, 5, -39, -35, -10, 10, 0, -10, -23, 25, -2, 80, 33, -13, -39, -14, 27, -19, 7, 55, 33, 36, -22, 23, -36, 32, 16, 6, -5, 6, -4, 41, 39, -2, -6, -8, -48, 13, -7, -30, -37, 20, 9, 34, -25, -9, -8, -20, 21, 0, -7, 5, -5, 11, -20, 8, 31, -48, 74, 32, -52, -29, 26, 0, 4, -21, 26, 21, 7, -2, -2, -22, -64, -14, -33, -22, 32, 32, 35, 10, 9, 10, 17, -26, -24, -42, -12, 17, -26, 10, -55, 14, -10, 31, 60, -48, -22, 6, 15, -36, -31, 12, 0, -18, 17, -5, 40, -22, 16, -13, -40, 24, 11, 15, 4, 4, -14, 9, -48, -29, -14, 29, -7, -9, -7, 5, -6, 3, -47, 7, 18, -14, 3, 17, -67, 39, -28, -79, 33, -21, -23, 10, -1, 19, -25, -6, 2, -10, -17, 20, 16, -16, 35, 18, 6, 40, -27, 4, 28, -34, -66, 30, 19, 3, 54, 6, 2, -30, -63, -7, 22, 15, 23, 59, -13, -44, 48, -5, -30, -65, -25, -8, 51, 22, 51, 6, 36, 29, 46, -3, 30, -1, -14, 15, 5, 28, -28, 36, -17, 23, 16, -5, 23, -21, -38, -36, 54, 54, -29, -19, -21, -60, -10, -17, 26, 8, 6, 16, 11, 4, -13, -2, -59, -2, -22, -5, 20, -3, -26, 18, 45, -63, 28, -43, -3, -13, 48, 7, 11, 33, 10, -48, -26, 9, 15, 29, 40 ]

McDonald, C. J. This is an appeal from a decree dismissing a bill to enforce a partial assignment of a fund alleged to be in the hands of some of the defendants. Defendants Tuchman and Stellwagen entered into an agreement to exchange properties. Tuchman’s property consisted of eight stores with a garage in the rear, located at the comer of Shoemaker and St. Clair avenues in the city of Detroit. Stellwagen had a farm in Sumpter township in Wayne county. The exchange agreement is in the form of a written offer to Paterson brothers and an acceptance by Stellwagen. The material part of the offer is as follows: “This offer is made with the understanding that you will negotiate a mortgage of ten thousand ($10,000) dollars to be placed on the above described farm. Proceeds of which I will use to pay the forty-nine hundred ($4,900) dollars incumbrance mentioned above, together with your commission amounting to two thousand two hundred eighty ($2,280) dollars; the balance to revert to me.” Paterson brothers are the real estate brokers who brought the parties together and who handled the transaction for Tuchman. The plaintiff Donne was employed by Paterson brothers on a commission basis'. He was given active charge of the business in question and to assist him hé employed the plaintiff Schwartz. This was done with the consent of Paterson brothers. Acting, as he claims, under authority from Paterson brothers, Donne gave Schwartz the following assignment of a portion of the commission: “April 16, 1923. “To Mr. David Tuchman : “We agree in consideration of signing this day agreement covering offer to sell property on St. Clair and Shoemaker avenues, that if for any reason deal shall not be consummated then there shall be no liability of any kind for commission. “Also you may upon written request of Chester L. Schwartz deduct one-third of commission from sum to be paid by you and Mr. Stellwagen and deduct from commission.” The bill avers that the agreement for the exchange of properties was consummated, but that Tuchman declined to pay the broker’s commission; that in accordance with a custom which they followed Paterson brothers refused to sue for the commission; and that, having no action at law against any of the parties, Mr. Schwartz was compelled to file this bill to enforce the assignment which he had received from Paterson brothers. Mr. Donne was permitted to intervene as a party plaintiff. The defendants, Pater-, son brothers, filed an answer in the nature of a cross-bill in which they admit that plaintiffs are collectively entitled to one-half of the commission and that they, Paterson brothers, are entitled to the other half, and they pray that their portion of the commission may be decreed to them. The answer of the other defendants denies that any commission is due to the plaintiffs or to Paterson brothers, and asserts that in any event their claims should be prosecuted in an action at law. On the hearing the defendants offered no testimony, but at the close of the plaintiffs’ case made a motion for a dismissal of the bill. The court dismissed the bill on the ground that the plaintiffs had an adequate remedy at law. From the decree entered the plaintiffs have appealed. The only question presented by the record is whether a court of equity has jurisdiction to hear and to determine the issue involved. At the conclusion of the plaintiffs’ case, responding to defendants’ motion to dismiss the bill, the circuit judge said: : “Any claim that exists is a claim against Paterson Bros. & Company, if any exists. That is purely a legal action. His claim, under his own testimony, was for a part commission that Paterson brothers have not collected. If they do not see fit to collect a com mission, that is their matter and their business. _ If he is entitled to one-third, or whatever he claims, 700 odd dollars, he can substantiate that by an action at law.” As the record stands it shows that there came into the hands of defendant Tuchman $2,280 which he had agreed in writing to pay to Paterson brothers for their commission. Paterson brothers assigned one-third of this fund to the plaintiff Schwartz as compensation for his services in assisting in negotiating an exchange of the properties. This assignment was accepted by Mr. Schwartz and it is not claimed that it was an insufficient partial assignment of the commission due or to become due to Paterson brothers. The question is, Can it be enforced in equity? “A partial assignment of a chose in action is enforceable in equity, although the debtor has not given his assent, provided that all the parties in interest are before the court, so that the rights of each in the fund may be determined in one suit and settled in one decree.” 2 R. C. L. p. 619, § 27, and cases cited. “At law, a partial assignment may be good between the parties, and if the assignor collects the money, he would in such case hold it as the trustee of the assignee. But the assignee has nó legal remedy against the debtor who does not become a party to the arrangement. The reason for the legal doctrine is obvious. The law permits the transfer of an entire cause of action from one person to another, because in such case the only inconvenience is the substitution of one creditor for another. But if assigned in fragments, the debtor has to deal with a pluralty of creditors. If his liability can be legally divided at all without his consent, it can be divided and subdivided indefinitely. He would have the risk of ascertaining the relative shares and rights of the substituted creditors. He would have, instead of a single contract, a number of contracts to perform. A partial assignment would impose upon him burdens which his contract does not compel him to bear. * * * In a court of equity, however, the objections to a partial assignment of a demand which are formidable in a court of law disappear. In equity the interests of all parties can be determined in a single suit. The debtor can bring the entire fund into a court and run no risk as to its proper distribution. If he be in no fault no costs need be imposed upon him, or they may be awarded in his favor. If he be put to extra trouble keeping separate accounts he can, if it is reasonable, be compensated for it. In many ways a court of equity can, while a court of law with its present modes cannot protect the rights and interests of all parties concerned. “The debtor is not the only party whose interests should be considered. There is as much natural equity in many cases in protecting an assignment of a part of a claim as an assignment of the whole of it. * * * “We think upon reason and principle,'partial assignments should be sustained in a court of chancery in all cases where it can be done without detriment to the debtor or stakeholder, whenever equitable- and just results may be accomplished by it.” Exchange Bank v. McLoon, 40 Am. Rep. 388 (73 Me. 498). See, also, 3 Pomeroy’s Equity Jurisprudence (4th Ed.), § 1280. It is not necessary to cite other cases in support of this doctrine. It is settled by a great array of authorities. But it is said that the plaintiff cannot maintain this action in equity to enforce his assignment, because he has an adequate remedy at law. Against whom has he an action at law? Not against Paterson brothers, because they have paid their debt to him by the assignment, by which they deprived themselves of ownership and all control over a definite portion of a particular fund. He has no action at law against them unless, ignoring the assignment, they had collected the whole fund. This they did not do. He has no action at law against Tuchman because Tuchman never promised to pay him any part of the fund. Tuchman had a right to pay his debt in solido, and he cannot be compelled to pay it in piecemeal, except upon his positive promise to do so. The plaintiff had no such promise, but he had an assignment of part of a particular fund enforceable only in equity. The circuit court had jurisdiction of the matters involved. All of the parties interested were before the court and their respective rights should have been determined. The defendants offered no testimony in support of any of the defenses raised in their answer, but by their motion to dismiss elected to rest upon the case presented by the plaintiff. We must dispose of the issues on the record before us. It shows that Mr. Tuchman became indebted to Paterson brothers for a broker’s commission in the sum of $2,280, and that Paterson brothers, Schwartz and Donne, got together in an agreement for a division of the commission. In their brief, Paterson brothers say: “On behalf of Paterson brothers, defendants and appellees, it is hereby conceded that plaintiff Donne is entitled to one-half of the commission earned by Paterson brothers under the terms of Exhibit 2, after deducting therefrom the commission due plaintiff Schwartz as assigned to him under the terms of Exhibit 3.” As the evidence shows that the money out of which the commission was to be paid went into the hands of Tuchman, the bill should be dismissed, with costs, as to the other defendants, Stellwagen and Dreifuss. A decree will be entered in this court requiring the defendant Tuchman to pay to Paterson brothers, Schwartz and Donne, respectively, the sum of $760, with costs. Clark, Bird, Sharpe, Moore, Steere, Fellows, and WlEST, JJ., concurred.

[ -29, 37, 22, -2, -38, -14, 5, 38, -32, 32, 0, 22, 12, 39, -8, 1, 39, 0, 13, 24, 13, -45, -34, 11, -15, -14, 17, -70, 15, -30, -38, -35, -19, 31, -45, 4, -22, -12, 38, -85, -5, -36, -3, -16, 32, 10, -3, -32, 31, -37, 29, 30, 23, 47, -30, -40, -44, 31, 4, 0, -17, -34, -12, -27, 10, 19, 26, 30, 37, 21, -3, 9, 10, -5, 18, 11, -18, 15, -11, -22, 29, -21, 49, 22, -53, 64, 27, 3, 39, 41, -14, -15, 15, -1, -3, 42, 33, 43, -32, -17, -9, -10, -28, 18, 44, -4, 16, 23, 32, 103, 6, -61, 34, -29, -8, 6, -57, -9, -27, 32, 1, -4, -27, 2, 3, 18, -52, 3, -39, 18, 1, -12, -45, 7, 1, 61, -5, 7, -27, 14, 16, 31, -71, -12, -13, 9, -39, -74, 10, -38, -24, 3, -5, 53, 0, -97, 19, -17, 26, 0, 0, -20, 14, 23, -8, 27, -65, 28, -78, 39, 3, 17, -25, -42, -19, -12, 27, 15, -25, 3, -16, 43, 20, -42, 20, -64, -6, 17, 20, 12, 29, -11, -6, 7, -14, -11, 20, 31, 9, 54, -34, -19, -9, 9, -19, -46, 22, -2, -16, -36, -40, 16, 6, -15, -3, 40, -8, -31, -3, -40, 29, 1, -20, 24, -23, -56, 7, 22, 8, 11, -48, 23, -11, 20, -7, -21, 45, 18, -14, 17, 4, -3, 3, 5, -21, 27, -48, 42, 43, 27, -29, -55, -21, -15, 62, 34, -61, 19, 6, -34, 6, -9, -19, 25, 27, -18, 0, -46, 8, -9, 28, -33, 12, 28, -75, -56, -34, -16, -13, 9, 18, -35, -18, 8, 51, -3, 3, 5, -71, -2, -49, 16, 37, -5, 24, 18, -23, -53, 14, 6, -65, -14, 11, -13, 56, -20, -25, -22, 52, 16, 25, -33, -16, -13, 1, 6, 13, 19, -4, -16, 32, -2, 8, 38, -1, -12, 2, 4, -1, 11, 18, 25, 21, -11, -24, -9, 17, 19, -4, -11, 42, 10, 11, -20, 7, -8, 27, -16, -28, 37, -7, -51, -8, 36, 15, 11, 62, 45, -13, 28, 41, 43, -68, -24, -52, 15, -11, -22, 7, 31, -37, 29, -30, 20, -28, 41, -46, -14, -47, 53, 22, -10, -2, 43, 67, -29, -3, 1, 15, 23, -31, 26, -7, 32, 11, -92, -17, -29, -25, -14, 36, -10, -22, 8, -31, -11, 11, -20, -1, -10, 11, -33, 7, -40, -3, 25, -3, -21, 19, -5, 29, 35, -50, -20, 29, -12, 22, -2, -15, 30, -14, 9, -15, 3, 24, 31, -43, 5, -60, 54, -26, -12, 17, 20, 38, -42, -74, -10, 21, 6, 5, 49, 7, 41, -18, 28, -2, 3, 41, -49, 28, -73, -19, -44, -32, -31, 17, 0, 44, 30, -13, 13, 14, 14, -10, -2, -36, -42, -26, 16, -32, -15, -9, 15, -35, -38, -38, 22, -32, -3, 3, 22, 41, 21, -1, -4, -7, 2, 21, -30, 11, -41, 47, 72, 31, -32, 14, -27, 19, 4, -18, -34, 4, 17, 7, 45, -40, 0, 57, 18, 72, -1, 11, 1, -11, -11, 36, 3, 17, -10, -14, -39, 8, -15, 9, -39, 10, -25, 12, -6, -36, -6, -54, -9, -3, 53, -41, 0, -5, -58, -6, -77, 51, -24, -16, -15, 28, -22, 14, 1, 9, 27, 11, 7, 39, -12, 9, 8, 2, 24, -37, -10, 14, -4, -7, -30, -22, 4, -3, 40, -59, 10, 35, -22, -17, 39, 0, 24, -49, 48, -8, -16, 0, -18, 38, -19, 24, 36, 21, 39, -25, -16, -56, -15, -35, -69, 13, 44, 12, 6, -18, 29, 12, 17, -15, 20, -4, -14, 2, 17, 9, 19, 16, 2, -17, 27, 25, -11, 22, 37, 22, -31, 26, -12, 5, 38, 10, 17, -37, -15, -23, 22, -52, -20, 13, -6, -9, 31, 12, -5, 4, -1, 54, 6, -13, 25, 18, -25, 18, -12, 68, 10, -24, 25, 42, 1, 57, -11, 47, 5, -4, 22, 21, -9, 23, 21, 0, 67, -1, 13, 36, 0, -1, 13, 19, -3, -4, -25, -17, 20, -25, -1, -36, -46, -12, -4, -20, 0, 27, -32, -5, 26, 0, 24, -20, 37, 9, 17, -20, 2, 52, -13, -19, 17, 6, 18, -5, 44, -27, -33, 13, -4, -6, -41, 28, -30, -25, -5, -15, 41, 13, -47, 26, -19, -32, 43, -56, -8, -56, -36, -21, 10, -22, 21, -21, -36, -27, 16, -16, -29, -12, 52, -4, 29, 47, -4, -12, -5, -36, 28, -26, -7, -26, 51, 9, -2, 40, -28, 0, -24, -86, 14, -55, -9, -11, -20, 28, -5, -11, 5, -25, -23, 9, -16, 8, 8, -6, 21, 24, 12, -35, -9, -59, -7, -16, 1, 55, 46, 64, -47, -19, 14, 9, 40, -51, -17, -49, 16, 36, 40, -21, 24, -19, -21, 13, -10, 13, -2, -3, 9, 5, -13, -5, 0, -21, -31, 4, 16, -50, 31, 22, -4, -16, 25, -17, 6, 2, -15, -16, -40, -1, -90, -36, 13, 22, 7, -25, 73, -5, -36, -47, -27, -24, -1, -4, -17, -32, 3, 1, 32, 35, 27, -18, 16, 15, -55, -46, -34, -16, 26, -8, 12, -36, 1, 37, 4, -10, 6, 25, 19, -21, 13, -29, -15, -41, 39, -3, -16, -14, 8, 2, 14, -59, -5, 29, -41, -22, -14, 56, 11, 7, -5, 29, -41, -51, 43, -6, 77, -1, 35, 14, 1, 15, 1, -50, 29, -25, 1, 4, 20, 4, -15, -48, 9, 8, -11, -33, 25, 40, 5, 10, 33, 21, -20, 13, -99, 42, -59, -26, 6, 23, -55, 0, -3, 20, 11, 30, -23, -25, -1, -10, -10, 17, 28, 0, -34, -31, -32, -63, -24, -5, 16, -19, -14, -12, -71, 41, -4, -15, -15, -3, 49, -58, -19, 9, -24, 20, 28, 9, -11, 67, 22, -14, 78, 4, 20, 21, 29, -22, -2, 28, 24, 25, 13, 7, 9, 22, 14, 5, -55, 4, 14, 9, -6, 53, 9, 65, -6, 32, -5, -8, 56, -6, 54, -38, 4, 38, 33, 4, -9, 20, -1, -39, 98 ]

Clark, J. For putting up a building plaintiff furnished materials to Crows, a contractor, with Victor and Lipshitz as owners. The first of the material was furnished on June 19, 1917, and the last, it is stated, on October 30, 1917. The amount said to be due is $754.73. Statement of lien was filed December 28, 1917, and later a bill to enforce it. Plaintiff had decree. Defendant Applebaum, appealing, claims to have purchased the building on July 6, 1917, and had testimony that on that date the building was completed or practically so, and seeks reversal on the ground, chiefly, that the statement of lien was not filed within 60 days after'the furnishing of the last of the material, insisting that the material charged as of October 30, 1917, in the sum of $12.53, was not in fact furnished, and that if it was, furnishing it was an afterthought, a subterfuge, and that therefore the claim of lien must fail. Plaintiff testified that the furnishing was done before he knew of Applebaum. About 75 per cent, of the material was delivered and used on the job after Applebaum claims to have purchased. There is conflict in testimony of the two witnesses for appellant and the three for plaintiff. The trial judge, who saw these witnesses and heard their testimony, found that plaintiff, sustaining the burden of proof, had established that the materials had been furnished as charged and that they had gone into the building. We reach the same conclusion. The evidence of value is sufficient. Plaintiff furnished material three times in June, five times in July, nine times in August, and twice in September (the last on September 10th), the last before October 30th. Appellant argues that the item of October 30th is unusual, isolated, 50 days after the last material theretofore furnished, and that this circumstance, added to his direct testimony, requires a holding that plaintiff did not furnish such material, and that if there was such furnishing, it was an effort to acquire by trick a right to make and file statement of lien. But October 30th was within 60 days after September 10th. If the last of the material were furnished on September 10th, why would plaintiff, on October 30th, resort to subterfuge or trickery to get a right which he then had? Considering all the evidence, we think that the materials were furnished in due course and in good faith. Decree affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ 3, 12, 7, 3, -29, -15, 9, 5, 52, 10, 30, 20, 2, -37, 31, -6, -23, -9, 27, 0, 13, -8, -40, -33, 6, 59, 5, 29, -1, 69, 39, 28, -5, -55, 29, 28, 10, 9, 44, -26, 39, -35, -7, -59, 25, -14, 6, -38, 71, 0, -1, -5, 28, -15, 2, -47, -27, 3, -12, 4, 32, -52, -10, -12, 15, -6, 22, 18, -9, -18, -39, 39, -9, -44, -38, -39, -32, 13, -47, -11, 44, 6, 18, 0, -21, -13, -25, -45, 21, 1, -24, -26, -2, 21, -43, 62, 5, 70, 22, 21, 27, 0, -50, 12, 5, 24, -32, -56, -40, 29, 21, -6, 55, 26, 11, 5, -6, 32, -68, -46, 70, 14, -18, -47, 3, 23, 17, -9, -42, -4, 4, -31, -27, 6, -12, -4, -2, 6, 7, -7, 34, 23, -31, -13, -4, 21, 9, -1, -31, 15, -39, -29, 9, 18, 5, -4, 3, -19, 1, -61, 44, -24, -11, -70, -11, 11, -34, -22, -18, -13, 26, 13, -36, -33, 12, 20, 49, -40, -16, -62, -28, -4, 51, -28, 38, -9, -22, 15, 58, 28, 23, -25, -34, 8, -20, 9, -21, 19, 24, 0, -50, -41, 12, -61, -26, -1, 29, -3, 5, -12, -3, -14, -36, -53, -15, 6, -1, 7, 3, -5, -49, 3, -25, 27, -49, 0, -8, -1, 42, 5, -50, -3, 36, 24, -1, -3, 38, -3, 15, 17, -13, -25, -69, 6, 10, 7, -54, 65, -1, -14, -9, -4, -8, 52, -5, -48, -30, 3, -7, -13, -18, 22, 18, 5, 75, -27, 29, -1, -8, 68, -8, 14, 7, 65, -21, -41, -50, -15, -5, -31, 29, -28, -31, 1, 0, 0, 25, 24, -21, -2, -17, 13, 44, -38, 43, -1, -21, -3, -6, -23, -26, -5, 6, -37, -11, 16, -11, 27, 3, -1, -35, -8, 27, -38, 35, -12, -11, 0, 15, -55, 55, -23, 0, 14, 18, 0, 32, -6, -49, -13, -6, 1, -4, 22, -46, 28, -11, -32, -2, 9, 53, 24, 0, -8, -4, 53, 12, -51, 0, -7, 15, -25, -1, 13, 8, 36, -22, 3, 18, 38, 65, 57, 27, -18, -33, -13, -21, -12, 6, 38, 37, -15, -29, -6, 4, 2, -34, 25, -32, 20, -20, -22, 8, -1, 48, 40, 0, -39, 8, 21, -35, -32, 9, 16, 14, -95, -24, 15, -11, -36, -26, -9, 40, -30, -8, -11, 0, 16, -17, 60, 8, 8, -73, -19, -17, -10, -13, -14, 39, 19, 41, -26, 24, 5, 35, -55, 17, -3, -58, -17, -59, -4, -13, 13, -7, 0, -26, -6, 4, -19, 15, 37, -45, 1, 57, 21, -31, 13, 27, 0, -19, 5, -4, 25, 40, 20, 1, -27, 65, 36, 48, -15, 21, -35, 69, 3, 33, -40, -17, 35, -11, -10, 51, 20, -41, 30, -22, -13, 3, 4, 20, 40, 10, -24, -38, -17, -34, -10, -18, 46, 21, -9, -10, -4, -21, 14, -56, -4, -35, 8, -48, -7, 7, 23, 23, -38, 15, -18, -4, 19, -37, -4, 9, 5, -10, 45, 71, 10, -24, 32, 23, 37, -7, 5, -38, 19, 9, 47, -5, -1, 33, -2, -7, 7, -16, 19, 51, 18, -1, 0, -18, 28, -3, 21, 14, 23, 8, 2, -38, 23, 11, 8, 17, 70, -54, 4, 21, 3, -46, -22, -21, 25, 0, -28, 17, -41, -39, 24, 25, 4, -34, -18, 20, 42, -58, 9, -42, 24, 22, 13, -8, 5, -29, -33, -57, 43, 21, 63, 11, 56, -14, -50, 0, -30, 35, -20, 5, 16, 7, -21, -10, -30, -27, -52, -28, -18, -21, 74, 34, 6, 6, 5, -9, -8, -5, 13, 0, 0, 35, 41, 37, 11, -10, 8, -13, 10, 0, 15, -13, 20, -66, -30, -10, 14, 10, -29, 40, -40, -16, -20, 0, 4, -33, 20, -31, 18, 9, 9, 12, 18, 29, 15, 62, -10, -5, -47, 15, -35, 33, -7, 8, -52, -29, -9, 5, -26, 68, -2, 0, 4, -4, -7, 38, 29, -2, -39, -53, -12, 42, 10, 31, -8, 14, -14, 46, -10, 8, -25, -28, 7, -30, -56, 60, -6, 4, 41, -7, 0, -5, 20, -8, -34, 6, 16, 4, 18, -12, -1, -42, 15, 34, -27, 24, 4, -13, 35, 12, 33, -69, -17, 63, -22, 49, 21, -3, -3, 12, -18, 1, -4, 20, 28, -54, -25, -19, 1, -15, -10, 14, 6, 7, 0, -28, -34, -29, -14, 47, 16, -11, 37, -9, -7, 28, -20, 20, 5, -62, -26, -6, 21, -55, -5, -58, -10, 0, 5, -33, -28, 2, -51, -19, 12, 34, -52, 12, 35, 18, 17, 28, 9, 28, 12, -13, 47, 36, -35, 39, 0, 24, 53, -17, 7, 24, -11, -35, -6, -5, 33, -7, -13, 0, 40, 2, 31, 13, 2, -61, 53, -26, -17, -19, 3, -4, -46, -30, -28, 30, -22, 22, -3, -26, 49, 4, -45, 73, -9, 7, -4, -22, 14, 46, -68, -19, -1, 54, 14, -10, 38, -42, 2, -18, 10, -8, 50, -2, -28, 5, 26, -17, -14, 17, 12, 14, -22, -40, 0, 7, 12, 55, 23, 33, 23, -1, -14, 31, -51, -30, 59, 28, -30, 54, 14, -40, -15, 18, 1, -21, -17, 35, 3, -12, 83, -7, 26, -1, -21, 21, -30, -24, 41, 43, -7, -20, -11, 5, -37, 43, -27, 17, 16, -17, 3, 11, 35, 38, 32, 28, 4, -3, -5, 2, -3, -9, -34, 6, 0, 3, -1, -14, 54, 3, -18, -48, -28, -15, -10, 9, 2, -26, -6, -11, -26, -4, 56, 30, -14, -40, -61, -52, 8, -17, -54, -2, 40, -13, 14, 7, -33, 3, -25, -26, 61, -11, 28, -9, -15, -38, -18, -24, -29, 0, 22, 27, -4, 40, 22, 44, 10, -4, -30, -17, -14, -11, -18, -21, -13, 16, -40, -20, 38, 87, -50, -3, -23, -3, 16, 36, 13, 5, -32, 47, -1, -36, 4, -14, -52, -4, -32, 6, -19, -15, -45, 43, 21, 21, -61, 51, 30, -19, -61, -40, 13, 18, 18, 1, 17, -71, 39, 11, -25, 42, -16, 17, 32 ]

Clark, J. Defendant was convicted of selling moonshine whisky. It is contended, on exceptions before sentence, that there is no evidence that the whisky received in evidence was sold by defendant. A witness testified that he bought whisky of defendant and gave it to the sheriff. The sheriff identified the whisky received in evidence as that furnished him by the witness. The contention is without merit. It is urged that evidence that a search of defendant’s place was made after the sale in question ought not to have been received. It was brought into the case by counsel for defendant on cross-examination of a witness for the people. That the prosecution later went into the matter will not be held, therefore, to be error. The trial judge rightly held that the verdict is not against the great weight of the evidence. Affirmed and remanded for judgment. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ -16, -9, 45, 6, -44, -19, 12, 46, -52, 102, 71, -1, 31, 24, 48, -25, 5, -4, 14, -69, 30, 10, -43, -5, 7, -27, -23, 12, -16, 57, -26, 34, 28, -48, 41, -8, -10, 0, 33, -35, 21, 26, 32, 24, -9, -7, -31, -49, 47, -2, 40, -28, -6, -29, 16, 10, 7, 10, 25, 48, 44, 17, -20, -22, 13, -35, -24, -40, -16, -19, -16, -4, -36, -10, 26, -8, 3, 8, -8, 52, 35, 11, 59, 32, 22, 31, -8, -42, -7, 10, 35, 9, -42, -43, -26, -17, 3, 4, 14, 1, -15, -5, -59, -11, 27, 14, -57, -25, -28, -6, 8, -23, 45, -20, 16, -36, -30, 0, -18, -27, 17, 41, 31, -31, -20, -56, 43, -21, -49, -31, 28, -18, -1, -39, -12, -21, -8, 37, -23, 0, 16, 56, 33, -15, -15, 24, 3, 5, -46, 15, -31, 14, -23, 21, 15, -21, 0, -57, 12, -49, -42, 54, -26, -13, -5, -11, -9, -3, -15, -31, -12, 1, 8, 55, 58, -5, 15, -14, -22, -24, -7, -8, 51, -13, 39, 11, -40, 1, -41, 4, -17, 8, -22, 0, -2, -16, 15, -16, 69, -24, -76, -22, -26, -16, 23, 20, 14, -25, -18, 0, -37, -15, 29, -90, 1, -35, -73, -45, -2, -30, -44, 20, 36, 3, -36, -25, -2, 35, -39, 31, -32, 34, 3, -12, 17, -24, -8, -3, 19, -1, -32, -22, -55, -26, 34, -16, -2, 43, 29, 46, 1, 4, -8, 17, -40, -26, 34, -4, -21, 11, -8, 52, -25, 19, -24, -22, 60, 12, -14, 68, -8, -4, 11, 18, -16, -56, -16, 33, 0, 70, 39, 50, 12, -26, -1, 33, -68, 49, 6, 19, 50, 7, -9, -23, 45, 45, 29, 42, -4, -8, 64, 12, -37, 25, -40, -2, 6, 20, -3, -10, 5, -28, -8, 29, 16, 14, -27, -45, 39, -19, -69, 1, 25, -42, 13, -15, 44, -61, 21, -14, 2, -13, 7, -21, -12, 2, 19, 2, 18, 58, -24, -19, -19, -23, -25, -8, -4, -6, 8, -25, 44, -4, 54, 45, 42, -39, -4, -15, 13, -34, 29, -34, -13, 34, 29, -25, -1, -5, -7, 19, 24, -21, -25, 17, -50, -30, 16, -18, -8, 28, -26, -27, 24, 12, -18, 12, -16, -33, -28, 13, 4, 13, -5, -14, -4, -20, -24, 11, 37, -32, -44, 45, 65, -50, -79, -3, -5, 4, 23, 8, -51, 13, -37, 7, -15, -33, 8, -1, 5, -34, 30, 7, 11, -7, 52, -45, -3, 20, 20, -5, -12, 15, -20, 4, -18, -11, -15, 29, 11, 12, -49, -55, -44, 8, 22, -14, -14, -2, 18, -29, 7, 17, -1, -21, -3, 67, 0, -38, 35, 0, 72, 14, -20, -55, 51, -5, -17, -72, 10, -38, 9, 49, 56, 1, -60, 28, 10, 41, -9, 8, 26, 51, 4, 7, 4, -23, -57, -45, 40, 25, 36, -7, 12, -5, -73, 16, 33, -9, -28, -13, -30, -20, -61, -27, 20, -2, 9, 24, 45, 34, -18, 15, -18, -45, -67, -20, -3, 29, 0, 46, 98, -38, -29, -26, -22, -6, -16, -33, 9, -35, 11, 47, 39, 11, 25, 29, 19, -16, 12, 13, -28, 1, 10, 19, 6, 32, 18, -25, -26, 18, 17, 50, -8, -2, -16, 0, 19, -2, -34, -18, -39, 5, 5, 1, 83, -34, -16, 17, 70, 3, 35, -6, 49, 18, 15, 11, 14, 45, -13, 40, 0, 28, 9, -20, -37, 9, 6, 12, -24, -2, -58, 24, 12, 11, -27, -37, -10, -46, -18, 16, 13, 23, 10, -3, 25, -29, -9, 22, -36, 14, 38, 14, 30, -10, -15, 5, -19, -32, -34, 23, 12, 16, -16, -20, -44, -2, -13, 3, 23, 0, -53, -48, -22, -25, 1, 41, -50, 21, -80, -64, 9, -17, -35, 19, 29, 9, 3, 43, -12, -18, 23, 16, 57, 2, -18, -5, 0, -27, -1, 0, 23, -14, -42, 11, 0, 17, -4, -3, -6, -4, -4, -30, -8, -17, 24, -2, 25, -20, -13, 19, 1, -39, 46, -52, 45, 39, -6, 23, 10, 16, -26, 46, 4, 0, -12, -21, 24, -20, 4, -33, 27, -15, 46, 30, 50, -32, -3, -17, 14, -5, -11, 44, 8, 29, -7, -9, -39, 36, 0, -19, -7, -19, 84, -28, 12, -38, -20, 38, 37, -34, 17, -42, 39, 23, 0, 21, -28, 22, -9, 17, -27, 24, -16, -28, 13, 17, 27, 6, -11, 38, 14, 27, 38, 31, 5, 30, 26, 27, -26, -56, 9, 12, -21, -43, -15, -11, -23, 1, 13, 15, -21, -49, 12, -16, -64, 62, -27, 21, 60, 4, -2, -27, -21, 22, -14, -28, -19, -18, -11, 22, 10, 32, -32, 23, 9, 6, -6, 17, -26, -8, -4, 7, 6, 15, 17, 8, 12, 25, -30, 23, 26, 27, 31, -46, 10, -6, -22, -50, 2, -23, 32, 0, -17, -14, 5, -14, -1, -28, -61, -1, -19, 30, 4, 25, 11, -3, -11, -51, -4, -17, -27, 75, 7, 45, 38, -1, -6, 15, -30, -5, 29, 10, -2, -36, -6, -12, -16, -12, -4, 49, -18, 24, -9, -57, 6, 18, 28, 18, 14, 16, 7, 16, -3, 4, -32, 29, -38, -11, -12, 29, 64, -35, 6, 14, 20, -24, 29, -17, 40, 10, 8, -21, 3, 0, -2, -10, 46, 6, 9, 4, -3, -25, -30, 55, 56, -78, 8, 7, 24, 6, -11, -18, 22, 0, 3, 0, -50, -7, 24, -9, 68, 51, -13, 14, -14, 23, -3, -35, -45, 2, -35, -13, 9, 24, -23, -13, -18, -46, 21, 14, -43, -36, -1, 41, 5, 23, -25, 18, 9, 7, -8, -23, -61, 44, -55, -2, -47, -14, -20, 11, -34, 41, -40, 14, 5, 56, -26, 37, -12, -4, 5, 8, 29, -31, 24, 11, 3, -4, -19, 2, 9, 0, -47, -23, 14, 16, 32, 20, -41, -4, -47, -4, 74, 17, -42, -6, -62, 20, -26, -61, -15, -15, -45, -8, 63, -6, -8, 45, -54, -65, -67, -49, 35, -2, -44, 16, 16, 14, -29, 21, -13, 53, 43, 36 ]

Sharpe, J. Plaintiff, as administratrix of the estate of her deceased child, Laverne, brings this action to recover the damages incident to her death, charging malpractice on the part of the defendant. The defendant attended the Palmer School of Chiropractic at Davenport, Iowa, for 14 months, and received a graduation diploma. After practicing for two years at Tipton, Iowa, he came to Grand Rapids. He did not comply with the law relative to registration of drugless healers in this State (2 Comp. Laws 1915, § 6726). Prior to May, 1922, he had administered treatment to the plaintiff personally on many occasions. Plaintiff’s daughter, Laverne, aged about 7 years, became ill about the first of May. Plaintiff testified that “she came down with an awful fever;” that she took her to defendant’s office; that he “told me she had a fever and I should put her to bed;” that she put her in a bed at defendant’s place, and later he took them home in his car. “That night he wanted to know if he should come and treat the child any more, if he was to come to the house to treat her. He did not say in particular what he would do or what treatment he would give her. * * * He came the next day. We had some further talk. He said he could cure — could treat the youngster — could help her. * * * About the fourth day after the child became sick I had further talk with him. The trouble was in the throat. I asked him if he was sure she didn’t have diphtheria. He said, ‘No,’ that she didn’t have it. He said she had a good case of tonsilitis. He thought he could pull it through. The Monday night that I called him over for the second time, I see that the child was breathing out of place. It wasn’t natural breathing. She hadn’t breathed natural for several days. That night I called him over and asked. him if he didn’t think there was something more seriously wrong with her than he had really thought. He said, ‘No, it is nothing but your nerves — you just imagine it,’ he said — ‘the child is all right.’ At that time the child was breathing in gasps. That condition got worse toward the last. Her muscles all seemed to twist and jerk. She had a temperature. Her talking was difficult. These conditions gradually grew worse.” The child died Tuesday morning at 5 o’clock. “He had been there the night before — it seems to me around 7 or 8. The last time he gave her a treatment he just adjusted the spine, as far as I know. I don’t know, of course, what he calls it — it seems as though he stretched her neck. * * * She had .quite a pain in her throat, didn’t eat anything. She was quiet a good share of the time. At last it was hard for her to breathe. I fanned her the whole Monday night before she died in order to keep her breathing.” On cross-examination she testified: “After treating her he told me she had a good case of tonsilitis. A few days later on he turned it into quinsy. * * * He said that in years to come, in a very short time, medical doctors would be entirely wiped off the map — they would all be chiropractors. I took it for granted that the chiropractor knew just as much as the medical doctor.” Plaintiff theretofore had lived at defendant’s home for five weeks and “became pretty familiar with his line of work and heard discussions about it in the home.” The defendant, called for cross-examination under the statute,, testified: “I gave an adjustment of the spinal column, one specific vertebra, which I adjusted, and nothing more and nothing less. By an adjustment I mean where one vertebra is out of alignment compared with the one above and the one below, I adjusted to put it in juxtaposition with the one above and the one below. “Q. And your theory is that by taking a pressure off of the nerve it will generate enough nerve supply to heal any injured or affected part of the body or overcome any disease? “A. We don’t claim any and every. We do not claim to cure. We adjust the cause, remove it, and the result follows. “Q. Is it part of your theory that by removing a nerve pressure you can overcome any infectious communicable disease? “A. Our contention is that when nerve pressure is relieved nature will take care of the rest. “Q. Just read my question, Mr. Reporter. (Read.) “A. We do not take care of those cases. “Q, Now, doctor, it these nine years, how many cases of diphtheria have you treated? “A. I have never taken care of any case of diphtheria. “Q. Did you ever study diphtheria? “A. I have as our study covers it, yes. “Q. Did you ever study the pathological or clinical evidences of the disease? “A. No; it is out of our line. “Q. Neither do you study nor practice any bacteriological examinations? “A. No, sir. “Q. So that the cell of a diphtheria germ, so far as you are concerned, would look exactly like a typhoid fever, wouldn’t it? “A. Yes, sir. . “Q. So far as your knowledge is concerned, what are the symptoms of diphtheria? “A. We do not study symptomology. “Q. You do not know the symptoms of diphtheria? “A. We confine ourselves to the spine. “Q. You didn’t know them on the 1st day of May, 1922? ■ “A. No. “Q. Do you know the symptoms of tonsilitis? “A. No. “Q. Or of quinsy? “A. No. I did not tell the mother that this little girl had tonsilitis and that it probably would get worse and result in quinsy. I didn’t call her trouble anything, I didn’t name the disease. “Q. What would you call it now? “A. I would call it an inco-ordination of the nerves. * * * When I first attended the child I did not take its temperature. “Q. Do you know what normal temperature is ? “A. 96.5. The only way a temperature of 104 is worse to me is that it is the result of some cause. We do not pay much attention to temperatures only as we locate it on the spine. I never took the temperature of this child. There was some slight elevation when I first treated her, but that did not increase to any extent. She had sore throat. “Q. Any difficulty in breathing at any time? “A. No, sir. * * * We do not call that condition by any name. It was nothing but nerve pressure, or subloxation interfering with nerve pressure. When we are called to treat a person we examine the spine. “Q. Diagnose the condition by the examination of the'spine? “A. We do not diagnose. “Q. You examine the spine, don’t you ? “A. I palpate the spine to find any abnormalities. “Q. You examine it, don’t you, with your eyes and with your fingers? “A. Yes. “Q. You form an opinion of what is wrong? “A. Of where the trouble lies. “Q. Then you proceed to treat it? “A. Adjust it; yes, sir. “Q. And that is just what you did in this case? “A. Yes, sir. “Q, Do you recognize such a thing as an infection? “A. Of what? “Q. Suppose you define ‘infection?’ “A. Infection is where inflammation has taken place, for instance, if I cut my finger, infection may set in. “Q. Just what do you mean by infection? “A. If it commences to fester. “Q. By fester, you mean what? “A. I think that term is very plain. “Q. By infection you mean that some foreign bod enters through the skin and you say fester produces an irritation and a pus, doesn’t it? “A. Yes. “Q. What is in the pus? “A. I don’t know. “Q. The medical schools say it is full of germs, don’t they? “A. Possibly. “Q. And that the germs are caused by reason of the foreign body or substance entering some break or abrasion in the skin? “A. I don’t recognize that. “Q. You don’t, but they do? “A. Possibly. “Q. When you have such a condition, can you cure that festering and that pus by rubbing the spine a little? “A. We don’t claim that we cure it. “Q.' If that pus is the result of something up here in the finger, it doesn’t get there from your back bone getting out of shape, does it? “A. A chiropractor has never claimed that. “Q. If you were called, if this child had had a festered finger or an infected boil, or something, you would treat it, wouldn’t you ? “A. I certainly would not. It is out of our line. We confine ourselves wholly to the spine. “Q. Why should you treat an infectious disease like diphtheria? “A. I did not. “Q. You maintain now that this was not diphtheria, don’t you? “A. As far as my knowledge of things is concerned, no. I have never studied diphtheria. We do not study it from a medical standpoint. I never treated a case, to my knowledge. I didn’t know anything about it. I didn’t give any treatment for it.” After the child’s death, an autopsy was performed by Dr. LeRoy, one of the coroners of the county. He testified that she died of diphtheria. Plaintiff’s counsel then sought to show by him what “the regular and ordinary treatment administered for diphtheria in this and similar communities” was. Defendant’s counsel objected. After considerable argument, the court intimated that the objection would be sustained, and that plaintiff could, not recover unless able to show that defendant had not exercised the care and skill in the treatment of the child prescribed by chiropractics. No further proof was submitted. A verdict for defendant was directed. Plaintiff reviews the judgment entered thereon by writ of error. Plaintiff's counsel insist that as defendant had no license to practice in this State, and yet held himself out to the public as competent to treat the bodily ailments of those patronizing him, he was practicing medicine within the meaning of our statutes relating thereto, and that his conduct in treating this child must be tested by the laws and rules applicable to licensed practitioners. While a failure to comply with the registration statute might subject the defendant to a criminal prosecution, such failure, coupled with a showing of treatment given, is not in itself sufficient on which to base a charge of malpractice. Tb maintain such an action, the plaintiff must show that the result complained of was due to negligence or unskilful treatment. ' While not registered, the defendant was a graduate of a chiropractic school. He but assumed to treat human ailments in accordance with the system taught in such school. This fact was well known to plaintiff. The burden was therefore cast upon her to show by competent evidence, not only that his treatment was injurious or not. effective, but that the requisite care and skill was not exercised by him in administering it. It necessarily follows that such proof must be made by one engaged in treatment by similar methods to those employed by defendant. With the merits of the several drugless systems of relieving human ailments the courts have no concern. It is sufficient to say that many of our citizens believe in their efficacy and secure the services of those engaged in practicing them. The treatment given by any one of such practitioners would probably be deemed improper and unskilful when judged by physicians who are taught to treat such ailments by the use of drugs and medicines. The unfairness of permitting the test as to whether a particular treatment was proper or skilful to be determined by. one who uses a different method, or follows the teaching of another system, must be manifest. This is the first time a malpractice case involving this question has come before this court. People v. Phippin, 70 Mich. 6, and Locke v. Ionia Circuit Judge, 184 Mich. 535, were criminal prosecutions for failure to comply with the laws relative to registration. In the following cases from other States, questions more or less similar to that here discussed were presented, and the conclusions reached were in harmony with the views we have expressed: Atkinson v. School of Osteopathy, 240 Mo. 338 (144 S. W. 816); Wilkins v. Brock, 81 Vt. 332 (70 Aid. 572); Patten v. Wiggin, 51 Me. 594 (81 Am. Dec. 593); Spead v. Tomlinson, 73 N. H. 46 (59 Atl. 376, 68 L. R. A. 432); McGraw v. Kerr, 23 Col. App. 163 (128 Pac. 870); Martin v. Courtney, 75 Minn. 255 (77 N. W. 813); Wilcox v. Carroll, 127 Wash. 1 (219 Pac. 34); Jaeger v. Stratton, 170 Wis. 579 (176 N. W. 61); Berkholz v. Benepe, 153 Minn. 335 (190 N. W. 800); State v. Johnson, 84 Kan. 411 (114 Pac. 390, 41 L. R. A. [N. S.] 539, and note thereto). The declaration alleges that the defendant knew, or should have known, that the child when brought to him was afflicted with diphtheria, and we think may fairly be said to charge malpractice by failure or neglect to ascertain the nature of .her ailment before treating her. The defendant maintained an office to which people were invited to come for the relief of human ailments. He admits that there were certain of such ailments which he did not profess to treat. It would seem to follow that he represented and held himself out to the public as possessing the necessary knowledge and skill to determine whether the ailment of the person brought to him was such an one as his treatment would probably relieve. If, as he testified, the class or practitioners to which he belongs does not assume to treat infectious communicable diseases, they may not be relieved of civil responsibility if they neglect to exercise reasonable care and skill to ascertain whether the person seeking their services is so afflicted. When this child was brought to him, he admits that she had a fever, and was suffering with a sore throat. While the plaintiff knew the nature of the treatment administered by the defendant, she did not know whether such treatment would be efficacious to relieve the ailment with which the child was afflicted. It was the duty of the defendant to use reasonable care and skill to so ascertain. While he insists that he and others of his school of practice do not diagnose cases or treat diseases, and says that he knows nothing about germs, or the symptoms of tonsilitis, quinsy or diphtheria, he does assume to relieve pain and suffering. The words used by him in defining that which he does, such as “palpate” and “adjust,” do not change the nature of the act he assumes to perform. The purpose of the mother in bringing her child to him was to secure relief to her from the fever and sore throat from which she was then suffering. When he undertook to administer treatment to her, he assumed the responsibility of determining whether the treatment he proposed to administer, and after-wards did administer, was such as might reasonably have been expected to afford relief. To so determine, it was incumbent on him to use reasonable care and skill to ascertain whether the ailments were of the class to which his treatment applied. If not, it was his duty to so advise plaintiff, in order that she might secure the services of one familiar with such ailments. He admits that he made no effort to do so, although informed of facts as to her condition which plainly imposed the duty upon him. He admits that there are infectious and communicable human ailments, while denying that the word “diseases” is applicable to them, and says he does not treat them. We may take judicial notice that diphtheria is an infectious, communicable disease. It is so recognized by the laws of this State. 1 Comp. Laws. 1915, §§ 5011, 5084, 5091; Comp. Laws Supp. 1922, § 5145. That this child died of diphtheria there can be no doubt. Her condition when brought to the defendant, as well as the inquiry made by her mother, rendered it imperative for him to use reasonable care and skill to ascertain whether or not the child was so afflicted. His neglect in this respect, if established to the satisfaction of the jury, would sustain the charge of malpractice made by plaintiff. As bearing on the result to the child of such neglect, we think the plaintiff was entitled to show, if possible, that there is a customary and well-known form of treatment used successfully by those of that particular profession who do profess to administer treatment to cure ailments of this nature, and that proper treatment by such a person would probably have afforded relief and saved the life of the child. Kuechler v. Volgmann, 31 A. L. R. 826 (180 Wis. 238, 192 N. W. 1015). The judgment is reversed and set aside and á new trial granted, with costs to appellant. McDonald, C. J., and Clark, Bird, Moore, Steere, and Fellows, JJ., concurred. Wiest, J., concurred in the result.

[ -40, 20, 0, 18, 3, -13, 6, -2, -25, -8, -35, -6, 32, 40, 41, -27, 20, -29, -6, -3, -35, 3, -9, 12, 23, -21, -2, -33, 2, 38, -25, 1, -2, 40, -61, 2, 52, -1, -25, -7, -17, 8, 14, 8, -3, 3, 24, 70, 14, 22, 58, 34, 3, -27, -52, -40, 92, 51, -28, 11, -23, 6, 17, -10, 7, 57, -25, 17, -25, 29, -23, -25, -21, 17, -21, 25, 0, -4, 20, 11, -22, 8, 33, 18, -32, 33, -33, -13, -29, 1, 20, 24, -40, -15, 11, 41, -45, 0, -9, 16, 97, 22, 23, 32, -12, -29, -11, -46, -19, -16, -78, 22, 17, 18, 38, -58, 20, 22, -40, 58, -13, -3, 22, -44, 79, 54, -24, -23, 54, 28, -15, -20, -5, -42, 20, -11, -69, -41, -29, -17, -27, 84, -8, 12, 36, 9, -39, -19, -14, -50, 12, -19, -31, 22, 51, 0, -58, -8, -18, 22, 45, -7, 26, -13, -36, -53, 6, 13, 16, 6, 36, 56, -7, -4, -31, 11, 0, -1, -70, 21, -19, 5, 57, -14, 7, -52, 28, -24, 41, 14, -30, -54, -37, 23, -39, 25, 6, -8, 32, -45, 43, 14, -24, -21, 29, 18, -19, -16, 17, 34, 6, 15, 18, -42, -37, -11, 5, -26, -40, -6, 39, 0, 58, 45, -35, 16, -27, 17, 14, -28, 0, 5, 17, 49, 17, -9, -41, 11, 29, -12, -35, 0, 40, -33, -36, 66, -19, -3, -70, 6, 0, 32, 27, 24, -9, 15, 26, 6, -15, 7, 12, 42, -61, 28, 35, -2, 19, 24, 42, -55, -18, -25, 30, -12, -53, -76, 4, 21, 45, 4, 39, -28, -60, -1, 23, -4, -33, 0, -25, 5, -32, 7, -11, -44, 52, -16, 23, -21, -25, 12, 5, -20, 54, 71, -18, 52, -46, 35, 4, -39, 8, 31, -13, 17, -1, -47, -34, -49, -10, 30, -15, 42, -51, 1, -42, 6, -13, -33, 25, 0, -19, -2, 10, -19, 13, -16, 32, 18, -6, -34, 35, 72, 31, -33, -5, -4, -1, 30, 14, -10, 10, -24, 90, 8, -54, -15, 37, -34, 27, 23, 0, -24, 23, -16, -40, -6, 55, 19, -62, 57, 17, 5, -29, -30, -9, -41, 14, 47, 13, 44, -9, -8, 39, -4, -44, 6, -48, -13, 28, 13, -10, 12, 48, 8, -38, -10, -46, 8, 6, -40, -40, 6, 38, 35, 6, 4, -51, 6, 59, -14, 12, 17, 46, -17, 4, -1, 20, 3, 2, 0, 4, 15, -31, -4, 11, -36, 9, 6, 21, -51, -18, 45, 11, -44, 42, -33, -11, 62, 30, -4, -54, -46, -11, 13, -17, -15, 11, 23, 64, -41, 31, -16, 77, 39, -34, -43, 25, 13, 0, 0, -32, -27, 16, -23, -5, -26, -2, -5, 10, -16, 8, 4, -41, -56, 66, 11, -12, 50, -8, -24, -11, -45, 7, -26, 0, 50, -48, -12, -12, -13, 31, -54, -33, -24, -50, 2, 1, 22, -24, -6, 19, -30, -14, -44, -12, -24, 6, 12, -37, -1, -17, 37, -20, 11, -20, -17, 19, 2, 15, 0, -26, 36, -15, 36, -22, -4, 28, -6, 1, -27, 10, 3, -39, 1, -13, -24, -2, -55, -38, -8, 0, 6, 0, -10, 18, -42, 4, 20, 30, 23, -13, -35, 11, 10, -8, 5, 26, -36, 3, 4, 13, -3, 11, 8, 47, 10, 34, 9, -22, -24, -2, 5, 39, 4, -55, -35, -11, 15, -38, -24, 1, -17, 6, -8, -62, 11, 46, 5, -1, -14, -12, -7, -7, 57, 17, -6, 5, -44, 59, -43, -39, -16, -8, -5, -48, 44, -13, 6, 45, -37, 28, 13, -43, -104, 1, -8, 12, 50, 34, 17, -2, 2, -9, 12, 34, 6, -20, -1, 4, -60, 15, -25, 24, 39, -34, -9, 33, 26, -25, -33, -38, 8, -12, 5, -27, 56, -21, -20, -45, 0, -22, -14, -14, 9, -42, -4, 17, 16, 0, 6, 4, 5, -37, 0, -16, 46, 80, 41, -38, -13, 3, 74, 31, -17, 11, -21, 12, 85, -12, -2, -14, -8, 100, -22, -19, 21, 18, 17, 31, -19, -7, 7, -4, -23, -35, -2, -42, 36, 44, -11, 11, 3, -48, 25, -26, -3, 7, -4, -38, -27, 7, -1, -22, -11, -27, 20, 28, 24, 1, -4, -35, -33, 0, -53, 45, 37, 13, 7, 5, -93, 2, -4, 5, 31, -23, -7, 44, -23, -19, 2, 30, 49, -68, -29, 2, -41, 15, -5, 11, -8, 0, 24, -43, -29, 2, -43, 53, -14, 9, 3, 1, 23, 22, -21, -13, 16, -10, 2, -36, 29, 9, 33, -8, -27, -13, -8, -73, -49, -49, -53, 19, -12, 6, -12, -41, -31, 31, 18, 28, 46, 33, -33, -42, 12, 29, -4, 18, -40, -12, -42, 90, 8, 16, 0, 17, 11, 3, -10, -29, 3, 24, 13, 9, -35, -70, -64, 5, 1, -42, 20, 47, 4, -8, 14, 35, 14, 0, 4, 0, -30, -32, -31, -6, 1, -29, 22, -2, -49, -33, -1, -17, 60, 23, 27, 63, -9, 81, -33, -1, -8, -12, -62, 6, -7, 16, -34, 13, -21, -27, 32, 7, -22, -18, -36, 13, 61, 13, 17, 42, -15, 2, -28, -49, -15, -46, 30, 13, 1, 27, 9, 23, -2, -87, 19, -32, 47, 8, -41, -18, -4, -7, 15, 59, -41, -43, 30, -59, 28, 13, -24, -55, -1, 7, 10, 8, -51, -3, 0, -28, -39, -18, -32, -35, 36, -22, 61, 50, -17, -24, -9, 11, -21, 38, -24, 10, -3, -16, 33, -17, 41, 16, -7, -32, 10, 53, -5, 21, -27, -4, -12, 58, 67, -8, 29, -4, -21, 25, -55, 24, 43, 47, -7, -16, 22, -94, -4, 14, 1, -25, 60, 55, 16, -49, 73, -21, -14, 23, 38, 9, -17, 2, 14, -10, -17, -6, -14, 25, -7, 64, -30, -21, -42, -32, 66, -7, 15, -39, 9, -54, -24, -12, 20, -36, 11, 4, 43, 7, -27, 35, -30, -37, 22, 3, 61, 0, -17, 11, -27, -14, 41, 28, 37, 23, -19, 23, 14, 23, -42, 10, -7, 51, 23, 8, -6 ]

Clark, J. Defendants, husband and wife, owned a house and lot as tenants by the entireties. Plaintiff, claiming to have furnished labor and materials for improving and repairing the dwelling and funds used to pay taxes, and to pay interest and principal of a mortgage covering the property, sued to recover. The declaration has an assumpsit count. Judgment in usual assumpsit form was entered against both defendants. Defendant Eva A. Black seeks review on error, without bill of exceptions, under Supreme Court Rule No. 11. Appellant raises two questions. The ■first, quoting: “The sole question of law involved here is, whether or not a married woman can be bound, by an oral promise, for materials furnished and services performed on property held by entireties.” The record does not show that this question was brought to the attention of the trial court. It cannot be raised here for the first time. The second, quoting: “Counsel contend that the form of the judgment, even if there was a joint liability in assumpsit, was not in manner and form as prescribed by statute. Act No. 158, Pub. Acts 1917, § 4 (Comp. Laws Supp. 1922, § 11488 [4]).” For the reason that the record does not show that the attention of the trial court was called to this matter, it mil not be considered here. Gill v. DeArmant, 90 Mich. 425; Miller v. Walker, 141 Mich. 433; Menery v. Backus, 107 Mich. 329; Kingsnorth v. Baker, 213 Mich. 294. Judgment affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ -25, 1, -51, 16, -23, -14, 8, 22, 53, 1, 48, -21, 51, -17, 17, -2, -5, -14, 9, 1, 12, -31, -53, -2, -11, 41, 56, 21, 8, 49, -2, 30, -50, 19, 0, 7, 41, 11, -4, -37, 0, -4, -11, -38, -27, 10, 0, -15, 21, -36, 0, -46, -8, 1, 0, 5, -63, 19, -38, -20, 33, -22, -27, 10, -12, -13, 17, 32, 6, -24, -8, 27, 4, -32, -34, -39, -11, 15, -33, 0, 16, -39, 40, 8, -1, -44, -23, -1, -9, -42, 8, 17, -32, 29, 0, 17, -19, 12, 23, 18, -8, 36, 0, 48, -43, 1, -44, -40, 0, 17, 53, -20, 13, -44, -38, 15, -6, -37, -47, -57, 26, 13, 2, -32, 11, 34, -7, -33, 15, 14, -2, 26, -43, -4, -51, 5, 47, 41, 22, 1, 43, -20, 5, -31, 37, 17, 33, -15, -7, -34, -19, 12, 18, 7, 20, 20, 5, -33, 14, -55, 27, 3, -68, 5, -21, -3, -15, 49, 24, -9, 36, -36, -35, -32, 2, 5, -19, -32, -10, -43, 0, 38, -5, -19, 32, -1, -5, -22, -12, -25, 9, -7, 31, 51, 22, 68, 10, 57, 2, -17, -7, -38, -7, -3, 0, -44, 19, -24, -45, -6, -21, 10, -34, -57, -35, -8, -2, -19, -22, 25, -13, 10, -30, 8, -41, -9, 0, -22, 40, 14, -25, -2, 32, -23, -34, -1, 36, -20, 47, 4, -22, 7, -34, 17, 12, -33, -57, 6, 7, -2, -28, 16, -33, 48, -9, -21, -3, 10, -27, 5, -33, 37, -43, 1, 17, -41, 41, -16, -35, 12, -1, 44, -31, 50, 21, 12, -58, 40, -46, 4, -4, 14, -38, -24, -21, 22, -11, 28, 23, -15, 26, -65, -4, -6, 42, 46, -15, -46, -3, 5, 5, -71, 13, 22, 27, -52, -21, 4, -9, -19, 9, 28, 23, -10, 39, 4, -15, 12, 6, -13, 30, -2, 11, 0, -10, -1, 19, -74, -17, 19, 0, -8, 1, 35, 7, -1, 27, -25, -52, -27, 15, -7, 45, -23, -2, 12, -24, -7, -23, 8, -13, -11, -44, 36, 6, 18, 14, -9, -26, 22, 27, 31, -2, -2, -30, 17, 2, -12, 57, 60, 50, 7, -52, -8, -8, 2, -7, -25, 2, 34, -23, -43, 21, 22, 11, 3, -29, -38, 7, 5, -56, -31, 28, -11, 16, -67, 3, -19, -37, -24, -34, 7, 39, -39, -24, 4, 5, -16, -34, 52, -1, 10, -28, -14, -15, -19, 26, -1, 10, 13, -16, -29, 32, 17, -3, -22, 4, -18, -9, 37, -19, 34, 4, 13, 34, -37, -38, -46, 17, 36, 5, 28, -24, 2, 24, 21, 0, 39, 17, -14, 28, 23, -10, -8, 29, 18, 60, -2, -20, -5, 40, -20, 33, 1, 45, -28, -16, -61, -11, -15, -37, -8, 40, 35, -8, 7, -40, 29, 12, 1, 23, 35, -3, -5, 8, 4, -29, -29, -7, -23, 28, -19, -5, 15, -10, -20, -15, -25, -39, 51, 2, 45, 1, -22, 23, 0, -4, 3, 15, 52, -28, 3, 57, 40, -14, -3, 74, -7, 18, 51, 4, 4, -51, -4, -22, 21, 9, 17, -26, 3, 38, 41, -20, 3, -10, 30, 25, -8, 48, -10, -32, 59, 0, 45, 6, 44, -15, 9, -31, 20, -59, -63, 10, 3, 9, 3, 16, 11, -6, -8, 3, -13, 17, -23, 58, -15, 18, -15, -5, -11, -50, -29, -11, -3, 2, -17, -39, -22, -3, -46, 8, 51, 3, -55, 18, 17, -27, 55, 25, 17, -8, -11, -11, -21, -21, -42, -8, -27, 13, 58, 10, -10, -24, -50, -29, -12, -41, 10, 22, -4, 45, -17, -25, -32, -7, 38, 6, -35, -1, 38, 35, 32, -2, -22, 34, -17, -1, 10, -14, -19, -7, 9, -14, 0, -28, 35, 17, 4, -14, -15, 31, 25, 4, 68, 34, -39, 2, -8, 21, -8, 15, 44, -15, -4, 21, -31, 18, -13, 32, -39, 25, -18, 2, 48, 3, 14, 44, 5, 4, 17, 31, -15, 43, 51, 46, 14, -27, -16, 36, -16, 4, -14, 38, 8, 5, -80, 18, -50, -18, -16, 2, 2, -2, 18, -12, 12, 24, 84, 33, 33, 6, -51, 5, -2, -6, 0, -25, 45, -11, -32, -15, 9, -31, 11, -11, 41, -34, 7, -3, -12, -3, -39, -16, -44, -29, -20, 19, -49, 16, 10, 26, 17, 4, 5, 43, 20, -13, 9, -18, 22, 29, 15, -60, -2, 3, -1, 14, 27, 21, 26, 20, 20, 36, 21, 2, 18, -35, -30, -39, 2, -28, 16, -50, 7, -5, -10, -45, -14, -3, -26, -15, 23, 31, -43, 1, 24, -13, 10, 22, -12, 56, -19, -23, 25, -37, -47, 40, -27, -8, 31, -9, -1, 6, -37, -8, 4, 29, 4, -8, -19, 25, 55, 21, 24, 31, 40, -81, 50, 8, 20, 4, -25, -7, -19, -12, 22, -5, 42, 33, -7, -20, 34, -24, -45, 8, 28, -21, -13, -47, 1, 46, -34, -2, 29, 11, 9, 33, 23, 4, 2, 3, -20, -41, -16, -19, 22, 15, 40, 21, 0, 10, -8, 44, 28, -32, 6, 0, 47, 16, 0, -5, -13, -51, 2, 31, -60, -24, 15, 29, 13, 18, -4, -34, -20, 38, -18, 12, -19, 23, 39, -8, 35, -1, 24, -31, 8, -6, -17, -29, 11, 44, 1, 48, 28, -16, -18, -8, -74, 10, -20, -3, 3, -10, 64, 17, 21, 14, 9, -33, 1, 40, 0, -8, -8, -1, 9, -14, -12, -1, 19, 7, -20, -34, -24, -36, -29, -10, 21, -38, 1, 0, -28, -22, 28, 26, -38, 26, -2, 20, -20, 8, -17, 10, -14, -36, 10, 0, -20, 11, 5, -59, 27, 57, 20, -37, 44, 0, -11, -49, 32, -43, 28, -8, -29, 9, -21, -37, 9, -4, -26, -13, -25, -28, -31, -36, 12, 35, 7, -25, -16, -7, -55, -16, 21, -24, 6, -5, -34, -54, -28, 50, 9, 33, 4, -40, -23, -10, -43, 16, -8, 4, -7, 72, 21, 1, -53, 23, 59, -4, -17, -33, 19, 70, 44, -2, 12, -71, 23, 21, 16, -19, -5, 0, 48 ]

Bird, J. Plaintiff filed her bill in the Macomb circuit court to cancel a mortgage of $15,000 she had theretofore givén to the defendant bank. She was denied relief in the trial court. It appears from the record that plaintiff’s husband, Harold N. Weller, was engaged in the canning and pickling business in Richmond, where defendant bank is located, and that he did business with the defendant bank under the name of H. N. Weller & Company. When the financial depression of 1920 came on he found himself badly involved. He owed the bank upwards of $30,000 of unsecured indebtedness. Defendant Hirt, who was cashier of the bank, and made the excessive loans to Weller, commenced to urge Weller to secure the same. The plant was already incumbered to the bank to secure loans. Weller finally suggested as a way out of his difficulties that his wife had a valuable equity in a manufacturing plant at Toledo, and possibly she would give a mortgage on that property to secure the bank. He explained to Hirt that he could, not induce her to give a mortgage, but that he, Hirt,' could come down to his home and see if he could induce her. Accordingly the note and mortgage were prepared and Mr. Hirt went to the Weller home in the early evening. After visiting Weller for a time Mrs. Weller was called from a sick child she was nursing into the living room. Mr. Hirt explained to her how badly her husband was involved with his loans at the bank, and that he was desirous of having her give a mortgage on the Toledo property to secure the loans. Just what took place previous to the signing of the mortgage is in dispute. She claims he said to her that he had made loans to her husband in excess of what the law allowed; that his board of directors was criticizing him for so doing, and that the banking department at Lansing was also criticizing him. That he was expecting the bank examiners any day, and that he did not know what they would do to him and Mr. Weller when they came; that it was a crime for him to make the excessive loans to Mr. Weller, and a crime for Mr. Weller to accept them, and that unless the matter could be arranged both he and Weller would be disgraced and ruined. That he had passed many sleepless nights thinking what might happen when the bank examiners arrived. Plaintiff told him she would not sign a mortgage on • her property because she had solemnly promised her father she would sign no papers without first consulting him. They talked further, Mr. Hirt impressing upon her how serious it was for both him and Mr. Weller. Some time after the refusal to sign the mortgage the suggestion was made that she sign a paper to tide the bank over the month, that during the coming month about $10,000 in accounts receivable was coming in and would be applied on the indebtedness, and that the other $5,000 could be taken care of in some other way, and that it would be only a temporary affair. After some further talk she yielded and signed the papers, but she says the room was dimly lighted, she did not have her glasses on and she did not read the paper, and did not know it was a mortgage she signed. Had she known it was a mortgage she would not have signed it. She further claims that Mr. Hirt said if the $10,000 did not come in as expected he would telephone her.' Mr. Hirt denies that he represented to her that it was a criminal matter. He admits, however, that he represented to her that the situation was serious for Mr. Weller and himself. He admits she was promised that any money coming in the coming month should be applied on the mortgage, but that the promise was made by Mr. Weller and not by him. He also denied that he promised to telephone plaintiff, if the money did not come in as expected. The parties whose testimony must decide this matter are vitally interested in the outcome. Mr. Hirt, the cashier, had advanced $10,000 of his own money to protect some of Weller’s loans. He had been severely criticized by his own board for the excessive loans. Mr. Ullrich and Mr. Lungerhausen, both directors, had protested vigorously. The banking commissioner had criticized his conduct and had written a letter to the board, criticizing the excessive loans, and had cited Mr. Hirt to appear before him at Lansing in regard to the matter. Hirt was badly worried. He had been deprived of his sleep in consequence of it. In this state of mind he made the evening visit at Weller’s house. The testimony shows he was very anxious and desperate and, therefore, his testimony as to what was said is not as reliable as it otherwise would be. Weller, plaintiff’s husband, was a witness, and corroborated the testimony of his wife. He is in the attitude of sitting by and allowing a fraud to be perpetrated on his wife, and saying nothing, if she tells the truth. He sat by and saw her deceived and said nothing. This testimony, to say the least, is not entitled to great credit. Mrs. Weller made a good witness. She is above the average woman in intelligence. She has a good education. She comes from a well-to-do family of business people. She has her own bank account and transacts her own business affairs. She appeared to be familiar with deeds, mortgages, leases and abstracts. She is 87 years of age with three children. Her testimony shows she is shrewd and quick-witted. She readily saw the point the lawyers were attempting to make. She says Mr. Hirt promised her not to record the paper. If he did, this would indicate she knew it was a paper subject of record. She says when they called for a witness to the mortgage “it just dawns on me after I signed the paper, Mr. Weller says we will have a witness, and both Mr. and Mrs. Jenkinson came into the room, and Mr. Hirt said one will do, and Mr. Jenkinson went back and Mrs. Jenkinson had been his bookkeeper, and he said ‘sign this, Daisy,’ and she said ‘where,’ and she signed and walked out, and it flashed on me when she signed that it was a ‘frame-up,’ and I said ‘Mr. Hirt, you will certainly telephone me if it don’t come in,’ and he said T surely will.’ ” Without going more into detail, we are impressed that if plaintiff were deceived and alarmed over the situation of her husband to the extent that she was under duress when she signed the mortgage and note, she has failed to establish it. The burden of proof was on her to establish the fact of duress, and we think her proofs failed to meet that burden. We are, however, of the opinion that she was induced to sign the mortgage and note by the statement that it was only a temporary matter, and that $10,000 was to be paid on the accounts receivable the coming month, and that it would be applied on the note, and that the $5,000 could be taken care of in some other way. As to this statement there is very little conflict, although Mr. Hirt says that he did not make the statement but Mr. Weller did make it. She says they both made it, and also Hirt denied that he promised to telephone her if the payments were not made as expected, but this phase of the matter is not very important. The uncontradicted testimony all shows that this promise was made to the plaintiff. At first she refused absolutely to sign the mortgage and note and gave her reasons for her refusal. Further talk took place, the seriousness of the situation was impressed upon her. She evidently felt that her husband was badly involved, she knew he was worried, and when this promise was made to her she yielded, and she did not yield until it was made. She was interested in this promise because she soon after inter viewed the bookkeeper to learn whether the statement was true that there would be $10,000 due and payable to the company the coming month. It is our opinion that this promise was the deciding factor with her. Our conclusion is that plaintiff knew that she was signing a mortgage and note; that when it was first suggested to her she refused and gave the reason for her refusal, and that she did not recede from this position until she was promised the accounts receivable by the company for the coming month should be ap-' plied on the note and mortgage. They led her to believe that it was a temporary affair, and, like all good wives, she was willing to lend a hand in the stress of weather. This promise having been made to her, it should be made good. It matters not whether Hirt or Weller made the promise, one of them made it, and the other sat by and by his silence impliedly gave his assent to it. An accounting should be taken by the trial court, if counsel cannot agree, as- to the amount of the accounts which was received for the 30 days after the mortgage and note were signed, and that amount, not to exceed $10,000, should be indorsed on the note and mortgage. The mortgage will stand as security for the balance when this is deducted. When this modification is made the decree will be affirmed. Plaintiff will recover her costs. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ 29, -2, 0, -4, 5, -33, 31, 27, 46, -39, -23, -26, 26, -40, 40, 20, 44, -31, 48, -19, -49, -88, -38, -10, -18, -4, 18, -18, -14, 23, 24, -47, -39, 29, -22, -37, 0, -20, 58, -18, 6, -34, 29, -35, 3, 6, 17, -36, 24, -27, -8, -69, 10, 34, -45, -16, -14, 15, -25, -17, 24, -16, 75, -42, -19, -9, 3, 24, -8, -12, -7, -14, 30, -25, -16, -35, 9, 2, -53, -13, -26, -34, 12, 0, -51, -20, -20, 35, -18, 21, -24, 76, 3, 67, 17, 6, -44, 62, -2, 45, -35, -61, 11, -3, -1, 13, -16, -18, -19, 7, -25, 12, 25, 4, 25, -54, -31, 16, -32, 7, -6, 11, -24, -19, 11, 27, -84, -2, -10, -2, -7, -20, -17, 57, -14, -16, 21, 15, -39, 31, -3, -29, -31, -31, -5, -39, 1, -4, 16, -2, -71, -21, 1, 54, 21, 15, -7, -21, 27, -8, -35, -50, 11, 31, -73, 19, -24, 65, -15, -65, 7, 72, -29, -40, 14, -34, 17, -22, 17, 0, 3, 31, -13, -7, 17, -58, 33, -34, 47, 6, 19, -92, -35, 36, -36, 39, -11, -35, 16, 13, 21, -37, -13, 5, 13, -71, 5, -73, -30, -13, 18, 40, -7, -7, -80, -7, -12, -18, 30, -4, 60, 24, 11, 20, -47, -46, 67, -44, 5, 11, -49, -56, 28, 10, -31, 17, 24, -26, 60, 34, -26, -21, 2, 2, -104, -3, -64, 1, -10, -5, 4, 41, -44, 57, -22, 87, 23, -42, -9, -2, -9, 46, -7, 5, 27, -26, -12, 59, 31, -15, 31, -32, 19, 37, -13, -46, -41, 24, -21, 1, 23, 15, -41, -3, 47, 18, 0, -19, -29, -32, 64, -11, -56, -29, 23, -11, -79, -15, -33, 33, -42, -59, -16, -47, 18, 24, -31, -39, -66, -41, 50, 27, -7, -3, 73, -31, -11, 16, 10, 20, 10, -30, -70, 25, -9, -9, 10, -20, -16, 15, 10, 16, -37, 70, -18, -19, 47, 39, 36, -18, -3, 22, -10, 40, -2, -5, -30, -38, -18, -3, -14, -4, -20, -1, -51, 35, 39, 18, -4, -16, -7, 5, -18, 0, 14, 32, 0, -26, 39, 52, 30, 22, -47, -24, -3, 8, -45, -9, -59, 14, 28, -10, 6, 32, -19, 10, 33, -5, -39, 34, -49, 6, 23, -13, 10, -52, 39, 14, -84, -10, 26, 7, -49, -1, -9, 2, 0, -24, 0, -20, 22, -30, 30, 34, 4, -6, 30, -11, 50, 2, 1, 9, 8, -7, 15, -26, 15, -8, -2, -3, 3, -15, 4, 16, 19, 32, 1, 23, 2, -3, 22, 25, -6, 23, 31, 41, -40, -35, 41, -7, 6, -13, 23, 47, 31, 4, 7, 22, -42, -5, -13, -20, 50, 14, 6, 6, 2, 20, 0, 39, -1, 3, 28, 32, 0, 1, 16, 4, -41, 31, -17, -1, 26, 35, -27, -14, -45, -52, -17, 9, 61, -13, -28, 24, 35, -3, -1, -30, 0, 20, -29, -17, 22, -26, -7, -24, 18, -46, 13, 71, -22, -45, -1, 72, -24, 17, -11, 5, 13, 35, -6, 25, -35, 7, -13, 51, 11, 29, 25, 0, -5, 41, -32, -5, 2, 13, 34, 44, -6, -25, -41, -2, 36, 8, -17, 23, -39, -62, 8, -32, -28, -31, 38, -4, -37, 50, -52, -21, 13, 18, -5, -21, -15, 1, -2, -33, 3, -22, 19, -15, 12, 9, 20, -4, -19, -14, 5, -27, -18, 5, 7, -32, 27, -46, -22, 39, 19, 32, -12, 29, 14, 11, -12, -17, 24, -15, 18, 15, 42, 53, -32, -69, -24, -5, -29, -13, -30, 56, 26, 1, -4, 29, -8, 30, 28, -4, -15, -12, -13, 28, 29, 14, 9, -35, -11, -7, 40, 24, 28, -5, 1, -24, 21, 7, -50, -6, 19, 22, -33, -30, -16, -5, -46, -1, 14, 3, -14, 14, -8, -20, 4, 28, -16, 7, -28, -43, 13, 16, 22, -30, -4, 3, 4, 38, -11, -25, 53, 37, 26, -4, 26, -10, 70, -25, 12, -7, -64, 88, 25, -29, -12, 6, 39, 60, 5, 18, 13, 3, -45, -29, 1, -32, -15, 23, 6, 12, -5, 20, -27, -22, 42, -4, -6, 13, 19, 39, -5, -58, -41, -1, 24, -5, 26, 12, -20, 26, 37, -24, -4, 17, -15, -21, -14, -24, -29, -13, 7, -39, -19, 1, 20, -46, -9, -12, 11, 33, 9, 9, -6, -19, -6, -6, -27, 2, -63, -67, -14, -20, 54, -18, -17, -20, -4, -10, -7, 17, -54, -37, -21, -9, -46, -15, 9, -56, -18, 63, 11, -31, 14, -29, 35, 10, -47, 9, 23, -3, 36, -36, 74, -1, 36, -25, 10, -18, 66, 27, 33, 42, 79, 3, -25, 0, -30, -38, -43, 65, 20, -25, 29, -16, -23, 41, 1, 27, 48, 7, -28, -2, 47, 23, -13, -5, 40, -59, 32, 66, 4, 19, -32, 25, -43, 40, 47, 7, -46, 12, -52, 6, -14, -3, 8, -37, 20, -8, 10, -8, 33, -19, -8, -5, 34, -18, -31, 3, 0, -31, 53, 7, 18, -28, 23, -32, -5, 1, -43, 3, -23, 16, -22, -37, 20, -16, -80, -29, 54, -15, -64, -22, 50, -6, -12, -5, -39, 17, -12, 28, 4, -38, -2, -5, -15, 59, 43, 37, -31, 38, 39, 0, -7, 66, 2, 74, -16, 13, -8, -1, -27, -59, 23, 7, 6, -21, 30, 30, -40, 8, 0, 28, 5, 82, -12, 12, -8, -46, -41, 50, 12, -2, -10, -4, -22, -27, -13, 16, -3, -8, 7, 24, -37, 36, 10, 0, 25, 5, -5, -19, 34, -10, 41, -39, 21, -11, -5, -7, 48, 11, 53, -56, 41, 67, -19, 37, -8, 42, -8, 11, 8, -4, 17, 15, -40, 5, -12, -54, 3, -36, 23, 48, 18, -11, -47, -7, -39, -60, -41, 19, 22, 37, 66, -53, 4, -15, -42, 77, -32, -26, 7, -10, -23, 42, 7, 0, 14, 49, 64, -37, 45, 3, 13, 2, 24, 0, 43, 27, 4, -59, -15, 26, -7, 17, -13, 23, 0, 43, 18, 7, -7, -50, 32, 53, 0, 17, -34, 25 ]

WlEST, J. The last of February, 1922, there was a heavy fall of snow in the city of Ironwood, followed by zero weather. On Pine street pedestrians made a foot path over the snow covered sidewalk, packing the snow where they walked. On March 1st the city snow plow, drawn by two horses, driven tandem, passed over the walk and in places, where the plow did not go down to the walk, the hoofs of the horses broke through the snow where it had been so packed by pedestrians, leaving holes from six inches to a foot in depth. The evening of March 2d, plaintiff, while passing over the walk, stepped into one of such holes and broke her left leg. She brought this suit to recover damages, claiming the city was negligent in leaving the holes in the walk and had verdict and judgment. Defendant is here by writ of error, insisting it is not liable and alleging error in rulings and in instructions given the jury. Twelve days after the accident the husband of plaintiff sent the following communication to the city council: “Take notice that on the 2nd day of March, A. D. 1922, my wife, Senja Nevala, sustained an injury to her left leg, resulting in the fracture of two bones in the leg. The injury took place about 9 p. m. of the above date at a point about 450 feet north of the intersection of Lin street and Pine street, on Pine street, at a point on said Pine street nearby opposite to the building numbered 445 E. Pine street and owned by Mr. Paul Wilson. My wife was returning from the bath house owned by Mr. Setula, about the time mentioned, and stepped in a hole in the snow on sidewalk along which she was walking, said holes being caused by horses which had dragged a snow plow over the walk, and which holes the city had subsequently failed to fill in. The lighting facilities at the point of accident are also very poor. Numerous complaints have been made concerning the lights and the condition of the walk previous to time of accident. My wife is now receiving medical attention for said fractures from Dr. A. EL Anderson of this city. “Due to the fact that the accident occurred due to ‘ the failure of the city to repair defects in walk which were caused by itself, I trust that you will examine the facts herein alleged and compensate me for damages that we will incur by virtue- of this accident. “I hereby make this claim for damages and trust that you will give it your earnest consideration. “Dated at Ironwood, Michigan, this 14th day of March, A. D. 1922.” This communication was referred to a committee to investigate and report. The committee reported: “We, your committee to whom was referred the claim of Mrs. Nevala for injuries sustained by her on Pine street, beg leave to report that we have given the same our consideration and feel ourselves constrained to report the disallowance of the claim.” The council adopted the recommendation. We are asked to hold that the notice given by plaintiff’s husband was not a notice given by her, for, if the city is liable, he has a cause of action for the loss of the services of his wife, and, therefore, the notice was not indicative of her claim and, besides, his authority to make claim in behalf of plaintiff does not appear in the notice. The notice is also said to be deficient in not naming the place of the accident, the nature of the defect claimed and the names of witnesses known to plaintiff. We hold that the notice acted upon by the council, by reference to a committee, with report by the committee and rejection of the claim, bars the city from now asserting want of notice. The council disallowed plaintiff’s claim. Had disallowance been made without any formal notice such action would have waived notice and the same result follows the action disallowing the claim even though the notice upon which final official action was planted was technically defective. The defendant is in no position to assert want of legal notice, for it assumed the right to and did disallow plaintiff’s claim upon the notice gfvem See Lindley v. City of Detroit, 131 Mich. 8, and cases there cited; Brown v. City of Owosso, 126 Mich. 91; Foster v. Village of Bellaire, 127 Mich. 13. Counsel for defendant contend that the cases mentioned do not apply to this case, because the husband gave the notice. It is sufficient answer to this to point to the action of the city council in disallowing the claim of plaintiff. The following cases, cited by counsel for defendant, do not apply. In Blumrich v. Village of Highland Park, 131 Mich. 209, the claim was presented orally to the council by the son of the plaintiff and no official action taken by the council. Waiver in the case at bar rests upon action taken and not upon failure to act. In Ridgeway v. City of Escanaba, 154 Mich. 68, and Chamberlain v. City of Saginaw, 135 Mich. 61, no official action was taken by the council. In Moulthrop v. City of Detroit, 218 Mich. 464, the question of waiver, arising out of rejection of the claim, was not involved. It is claimed, “Defendant did not have actual or constructive notice of the alleged condition of the walk in sufficient time to repair the same.” When the dangerous condition of a sidewalk is occasioned by persons, other than agents of the city, or by action of the elements or deterioration, liability does not attach until notice thereof comes to the city, or knowledge thereof would have come had reasonable care been exercised, and opportunity to repair has been afforded. The basis of such an action is negligence arising out of the failure to repair the defect after notice thereof. When, however, the dangerous condition is caused by agents of the city, in the prosecution of their employment, the rule of liability is not based on notice and failure to repair but upon the creation of a dangerous condition by the city. If holes several inches deep were punched by the horses’ hoofs through the snow left on the walk after the passage of the snow plow, and plaintiff stepped into one of such holes and broke her leg, defendant is liable to respond in damages. At the time of the accident plaintiff was pregnant with child, and she claims she suffered fear of miscarriage, worried over the possibility that the child might be deformed by the injury she received, and that the labor of childbirth was prolonged and rendered more difficult by her inability to move the broken leg. The declaration averred pregnancy of plaintiff but made no mention of such claimed mental anguish, and the claim made to the council did not set up any such element. There was no miscarriage and> no deformity occasioned the child by the injuries to plaintiff. At the trial defendant asked for the exclusion of this element of pain and suffering. The court admitted the testimony and instructed the jury with respect thereto, as follows: “She would not be entitled to recover for any pain or suffering, of course, which the injuries here complained of did not in whole or in part occasion, for instance, the ordinary pains of childbirth. But if the ordinary pains of childbirth were enhanced in consequence of the injuries, or if she suffered mentally for fear of a miscarriage or otherwise, as she says she did, those would be matters that you might take into consideration and allow her for in the assessment of damages.” If the pains of childbirth were enhanced in consequence of the injuries this would constitute a proper subject of compensation. Plaintiff’s apprehension of miscarriage or possibility of deformity of the child she was carrying at the time of the accident was not a subject for consideration of the jury in awarding compensation. In McGee v. Van Over, 148 Ky. 737 (147 S. W. 742, Ann. Cas. 1913E, 500), plaintiff therein claimed that an assault upon her by defendant led to her hav ing a miscarriage and consequent grief over the loss of offspring. It was held no recovery could be had for such grief. If grief over actual loss of offspring is too delicate a subject to be weighed by any scales the law has at its command, surely mere apprehensions, proven by time to have been borrowed trouble, are outside the realm of pecuniary compensation. For this error the judgment is reversed and a new trial granted, with costs to defendant. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred.

[ -23, 45, -30, -18, -8, 16, 35, 27, 36, 13, -35, 22, 84, 29, -1, -5, -44, -13, -8, 25, -100, -36, -57, -2, -31, 7, 8, -22, -27, 11, 39, 25, -17, 36, -33, 41, 1, 63, 2, 18, 26, -16, -22, -7, 23, -22, -1, 10, 22, -20, 21, -10, 13, -22, 18, 19, -13, 51, -55, -68, 12, -2, -23, 23, 49, -3, -15, 44, -15, -19, -9, 47, -5, -23, -36, 24, -17, 10, -30, 30, -33, -6, 27, 58, -14, 5, -25, 8, 23, -17, -32, -19, 5, 79, -51, 36, -43, -36, -26, 14, -27, 19, 34, 36, -27, -27, -17, -55, -1, 28, -48, 48, 11, 15, 53, -25, 57, -13, 27, -27, 19, 3, 10, -10, 6, -15, -27, 19, 29, -41, 14, -50, 20, 12, 21, 8, -35, 8, 11, 24, 46, 6, -30, 20, -2, 0, -30, -6, -53, -4, -15, 9, 35, -20, 0, -44, 1, -11, 70, -1, 56, 35, -22, -42, -2, -21, -17, 34, 11, 12, 76, 12, 6, -74, 25, -6, 3, -11, -22, 8, 12, 21, 26, -12, -26, -38, -5, -9, 15, 46, 77, -27, -26, -15, -17, -17, 5, -34, 5, -66, -13, -20, -54, -15, -21, 13, 0, 29, 29, 6, 8, -30, -38, -34, 47, 30, -15, -41, -30, -37, 11, 62, 24, 9, -38, -2, -8, -41, 45, -12, -5, 32, 9, -21, 16, -11, -8, 19, -12, -17, 38, 50, -37, 15, -16, -40, -93, -9, 21, 32, 5, -59, -36, 5, -44, -10, 23, -14, 23, 16, -18, 37, 18, 56, 51, -26, 7, 35, -30, -10, -13, 27, 35, -7, -33, -62, 14, -24, 30, 24, 12, -17, -10, -26, 0, 53, -14, 13, 3, -37, 24, -11, 0, -2, -11, -13, 39, -43, -54, -38, 14, -39, 2, 23, 25, 4, 13, -32, 25, 9, -3, -57, 30, -23, -3, 39, 13, 11, 3, -49, 5, 0, -2, 33, -7, 0, 17, -20, -34, 43, 35, 29, -15, 43, -3, -32, 21, 38, -83, -57, 11, 38, 3, 26, -41, 13, 13, 7, 19, 25, -86, -34, 51, -10, -61, -1, 34, -38, -4, 39, 23, -27, 1, 8, -13, -52, 18, -11, -20, 56, -38, -11, 6, -7, 11, -51, 18, 38, -1, 12, 70, -57, 18, 15, -16, -46, -28, -38, -45, -2, -16, 36, 42, 21, 45, 10, -20, -64, -78, -23, -32, 32, 54, 10, -60, -29, -10, -83, 16, -5, 16, -46, 33, -42, 8, -5, 1, -3, 11, 49, 44, 13, 23, 0, 0, -28, 4, -50, 19, -23, -3, 20, -21, 17, 66, -46, -45, -4, -51, -47, -11, 33, 36, -2, -20, 17, 22, 15, 21, -21, 45, -6, 8, -8, -1, -25, 40, 13, 58, -33, 17, -17, -21, -16, 32, -6, 5, -30, 1, 27, 11, 22, 18, 64, 6, -40, -16, -15, -31, -10, -28, 3, 16, -8, -7, -50, 51, 18, 2, -8, 68, 31, -50, -15, 3, 19, -47, -6, 4, -11, -77, -39, -42, -31, 29, -23, 28, 0, 9, 22, -32, -34, 4, -3, 6, 30, 16, -15, -28, -44, -14, -39, -32, 4, -17, -9, 55, 1, -7, -22, 7, -34, -39, -4, 12, 10, -28, 29, 0, 0, -25, 58, 34, 0, 17, -26, 45, 32, 21, 56, 44, -58, -2, 12, -5, -17, 6, -45, 39, 11, 34, 45, -18, -36, 38, 2, 23, 10, -25, -1, -8, -13, 6, 0, -44, 5, -50, 24, -28, 1, -17, -23, -18, 13, 41, 18, 53, -11, 0, 49, -33, 20, -2, 0, -33, -15, 0, 17, 11, -13, 4, -4, -33, -25, -8, -18, 26, -36, 0, 11, 3, -5, -28, -34, 22, -31, -5, 15, 45, 10, -61, -25, -35, 69, -7, -22, 25, 44, -40, -31, -9, 23, -18, -5, 7, -2, 37, 48, -19, 55, 11, -66, 36, -47, -41, -25, -59, -37, -27, -5, 24, 22, 21, -50, -14, 25, 35, 23, -47, 13, 10, 13, -41, 11, -28, 4, 8, 20, -44, 11, 31, 7, 21, -28, -15, -48, 44, 54, -41, -6, 34, -9, 53, -11, -47, 6, -10, 50, 44, -46, -88, -5, 15, 57, -36, 59, 72, -2, 29, 25, -1, 33, 0, 35, -4, -22, -4, -11, -10, -2, 26, 24, 16, 36, 10, 36, 36, 14, 22, -22, 22, -20, 19, -41, -8, -15, 57, 12, 22, 59, -6, 87, -19, -18, -13, -4, 3, 33, 13, -62, -3, -11, 4, 35, -32, -25, 47, -29, -61, -20, -32, 11, 3, -35, 14, -74, -21, 0, -23, -40, 34, -51, 84, 22, -10, -1, 23, -29, -12, -3, 47, 52, -34, -40, 26, 24, 5, -40, 56, 12, -20, -27, 25, 1, -3, -22, -2, -15, 41, -7, 14, 7, 15, -45, -63, 29, -48, -13, -15, -11, 4, -2, -41, 7, -13, -11, -6, 44, -8, 40, -25, -20, -1, -12, -27, 4, 3, 84, 6, -2, 4, -10, 22, 10, -13, 1, -9, -59, 49, -26, 14, -44, -27, 6, 19, 6, 14, -26, 16, 4, 0, 28, 53, 29, 50, -30, -57, 24, -17, -9, 0, -22, 52, 11, -36, 27, -25, -21, -23, -11, -44, -83, -59, -68, 3, -22, -24, -31, 10, 19, 19, 62, -61, 37, 43, 22, -1, -53, 23, -36, -5, 12, -22, -6, -39, 59, -2, -9, 26, 31, 8, 5, 15, 36, -47, 2, -59, 14, 14, 18, -17, 17, 26, -16, -85, -40, 4, -40, 4, 0, 8, -52, -26, -26, 21, 36, -49, 23, -44, 12, 14, 25, 33, 2, -46, 58, -5, 35, 1, 69, -9, 22, 30, -11, 3, 26, -27, -65, -15, 13, 41, 24, 15, -18, -30, -52, -6, 21, -20, 24, 67, 9, 13, 28, -32, -2, -28, 7, 29, 55, 19, 5, 21, -16, 38, 33, 33, -29, -17, -7, -30, -21, 23, -35, -1, -2, -12, 13, -1, -3, 17, 0, -4, 22, -31, -48, -9, -41, -40, 24, -42, -24, 40, -19, 12, -12, -34, -3, -26, -24, 3, -18, 0, 2, 49, 3, 77, 16, 23, 6, -41, -38, 42, -8, 5, 51, 24, -9, 27, 13, 12, 6, 72, 59 ]

Bird, J. In November, 1924, A. C. Trowbridge and other residents of Eaton county filed their bill in the Eaton circuit court complaining of the city of Lansing for the manner in which it disposed of its garbage on its 250-acre farm, and charging that the same resulted in a nuisance, and praying for an injunction to restrain the further maintenance of it. Issue was joined and the case went to a hearing in January, 1925. On February 16th the issue was determined in favor of plaintiffs, and defendant was given 30 days in which to abate the nuisance. The decree was settled on February 28th before this defendant, and on that day the time for abatement was extended to August 1st, in view of the fact that the city desired to take an appeal. A transcript of the testimony was obtained and a case prepared and presented to the attorneys for the plaintiffs on the 12th day of June, 1925. The same was examined and soon after returned to defendant without change. When pre sented to the judge for his signature plaintiffs’ attorneys objected to its being signed, alleging as a reason therefor that defendant’s attorneys had obtained no extension of time beyond the first 20-day period. After some discussion, whether the city attorney applied for further time, and whether the same was granted, the circuit judge declined to settle and sign the case. Defendant’s counsel then filed a motion showing that such further time was applied for and granted, and asked the court that an order extending the time to 60 days might be entered nunc pro tunc as of February 28,1925. This application was denied by the court. Defendant’s counsel now asks this court for a mandamus requiring defendant, in this proceeding, to comply with said request. On February 28th, the day on which the decree was signed, there were several questions discussed before the court. The decree was discussed, and the time fixed for- the abatement of the nuisance was discussed, together with the city attorney’s application for an extension of the time to August 1st, in order that the city might 'have the matter reviewed by this court. The question of getting the case on the calendar of this court for the June term was also> discussed. When that hearing ended, it appears to have been understood by the court and all of the counsel that the abatement would be extended to August 1st, and that the matter would be before this court in the June term, and the court and opposing counsel now concede that it was expected that an extension of time would have to be granted in which to prepare the case, but the point is made, and this is the only point in the case, that no application for the order of extension was applied for or made. At the hearing of the city’s motion to enter the order nunc pro tunc, considerable discussion was indulged in between court and counsel. This discussion was taken by the stenographer and is now embodied in the court’s return. This perhaps shows the mental attitude of the court better than can be stated: “The Court: Oh, I think it was commonly talked there that Mr. Smith could not get out the record within the 20 days, as far as that is concerned. That would be true, would it not, Mr. Sowers, and Mr. Peters? “Mr. Peters: I think that is true. “Mr. Sowers: Yes, I think so. “The Court: Now, wouldn’t this be a fair statement of this situation, that what was said and done on the occasion of that meeting with the court and counsel, that everything said and done at that time, while there may have been no specific mention of the entry of an order extending the time for settling this case, that notwithstanding that fact, everything said and done contemplated that such an order would be made, of course, in harmony with the other steps taken for the perfection of the appeal. Would that be a fair statement? Mr. Sowers: Well, I would hardly contemplate, if it was not mentioned at all, and nothing was said with regard to the order extending time. “The Court: Well, Mr. Sowers, wouldn’t an agreement that the preparation of the case be extended— so that it might be heard at the June term, some three months ahead — wouldn’t that at least contemplate that the necessary steps would be taken to perfect the appeal? “Mr. Sowers: Well— “The Court: It seems to me that would be a fair statement, that it contemplated that they would do it, otherwise we would not have been there considering the extension of the time for enforcement of the injunction to August 1, wouldn’t have been considering getting a hearing at the June term, if we hadn’t at least contemplated that the necessary steps would be taken to bring those things about. I am not saying that special mention was made of that fact, because I think, as Mr. Peters suggested, that it was not, and as you have said here. I don’t recall that there was specific mention, but I cannot see that it is an unfair statement to say that what was said and done contemplated that that would be done.” The petition and .affidavit of defendant in this proceeding show: “And said city of Lansing, petitioner herein, avers that on the 28th day of February, 1925, such order extending the time for settling said case on appeal was asked for and granted with the consent, acquiescence and understanding of attorneys for plaintiffs then and there present, and that the failure to actually enter said order was a mere inadvertence.” The affidavit of the city attorney is to the same effect. It is further shown, and not controverted, that on the 28th day of February the claim of appeal of the city was filed, the fee paid and the certificate of the stenographer was filed. The return shows that while the court is very strongly of the opinion that the city attorney asked for no order, and none was granted, he concedes it was understood he was to have further time, that there was no objection to granting further time, that he was willing to grant further time, and that the city attorney took the steps that were necessary to obtain further time. Plaintiff’s counsel in that litigation understood that defendant would have to have further time because the record was very long, containing nearly 1,400 pages. They co-operated with counsel in his effort to have the case heard at the June term, and noticed the case for hearing. In view of the fact that we have before us a petition in which it is positively alleged that an order was asked for and granted, and the answer does not expressly deny the fact, as required by Supreme Court Rule No. 13, but contains an element of doubt, which doubt is further increased by the admissions of the court, we think we should resolve this question in favor of the petitioner. The writ, if necessary, may issue directing that an order nunc pro tunc may be entered as prayed. No costs will be allowed either party. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ -44, 53, 30, 20, 5, 13, 8, -11, 1, 8, -21, -32, -4, -24, -9, -8, 17, -8, 1, 39, -8, 0, -9, -26, 2, -16, 0, -23, -30, -12, -15, -26, -8, 51, 27, 20, 3, 41, 44, -2, 0, -79, 14, -68, 15, -52, 36, 16, 5, -14, -36, 8, -38, -11, -74, -25, -32, 23, -2, 42, -16, 48, -41, -7, 33, 47, -58, 8, 36, -30, 2, -1, 22, -48, 29, -18, 23, -17, -2, 43, -5, 43, -23, -7, -37, -23, -1, -8, 43, -59, -36, -9, -8, 8, 28, 0, -48, 16, 23, -21, -46, -8, -19, 4, -19, 12, -23, -17, -20, -57, 21, 25, 56, -24, 39, -36, -27, -14, -33, 13, 41, 5, 30, 2, -31, -10, -47, 7, -7, 35, -17, -16, -7, -16, 0, 64, 29, -25, -41, -9, 49, 3, -14, -15, 8, 2, -26, 15, 1, 0, -44, -9, -28, 16, -42, 35, 16, -40, 66, 6, 12, 45, -14, -40, -27, -40, -22, -1, 28, 8, -31, 12, -6, 23, 40, -32, -27, 21, 19, 21, 7, -21, -33, -42, 4, -33, -15, 0, -13, -15, 47, -28, -24, -30, 17, 46, -17, 31, -5, 17, -30, -15, 18, -18, -41, -32, 21, -9, 20, 28, -17, -22, -16, 41, 15, -38, 52, 37, 10, 25, 24, -34, 5, 14, 4, 22, 24, 3, 15, 16, 7, -37, 82, 10, -15, 26, 42, 22, 39, -7, -2, 50, -24, -9, -13, 28, -15, -10, -1, 17, 14, -9, -15, 30, 25, 3, 4, -32, -14, -34, 34, 2, 35, -45, -9, -10, -27, 25, -13, 48, 17, 27, 25, 17, -32, -28, -27, -10, 40, -3, 0, -32, -37, -13, 38, 17, -21, -4, -66, 9, 6, 36, -63, -4, 9, 35, -10, 35, 4, 43, -46, 38, -51, -9, 14, -38, -13, -14, 30, -36, 38, -3, -34, 19, -5, -49, 12, 23, 33, 6, 14, 31, -58, 42, -29, 46, 23, 14, 3, -41, 13, -13, -29, 3, 15, 3, 28, -36, 3, -20, 70, -18, 2, 14, -2, 4, 8, -37, -16, 21, -35, 6, -53, 4, -9, -13, -41, -20, -37, 25, 9, 18, -7, 11, -4, 1, -6, -22, 43, 20, -7, -34, -19, 13, 41, 15, -15, -17, 1, 20, -10, -30, 23, 26, 20, 0, -33, 4, -16, 13, 16, -10, 14, -1, 39, -11, 5, 14, -51, 13, -35, 45, -47, 1, 25, 11, -7, -23, 64, 0, 6, -25, 11, 44, 5, 0, -12, 14, 37, -7, 16, 62, -9, -57, -3, 35, 53, -5, 14, 65, 34, 13, 27, 48, -5, 70, -9, -19, -55, 15, 17, 24, -7, -43, -28, -18, -30, 14, 13, 26, 28, 36, -18, -21, -24, 35, 0, -3, 11, 0, -22, -55, -40, 47, -4, -4, -19, -5, 46, 19, -25, 25, 1, -20, -36, -39, 10, 0, -26, 84, 16, 7, -12, 52, 21, 0, -8, -19, -5, 70, 17, -32, -54, 77, 24, -4, -25, -60, 45, 23, 34, 21, -12, -16, 64, -12, -10, -46, 7, 23, -36, -32, 7, -20, -35, 75, 55, -26, -8, -17, -33, 7, -27, 17, 10, 27, 37, -11, -5, -8, 14, -5, -29, -3, 16, -38, -34, 49, 27, -2, 16, -25, 55, 43, -31, -38, -2, -11, -12, -40, -25, 1, -14, -27, -29, 17, -80, 51, 12, 29, 4, 5, 31, -42, 31, 15, 44, 3, 23, 46, 33, -31, 19, 32, 37, 33, -3, -41, 10, 55, -13, -18, 3, 25, 46, -51, 4, 5, 15, 23, 8, 56, -58, -17, -30, -7, 50, -15, -6, 1, -18, -16, -11, 14, 11, 6, -4, 11, 26, -9, 17, 34, -71, 9, -22, 48, 4, -51, 1, -24, -33, -43, 29, -7, 6, -41, 57, 6, 17, 40, -44, -17, 40, 11, -10, -4, 34, 44, -6, -6, -48, -7, -12, -19, -22, 19, -6, -10, -48, 41, -20, 22, 28, -36, -2, -2, -8, -20, 31, 5, 10, -12, -23, -41, -46, -5, -19, 25, 24, 21, 50, -21, -5, -34, 11, -32, -10, 11, 50, -29, 15, 6, -6, -38, 26, -20, 4, 8, 10, -11, 24, -38, 31, 10, 47, 4, -4, 16, 32, 24, -35, 34, 82, -24, -26, 39, 5, -60, -24, -36, -11, -9, 15, -20, 28, 20, 39, 0, -10, 21, -38, 20, -55, -48, -7, -4, -15, -84, -2, -7, -10, 26, 22, -38, -32, 17, 11, -3, -34, -7, 1, -59, 9, -13, -45, -3, -3, -19, -47, -14, 8, -23, 30, -7, -29, -13, -14, 2, -66, -35, 71, -32, 40, -5, -37, -35, 64, -14, 18, -5, 1, 7, 35, -49, 65, -6, -38, -15, 30, -18, 40, -26, 0, -7, 13, -1, 12, 19, 28, -9, -44, -44, 31, -25, -8, 31, -30, 8, 2, -17, 25, 6, 54, 35, -13, 51, -25, -19, -61, 8, -5, 38, 16, -79, 19, -42, -24, 17, -9, 16, -41, 35, -18, -9, -16, 3, 14, -23, 29, -16, 32, -59, 8, 47, -12, 8, -10, 25, 24, 21, -23, -20, -14, -44, -49, 19, 28, 31, 4, -30, -14, 7, -63, -24, -1, -25, -18, -16, 12, -32, 21, 19, -17, -32, 4, 6, -53, -17, 27, -62, -2, -29, -36, -12, 1, -20, -36, -28, -36, -27, -10, -19, -20, -15, 14, 32, -34, -20, 35, 63, 33, 33, -4, 36, 37, 35, 4, 7, -7, 2, -17, -13, 76, 17, -42, -35, -67, -1, -39, 16, -1, -43, -36, -16, -23, -15, -52, 13, -11, -15, 21, 4, -21, -5, -28, 24, -9, 28, -19, 70, 5, -31, -7, -45, -6, 8, -18, -27, 47, -50, 0, 0, 42, -7, 44, -14, 15, -29, -16, 13, -30, 21, 11, 35, 24, 8, 35, 14, 41, -43, 11, -12, 11, -26, 16, 28, -2, 53, -11, 35, -29, -4, -14, -8, 0, 7, 4, -11, 41, 30, 4, -33, -8, -18, -21, 32, -3, -18, -14, 31, 17, 36, 10, -22, -13, -32, -25, -19, 7, -14, 35, 6, 37, 47, 43, -43, 13, 23, -5, 54, -55, 69, -31, 26, -21, 13, -17, -14, -16, -29, -22, 4, -21, 17 ]

Wiest, J. Defendant was convicted of the crime of rape upon a 12-year old girl residing at his home in the country, and prosecutes review by exceptions after sentence. The learned circuit judge endeavored to keep error out of the case but the prosecuting attorney succeeded in getting before the jury the very matters the judge, by rulings, excluded, and these were so prejudicial to the rights of defendant as to require us to grant a new trial. We had occasion in People v. Root, 281 Mich. 239, to notice somewhat similar, but not so flagrant, acts of the prosecutor, and there held the error was cured by rulings and instructions,. but in the case at bar the infractions were so persistent and successful in circumventing the rulings excluding incompetent testimony that we cannot let it pass. We state but one incident. At the trial character witnesses gave testimony in behalf of defendant. On cross-examination of defendant he was questioned about a bill for divorce, filed by his first wife 25 years before the offense here charged. We quote from the record: “My first wife filed a bill for divorce in this court against me. Her name was Gusta and her lawyer was Tom Horseman. “Q. Your lawyer was Jerome W. Turner? “A. I didn’t have no lawyer. “Q. Didn’t you appear in the case and contest the divorce? “A. No, sir. I did not have any lawyer. I did not appear in the case and contest the divorce. I was married the last time the 25th of December, 1899, by a minister named Spadock, pastor of the St. Johns Church. My wife’s name was Gage. Her first name was Edith. _ “Q. Have you changed your habits any from the time you were living with your first wife from what they are today? “A. Yes, sir. “Q. You are a better man than you were then? “A. I calculate to be. “Q. Just how much better? “Mr. Chandler: I object to that question. “The Court: I will sustain it. “Q. At that time, in regard to your habit of using intoxicating liquors? “A. Sometimes. It is different now than what it was then. I don’t touch anything. I did at that time. “Q. Your habit of running around with immoral women, how does that compare with what it was then? “A. That was falsely accusing. “Q. I ask for an answer to my question. “Mr. Chandler: That was fair. He asked how it was different. “Mr. Miner: Now than what it was then. “The Court: He said it was false. Proceed. “Q. She did accuse you at that time of running around with lewd and immoral women? “Mr. Chandler: I object to it as incompetent and immaterial. “The Court: I think what she accused him of would be— “Q. She alleged in her bill for divorce upon which a divorce was granted against you in this court, that you were running around with lewd and immoral women, did she not? “Mr. Chandler: I object to it as incompetent and immaterial. “The Court: What she alleged in her bill of com. plaint I don’t think would be competent. “Mr. Chandler: I take an exception to this, trying to force something in the record that is prejudicial. “Q. Were you present when she was sworn and got her divorce? “A. No, sir. “Mr. Miner: On the question of whether or not he had an attorney in this matter at the time this divorce — or I wish to offer in evidence part of file No. 3019. State of Michigan, county of Shiawassee, in chancery. In case of • Agusta Courts v. Edward Courts. Stipulation waiving notice filed October 4, 1898. J. H. Collins, deputy county clerk. “Mr. Chandler: As to that I object to it. He didn’t say he didn’t have an attorney. . I understood he said he had an attorney, told who it was. “The Court: No, he said he didn’t have an attorney. “Mr. Miner: I asked if Jerome W. Turner was his attorney, he said not. Here is a piece of paper signed by Jerome W. Turner, solicitor for defendant. “The Court: What materiality is it in this case whether he had an attorney or whether he didn’t? This is collateral matter as to this case. This is a very remote matter. It is 1898. • “Mr. Miner: Character witnesses went as far back as 25 or 80 years. They said they didn’t know anything against him, and said he had always been a good American citizen and the reputation was good. The purpose of the examination is to show at the time he was living with his first wife that she obtained a divorce from him and the grounds of divorce were set out in the bill of divorce, and that this decree was granted, and that he had an attorney, but did not contest the case. That is the purpose of this examination. “Mr. Chandler: Whether that was true, how would that affect it one way or the other? What has it got to do with it? “The Court: I will sustain it.” The defendant had a right to a trial in accordance with the rules of evidence, unhampered by a circumvention thereof under statements of improper offers, followed by endeavors to get the excluded matters before the jury, and successful' to a point beyond possible elimination by instructions to the jury. We think the virus of such prejudicial matter inoculated and the prejudice thereof ran its course regardless of remedies applied. The conviction is reversed and a new trial granted. The defendant is remanded to the custody of the sheriff of the county of Shiawassee to await such further proceedings as may be proper. McDonald, C. J., and Bird, Moore, Steere, and Fellows, JJ., concurred. Sharpe, J., concurred in the result. Clark, J., did not sit.

[ 4, -22, 3, 13, -23, -36, -20, -27, 2, -14, -7, -48, 26, -6, 8, -18, 8, 3, -37, -3, 11, -8, 2, 28, -15, -4, 45, 40, -11, -35, 28, 32, -40, -10, -16, -27, 58, 8, -1, -8, -4, -50, -20, 13, -47, 5, 1, -54, -22, -32, 6, -45, -15, 37, 18, -20, 54, 42, -11, -9, 1, 43, -110, -45, -46, -32, -38, 16, -31, 11, -33, -56, -33, -30, -37, -26, -19, 33, -9, 20, -33, -26, 30, 25, -23, 12, 15, -29, -11, 3, 28, 48, -53, -26, -18, -15, 19, -6, 10, -27, -28, 5, -51, -1, -26, 55, -15, -8, 18, 22, 27, 10, 60, 11, -10, -36, 0, -18, 11, -30, 33, 18, 25, -7, 22, -3, -72, 12, 4, -57, -17, 32, 11, -15, 10, -2, -29, -21, 24, 6, 59, -25, 10, 51, 47, -27, -50, 45, -10, 29, -24, -22, 36, -5, 17, -23, -38, -41, 14, -43, -36, 0, -39, 10, 14, -8, 12, -13, 21, 6, -11, 23, 33, 29, 45, -9, -18, -32, -37, -18, -12, 63, -2, -12, 18, -17, 40, 0, -60, 39, -14, 8, 18, -48, 70, 12, -28, 27, 26, -30, -3, -33, 0, 19, 26, 3, -1, 21, 7, -26, -15, -12, -7, -38, -13, -19, -24, -14, -21, 1, -20, 0, -5, -38, -49, -71, -12, 45, -9, 44, 0, 1, -2, 17, -25, -10, 7, 2, 27, 16, 9, 32, 11, 26, -18, 1, -45, 23, -53, 15, 26, 20, -12, 31, -44, -7, 21, -21, -33, -37, 9, 37, -19, -6, 9, 9, 22, 25, -5, -52, 36, -20, 13, -19, -27, 0, -36, -5, -58, 22, 25, 41, 28, 44, -7, -13, 0, 37, 29, -19, 33, -22, -48, -36, 40, 30, 21, 31, -21, -29, 2, -51, -7, 8, 9, -11, 16, 15, -2, -36, -24, -17, 20, 25, 26, 14, -20, 4, -9, -16, -60, -15, -44, -32, -11, -11, 4, -57, 6, 12, -43, 17, 11, 30, 26, -36, 18, -6, 4, 20, 18, -42, 1, -8, -20, 7, -1, -5, 8, -24, 14, -28, 31, -11, -52, -28, -37, -60, 33, -42, 4, -7, 6, 28, 15, 13, 8, 11, 46, 21, 20, -14, -23, 16, 48, -2, 67, 3, -23, 65, -21, 19, 7, 25, -7, 17, -29, -60, -42, 35, -12, 44, 2, -11, -30, 13, -6, 18, -6, -18, -7, 12, 70, 2, -4, 23, -18, 20, -3, -2, 12, 4, 66, 15, 31, -1, -28, -2, 43, 8, -23, 9, 32, 19, 9, 12, -28, -15, 49, -40, 12, 0, 16, 12, 12, -15, -10, 44, 4, 34, -41, 34, -14, 25, -13, 15, 1, -27, 12, -2, 30, 2, 12, -23, 29, 19, 12, -8, -28, 0, 14, -1, -23, -17, 47, -45, -55, -53, -41, -8, 36, 5, 4, 28, 0, 21, 32, 61, 10, -43, 75, 12, 15, 6, 28, -5, -40, -48, 15, -39, 8, -16, -3, -24, 5, -39, -24, -3, -46, 55, 14, 10, -8, -48, 2, -4, 15, 4, 32, 28, 0, 22, 15, 11, -22, -32, 34, 16, -20, 13, 31, -21, 39, 10, -54, 6, 11, -40, -55, -54, 29, 22, -61, -21, 38, 21, -22, -75, -16, -24, -12, -11, 40, 23, 2, -13, 0, -31, 12, 31, 3, -6, -13, -40, -25, 17, -21, -9, 0, -24, -12, -13, 38, -15, 23, 30, -36, -32, 14, 0, 19, 2, -25, 20, -46, 6, 5, 1, 13, 27, 43, 38, 5, -17, 5, -2, -13, 10, 13, 10, -9, 38, 22, -22, 26, -36, -20, 5, -3, 2, 10, -2, 12, 15, -6, 41, 8, 47, -11, 3, 71, 30, 0, 9, 12, 41, 9, -20, -41, 31, -9, 0, -25, -45, 19, -10, -5, -52, -17, -43, -15, -13, -17, 36, 14, 14, -24, 13, 24, 38, 27, 7, 13, -19, 20, 89, -18, 29, -20, -50, -13, 1, 23, -5, 16, -40, -47, -36, 27, 3, 15, -3, -48, 61, 5, 61, 25, -4, 0, -34, 27, -42, 49, 12, 16, -17, 1, 12, 4, -45, 3, 9, 5, 33, 7, -33, -31, -13, 32, -19, -15, 1, 19, 22, -25, 42, 32, 10, -32, -25, -1, -29, 26, -15, -8, 6, 1, -44, 3, -53, -18, 12, -55, 12, 1, 20, 19, -32, -41, 71, 1, 9, 17, -4, 28, 46, 9, 6, 19, -73, 56, -46, 40, 39, -15, 27, -35, 16, 27, 0, 35, -21, -71, -25, -40, -15, 3, -51, 33, -3, 12, 0, 44, -9, -43, 38, 42, -19, -44, -21, 5, 24, 5, -32, -41, 31, -1, -4, 4, 1, -39, -59, -2, -11, -46, 58, 25, 15, 11, -20, 3, 24, -76, 19, 21, -11, 60, -14, 40, 33, 14, 5, -27, 41, -20, 3, -25, -11, 27, -2, 20, 34, 3, -67, -25, 40, 5, -9, 2, 4, 29, 45, -9, -13, -21, -50, 29, -30, 15, 2, 10, 7, 2, -31, -24, -16, 11, -24, -25, -15, -27, -30, 5, 42, -2, 4, 11, 0, -30, 23, 19, 41, 6, 9, 37, -15, 69, -41, 28, 24, 31, -4, 6, -17, -63, 4, -2, 5, -4, 6, -26, -32, -15, -76, 0, -9, 6, -3, 42, -3, -12, -8, 59, -49, -24, 33, 52, -4, -27, 27, 11, 16, 1, 16, -38, 36, 5, -37, -52, -3, 18, -5, 39, -1, -12, -6, -41, -30, -31, -34, 27, -2, 12, 36, -15, -42, 13, 26, -1, -20, 19, 11, 12, 27, 13, 0, -42, 7, -4, -44, -23, 27, 37, 22, -15, -15, 8, -35, -17, 39, 1, -14, -38, -18, -50, 3, 34, 43, 25, 10, 0, -13, -9, -8, -31, 38, -16, -1, 9, 48, -55, 24, -8, 27, 9, 74, -24, 36, -16, 16, -7, 53, -4, -2, -17, -41, 13, 44, -2, 47, 13, -2, 13, -11, -19, 8, 0, 42, 2, -50, -53, -16, -14, 34, 5, 1, 18, 9, -36, 2, -27, 31, -47, 40, 12, -10, 25, -75, -65, 7, -28, 23, -9, 44, -19, 18, -13, 21, -44, -26, -19, -12, 46, -12, -8, 11, -1, -47, 21, 26, -30, 71, 16, 49 ]

Moore, J. This case was commenced October 2, 1912, by writ of capias ad respondendum. The affidavits of the plaintiff and three others were filed. A motion was made to quash the writ of capias for various reasons. This motion was denied. The record does not show that any effort was made to review this action of the trial judge. A declaration was filed claiming damages in the sum of .$1,000. October 28, 1912, the plea of the general issue was filed. The case was called before a jury in June, 1914. After the jury was sworn, a motion was made to quash the writ of capias, which motion was overruled. The defendant preferred seven written requests to charge. The record does not disclose that any of them were given. The trial judge gave a general charge to the jury which returned a verdict for $1,100 in favor of the plaintiff. A judgment was entered upon this verdict, for $1,000. The case is brought here by writ of error. So many of the assignments of error relate to the charge, or the failure of the court to charge, that we quote from it as follows: “Gentlemen of the Jury: The verdict in this case will be one of two, depending upon how you look upon the facts. You will find for the plaintiff in the sum of $1,000, with interest at the rate of 5 per cent, from the 18th day of April, 1912, until today, that is two years’ and two months’ interest at 5 per cent, bn $1,-000, or it will be. no cause of action. The theory of the plaintiff is, and he proceeds upon this theory, that he was swindled or overreached by the defendant. His claim is that the defendant some time in April, 1912, told him (the plaintiff) that the business that the defendant, Frank Du Val, was engaged in was a prosperous business; that the year preceding that year he had made out of it clear $12,000; and further that this business he could have sold to David Stott, a half interest in the business for $2,500, but that as David Stott was not going to take an active part in.the management of the business, that he would prefer to sell to the plaintiff, who would take an active interest in it, and preferred to sell to him for $1,000. Now there, gentlemen of the jury, are two statements of fact, that the business had yielded $12,000 the year previous to 1912, and the further statement of fact that David Stott had made an offer of $2,500 for a half interest in the business. The plaintiff contends that he relied upon these statements as being true, and that he trusted the defendant and believed him when he made those statements, and in reliance upon'the truth of those statements he gave him $1,000 in cash. There is no -denial that the $1,000 was paid, but the defendant states that he made no such statement as the plaintiff •claims that he did make, and therefore he says that -the plaintiff’s case must fall because he didn’t make the statement. So the first question that you will have to determine is whether or not the defendant actually made those statements, and then, if you find that he did not make those statements, the verdict will be for the defendant. If you find that he did make those statements, you will have to further find, before, the plaintiff can recover, that the statements were false, and, thirdly, that the statements were relied upon by the plaintiff when he parted with his money. There is the issue. It is entirely an issue of fact. The court cannot aid you at all because the determination of disputed questions of fact rests with the jury, and the responsibility of determining them must be assumed and carried out by the jury. Now this business, I was about to say unfortunate business, that they were engaged in, was, so far as I am advised, a regular business. It is a peculiar situation that is presented here. Here are two parties engaged in a business which foments lawsuits and brings cases into court and presents cases to the jury, and here these parties now are taking a dose of their own medicine. They are here today to have a jury determine in a matter of litigation of this kind whether or not the plaintiff was induced to enter into this business by fraudulent statements of the defendant. The case is here, and must be considered by you fairly and conscientiously, and if you find that these fraudulent statements were made, and if they worked their fraud by reason of being false, and if the plaintiff, was induced to part with his money by reason of reliance upon them, then the plaintiff is, entitled to get back his money. If you find the statements were not made, or if you find that they were made but were true, or further if you find that they were made but were not true, but that the defendant did not rely upon them, but relied upon something else when he paid over $1,000 to the defendant, then the defendant is entitled to a verdict of no cause of action. Your verdict must hinge and be determined entirely upon what you find the facts in the case to be, and you must find the facts from the evidence as it comes to you from the witness stand here.” It is said that the court erred in denying the motion to quash the writ of capias. We have recited the condition of the pleadings. We think it too late, in view of what was done, to raise the question now. See Baxter v. Woodward, ante, 379 (158 N. W. 137). A number of assignments or error relate to the rulings upon the admission of testimony. We have examined all of them. Without discussing them, we content ourselves with saying they are without merit. It is said a verdict should have been directed because plaintiff had worked for defendant and might have verified the truth of the statements made to him, both as to the value of the business and as to the offer of Mr. Stott, and that he knew the business was speculative. The statements alleged to have been made were not simply matters of opinion, but were statements of fact, and the plaintiff, if he believed them, was justified in acting upon them. Mr. Stott denied he had made any offer for the business. Defendant admitted that he did not do anywhere near $12,000 worth of business the year before, but denied he had made the statements plaintiff attributed to him. This presented an issue of fact for the jury. In relation to the errors assigned because of the refusal to give the requests to charge, it may be said that nearly all of them contained statements it would have been improper to give. As to the other request, it was fully covered by the charge. Error is assigned upon the part of the charge allowing interest. Inasmuch as the judgment was taken but for $1,000, the error, if there was one, was harmless. Judgment is affirmed. Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.

[ 17, 29, 30, -12, 9, -12, 38, -31, 51, 48, 54, 17, 3, 59, 14, -25, 44, -9, 5, -54, -13, -16, 8, -29, 11, -6, 7, -18, -16, 6, 0, 13, -18, 17, -2, 25, 1, -8, 16, -38, -20, 53, 27, 11, -24, -19, -18, -31, 12, 18, 20, -49, 44, 5, -23, -34, -23, 15, -21, -29, 27, -19, 27, -35, -1, -39, -25, -34, 5, 42, -40, -10, 24, -26, 0, -70, -35, -38, -35, -43, 2, -15, 38, 31, -62, 46, 0, -14, -11, 32, 5, 30, -41, 30, -3, 24, 86, 34, 28, 27, -24, -5, -66, -8, -23, 0, -44, -30, -18, -13, 19, 19, 18, -12, 2, -9, -28, -23, -14, -83, 2, 38, 36, 15, 0, 15, 6, -11, -32, 49, -6, -21, -48, 18, -50, -5, 23, -7, 22, -43, 20, 25, -9, -27, -39, 44, -27, -13, -3, 20, -26, -11, 28, 26, 16, -50, -12, 6, 43, -52, 20, 32, -4, -36, -2, -10, 22, -64, -22, -15, -20, 32, -33, 6, -2, 10, -5, -41, -47, -5, -14, 40, -5, 26, 5, -2, -7, -21, 19, 17, 19, 6, -1, 18, 11, -42, 19, -32, 66, 11, -7, 4, -22, -6, 16, 26, 21, 16, -17, 10, -2, -9, 32, -15, -2, 0, -60, -44, 41, -53, -64, -2, -39, 43, -36, -13, 42, -2, 5, 13, -48, 7, -22, -3, 34, -64, 32, -11, -24, 19, -86, 32, 11, -32, 2, -22, -9, -9, 33, 64, -17, 95, -53, -19, -46, -26, 9, 13, -30, 0, -15, 37, -18, -24, 52, -60, 28, 20, -10, 25, 14, -50, 20, 0, -27, -20, -20, 7, 7, -45, 18, -28, -22, -14, -29, 19, 46, -34, -4, 0, 19, 57, 10, 29, 35, 36, 60, 18, 18, 1, -38, -1, -35, -16, 14, 5, -33, -33, -57, -8, -2, -31, -4, 21, 11, -17, -10, -38, 2, -31, 13, 0, -12, -15, 4, 16, 75, -58, -28, 19, -14, 48, -13, -89, -80, -2, 7, 19, -32, -15, 21, -2, -8, 20, 0, 1, -5, -16, -44, 11, -111, -26, 11, 5, 61, -28, 11, 1, 0, 28, 46, -29, 25, 32, 51, 49, -17, 4, 17, 48, 5, 21, -12, -26, 6, -46, -42, 1, -27, 42, -23, -3, -13, -4, 16, -33, 18, -63, -24, 18, -46, 41, -16, 14, 19, 21, -13, -30, -34, -20, -19, 36, 13, -39, -48, -28, -3, -5, 29, 23, -15, -22, 16, -4, -7, -46, -4, -9, 31, 49, 67, 17, 10, -25, 46, -3, -9, -17, -5, -54, -51, 22, 16, -37, 0, -17, -1, 21, 20, -8, 2, 40, -38, 15, 13, -28, -30, -22, 38, 22, -16, 10, 5, 26, -17, -1, 37, -1, 32, -12, 49, 17, -6, 19, -3, 18, 0, -8, 5, 0, -7, 15, 4, -37, -52, 12, 19, 13, 8, -9, 11, 61, 23, -52, -23, 1, -21, 11, -67, 16, 39, 0, -3, -20, -41, 20, -18, 18, -18, 8, -9, 27, -21, -1, 0, 23, 35, -14, 0, 20, -36, -8, -4, 1, -20, 22, 0, 37, -10, 7, 30, -33, -11, 48, -15, 1, 37, 37, 4, -52, -17, -16, -13, -52, -26, 13, 20, -56, -1, 23, -60, 47, 42, 35, 15, 30, 14, -17, 40, 46, 62, 32, 32, 4, -29, 31, 10, -27, -1, -51, -25, 13, -38, 4, 60, -39, 18, 0, 6, -19, -16, -8, 16, 39, -36, 20, -42, 8, -2, 19, -26, -22, -3, 20, -20, 28, 16, 33, -28, 12, 26, 8, 2, -7, 31, -28, 23, -27, 7, 22, 1, -26, -28, -47, -23, 10, -10, 2, -24, -5, 13, 36, -7, 2, 47, 20, -5, -17, 34, 23, 45, -1, -34, 18, 17, 3, -26, -19, 15, 42, 20, -38, -4, 3, -28, 27, -32, 63, -9, -24, -22, 32, 29, -35, 1, 1, -11, -6, 23, -35, -44, 6, 27, 16, -12, -18, 26, -26, 0, -10, 8, 8, -23, 34, 24, 6, 27, 19, -32, 9, -19, -52, 90, -52, 42, -81, -22, 9, -31, 27, 41, 36, -15, -24, -38, 1, -1, -6, -3, 39, -44, 7, -31, -1, -19, 5, -11, -1, 7, -40, 8, -39, -30, 39, 19, 5, 34, 39, -10, -18, -9, -4, 9, -11, 6, -20, -2, -5, -23, -27, -2, -44, 86, 12, 37, 41, 59, 27, -5, -28, 28, -9, 0, -9, 12, 56, -2, -48, -47, -27, -43, -38, 7, -14, 49, 25, 10, 5, 9, 16, -26, 17, 38, -3, 26, 3, -22, 35, 12, -32, -38, 31, 15, -37, -32, 23, 17, -28, 18, 31, -24, -20, 23, -37, 3, 50, 91, -17, 32, 37, -50, 41, 4, 43, 38, -66, 12, -30, 28, 53, 39, -65, -53, 36, -32, -8, 9, -21, -5, -36, -25, -2, -11, 13, 51, -31, 43, 46, 1, -42, -30, 18, 1, 7, -12, -18, -17, -17, -2, 2, -10, -13, 28, 1, 17, -20, 1, 44, -28, 8, 44, -21, -52, 35, 16, 35, -4, -41, -49, 19, -9, -20, -4, 57, 102, -45, -12, 31, -56, -28, 11, -6, -16, -2, -62, -36, -3, -32, 43, -26, 41, -19, -13, 38, -16, -26, -24, 37, -8, -30, 23, 20, -17, 0, 6, 17, 9, -6, 18, 0, -21, -22, -42, 66, -10, -14, 43, -67, 6, 53, -5, -2, 40, -33, 46, -17, 10, -44, 43, -3, 11, 60, 33, 5, -5, -32, -24, -31, 42, 35, 32, -32, 0, -48, -35, 29, 18, 25, -33, 40, 22, 15, -35, 32, -10, -5, 7, 0, 30, 23, -13, 53, 4, -28, -55, 6, -20, -45, -13, 21, 10, -8, -38, -19, -25, -27, -18, 18, 12, 24, -35, -10, -43, 19, 21, -10, -73, -11, 2, 1, 1, 33, 1, 0, 4, -14, -16, 1, -1, -3, 48, -56, -23, -10, 16, -17, 14, -7, 43, 40, 18, 22, -43, 48, 31, -1, -3, 28, -10, -31, 7, 56, -36, 14, -22, -35, -44, 13, -27, -8, -25, -25, 15, 24, 15, -14, 36, 36, 17, 3, -42, -19, 23, 43, -31, 35, 10, -11, -16, -9, 19, 58, -9, 47 ]

Clark, J. Plaintiffs, by bill, asserted prescriptive right to use an alley, and sought to have decree establishing such right and protecting it by injunction. Defendants, owners of lots abutting on the alley, contested. The bill was dismissed. Plaintiffs have appealed. ■The block between Earl, Cherry, and Thornapple streets, as platted,' in Grand Rapids, is somewhat triangular in shape, Earl street lying along the base. From Earl street east the alley extends into the block toward the apex 200 feet, having four 50-foot lots abutting on each side, lots 5, 6, 7, 8, 9, 10, 11, 12, and ending at the side of lot 4, which extends across the block from street to street. The plat, recorded, recites that— “The alley in the rear of lots 5, 6, 7, 8, 9, 10, 11 and 12 is private property held in common for the use of said lots and is 20 feet wide by 200 (feet) long.” Plaintiffs, for about 20 years, have owned a part of lot 4, including the part that adjoins the easterly-end of the alley. It may be said that for practically all of this time they have resided on the property. It is their claim that during the first 15 years, approximately, there was a gate or gates at such end of the alley; that they used the alley freely, frequently as a foot path, as a way for horses and vehicles, as a way of ingress and egress, and that during the last 5 years, or nearly so, there was no gate, the way was open; that they used it just as freely as before, and that lately they built a garage on their lot, near and facing the end of the alley. Their testimony to such effect is supported by the testimony of a large number of witnesses, many of them disinterested. Defendants, on the other hand, claimed and testified that, during such first period, there was no gate at the said end of the alley; that there was a fence; that the fence along the west side of lot 4 stood and was maintained across such end of the alley; and they contradicted plaintiffs’ showing of use of the alley. Defendants likewise are supported by the testimony of a large number of witnesses, many of them disinterested. This sharp conflict in testimony was passed on by the trial judge. He found with defendants. If the facts are as claimed by defendants, it is hardly necessary to say that plaintiffs have no case. We have read the record carefully. The trial judge had the advantage of seeing these witnesses and hearing their testimony. We are not persuaded that his conclusion should be disturbed. It is therefore not required that we consider the question, well briefed by counsel, of whether the facts as claimed by plaintiffs are sufficient to establish prescriptive right. Decree affirmed. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ 0, 63, 7, 0, -19, -2, 12, 19, 1, 49, 46, 3, 18, 25, 0, 24, -44, -1, -10, 28, -16, -7, -6, -16, 22, 7, 42, -4, -3, 47, 36, -35, -31, 26, -4, 16, 38, -20, 4, 28, 14, 4, -18, -57, 62, -24, 46, 0, 66, 5, -49, 5, 6, 6, -40, -50, -44, 11, -40, 28, 13, 0, -20, 1, 29, 4, 13, 15, -6, -33, -19, 1, -37, -44, 17, -19, 41, 16, -11, -2, 1, -17, 31, 16, -25, 20, -16, -50, -35, -54, -36, -52, 18, 39, 43, 30, 46, -16, -5, -45, -13, 55, -36, 5, 25, -9, -44, -18, 31, -22, -21, -2, 21, 14, -8, -34, -12, 12, 16, 8, -18, -28, -12, 14, -44, -7, -51, -31, -48, -5, 12, 3, 2, -6, 10, 48, -20, 21, -8, 8, 11, 3, -6, -2, -17, 3, -67, 37, -2, -27, 2, -17, -25, 15, 6, 4, -16, 0, 51, 14, 31, -39, 15, -20, -19, 11, -49, 30, 15, 16, 49, -50, 7, -28, 1, -5, 10, 22, -34, -41, 38, 49, -4, 8, -18, -28, -27, -20, -36, 28, 25, 5, -13, -24, -14, 36, 9, 28, 1, -42, -25, -4, 22, -32, 22, -33, -20, 5, -8, -7, -42, -19, 1, -53, 97, -7, -8, -25, 21, 1, 14, 5, -18, 33, -37, -4, -7, -36, -3, -21, 13, -28, 6, 15, 5, 11, 14, 10, -13, 24, 5, 25, -66, -43, 1, 31, 0, 58, 60, 33, 2, 4, -37, -22, 7, -11, -3, -53, 16, 14, 44, 23, -12, -50, 51, 33, 5, 1, -46, 21, -34, 18, -5, 42, -30, -69, -26, 28, -35, -13, 13, -28, -13, 34, 5, 7, 33, 21, -11, -12, -11, 21, -39, 0, 5, 2, 12, 14, 34, 5, -39, -30, -27, -27, 23, -10, 11, -25, 69, 18, -6, 11, 53, -23, 15, 40, -5, 27, 33, -33, 45, 16, -19, -2, 12, 55, 36, -16, -12, 11, 11, 20, 20, 36, 12, 15, 3, -38, -27, 5, 64, -18, 10, -8, 63, 19, -12, 7, 27, -7, -22, -9, -31, -15, 2, -62, -2, -11, -56, 32, 46, 9, -8, -6, -3, -30, -45, -27, 12, 3, -46, -5, -8, 30, 21, -27, 36, -51, -1, 44, 10, -42, 41, 15, 70, -8, -18, -1, 1, 15, -55, -29, 10, 5, 47, -6, -33, 7, -10, -17, 2, 17, -7, -12, -44, 1, 26, 0, 49, -30, -11, -13, -4, -1, -28, 41, -40, -13, 34, 14, 24, 10, 6, 2, 7, -17, 9, -48, -47, 4, -38, 12, -5, -8, 20, 2, -65, -30, -60, -3, -43, -36, -34, 13, 29, -69, -27, 9, 9, -16, 40, 75, -31, 10, -47, -13, 23, 14, 24, -5, 15, -24, -48, -15, 8, -9, -42, -49, -6, -2, -10, 53, 9, -14, -8, -1, 25, 31, -49, 14, -19, 8, 31, -10, -21, -7, 46, 28, -4, 11, 39, 43, 56, 6, 25, -26, -10, 21, 3, 26, -6, 1, -66, -14, 39, -20, 26, 46, 14, 45, -17, 14, -8, -6, -29, 51, 17, -19, 11, -7, 23, -56, 3, -44, -18, 41, 29, 11, 2, -15, 19, -28, -29, 4, -9, 5, -20, 31, 18, 3, -25, 37, 47, 27, 1, 10, 20, -3, 37, -20, -18, 4, 0, -18, -10, 31, -25, -39, 10, 16, -44, 0, 12, -31, 55, -11, 44, -46, 13, 37, -33, -1, 40, -54, -47, -22, -9, 4, -32, 37, -35, 11, -28, 4, 22, 16, 2, 51, -12, 53, -32, -18, -16, -15, 0, -3, 5, 47, -1, 18, 45, -33, -18, -3, -13, -41, -20, -43, -12, -9, 14, 0, -31, 26, 40, 39, -12, -37, 70, 0, 24, -30, -29, -13, -24, -38, -25, 60, 0, 31, -69, 27, 44, 26, 60, 8, 43, 16, -30, 23, 24, 24, -11, 28, 26, 28, -4, 3, -44, -2, -68, 76, 57, -11, 26, -21, 37, -20, 31, -24, 9, 5, -12, -17, -26, -56, 14, -36, 5, 2, -27, 35, 33, 68, 50, -22, 11, 45, 43, 1, 21, -25, -21, -4, 52, 2, 0, -28, 40, 47, 30, -33, 0, 1, -15, -1, -11, -26, -10, 7, -14, -25, 36, 0, -26, 7, -16, -1, -14, -23, 16, -5, 39, -18, 5, 13, -26, 5, -15, -3, 45, -2, -37, -35, -4, -29, -16, -18, -15, 30, 3, 0, 12, -32, -64, 31, -14, 4, 35, -74, -15, -15, -23, 16, -36, -20, -21, 3, -37, 3, 7, 19, 5, 5, -19, -40, -16, 1, -29, -28, 18, -55, -12, -15, -38, -76, -3, 9, 47, -26, -29, 19, -37, -27, -60, 18, -1, -11, 22, -19, -22, -41, -6, -14, 23, 21, 11, -10, 16, 43, -1, -22, -18, -8, -19, 16, -6, -35, 8, -20, 1, 14, -2, 53, 25, -56, -42, 37, 19, -7, -16, -9, -24, -52, -8, 37, 14, 31, 36, 0, -26, 30, -2, -27, 9, -8, -2, -51, -1, 10, 70, -15, 21, 27, -4, -25, 25, 48, 20, 6, -17, 31, -42, 3, 7, -11, -3, 3, -18, -8, -24, 14, 27, -13, 15, 11, -19, -8, -1, 39, 84, -33, -18, -16, 15, 0, -4, -45, 24, 12, -18, 12, -4, -14, -5, -4, -41, -10, -6, 13, -14, 31, 0, 15, -9, -17, 42, -24, -2, 5, 18, 17, -11, -12, -28, 4, -25, -4, 30, -50, -63, -5, 3, 7, -33, 43, -6, 22, 10, -73, -22, -32, -21, 1, -4, -20, -47, 0, -7, -3, 2, 20, -7, -18, -51, -22, -28, 18, 9, 76, -34, -24, -24, -42, -29, 10, 36, -9, -34, -2, 0, 27, -3, 51, -2, -22, 1, 11, 7, 0, -23, 3, -7, 24, -2, -2, -73, -40, -28, 0, 13, 51, 8, -40, 28, -28, 61, 27, 12, 32, -55, -59, -21, 25, 4, -35, -36, 47, -20, -54, 45, -38, 27, 60, -10, 68, -25, -1, 14, 5, -40, 44, 7, 52, -20, 11, -73, 75, -33, -7, 1, 42, -6, 23, 29, 6, 30, 1, 17, -38, -62, -5, 65, 46, 49, 37, -27, 50, -11, -26, 13, -48, -21, 47 ]

Moore, J. The Concrete Products & Supply Company, a Michigan corporation, was, prior to the 18th day of August, 1922, the owner of real estate in the city of River Rouge. The business of the corporation was that of manufacturing cement blocks. On the 18th of August, 1922, a petition for voluntary dissolution was filed under sections 13568-13570, 3 Comp. Laws 1915, inclusive. On the 28th day of October, 1922, an ex parte order was entered appointing Albert R. Heuer, one of the defendants in this case, receiver of said corporation. On the 2d day of February, 1923, Mr. Heuer filed a petition for leave to sell all of the assets of the corporation. On March 1, 1923, Albert R. Heuer as receiver conveyed all of the real estate of the company to George V. Garner, another of the defendants in this case. The consideration was stated to be $4,800. At that time the property was subject to a mortgage in the process of foreclosure. This mortgage was owned by Albert L. Montie and his wife. The period of redemption on this foreclosure expired on March 2, 1923. On the 28th day of February, 1923, a quitclaim deed was executed by the mortgagees to Mr. Garner. A decree of dissolution was entered on the 20th day of December, 1923. Other proceedings were had which it is not necessary to recite here. The bill of complaint in the instant ease was filed for the purpose of setting aside all the proceedings had to dissolve said corporation, and also for the purpose of declaring null and void all of the doings of Albert R. Heuer as receiver of said corporation. It was further the purpose of the bill to regain for the corporation, for the benefit of the stockholders and creditors, the assets of the company and especially the real estate. The plaintiffs are stockholders and creditors of the Concrete Products & Supply Company and the principal defendants are Albert R. Heuer as receiver; Albert R. Heuer, individually; Herman Coldnitz and George Garner. The corporation was made a party defendant as well as the directors. The bill also asks for an accounting by Albert R. Heuer as receiver, and prays for the appointment of a temporary receiver to take charge of the property. The decree provided: (1) That the receiver’s deed from Albert Heuer, as receiver, to George V. Gamer be set aside and held null and void. (2) That the quitclaim deed from George V. Garner to Albert R. Heuer individually and Herman Goldnitz, be decreed' to be null and void. (3) That the quitclaim deed from Albert L. Montie and wife to George V. Garner be decreed to be in legal effect a discharge of the mortgage lien and efficacious for that purpose only. The sum of $2,435.65 was ordered to be paid by plaintiffs, the Concrete Products & Supply Company or its receiver to defendants Albert R. Heuer, George V. Garner and Herman Goldnitz, the same being for the sums expended by them on the real estate, less the amount of revenues derived therefrom while in their possession. The decree also gave said parties a lien on the real estate for that sum. It decreed the Concrete Products & Supply Company to have good title to said real estate in fee simple as against Heuer, Garner and Goldnitz. The ease is brought into this court by the appeal of Mr. Heuer, Mr. Goldnitz and Mr. Garner. The record discloses that, when Mr. Heuer was appointed receiver, the real estate was appraised as of the value of $7,000. One of the appraisers was the defendant Mr. Goldnitz. Upon the trial. Mr. Heuer, Mr. Goldnitz and Mr. Garner were called as witnesses under the statute. Mr. Heuer testified that a fair value of the real estate when it was sold was $7,000, that it was sold to the highest bidder, Mr. Garner, for $4,800. The bid was paid as follows: Mr. Heuer and Mr. Goldnitz gave their joint note to the Rouge State Bank for $3,000, and a cashier’s check was issued for the same amount payable to the order of A. R. Heuer, receiver. Mr. Heuer and Mr. Goldnitz were both stockholders in the bank. Mr. Goldnitz was a director. Mr. Goldnitz met Mr. Garner on the street and delivered to him the cashier’s check. Mr. Garner delivered the check to Mr. Heuer as a payment of $3,000 as a part payment of the bid for the land, and Mr. Heuer trusted Mr. Garner for the balance of $1,800, and deposited the $3,000 check in the bank, and it was deposited to his credit as receiver. A few days later Mr. Heuer as receiver drew his check of $2,820.25, which was delivered to Mr. Montie, who had foreclosed his mortgage, just a few days before the redemption period would expire, and on February 28, 1923, a quitclaim deed was made by Mr. and Mrs. Montie to Mr. Garner. On March 12, 1923, Mr. Gamer made a quitclaim deed to Mr. Heuer and Mr. Goldnitz. It is claimed by Mr. Heuer, Mr. Goldnitz and Mr. Garner that the consideration of the last mentioned deed was $5,500 and that Mr. Gamer made $700 by his part in the transaction. Mr. Heuer and Mr. Goldnitz were at this time partners in real estate deals,, and they both admit the real estate was worth $7,000, while disinterested real estate men testified it was worth from $13,200 to $14,000. It is the claim of Mr. Heuer, Mr. Garner and Mr. Goldnitz that Mr. Garner was the highest bidder, and that they all acted in good faith. Mr. Gamer testified he bought the property for himself, but admitted he told Mr. Bresnahan that he bought the property for Mr. Heuer. Another witness testified that he told him the same thing. It has already appeared that Mr. Garner never put a dollar of his own money into the transaction, but that the money was obtained from a bank in which Mr. Heuer and Mr. Goldnitz were stockholders upon their joint notes. To permit such ,a transaction to succeed would be a travesty upon justice. See 34 Gyc. p. 254, under title of Receivers, under the sub-title Personal Interest and Advantage. The decree is affirmed, with costs to the appellees. McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred.

[ 3, 57, 5, 38, -49, 47, -29, 16, 54, -19, 0, 20, -13, 4, -9, 13, 19, 0, -21, 10, 14, -9, -38, -76, -2, 2, -13, -28, -16, -3, -30, -58, -4, -36, 28, -1, -11, 17, 34, -13, -46, 37, -6, 1, 34, 11, 67, -6, 33, -8, 33, 4, 49, -21, 3, -24, -40, 16, -3, -11, -1, -33, 44, 2, 20, 22, -7, 40, 22, -8, -45, -33, 12, -24, 23, -8, 20, 2, -37, -88, -9, -17, 30, -64, -57, 26, -43, 58, -20, 25, -18, 8, -30, 24, 15, -14, -18, 41, -1, 10, 14, -32, -49, 44, 20, 4, -34, 5, 6, 5, -21, -18, 42, 18, 10, -16, -57, 19, -10, -15, 21, 6, -14, -39, 32, 40, 10, -7, -23, 39, -10, -17, -27, 16, -29, 2, -4, -17, 20, 20, -69, 48, -12, -23, -47, 96, 10, 0, 15, -20, -41, -68, 6, 23, 9, -32, 14, 23, 27, -7, -27, -72, 46, -20, -71, 15, -7, 11, -75, 0, -15, 1, -14, -58, -39, -9, 13, 9, -20, 26, 34, -4, 28, -3, 18, -40, 27, -11, 31, -31, 28, -26, -26, 13, -78, 15, -15, 31, 58, 22, -15, -41, -59, -36, -12, -10, -2, 14, -3, 22, 14, 42, 8, -32, -23, 9, -96, -22, 42, -9, 5, -30, -7, 34, 9, -32, 18, -15, -3, -28, -12, 7, 4, 18, 20, 25, 63, 1, 7, 30, -31, -17, -29, -12, -17, -28, -15, 6, -6, 11, -48, 10, -46, 28, -57, 2, -41, 0, 32, 15, 3, 39, -16, 47, 1, -19, 16, 34, -30, 57, 2, 16, -4, 0, -11, -14, 2, 52, -32, 4, 13, -61, -22, -21, 21, 30, 5, -17, -27, 7, 3, 32, 41, -16, -28, 14, -39, -68, 9, -1, -32, 14, -6, -18, 0, 18, -60, -29, 8, -30, 11, 0, 16, 0, 15, -2, 37, 75, 5, 9, 67, 52, -11, 33, -1, -13, 38, -41, -50, 32, -21, 24, 0, 5, -39, -3, 13, 0, -33, 18, -15, -4, 43, 14, 9, -6, -4, 28, 12, 5, -69, -12, 14, 18, 45, -2, 12, 23, -32, 0, 28, 10, 2, -7, 3, 59, -48, -18, 11, 8, -18, 64, -26, 45, 14, -12, -65, 16, -62, -12, -21, 0, 63, 11, 8, 11, 16, -3, 3, 11, -30, -25, 22, 10, -18, -49, -11, 15, -19, 21, -19, 49, -20, -28, -18, -13, 13, 23, -13, -12, 19, -28, 28, -10, -36, -33, 17, 17, 51, -12, 40, -1, -8, -35, 15, -25, 2, -3, -42, 1, -52, 33, -8, -41, -17, 25, 1, -14, 16, 0, -18, 5, -32, 8, 42, 18, -52, -27, 70, 4, -14, 18, 27, 20, 9, -4, -8, -21, 54, -6, 14, -15, 17, -59, -2, 21, 10, -12, -12, 26, -21, 10, 36, 11, -68, 5, 22, 30, -15, -19, -31, 45, -11, -7, -38, -16, 4, -23, -34, 2, 55, -31, 28, 26, 3, -7, -18, 3, 9, 4, 17, -17, 10, 31, -2, 6, 8, -4, -9, 42, -28, -9, -61, 25, 12, 13, -42, 31, 43, 55, -14, 16, -14, 26, -40, 62, 54, 80, 15, -37, 53, 9, -18, 0, -9, 53, -3, -32, -16, 4, -8, 6, -11, -31, 23, 39, -23, 3, -14, -14, 10, 10, -14, 19, 17, -52, 3, -22, -18, 3, -27, -33, -5, -39, 40, -57, -27, -46, -12, 22, -54, 4, 26, 4, 18, -5, -33, 5, -15, 10, 16, -8, -66, -40, 18, 46, 23, 8, -18, 28, 3, 25, 0, -36, 23, 23, 18, 47, 12, -6, -47, -6, -17, -14, -65, -49, -25, 9, 16, 0, -21, -28, -5, 5, 21, 3, 22, 19, 25, 54, -3, -5, 14, 23, 26, 16, 21, 35, -35, 67, 3, 10, -34, -22, 1, -6, 55, -28, -47, -41, -15, -12, 2, 5, -32, 11, 20, 0, 20, 21, -22, 15, 58, 6, -10, -29, 37, -50, 72, -44, 16, -22, -8, 2, 6, 3, 34, 14, -11, -22, -11, 28, 3, -36, 1, -27, -30, 1, 31, 93, 31, 27, -43, 31, 8, -4, 27, 0, -15, -31, -57, 8, -14, -28, -10, 26, 6, 30, 32, -36, -29, -7, 16, 63, -12, 56, -54, 14, 5, 1, 0, -72, -16, 24, -33, 67, 12, -14, -6, -20, -7, -48, 46, 2, 36, 0, 3, 4, -29, -8, -4, -8, -6, -17, 25, 44, -34, -6, -55, 0, 45, -42, -58, 2, 6, 0, 27, 47, 16, 10, -37, -26, 73, 12, 53, -7, -25, 10, -70, 0, -7, -3, 2, -25, 8, 38, 16, -27, 50, -35, -55, 8, -31, -30, 17, 8, -3, 15, 52, -13, -1, -26, 32, 19, -8, -43, 54, 35, 30, 7, 3, 3, -1, -3, -44, 60, 63, -30, 14, -21, 6, 6, -21, -8, 38, -13, -8, 1, 8, 33, 5, 17, 18, -32, 44, 13, -48, 7, 11, 14, -31, -14, -24, -21, -3, -22, -24, 58, 3, 14, 54, -32, -36, -3, 26, -3, 30, 17, 43, -59, -47, -22, 12, -18, 24, 19, -2, -15, -65, 50, 8, -16, -10, 5, -34, -5, -46, 5, -1, -26, 50, -8, -22, 13, -14, -20, -47, -11, 10, -44, 38, 50, -7, -44, -27, -31, 4, -16, -6, -48, -13, 12, 70, 2, -14, -1, 56, -6, -30, 86, -33, -10, 2, -26, -14, -34, 57, -2, 25, -26, -20, -13, 37, 48, 3, 31, 18, 58, 30, 4, -12, 4, -13, -19, -50, -3, 34, -26, 0, 3, -27, -30, -54, 12, -42, -30, -32, 69, 6, 30, 18, 0, -8, 17, 7, -38, -39, -38, 21, -21, 5, -11, -25, -10, 23, -3, 62, 11, -42, -10, 6, 12, 3, 38, 6, 13, -8, -16, -5, -44, -14, -49, -4, 0, 48, 18, -7, -28, 22, -14, 19, -13, -44, -19, -30, 10, 23, 1, 56, 26, 21, 8, 32, 34, 66, -60, 39, 19, -26, -27, -4, 27, 31, 33, -18, -62, 28, -8, 17, -35, -17, -13, 5, -16, 14, -31, 45, -36, 7, 42, -32, -5, -12, -3, -31, 6, -12, 67, -2, -23, -8, -17, -41, 53 ]

Clark, J. Plaintiff is a mutual fire insurance company. Defendant John G. Helli was a policy holder, his application stating: “I accept this insurance subject to the articles of association and the rules and regulations and by-laws of said company now in force or that may hereafter be in force.” A by-law provided: “The annual assessment of this company shall be due and payable on the first day of October, in each year. To all assessments not paid during the month of October, there shall be added ten per cent, for the month of November, and an additional five per cent, for each month thereafter until paid.” Defendant owed $14.40. He did not pay during October. His policy was canceled. Plaintiff sued in justice’s court claiming the amount of the assessment and the monthly additions provided by the bylaw. Defendant had judgment. Plaintiff appealed. Defendant prevailed in the circuit court. Plaintiff’s application for writ of error (Act No. 155, Pub. Acts 1928) was granted, it being thought that the question was on the validity of the quoted by-law. But that question is not presented. In the justice’s court, plaintiffs bill of particulars claimed the amount of the assessment and the monthly additions provided by the by-law. No claim was made in that court for legal interest. 2 Comp. Laws 1915, § 5997. Defendant tendered into court the amount of the assessment and all legal costs. Toward the close of the trial in the circuit court, plaintiff abandoned its claimed right to recover the said additions under the by-law and sought to add to the amount of its demand interest at the legal rate. Interest may be recovered although it is not claimed or demanded in the declaration. 38 C. J. p. 257. The contract was not usurious. State Mutual Rodded Fire Ins. Co. v. Randall, ante, 210, and authorities there cited. Defendant ought to have tendered in damages what he, on his own theory at least, rightfully owed, $14.40, and interest at 5 per cent, per annum from the due date, and plaintiff was entitled to judgment for that amount. Judgment reversed, with costs to plaintiff. New trial granted. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ -20, -20, -16, 0, 36, 24, 34, -56, 37, 35, 25, 47, 49, -15, -15, 2, -31, 8, 5, 25, 0, -47, -19, 10, -46, -25, 26, -16, 16, 17, 7, 3, -116, -42, -30, -1, -37, -26, -6, -1, 36, 13, 43, -74, 7, -29, -15, -36, 45, 23, 43, -15, -20, -16, -38, -1, -3, -34, -38, 4, -18, -11, 22, 26, -24, 36, -11, 30, 32, 16, 1, 35, -3, 48, -21, 6, -17, -50, -43, -15, -20, -27, -17, 22, 1, 25, -17, 6, -9, 7, 1, 0, -31, -25, -15, 9, -20, 7, -8, 53, 14, -19, 2, 5, -23, 12, 2, -65, -19, -11, -16, 43, 19, -21, 32, -30, -29, -16, 10, -32, 3, 20, 9, -44, -22, 28, 2, -3, -13, 25, -39, -22, 13, 17, 31, -19, -20, -33, -12, -10, 12, -37, -17, -11, -12, 53, 23, -54, -18, -3, -23, 22, 16, 10, -23, 37, -7, -9, 37, -108, 34, -22, -10, 20, 12, 13, -22, 25, -18, 11, 23, -49, -17, -8, 40, 49, 37, -86, -13, -24, -15, 9, -4, 15, 68, -11, 10, -32, 18, -70, 38, -53, -50, 17, -18, 19, 20, 53, 26, -29, -13, -25, -4, 2, 19, 0, 40, 10, -11, -10, -25, 3, -24, -51, -22, 63, -9, 0, -43, -55, -24, 29, -38, 8, -1, -36, -3, -23, -22, -11, -22, -21, 9, 12, -18, 20, 16, -30, 51, 36, 18, 16, -38, 6, 45, 30, 7, 0, 1, 15, -30, 7, -4, 28, -22, -37, -5, -28, -21, 15, -67, 40, -12, -40, -17, -29, 0, 2, 26, 11, -32, 20, 1, -33, 19, -73, -19, -18, -49, -20, 37, -11, -36, -24, -27, 15, 10, 28, -21, 3, 3, -27, 53, -30, 31, 46, -1, 11, 10, -50, 16, -24, 17, 28, -1, -3, -37, -30, -40, -20, -35, 8, -47, -1, 52, -60, 4, -9, -17, -54, 30, 15, -2, -16, 0, -7, 67, -26, -6, 18, -31, -34, 38, 12, 18, -15, -1, 31, -3, -6, 54, 27, -6, 2, -28, 78, -8, -5, -44, 20, -92, 30, -71, -1, -15, -10, 63, -38, -33, 32, 58, 1, 22, -26, 51, 17, -5, 18, 8, 22, 15, 8, -29, -67, -25, 6, -28, 50, -64, 43, 4, -26, -31, 18, 43, -16, -7, -12, -69, 0, -25, -5, 9, 21, 23, -39, -49, -4, -35, 18, 44, -2, -3, 11, -12, -1, -14, 14, -3, -25, -19, -14, -4, -56, -15, 26, 38, -3, 1, 31, 60, -30, 20, -24, -10, -57, 38, 2, -3, 1, 0, 18, -26, -17, 24, -10, -67, -36, -10, 14, 3, 18, -25, 11, 5, -82, -47, 3, 17, 3, 14, -11, 21, 12, -39, 53, -6, -4, 29, 1, 30, -24, -2, 29, 32, 0, 23, -4, 38, -9, -11, -7, -37, 7, -60, -2, -50, -41, -55, 34, 3, 29, 5, -20, -19, -6, 19, 37, -5, 36, 40, 0, -19, -11, -7, 6, -37, 12, -20, -58, -38, -13, -25, -23, 32, 12, -3, -19, 11, 31, -30, 36, 77, 28, 17, 47, 16, 24, 10, 2, -7, 5, -70, -5, -8, -32, -7, 29, 47, -2, 18, 21, 14, -45, -26, 50, 25, 29, -22, -15, -22, 29, 18, 20, -16, 12, 24, -21, -2, 14, -23, -41, 60, -15, -17, 43, 37, -3, 23, 42, 3, 7, -5, -29, -16, 0, 8, -9, -3, -61, -10, -17, -25, 0, -1, -1, -33, -18, 16, -13, -61, -9, 19, -67, -19, 38, 0, 13, -8, 23, -15, 43, -25, 28, 21, 7, 31, -25, 11, 32, -40, 26, -80, -22, 16, 35, 48, -14, -5, 9, 20, 2, -25, 13, 0, 12, 24, 9, 39, -9, 47, 20, 32, 25, -4, 9, 67, -11, 4, 29, 40, -30, 5, -17, -19, 6, 11, 63, -35, 44, -47, -12, 33, 23, 7, 25, -22, 31, -22, -62, 0, 45, -19, 40, -37, -15, -14, 6, -8, -40, -31, -20, -2, 37, 2, 10, 52, -22, 7, 33, 7, -10, 47, 35, 48, 30, -49, 53, 43, 60, -27, 4, 36, 39, -9, -20, -6, -13, 25, -3, 15, -7, -12, -8, 30, 21, -7, 30, 17, -36, -13, -7, -3, 19, -24, -5, -27, 12, 64, 2, 43, 0, 23, -10, -7, 21, 7, 33, -1, -21, 17, -75, 54, -29, 9, 19, -6, -2, 19, -22, -27, 10, 2, -31, -28, -10, 22, -17, 18, -24, 37, -18, 25, 4, -20, 18, -19, -5, 27, 14, -1, 13, -10, 7, 8, 12, -32, 0, 4, -31, 4, 0, -1, 1, -1, -20, 15, -12, 15, -58, -1, 42, 40, -56, 6, 25, 34, -27, -37, -1, 78, 35, 46, 19, -47, -29, 23, -24, -44, 7, 8, 36, 30, -46, -10, 25, -32, -5, -48, -25, 29, 21, -14, 29, 9, 26, -12, -14, 13, -49, -13, -27, 6, -34, -7, 8, -44, 6, -1, 15, -36, 47, -3, 28, 45, 0, -11, -22, -27, 14, -2, -25, -23, 8, 11, -44, 7, 25, -45, -18, 2, -10, -60, 43, 13, 15, -59, -16, -6, -4, 4, -30, 2, 39, 2, 7, 25, -20, 27, -19, 30, -22, -30, 13, 41, 13, -9, 13, -29, -16, -74, 31, -42, 19, -15, 19, -16, -9, 47, -17, -27, 41, 0, 33, -36, 0, -39, -14, -58, 97, 26, 17, 36, -15, -5, -11, -58, -18, 0, -9, -11, -6, 22, 20, -20, 41, 51, -37, -30, 47, -5, -17, -1, -1, -4, 51, 7, 3, -6, 33, -19, 1, -10, -31, -12, 13, 45, 48, 14, 23, -27, 25, -10, 81, 40, -20, 30, -69, -11, 57, -36, -35, 73, 22, 0, 1, 15, 15, 11, 28, -50, 42, -11, 56, -21, 0, -44, 49, -2, -7, 0, -29, -55, -17, 18, 2, 5, 15, -39, -63, -18, -38, 15, -27, -13, 21, 29, -33, -12, 0, -16, -47, -1, 3, -1, 14, -17, -41, 26, 11, 23, 3, 32, 19, 48, -42, 0, 32, 22, -28, 54, 12, 10, 1, -6, -18, -7, 46, 71, -21, 3, 39, 37, 5, 38, 27, -58, 24, -44, -31, 46, 56, 10, 11 ]

Beooke, J. (after stating the facts). There is only one disputed question of fact in the case, and that is as to whether, at the time the conveyances in question were made, the defendant Alexander Rodgers was in fact possessed of sufficient property aside from that covered by the deeds to satisfy his obligations. It is strongly urged by counsel for defendants that at the time said conveyances were made defendant Alexander Rodgers not only believed himself to be possessed of sufficient property, aside from his homestead, to satisfy his creditors, but that in fact he was solvent. Upon the hearing defendants introduced two trial balances of the business of the corporation, one dated March 31,1913, and the other April 30,1913. They appeared to have been made under the direction of Louis E. Conroy, who was secretary of the corporation and had been connected with the business from November, 1912, and who was himself the conduit through which the title to the house and lot in question passed. These balance sheets both show assets of the corporation largely in excess of liabilities, and the witness Conroy testified that he believed the values placed upon the several assets to have been fair and conservative. The total assets as shown by the trial balance of April '30, 1913, were $61,645.33, and liabilities at that time, aside from the capital stock liability of $50,000, were only $11,645.33. From these figures it is argued by counsel for appellants that the interest of defendant Alexander Rodgers in the corporation on the 4th day of April, 1913, was sufficient to satisfy his creditors and that therefore he had a right, under the law, to settle the house and lot upon himself and wife. Pressed upon cross-examination, the witness Conroy, who seems to have had an intimate knowledge of all matters in connection with the controversy, would not say that in his opinion the defendant Alexander Rodgers, at the time the deeds were made, was solvent. In the course of his examination the following occurred: “Q. Didn't you tell me that you were having a hard time — you were doing all you could to get Alex’s matters straightened out so that you could legally have this house transferred to Alex and his wife jointly? “A. I don’t recollect it. I might have made some such statement as that to you, because I had that in mind. The only reason that I didn’t deed it before I did was because I didn’t want it to appear as though I was deeding something away that — or doing something that might appear as though it wasn’t right. “Q. As though it was to defraud creditors? “A. Yes, sir; and I purposely left that, and it was delayed. “Q. Let me call your attention specifically. Sitting in the lobby of the Occidental Hotel one evening when we were talking this matter over, don’t you remember of talking with me in that place about it? “A. I do; yes, sir. “Q. Didn’t you tell me that you wanted more time— you wanted to do something; get a little more time — ■ and you were going to try to straighten out this whole matter and get Alex’s matters all straightened out so that you could deed, or have deeded, to Alex and his wife this house jointly? Have you no recollection of that at all? “A. I don’t remember of — I can’t remember that I ever did make a statement of that kind to you, and yet I don’t doubt that I probably did, too, because I had it in mind, and it would have been the most natural thing in the world to have mentioned that to you. I wouldn’t say that I didn’t make a statement of that kind. I had it in mind, and I wanted to get everything; I wanted to deed that house at that time and had wanted to. I wanted to get things straightened out so that they would look all right on the face of them before doing anything of that kind. * * * “Q. Didn’t you realize all the time that Alex Rodgers’ affairs were in a very bad way? “A. I did; yes, sir. “Q. And from the time you went there and looked into the business you knew that, didn’t you? “A. Yes; I did. That is one of the thoughts that undoubtedly governed me in my ideas, my wish to have that redeeded. I probably had it— “Q. That is what I thought. “A. It probably had its weight. “Q. You saw just as quick as you got into that business that it was only a question of what Alex could save out of the stock and save his home, wasn’t it? “A. It was; yes, sir. “Q. That is all there was to it? “A. Yes, sir.” While the fact that the entire assets, real and personal, of the corporation within five months of the date of the transfer sold for only $7,600 is not controlling, we are still of opinion that it is not without a legitimate bearing upon the fairness of the trial balance upon which so much stress is laid by counsel for appellants. That fact, taken in connection with the very frank testimony of the witness Conroy, convinces us that in the spring of 1913, when the transfer was made, the stock of the corporation had very little real value. It was held by defendant Alexander Rodgers himself to be of so little value that he gave $25,000 of it to Lincoln Rodgers for the purpose of securing an indorsement upon the corporation paper to the amount of $5,000, and this transaction was accomplished only about a month prior to the making of the deeds. Upon the facts as disclosed by the record, we have no hesitation in agreeing with the finding of the learned circuit judge that at the time the deeds were made the defendant Alexander Rodgers was not possessed of property, aside from that in question, sufficient to pay his debts. Under such circumstances the deeds must be set aside. Fellows v. Smith, 40 Mich. 689; Matson v. Melchor, 42 Mich. 477 (4 N. W. 200) ; Felker v. Chubb, 90 Mich. 24 (51 N. W. 110); Hackett v. Kenning, 170 Mich. 583 (136 N. W. 349). The decree is affirmed, with costs. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.

[ 46, 61, 24, 3, -6, -9, 36, 32, 23, -4, 33, -18, 71, -5, -6, 12, -9, 5, -13, -9, -24, -81, -24, 10, 6, -13, 27, -33, -2, -27, 53, -6, -43, 10, 17, 63, 15, -6, 5, -33, 1, 7, -17, -15, -5, -9, -49, -51, -5, -7, 37, -31, 41, -33, 17, -6, -22, 50, -18, -23, 33, -58, -16, -5, -15, 38, 29, -13, 22, -3, -35, -10, -10, 29, 24, -14, 1, -12, 26, -12, -2, -63, 4, 5, -60, -5, -4, 6, 3, 8, 15, 27, -2, 45, -7, 35, 8, 3, -9, 15, -33, -39, -16, 35, 36, 34, -61, -63, -27, 22, -45, -6, 52, -6, -7, -14, 21, -25, -32, -10, 4, 15, 16, 2, 5, -4, -52, 4, -40, 21, 34, -5, -66, -13, -25, -38, -3, -22, -38, -1, -1, -4, 11, -45, -32, 7, 17, -15, 0, -6, -22, 43, 17, 36, 20, -12, 2, -14, 28, -36, 30, -7, 18, -72, -29, 26, -10, 16, -5, 57, 30, 11, -67, -42, 22, -15, 1, -9, -38, -22, -22, 8, -17, 18, 30, -31, 24, -2, 13, 5, -1, 34, -26, 0, -26, 33, -3, 20, -5, -8, -27, -18, -18, -16, -2, 13, 60, -10, 29, -14, -30, 4, 1, -31, -39, 19, 0, -58, 19, -18, 6, 33, -14, 20, -9, 16, 49, -8, 5, 12, 2, 39, -16, 0, -52, 4, 4, -33, -50, -15, -20, 8, -21, -6, -12, -23, -26, 23, -23, 39, -38, -44, -11, 70, -23, 1, -12, 12, -12, -36, -2, 79, -52, 21, 22, -65, -11, 19, -1, 16, 16, 0, 16, 14, -31, -28, -17, -2, -14, -7, 4, -30, 14, 6, -20, -5, 25, 16, -19, -10, 43, -63, 9, -34, 20, 27, -8, 28, 5, -4, 0, -15, -7, -19, 1, 15, -15, -8, -39, -29, 39, -14, -18, -5, 63, 33, 0, 35, -5, -34, 38, 14, -19, -24, 46, 19, 39, -66, -8, 14, -37, -16, -12, -27, -27, 2, 52, 0, 19, 22, -8, -8, 0, -45, 42, 1, 6, -31, -12, 19, -25, -26, -16, 7, 8, -28, 32, 40, -27, 10, 34, 20, 18, 18, 5, -7, -42, -45, 18, 23, 51, 10, -28, 4, 10, 4, -36, -8, -19, 39, -6, -26, 51, -5, 13, 20, -30, 3, -43, 35, -17, 12, 10, 26, 45, -27, -30, -23, -33, -41, -8, 35, -46, 13, -49, -38, -17, -20, 13, 6, -9, -7, 30, -14, -4, -19, 7, 0, 16, 10, 25, -20, 8, 11, 28, 0, 0, 30, -82, -12, -15, 14, -8, -23, -4, 15, -10, 37, -13, -9, 31, 3, 10, 52, 24, 24, -14, -28, 74, 7, -17, 5, 18, 14, -25, -26, 86, -20, 51, 7, 34, -6, 44, 3, 43, -39, -9, -35, 43, 18, -10, 14, 5, -19, -5, 2, 20, 6, -48, -22, -16, -9, 15, 11, -26, -8, -55, -74, -10, 9, 28, 3, 2, -10, 8, -30, -15, -17, 0, -33, -10, 3, 35, -13, 12, -25, 24, -65, 19, 53, 5, -16, 18, 35, -36, -4, 19, -9, 34, 34, 50, -24, -39, -40, -21, 0, 20, 11, 48, -28, -12, 21, -26, -6, -9, -47, 22, -2, 7, -30, -52, 29, 41, 12, -32, 48, 14, 8, -17, 19, -43, -41, 45, 42, 17, -27, 2, -22, 19, 10, -28, -2, 35, -38, 27, -83, -3, -3, -17, -37, -34, -27, 50, 39, -11, 4, -15, -30, 32, 0, -1, 20, 16, -19, -4, 45, 5, 17, -18, 44, 25, 7, -33, -14, 5, -10, 14, 36, -15, 24, -23, -41, -34, -19, -16, 5, 10, 21, 8, 21, 20, 29, 39, 1, -11, 19, 9, -49, 31, 3, 7, -1, -16, -6, 30, -36, 27, 75, -40, 40, 1, -20, -18, 42, -25, 4, 16, -16, -15, -37, -3, -14, -48, 6, 19, -1, -44, 11, -1, -35, -40, -24, 10, 30, 27, 4, -5, 9, 26, -36, 81, -32, -10, -9, -17, 16, 38, -8, 6, 13, 21, -20, -4, 38, 4, -45, -27, -19, 40, 30, 37, -55, 25, 40, 42, 1, 16, -38, 26, 5, -12, -9, 5, 12, -42, 53, 31, -6, 34, 4, 4, -18, 20, 47, 9, 13, -15, 12, 1, -2, 18, -9, 1, 8, -17, 27, 49, 15, -18, 16, 10, -52, 22, -56, -1, 19, 21, -28, -38, -7, 20, 39, 8, 38, -19, 54, -38, -18, -10, -9, -7, -10, 14, -10, -22, -3, 54, 24, -7, -2, 31, 15, 58, 6, 7, -5, -42, 9, -51, -30, -6, 28, -30, 12, -45, 2, 15, -54, -1, -29, -71, 3, 0, -3, -6, 37, 28, 6, 49, -13, 23, -20, -10, -14, -4, -25, 8, 10, 41, 17, -12, 15, 7, -8, -53, 5, 29, -5, -27, -23, -9, 6, -6, 32, 19, -14, -33, 29, -5, 17, 0, -38, -6, -53, -15, -42, -4, -10, -21, -3, -29, -11, 49, -4, -11, 10, -7, -3, 0, 19, 17, -28, -19, 52, 4, -6, 51, -7, -18, -20, -11, 5, -53, 19, -5, 22, -40, 21, -11, -29, 6, -9, 8, 1, -38, -27, -9, 32, 43, -30, 27, 19, -21, -5, 19, -11, -23, 1, 40, 0, 45, 41, -28, -25, -3, -5, 8, 2, 34, 16, -44, 46, -20, 23, 13, 31, 30, -62, -30, 47, -38, 7, 2, -31, 0, -9, 30, -55, 10, -9, -6, 5, -28, -28, -5, -40, 37, 0, -3, 21, 15, -15, -23, -5, -38, 10, -19, -25, -21, 73, -16, -9, -30, -2, -30, -22, 52, 9, -19, 50, -15, 3, -22, -15, 14, -38, 11, -14, 33, -82, 53, -14, -19, 61, -43, 28, 14, -30, 33, 22, -44, 39, 23, 54, -8, 18, -33, -72, -16, -13, 1, -6, -24, 2, 55, 19, 23, 14, -11, -17, -3, -29, -27, -14, 23, -3, 63, -16, -6, -43, 36, 17, -41, 55, 19, -45, 48, -23, -15, -42, -17, 26, 24, 17, -23, -35, 43, 5, -32, -30, -17, -32, 30, -5, 26, -32, 47, 65, -9, -5, -25, -3, 15, 52, -31, 17, 7, 62, -11, 26, 19, -14, -7, 14 ]

Bird, J. Plaintiff recovered a judgment under the civil-damage act in the Ionia circuit court, against the defendant saloon keepers and their surety, the Michigan Bonding Company, for the unlawful acts of the saloon keepers in having contributed to the death of her husband on April 1, 1913, in the village of Lowell. Defendants have assigned error. Plaintiff’s husband, Ben Taylor, on April 1, 1913, drove a pair of horses from Saranac to Lowell, and arrived there at about 3 o’clock in the afternoon. Upon his arrival, he and his companion visited the saloons conducted by the defendants, and drank intoxicating liquor. About two hours later they entered their car riage to return to Saranac, but before doing so, Taylor drove up and down the main street so immoderately that he was arrested for fast driving, and locked up by the deputy sheriff in the village jail. At 7 o’clock a fire was discovered in the cell in which Taylor had been placed, and he Was so overcome by the smoke and fire that he died soon thereafter. The theory upon which plaintiff recovered was that her husband was a person in the habit of becoming intoxicated; that he became intoxicated' by liquor drunk at the saloons of the defendants, and when taken to jail he was intoxicated, and that such intoxication caused or contributed to his death. The testimony showed that the jail was heated with steam, lighted with electricity, and that there was no fire in or about the building, and plaintiff argued from this that Taylor was responsible for the fire which subsequently caused his death. 1. The appellants raise the question that the circuit court had no jurisdiction to render the judgment, because it never acquired jurisdiction of the parties defendant. Plaintiff resides in Ionia county, defendants Davarn, Hosley, and Gould reside in Kent county, and the principal office of the defendant bonding company is in Wayne county. Suit was commenced by summons in Ionia county, and was served on the bonding company by making service thereof on the commissioner of insurance in Ingham county. Return of this summons was duly made and filed after the return day, showing that the other defendants could not be found in Ionia county. An alias summons was then taken out with an indorsement thereon to the effect that the bonding company had been duly served, and the same was served on the other defendants in Kent county. Defendants thereupon appeared specially and moved to dismiss the suit, alleging a want of jurisdiction in the court. Subsequently, a plea in abatement was filed for the same purpose, but both motion and plea were overruled. Davarn and Hosley filed a plea to the merits, and defendants Gould and the bonding company were defaulted for'want of appearance. The point made is, that the service on the bonding company was invalid, and therefore was insufficient upon which to base service of the. other defendants in Kent county. Act No. 266, Pub. Acts 1895, as amended by Act No. 321, Pub. Acts 1907 (3 Comp. Laws 1915, § 12340, note), is the law authorizing surety companies to do business in this State. The proviso added by Act No. 321 provides: “That suits may be commenced in the circuit court in any county where the plaintiff resides, by declaration or writ, and service shall be made in such cases only upon the commissioner of insurance in like manner and with like effect as is provided for the service of process upon societies, orders or associations organized under the laws of any other State, province or territory and doing business in this State, and not having its principal office within this State, and for the purpose of service of process as herein provided such surety company shall appoint in writing the commissioner of insurance, or his successors in office, to be its true and lawful attorney.” If this proviso is valid, it authorized the plaintiff to commence suit in Ionia county where she resided. In considering the purpose of this proviso in People v. Fidelity & Deposit Co., 163 Mich. 94 (127 N. W. 765), Mr. Justice Stone observed that: “It is reasonable to suppose that this refers to cases upon that class of bonds referred to in the preceding provisos. It seems to refer to service of process upon a domestic corporation, for it provides that such service shall be with 'like effect as is provided for the service of process upon societies, orders, or associations organized under the laws of any other State, province or territory, and doing business in this State,’ etc. The entire purpose of the amendatory act seems to have been to provide for the execution of liquor bonds by domestic corporations, and proceedings in case of suit thereon.” Counsel argue that the legislation did not contemplate that the bonding company should be served with process in any county other than the one in which it resides, or in the county where the principal of the bond resides and does business. If such were the intention of the legislature, it was most unfortunate in the language which it chose to convey that intention. The words, “that suits may be commenced in the circuit court in any county where the plaintiff resides, etc., are not ambiguous, nor are they involved in doubt. We must hold that these words mean what they say, and that they authorized plaintiff to commence suit where she did. But counsel further argue that if the language will admit of no other construction, then that part of the act is unconstitutional, because there is nothing in the title of the act to indicate that there was to be any change in the jurisdiction of the courts of this State. In other words, that the object .of the act is not fairly expressed in its title. Counsel’s point and argument thereon are answered by this court in the case of People v. Fidelity & Deposit Co., supra, where the same question was raised and passed upon adversely to defendants’ contention. 2. Another question is raised in the briefs in this connection, namely, that the service of the summons on the commissioner of insurance by the sheriff of Ionia county was an invalid service. Act No. 225, § 1, Pub. Acts 1901 (3 Comp. Laws 1915, § 12430, note), points out with reasonable certainty as to how this process shall be served. If that statute is to be followed, and no other, in the making of service upon the insurance commissioner, it raises a very serious question as to the validity of the service made. Our attention, however, is called to the fact that this point was not raised in the lower court; that it was not included in the motion to dismiss, nor in the plea, and therefore, under the. rule, we cannot consider it. We shall refrain from passing upon it, as we think plaintiff’s objection is well taken. 3. Error is assigned because the trial court refused to direct a verdict for defendants on the ground that Taylor’s arrest and the failure to bring him forthwith before the justice was the intervention of a wrongful human agency, to which must be ascribed the proximate cause of death. Counsel argue this question at considerable length and cite many authorities defining and applying that general rule. In order to successfully apply that principle in this case, counsel are obliged to assume that Taylor was not intoxicated when he was arrested, and that his intoxication did not contribute to his death. Counsel attempt to show that as a matter of fact Taylor was not intoxicated. We cannot accept this conclusion. The testimony shows 'that Taylor drank at least five drinks of whisky in defendants’ places, and the inferences are very strong that he drank more. Whether he was intoxicated, and, if so, to what extent, the testimony was somewhat conflicting. It was, however, a question for the jury, and the testimony was sufficient to sustain their finding. To have directed a verdict on this ground would have been to ignore the claims of plaintiff. Plaintiff claimed and offered testimony in support thereof, that defendants sold liquor to Taylor, that he was in the habit of becoming intoxicated, and he was intoxicated when arrested, and that his intoxication was responsible for the fire which afterwards caused his death. The testimony was sufficient to send all of these questions to the jury. In order to justify such a direction as was asked, the court would have been obliged to find that Taylor was not intoxicated. This he could not do under the testimony, and if he could not find that fact, the motion to direct a verdict was properly refused. The rights of defendants under this phase of the case were amply protected by the charge of the court, that if Taylor was not intoxicated, or if intoxicated, and such intoxication did not cause nor contribute to his death, the plaintiff could not recover. 4. The defendants requested the submission of the following special question to the jury: “Was the plaintiff’s husband, Benjamin Taylor, intoxicated at the time he came to his death on the 1st day of April, 1913?” This request was complied with and the question was submitted with the usual instruction. After the jury had considered their verdict for several hours, they returned into court and requested further instructions with reference to the special question. The trial court then said to them: “As you -will recall from the instructions I gave you, in order to find for the plaintiff you must find that her husband, Benjamin Taylor, was intoxicated at the time he came to his death. So if you find for the plaintiff your answer to the question would be ‘Yes.’ If you should find for the defendant you would find that he was not intoxicated at the time he came to his death, and your answer therefore would be ‘No.’ * * * “A Juror: Nothing difficult, but if it has to be signed all ‘Yes’ or all ‘No.’ “The Court: Yes; all ‘Yes’ or all ‘No.’ If he was not intoxicated at the time he met his death the plaintiff cannot recover, as I told you. If he was intoxicated at the time he met his death the plaintiff may recover, the other conditions existing to which your attention was called in the general charge. If you should find for the plaintiff it would not be a difficult thing to find the necessary elements to entitle her to recover, namely, he was intoxicated, because, if you do not find he was intoxicated, your verdict cannot be for the plaintiff. If you should find he was not intoxicated at the time of his death, your verdict necessarily must be for the defendant. You may take the paper and retire to your jury room.” The jury were later called back and further instructed that: “The Court: Gentlemen, in the instructions I gave you a few moments ago relative to this special question I think perhaps I did not fully explain to you that there was another element in the case which should be considered in answering that question. “As I said to you in substance, that if you find for the plaintiff you must necessarily answer the question as to her husband’s intoxication ‘Yes.’ Now, on the other hand, if you should find for the defendants there are two elements that enter into the question. I instructed you, you will remember, that there were four elements necessary for the plaintiff to prove by a preponderance of evidence to entitle her to a verdict: “First: The sales of liquor to her husband by the defendants, or one of them. “Second: The habit of her husband of becoming intoxicated. ' . “Third: His intoxication at the time of his death. “Fourth: That that intoxication contributed to his death. “So in answering the questions, if you should find for the defendants, whether you should answer it ‘Yes’ or ‘No’ would be immaterial. If you should find that he was not intoxicated at the time of his death, your verdict then must necessarily be for the defendants. Still, if you should find that he was intoxicated, but that the intoxication did not contribute to his death, your verdict for the defendants would be justified under the instructions I have previously given you, and it is to correct the possibility of a misunderstanding of what I said a few moments ago I recalled you upon that point. “If the plaintiff recovers, the answer must be ‘Yes’ in any event.' If the defendants recover, the answer may be ‘Yes’ if you should find that the intoxication did not contribute to his death, or ‘No’ if you should find he was not intoxicated at all. Both elements are involved.” The objections raised to these instructions are that the tendency of them was to coerce a verdict, and be cause it instructed them what answer to make to the special question to make it consistent with their general verdict. We are of the opinion that the error is well assigned under the holdings of this court in the' cases of Cole v. Boyd, 47 Mich. 98 (10 N. W. 124); Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815, 18 N. W. 209); Beecher v. Galvin, 71 Mich. 391 (39 N. W. 469) ; Mechanics’ Bank v. Barnes, 86 Mich. 632 (49 N. W. 475); Brassel v. Railway Co., 101 Mich. 5 (59 N. W. 426). It was said in Maclean v. Scripps, supra, that: “The object of the statute (Comp. Laws 1871, § 6026; How. Ann. St. 1882, § 7606) requiring the jury to answer specifically questions giving their conclusions on the facts necessary to be found to entitle a party to recover, was to ascertain whether or not they had found sufficient facts from the evidence to support their general verdict under the law as given them by the court. It is the province of the jury to find these facts from the evidence, without aid or suggestion from the court, and this can never be done if the jury are told in advance what facts are necessary to be found to support the verdict, or what answers to the questions propounded will be consistent therewith, or what they must find in order to answer a question propounded in the negative or affirmative. This practice will make the general verdict control the findings, instead of the findings control the general verdict; and thereby the object of the framers of the statute will be defeated. This was the result of the practice indulged in this case. The effect is to make the court, and not the jury, decide the main issues in the case. Cole v. Boyd, 47 Mich. 98 [10 N. W. 124], The special findings of the jury were sufficient to support the general verdict, had the proceedings upon which th,ey were based not been erroneous.” ' The question submitted in this case was an important one. The question as to whether Taylor was intoxicated at the time of his death was the pith of plaintiff’s case. Unless plaintiff was able to establish that fact, the jury were instructed that no recovery could be had. In view of the importance of the question, the instruction that their answer to the special question, must be in harmony with their general verdict, and advising them what their answer should be under certain circumstances, was clearly error because it violated the rule laid down in the foregoing cases. We have not overlooked the case of People v. Murray, 52 Mich. 288, 291 (17 N. W. 848). In that case, however, the language of the trial court was construed to have reference to their general verdict. Evidently it was not intended by what was there said to overrule what had previously been said in Cole v. Boyd, supra. We are of the opinion that the purpose of the statute will be better conserved by following the cases cited. For this error the judgment must be reversed, and a new trial granted. Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Brooke, JJ., concurred. The late Justice McAlvay took no part in this decision.

[ -17, 31, 0, 43, -44, -36, 11, -1, 25, 11, 9, -8, 38, 17, 9, -37, 0, 35, 17, 22, 8, -59, -49, 6, -22, -29, 21, 20, -53, 16, 1, 33, -16, 25, -29, 37, 20, -1, -12, -17, -26, -32, 26, -77, -22, -11, 23, -11, 9, -31, -18, -66, 8, -7, -29, -25, -12, 15, -8, 24, 0, -4, -21, 12, 12, -9, 16, 34, 13, -20, 56, 39, -40, -10, -21, 24, -10, -16, -29, -16, -65, 2, 22, 39, -22, -25, -48, 5, -15, 2, -2, -10, -51, 1, 25, 0, -71, -15, -6, -13, -17, -18, 23, 50, -22, 24, 4, -15, -1, -12, -19, 6, 28, -4, 23, -37, -2, -35, -4, 16, 33, -19, 40, -41, -13, -37, 12, -13, 25, 67, 12, -56, -17, -6, -32, -11, -33, 1, 7, -8, 67, -45, -9, 15, 11, -6, -6, -5, -31, 15, -50, 47, 47, 23, -9, 13, 49, 11, 8, 8, -10, -22, 2, 32, -24, -32, -5, 6, -17, -16, -26, 41, -2, 0, 52, 5, 2, -34, -69, 57, -43, -21, 26, -29, 12, -60, 0, -31, -36, 15, 35, -21, -58, -2, -17, 63, 2, -36, -6, 7, 43, -39, 3, -43, 2, -9, 61, 12, -3, -39, -42, -26, -26, -5, -50, 4, 15, -8, 1, -54, -5, 9, 0, 21, -77, -87, 18, -31, 11, -29, -2, 10, 67, -1, -38, 1, 19, -40, 36, 13, -2, 19, -56, -8, 11, -15, -19, -1, -52, 37, -2, 4, -23, 33, -3, 9, 49, -4, -26, 16, -11, 3, -36, 12, -3, -8, 31, 14, -35, -3, 0, -9, 74, -7, -5, -16, 1, 52, 30, 3, 57, -16, -72, -30, 26, 35, -20, 12, -34, -33, 22, 2, -34, -12, 12, 1, 25, -45, -35, -1, -8, 16, -19, 9, -34, -12, -24, -5, -35, -33, -12, 2, -18, 7, 41, -8, 19, -1, -4, -68, -21, -21, -16, 8, -28, 17, -14, 8, 7, 12, -13, 16, -23, 7, -26, -35, 9, 24, -21, 2, 23, -13, 23, 20, -23, 36, 16, -10, -10, -55, -46, -7, -7, 11, -17, 2, 33, -34, -31, 13, 4, -11, -10, 61, 21, -28, 11, -3, 9, 20, 50, 11, 16, -10, -31, 27, -2, 25, -36, 53, 69, -34, -16, -15, 15, 2, -30, -48, -86, -2, -4, -4, 19, 18, 17, 15, -14, -20, -12, -39, 21, 19, 9, -15, -17, -8, -35, 15, -4, 5, -10, -11, 22, -11, 9, 15, -7, 4, -36, -8, 47, -8, 32, -53, 44, -44, 61, 31, -25, 15, -11, 30, 14, 70, 23, -14, -20, -4, -3, -3, 12, 3, 34, -18, 26, 22, 20, 26, 38, 48, -4, 33, 6, 19, -32, 64, 35, -31, -23, -9, 13, -11, 22, -1, 23, -36, -18, -42, 16, -1, -19, -15, -28, 4, -25, -32, 52, -38, -31, 19, 21, 31, 3, -5, -24, -47, -18, -34, 19, 15, 43, 10, -4, 36, -12, 24, -47, 1, -16, -15, -8, 0, -70, 21, 15, 13, -27, -10, -27, 35, 1, 0, 40, 0, -5, 19, 61, -4, -21, 9, -5, 64, -22, 47, -4, 2, 6, -12, -6, -19, 0, -54, -25, 14, -1, -15, 10, 63, 1, -43, 5, 1, 43, 8, -23, -3, -19, 15, 21, -4, 3, -23, 11, -65, 12, 10, -19, -3, 8, 30, 41, -47, -16, -5, -4, 1, 5, -17, 24, -49, -10, 26, 1, 3, 19, 11, -33, -19, -16, -1, -11, -23, -4, -9, 5, 1, -1, 16, -20, 9, 0, 41, -9, 4, 38, 7, 42, -17, -1, 21, -11, -64, 12, 41, 63, 35, -13, 22, 21, 43, 27, -26, -27, -1, 0, 20, -5, -21, 12, 35, 29, -23, 8, 55, 22, -19, 0, -20, -14, -9, -73, -30, -23, -6, -42, 2, 14, 50, -24, 3, 1, -11, 29, 1, -7, -18, -54, 2, -19, -21, -36, -8, -6, 61, -33, -36, 0, 29, 26, -22, -12, 39, -40, 66, -26, -14, 47, -37, 6, 60, 48, -36, 0, 5, -6, -44, -21, 44, 41, 34, 24, -1, 26, -6, 22, 18, -47, 7, 15, -25, -46, 35, 0, 26, -1, 40, 2, 11, -12, -8, 0, 5, -13, -23, -58, 40, 15, -63, 12, -60, 14, 37, 75, 8, 12, 24, 10, 0, -38, 50, -44, -54, -15, -58, 1, -1, 4, -24, -2, -26, 21, 8, 0, -9, 20, -18, 30, 16, -38, -23, 0, -40, 16, 0, -5, -26, 34, -17, 55, 7, 31, 68, 5, 0, 9, -15, 6, -22, -46, -32, 28, -12, 26, -25, -37, 1, -14, -6, 11, -38, -11, 49, -3, -53, 8, 12, 36, -5, -6, -5, 42, -5, 9, -24, -14, -7, 1, 36, 20, -24, -23, -2, 31, -27, -41, 11, 46, 17, -47, 0, 11, 62, 2, 17, 4, 18, -24, 32, 0, 18, 4, 22, 26, -23, 11, 21, -18, 26, -27, 24, -43, 37, 18, -5, -18, -6, -5, -14, -26, -15, -25, -15, -37, -14, 26, 15, 39, -42, -38, -8, 14, 6, -1, 50, 3, -14, 40, 8, 11, 30, -30, 5, -10, 15, -27, -5, 17, -41, -5, 44, 4, -49, -42, -66, 1, -13, 8, -1, -28, 20, -34, 14, -26, 61, -27, 14, 15, -3, 23, 3, 26, -60, 13, 22, 2, 39, 2, -31, 34, 54, 0, -3, -32, 35, -21, 0, -38, 0, 12, -46, 29, -3, 5, 14, -34, -59, 17, -32, 40, 27, 7, -4, -44, -14, -8, 36, -35, 21, 20, 21, 8, -1, -13, 0, -42, 71, -10, 35, -11, 60, -19, -17, -16, -24, -16, -5, 21, -38, 31, 28, 3, -7, -5, -17, 15, 18, 24, 5, -3, 82, -15, 33, 15, 48, -29, 23, -13, -3, 31, 12, -26, 59, 25, 9, -4, 41, -34, -20, -5, -15, 23, -3, 3, -21, -32, -5, 49, 50, 20, -39, -6, -51, -5, 2, 23, -7, 2, -15, -51, 13, -23, -13, 2, 38, 44, 19, 10, 11, -20, -36, 43, -33, 28, 47, 59, -12, 16, 17, 17, 37, -45, -1, 42, 11, -31, 57, 9, 6, 8, 11, 31, 8, 8, 8 ]

Wiest, J. An employee of defendant received an injury in the course of his employment, having half of a thumb torn off by an emery wheel; another employee owned an automobile parked near the factory and volunteered to take the injured man to a hospital, with which defendant had a contract to care for its injured employees; defendant’s superintendent wanted the man so taken, accepted the tendered service and, by means thereof, the injured employee was conveyed to the hospital. The defendant had no conveyance of its own. On the way to the hospital the automobile struck plaintiff’s decedent, causing his death. Claiming death was caused by the negligent driving of the volunteer, while performing such accepted service for defendant, this suit was brought to recover damages. The trial judge directed a verdict in favor of defendant on the ground that the volunteer employee, while so engaged in conveying his injured fellow employee, was not acting within the scope of his em ployment, and the superintendent exceeded his authority in the premises and, therefore, defendant was not liable for the negligence, if any, of the driver of the automobile. Defendant employed many men, had an arrangement with the hospital to care for its injured employees, and maintained no conveniences, beyond first aid, for doing so itself. An emergency confronted defendant’s first aid man and its superintendent, need of hospital service for the injured employee was evidently deemed imperative and, instead of calling upon the hospital to send aid or a conveyance, they accepted the service volunteered by the other employee. It appears that the volunteer was in the employ of defendant as a millwright and his time went on while he was away from the plant on this trip. At the time of the accident defendant’s superintendent was in charge of the factory. Defendant’s vice-president and general manager testified he was not at the factory at the time of the accident; that Mr. McKittrick was superintendent of the plant in complete charge of the workmen; that the company had an arrangement with the Michigan Workmen’s Mutual Compensation Insurance Company to care for injured employees, under which the insurance company maintained a hospital to¡ which men, injured in the plant, were to be taken; that he wanted Mr. McKittrick to look after the injured employees as superintendent of the plant in accordance with the arrangement with the insurance company; that Mr. McKittrick was over Mr. Jensen (the volunteer driver) and “if Mr. McKittrick told him to go down there he was justified,” but qualified this by stating: “If Mr. McKittrick had followed instructions and done the things that he was supposed to do, and was unable to get results, I suppose then he would have had authority to do something else, but he must, of course, follow the instructions that were given him first.” The instructions by the insurance company, and adopted by defendant, were: “Do not call any outside physician unless so instructed by the hospital office, as an emergency surgeon is on duty throughout usual factory hours, and our ambulance will be dispatched instantly whenever required.” We think there was sufficient evidence for a finding that the superintendent was acting within the scope of his employment. The errand of the volunteer brought his automobile to the service of defendant, and the driver thereof, being its employee, was, at the time of the accident, acting for defendant, and defendant is liable under the rule of respondeat superior for his negligence. In conveying his injured fellow employee from the factory to the hospital, under contract to care for defendant’s injured workmen, the volunteer was not a stranger to defendant or its business, but was rendering a service in line with the purpose of defendant under its contract with the hospital, even though it can be said the superintendent disregarded instructions in sending the injured employee to the hospital instead of notifying the hospital to come and get him. The wage of the volunteer driver continued while he was on the trip. We had occasion in Loux v. Harris, 226 Mich. 315, to pass upon the question of- disregard of instructions by a servant while about the master’s business, and what we there said is applicable to the act of the superintendent in this case. The contract between the defendant and the hospital for care and conveyance of injured employees did not save it from liability to a third person, even though its superintendent should have requested such service instead of accepting that tendered by the volunteer. Counsel for defendant cite Szszatkowski v. Gas Light & Coke Co., 209 Ill. App. 460. We quote from the syllabus: “A chauffeur in the paymaster’s department of a gas company who volunteers to take the superintendent of another department home in his closed car because of danger to the health of the superintendent in riding in an open car, and gets the paymaster’s consent to the temporary exchange of cars by the respective departments, and injures a person upon his way back to the garage on the return trip, is not engaged in the operation of the car for his employer so as to render the latter liable for the chauffeur’s negligence.” In that case the superintendent in going home was in no way about the business or affairs of the company, neither was the driver in so taking him and in returning. The whole matter was but an accommodation to the superintendent, wholly apart from employment by or in behalf of the company. Viewing the evidence in the light most favorable to plaintiff, we think the case should have been submitted to the jury. The judgment is reversed and a new trial granted, with costs to plaintiff. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred.

[ -32, -7, -44, 13, -5, -8, 18, -58, 0, 8, -28, -12, 53, -17, -39, 0, 32, 13, -10, 0, 24, -51, -19, -17, -36, -16, 33, -47, 3, 0, -28, -6, -1, -20, -48, 7, 50, -14, -4, -24, 27, 11, 35, -13, 51, -11, 3, 4, 33, -49, 26, 4, -41, -18, 19, -33, 72, 6, -34, 37, -14, -31, 6, -63, -7, 22, -5, 8, -33, -1, -39, -19, -19, -19, 8, -10, -16, 52, -23, -20, 19, -33, 23, -23, -63, 81, -39, -29, -34, -21, -21, 10, -15, -21, -36, 49, -9, 32, -21, 3, -17, 34, -7, -1, -38, 6, 15, -34, -6, 51, -34, 46, 18, 29, 20, -19, 46, 1, 22, 103, 3, -12, 21, -7, 17, -44, -8, 30, -26, 5, 47, 18, -7, 11, 16, 6, -5, -41, 16, 53, 2, 50, -2, 26, -57, 13, -40, 36, -19, -18, -23, 14, 42, -55, 3, 20, -32, 39, 32, -11, -3, 10, 75, 26, -9, -17, 5, 0, -14, 39, 16, -18, 29, -62, 16, 39, 6, -19, -67, -9, -62, -10, 24, -1, -2, -12, 32, 1, 2, -4, 8, -16, -36, -10, 0, -3, 20, -13, 6, 18, 36, -47, -26, -52, 8, 30, 6, 27, 19, -28, 39, 23, -4, -48, -21, 25, -12, -23, -42, -91, -33, 52, 11, -53, -66, -38, -44, -6, 5, 12, 22, -5, 40, 52, -22, -32, -13, -49, 55, -20, 14, 1, -8, 3, -3, -39, 8, -9, -7, 23, 34, 32, 1, -14, -39, -23, 0, -30, -5, -2, 17, 57, -42, 87, 71, -14, -8, 25, 10, -30, -32, -6, 33, -52, -37, -43, 10, 21, 15, 11, -9, 7, -56, 5, 4, 13, 21, -31, -65, -8, 49, 0, 31, -9, 38, 17, 51, -15, -64, -1, -38, 16, -31, 27, 12, 44, -62, 7, 52, -4, -17, -52, -8, -17, 51, -4, -12, -6, -14, 0, -38, 53, -52, -21, -29, -25, -6, -43, 17, -13, 6, -5, 11, 32, -44, -56, 6, 31, 66, -22, 41, 30, 24, -16, -41, -11, 76, 29, 49, -46, 19, -16, 18, -32, -11, 35, 22, 5, -22, 19, 13, -49, -26, 35, -31, -45, -3, 37, -23, 60, 19, -22, -6, -5, -12, -25, 3, -5, -42, 54, 16, 11, 45, -38, -39, 19, -7, 8, -23, 21, -38, 16, 9, 66, -35, 32, 4, -3, -20, 9, 40, 28, 37, 2, -13, -45, 15, -6, 1, -24, -50, -16, 25, 2, 15, -12, 47, -17, 2, -25, 55, 19, -11, -49, 33, 23, 8, 15, -39, -58, 21, -54, 21, -2, 9, -26, -29, -15, 14, 30, -4, -35, -32, -25, 4, 28, -5, -14, 5, -7, 27, 34, 72, 51, 43, 26, -36, -7, 35, 3, -19, -59, 9, 1, 51, 6, 28, -35, 20, -1, 1, 3, -6, 23, 22, -46, -4, 10, 25, 16, -18, 8, 22, -38, -15, -11, -28, 26, -3, 31, 55, -11, 8, -18, 2, -11, -22, 44, -57, -24, -19, -17, -43, -21, 26, -60, -4, -66, -6, -34, -45, -1, 14, 27, 23, 17, -23, 9, 11, -29, -9, -8, -20, 34, -2, -24, -12, 15, -44, -79, 29, -48, 22, 16, 33, -41, -21, -45, -32, -53, 15, -19, 26, 1, 4, -46, -26, 8, 51, 35, -4, 13, -12, -7, 35, 10, 27, -1, 52, 20, -27, 31, 2, 7, 17, 1, -18, 39, 40, -26, -60, 32, -7, 19, -40, 13, -18, 7, -41, 1, 19, -11, 35, -10, -32, -3, -13, -23, -41, -3, 9, 31, -37, 22, 76, 32, 50, 25, -6, -23, -35, -8, -58, 30, -39, 11, -11, 7, 33, -22, -41, 35, 24, -26, -62, -19, -2, 29, 35, 17, 2, 26, 1, 23, -22, 7, 25, -10, -18, -40, -21, 6, -68, -35, -9, -5, -17, 61, 2, 18, 20, -31, 40, -4, -21, 0, 18, 26, -32, -35, -9, 17, 15, 25, -30, 0, 33, 19, -40, -11, -23, 9, -31, 11, -23, 22, 18, -45, -9, 3, 67, 44, 38, 9, 7, -17, -18, 30, -24, 31, 23, -14, 36, 69, 9, -22, 24, -14, 48, -77, -34, 60, 30, 0, 11, 12, 22, 5, -8, -34, -15, -3, -18, 29, 0, 31, -9, -35, -38, -11, 17, -33, -33, 25, 37, 74, 1, 0, -3, -15, 3, -31, 12, -42, 70, 56, -14, -24, -10, -32, 0, -64, 17, 33, -10, -14, -2, -2, 0, 1, 68, 25, 18, 35, -58, -4, -11, -6, 10, 18, -47, 21, 38, -34, -16, -27, 37, 45, -21, -1, 0, 17, 67, -2, 16, -16, -30, 11, 3, -28, -2, 44, 22, -51, -27, 36, 20, -40, -66, -10, -9, -18, 4, 39, -41, -32, -5, 33, 7, 4, -6, 13, 13, 0, -20, -13, -25, 44, 48, -16, 9, 27, -48, 10, -8, -10, 58, 42, 25, -15, 17, 35, 16, 0, 17, -13, 3, 17, -65, 44, -9, 36, -21, -67, 32, -37, 2, 14, -13, -13, -19, 2, -71, 22, -4, 53, 27, 10, 6, -5, 57, 3, 0, 66, 24, -47, 19, 26, 30, 24, -43, -39, -29, 9, -17, -13, 15, -57, 11, 3, -22, -37, -39, -5, -6, 4, -62, 0, -43, -41, 9, 22, 2, -60, -37, 8, -3, -11, 21, 48, 11, 32, 12, 44, -25, -1, -1, -23, -40, 53, -13, -11, -32, -24, 1, -43, -21, 22, 14, -38, 5, 47, 15, 58, 0, -19, 8, -10, -42, -16, -20, -18, 10, 17, -21, 52, -30, 40, -4, 31, -61, -6, 27, -14, -8, 0, 15, 4, 8, 18, -29, -47, 26, -17, 28, -18, 10, -42, -32, -7, 38, 35, -2, 16, -14, -55, 28, 22, 13, 75, 20, 20, -2, 2, 8, 47, -18, -10, 16, 13, 17, -31, 0, 59, 22, 0, -3, -16, -13, -26, 46, 20, 27, -21, 3, -4, -19, 25, -19, 10, -20, -44, -30, 62, -5, -9, -13, -68, -57, -15, -52, 71, -1, 46, -7, 21, -27, -7, 28, -26, 39, -12, -24, 42, 0, 38, 38, 29, -2, 13, 6, 25, -11, -43, 29, 34, -50, -13, -70, -1, 2, 0, 37, 25 ]

Moore, J. This is an action brought to recover a commission growing out of the following paper: “Pontiac, Mich. 1/12/21. “Messrs. Reed and Nagel : “I hereby agree to sell my farm of 630 acres located near Independence and Orion townships for the sum of sixty thousand ($60,000) dollars, a payment of five or ten thousand dollars down, or income property which is acceptable. I also agree to pay 5% commission. This price to remain in force for 30 days. (Signed) “Jas. I. Butcher.” After securing the writing, plaintiff and Reed commenced negotiations with one Houghton which resulted in an exchange of the properties of Mr. Butcher and Mr. Houghton, and Mr. Houghton took possession of the farm. Suit was brought by the plaintiff to recover one-half of the five per cent, commission', less a credit for money paid to' him by defendant. Defendant’s plea was the general issue with notice of the special defenses of abandonment, the statute of frauds, and failure of consideration. He also claimed that he was entitled to a set-off of $250 which he had paid to plaintiff. On the trial defendant admitted that he signed the writing sued on, but claimed that when it was proposed that Houghton’s contract equities be turned in in lieu of cash, he refused to go ahead on the commission basis outlined in the writing, and the writing was thereupon abandoned by mutual consent of all parties to it, and defendant entered into two separate oral undertakings with the plaintiff and Reed. Reed was to be paid $1,500 by cancellation of certain of Reed’s notes held by defendant and amounting to about $1,350. The difference was to be paid him in cash. Plaintiff was to receive $250 in cash, and $1,250 more if he could make it out of reselling the Houghton equities. The plaintiff denied any such agreement. At the close of the plaintiff’s case defendant’s counsel moved for a directed verdict, and the court reserved his decision. This motion was renewed at the close of the proofs, and the court denied it with the reservation of the right to enter a judgment non obstante veredicto. The court submitted the case to the jury. The jury rendered a verdict in favor of the plaintiff in the amount of $1,350. Defendant thereupon moved for a new trial, or a judgment non obstante veredicto, which motion was denied in its entirety, the court entering judgment on the verdict. The case is brought into this court by writ of error. 1. Defendant claims the plaintiff is not entitled to recover because he is not a proper party to institute this suit. It is stated that the writing sued upon, if it can be said to express any liability of the defendant, is his liability to the plaintiff and Reed jointly. The writing is addressed to “Messrs. Reed and Nagel,” and undertakes to pay them a real estate commission, and created, if anything, a joint interest in Reed and the plaintiff, and that they should both have sued. There is testimony to the effect that Reed and Nagel were real estate men, but had no business relations except as> to this one transaction, and that each expected to divide the commission on a fifty-fifty basis, and that defendant settled with Mr. Reed upon that basis. Before bringing suit the plaintiff placed hisi claim for $1,250 with an attorney, who is now dead, for collection. In reply to a letter written by him asking the payment of $1,250 Mr. Butcher wrote as follows: “Detroit, Mich., Nov. 18, 1921. “Henry C-. Rummel, “1326 Dime Bank Bldg., “Detroit, Michigan. “Dear Sir: I have your letter of the 12th inst. in regard to the account of Mr. Nagel, and will say that the amount of this account is correct and at the time I made the deal with Mr. Nagel it was thoroughly understood that he was to dispose of some of the houses in order to collect his commission, and I have paid him all the cash I agreed to, and in this connection will say that I will turn over one of the houses in Pontiac that I got in the deal to take care of this commission if he so wishes. “Sincerely, “Jas. I. Butcher.” The amount of the account to which reference is made with the interest added is the amount of the verdict. 2. It was the claim of the defendant that the writing sued on was abandoned before the farm was sold. This was denied by the plaintiff and made an issue of fact. 3. Defendant claims, we quote from the brief: “Because of his dual agency, the plaintiff is not entitled to recover. The law will not permit an agent to act in a dual capacity in which his interest conflicts with his duty without a full disclosure of the facts to his principal. Hogle v. Meyering, 161 Mich. 472; Leathers v. Canfield, 117 Mich. 277 (45 L. R. A. 33); Woods v. Palmer, 151 Mich. 30; Hutton v. Sherrard, 183 Mich. 356 (L. R. A. 1915E, 976); Kirby-Sorge-Felske Co. v. Doty, 190 Mich. 553. “Where plaintiff who negotiates a trade acts in a double capacity representing seller and purchaser, he should so advise his clients. Moore v. Meade, 213 Mich. 597.” We again quote from the brief: “4. The verdict is fatally defective because there was submitted to the jury a theory of plaintiff’s case at variance with the pleadings and the testimony. “It was error for the trial court to submit this case to the jury on the theory that the plaintiff was a mere middleman, and.it was consequently error to refuse a new trial when it was apparent that the verdict was based on such a theory.” In relation to defendant’s claims 3 and 4, plaintiff replied that he acted as a middleman; that defendant knew that plaintiff was also to get a commission from Mr. Houghton; and that it was lawful for him to do so when the defendant understood he was to do so. In his denial of the motion for judgment non obstante veredicto, the court said in part: “The court takes the view that most of the contentions raised by counsel for defendant, particularly those relating to partnership or joint adventures and also that dealing with defendant’s ignorance of plaintiff’s dual agency, are answered in defendant’s letter to Henry C. Rummel of November 18, 1921.” The decisive questions in the case were all questions of fact. Many of them were in dispute. The trial judge tried in a charge covering more than 14 pages of the printed record to cover every phase of the case. We find no reversible error. The judgment is affirmed, with costs to the appellee. McDonald, C. J., and Clark, Bird, Sharpe, Steere, Fellows, and Wiest, JJ., concurred.

[ 1, 10, -39, 10, -4, 4, 68, -3, 14, 16, 48, 8, 12, 30, -4, 5, 31, -52, 18, -6, -15, -34, 11, 11, -7, -13, -12, -36, -8, 0, -43, 42, -54, 22, -1, -15, -35, 9, -32, 4, -19, 14, 14, 21, 15, -15, -2, -18, 18, 2, 31, 8, 6, -59, -27, -72, -9, 33, -12, -20, -30, -37, 6, -17, 2, -17, -42, 3, 14, 19, -26, -12, 13, 40, 42, -2, 24, -40, 0, -25, 23, 0, 39, -6, -37, 75, 42, -49, 19, 27, 3, 33, -37, 9, 11, 14, 24, 31, -5, 20, 5, 8, -87, -28, -8, -27, -35, -48, -37, 26, -10, -40, 22, -78, 27, -8, -49, 4, 49, -18, -11, -14, -24, 38, 6, 5, -11, 0, -24, 36, 34, -21, -35, 23, -29, -11, -28, -1, -2, -11, 33, 11, -38, 0, 9, 13, -25, -1, -32, 23, -44, -11, 0, 29, 21, -47, -15, 4, 25, 12, 40, 6, -39, -39, -38, -5, -7, -39, -19, 23, 3, 30, -7, -42, -18, -57, 22, 24, -9, 26, 3, 21, -2, -34, -27, -20, 77, 8, 2, 15, 44, 25, -8, 0, -32, 9, 16, 5, 34, 10, -29, -72, -8, -2, -1, -27, 60, 14, 34, 24, -34, -1, -4, -26, 0, 43, -5, 3, 40, -22, 50, -38, 2, 40, -40, -43, -4, -5, 0, -20, -38, 2, -1, 39, -4, -71, 14, 14, -9, 10, -42, -30, -2, -30, -4, -3, -51, -10, -17, 53, -10, 12, -70, -11, -24, 0, -31, -13, -20, 0, -17, 25, -58, 31, 22, -55, -16, 20, 8, 47, -16, -26, -32, 52, -74, -16, -17, 31, 22, -5, 68, -57, -30, 9, 10, 41, 7, 35, -42, -44, 18, 14, 21, -49, 0, 67, 10, -11, 45, 10, -12, -19, -22, -27, 32, -17, -16, -44, 30, -37, -16, -41, 3, -17, 32, -9, 24, -35, 6, -17, 31, 38, 16, 38, 47, -1, 61, -69, -13, 46, -8, 18, 11, -18, -31, -4, 29, -16, -56, -27, 12, 21, -5, 50, 6, -15, 25, -16, 1, -14, -37, -24, -5, 27, 9, 1, 15, -12, -65, 9, 38, 34, 0, 2, 18, 15, 7, 8, -27, 17, 19, 56, 27, -10, 14, 39, -7, -41, -51, -5, 7, 13, -19, 42, 29, -15, -25, 4, -47, 10, -53, -13, 16, 47, -14, 18, 13, -75, -25, -35, 54, 14, -11, 10, -47, -22, 26, 11, -22, 20, 33, -33, -1, 11, -2, -33, 7, 9, 49, 8, 73, 10, -4, -26, 53, -7, 36, -10, 0, 26, -8, -10, 18, -33, 66, 10, -37, 8, -21, 49, 12, 41, -29, 9, -9, -52, -23, 19, -4, 5, 3, 1, -11, -1, -10, 31, 16, -6, 12, -32, 10, -6, 17, -87, -5, 10, 49, 1, 31, 19, -27, 65, 54, -36, -15, -16, -4, -3, -14, 45, -35, -6, -14, -6, -31, -23, -21, 22, -12, 31, 34, -26, 33, 41, -23, 13, 15, -8, 52, 13, -3, -21, 41, -22, -9, 31, 31, -26, 14, -29, 20, -28, -9, -20, 11, 38, -23, -4, 40, 3, -33, -8, -3, -14, 53, 45, 34, 13, 17, -55, 54, -8, -54, -31, -6, -76, 0, 12, -4, 0, -14, 11, 22, 39, -11, 35, 4, 5, 7, 3, 3, -60, 15, 0, 25, 61, 0, -23, 47, -37, -9, 7, 4, -3, 78, -14, 4, 33, 26, 67, -23, -43, 60, 30, 26, -14, -22, -15, 2, 41, -66, -46, 5, -8, -11, -15, -5, 47, 28, 5, -15, -5, 10, -40, 17, -10, 57, -15, 10, 24, -35, 17, -87, -25, 19, -33, -37, 48, -9, 35, -1, 30, 10, 26, 70, 10, 24, -15, 11, 50, 23, -13, -33, -33, 38, 3, 48, -20, -7, 5, -10, -13, -13, 40, -41, -2, 40, 18, -71, -1, -44, 0, -33, -14, 13, -22, 16, -24, -8, -33, -15, -13, 24, -30, 24, -9, 41, 7, 4, -21, 74, -16, -5, 16, 14, -33, 50, 12, -5, 12, 17, -22, 41, -44, 25, -5, 28, 35, 21, 68, 46, 30, 17, -1, 13, 29, 34, 9, -41, 28, -14, 16, -48, 4, -40, -15, 19, 5, 7, -36, 9, 5, -38, 39, 17, 24, -28, 19, -6, -14, -10, 25, 11, 50, -9, 40, -21, 24, 1, -41, 0, -45, 47, -36, 33, -12, -2, 30, 0, -10, 23, 14, 8, -7, -28, 38, -6, -7, -51, -24, 9, -38, -61, -19, -17, 9, 43, 28, 2, -26, 5, 2, 4, 78, 53, -17, -7, 0, -71, 12, -6, 23, 9, 3, 11, 23, -7, -58, 45, 5, -32, 12, -64, 21, 28, 12, 23, -19, -3, -38, -22, -55, -12, -47, -39, -24, 31, -22, 104, 9, 4, -18, -10, -44, -57, 10, 63, 0, -4, -44, 1, -22, -3, 27, -39, -59, 8, 14, 7, 27, -29, 41, 11, -30, -4, -30, -45, -17, -20, 56, -10, -2, -15, -13, -14, -12, -10, -6, -33, 25, 27, -15, -9, 4, 20, 22, 7, 6, -47, 47, -28, -49, 15, -38, 77, 5, -12, 16, -67, -37, -34, -25, -1, -23, -70, 7, -22, 6, 23, -9, -17, -36, -46, 14, 43, -21, -14, -13, -24, -16, 8, 6, -50, -41, 32, -8, -12, -26, 56, -2, -28, -25, -44, 16, -43, 8, 12, -48, -20, 30, -5, -23, -30, 2, 64, -13, 6, -12, 24, 11, -1, 21, 25, 0, 3, -31, -19, -25, 10, 0, -2, -18, -54, -28, -61, 48, 26, -11, 7, 46, 29, -29, -59, 28, 22, 15, -3, -14, 5, 40, 16, 27, -58, -4, -9, -10, -11, -89, -12, 36, 42, 40, -4, -13, -37, -10, -11, -26, -3, 10, 20, -18, 56, 31, -18, -16, -39, 23, 8, -2, -1, 14, -5, -32, 22, -16, 24, 27, -48, -20, 56, -32, 3, -9, 21, 0, 39, 14, 14, -8, 2, -32, -71, 76, 2, 1, 38, 5, -21, -33, -2, 60, 34, 9, 11, -6, -14, 32, -14, -38, -27, 2, 9, 0, 31, -2, 28, 58, -11, -26, -21, 7, 29, -25, -32, 21, 6, 1, 8, -20, 32, 31, 12, 99 ]

Wiest, J. This is an action on Michigan standard insurance policies, issued by defendant to plaintiff, upon a stock of merchandise and fixtures, to recover loss and damage by fire. Defendant pleaded right to an appraisal as stipulated in the policy. Plaintiff asserted waiver. The issues of waiver and amount of loss were tried to a jury, with verdict for plain tiff. Motion for a directed verdict for defendant was reserved and denied along with a motion for judgment non obstante veredicto. The policy on the merchandise was for $2,000 and on the fixtures $200. Fifteen other insurance companies also carried risks on the merchandise. All of the policies totaled $16,200. Plaintiff claimed a total loss and recovered $362.45 upon defendant’s policy covering the merchandise, and $105.44 upon the policy covering the fixtures. Decision turns mainly upon whether the facts bring the issue of waiver within the rule stated in Rott v. Insurance Co., 218 Mich. 576. The fire occurred May 3, 1923. At the request of adjusters plaintiff prepared an inventory and, on May 22, 1923, three adjusters, representing the several insurance companies carrying the risk and acting in concert, appeared to view and ascertain the loss. Dispute between them and plaintiff at once arose, and plaintiff withdrew, .came back and withdrew again. The adjusters went on without him for a time and then, plaintiff claimed, informed him the companies would pay $3,200 and no more. This was denied by the adjusters, who claimed such sum was mentioned in an effort to reach an agreement. Upon refusal to accept the sum offered, the adjusters, the same day, served a demand for appraisers and, plaintiff not complying therewith, but, on July 3, 1923, commencing this suit, application was made to the circuit court and, July 9, 1923, the court appointed an umpire. The trial judge left the question of waiver to the jury. There was testimony supporting the finding of the jury that there was a waiver. No motion for a new trial was made and we must accept the verdict upon the question of waiver as final. Plaintiff testified that Mr. Griffin, one of the adjusters, said they would pay $3,200 and would not pay any more, and Mr. Anderson, a clerk in the employ of plaintiff, testified: “I was in the store on May 22d, when the three adjusters came there. * * * I heard them conversing' together in the store and talking with Mr. Maki. They were agreeing and acting together. They agreed to what each other said to Mr. Maki. They said to Mr. Maki, T will give you $3,200 and no more.’ Mr. Maki replied, ‘Is that all?’ The adjuster then said, ‘Yes, that is all.’ ” This was denied by the adjusters. Mr. Griffin, one of the adjusters, testified: “Q. What did Mr. Hansen (one of the adjusters) say to Mr. Maki in your presence? “A. Mr. Hansen stated to Mr. Maki that on behalf of himself and the other two of us he was willing to make a recommendation of $3,200 settlement for the loss and damage to the stock. The three of us agreed that that was the amount that we would offer Mr. Maki. Mr. Maki said that he wouldn’t take anything less than the total amount of his insurance, $16,200. Mr. Hansen stated that in view of these conditions it would be necessary for us to enter into an appraisal, and I then drew out the appraisal blanks and started to make up the appraisal blanks, because Mr. Maki had repeatedly told us that it was $16,200 and no less, and we didn’t believe that that was the amount of his loss.” Later in the day Mr. Maki and his attorney visited the adjusters at the hotel and it is claimed Mr. Griffin said to Mr. Maki that the companies would pay $3,200 and no more: “We won’t give you another cent.” And Mr. Maki then stated he would have to sue the companies, and Mr. Griffin replied: “Mr. Maki, go on and sue us. We will show you up. You won’t get one cent more than $3,200.” The adjusters, so acting in concert, representing their several companies, had authority to bind their companies by settlement with plaintiff, and authority to deny liability in whole or admit liability to a stated amount, and to assert no liability beyond such would be recognized, except by judgment in court, and sub mit their companies to the consequences of their declarations, including that of waiver of right to an appraisal. Right to have an appraisal rested upon efforts made in good faith to agree and failure to reach an agreement, and not upon a one-sided determination of what the insurers would pay and beyond which they would not submit to liability. A disagreement over the amount of a loss may be arbitrated and must go to appraisers under the policies in question, but a limit placed on liability by the insurers is an assumption of right of self-determination, admits of no arbitration and operates as a waiver of appraisers. If the adjusters declared to the insured that the insurers would pay $8,200 and no more, they thereby lost the right to an appraisal after rejection of their ultimatum. If, after such ultimatum, they demanded right of appraisal and, when plaintiff refused their demand, reasserted the ultimatum and stated that plaintiff might sue, and plaintiff took them at their word and did so (as he did), they estopped their companies from asserting the defense of right of arbitration before suit. The evidence brings the case within the rule stated in Rott v. Insurance Co., supra. The errors alleged in the instructions to the jury present no ground for reversal. The adjusters were in no sense arbiters of the rights of the insured and, if they set the limit of liability to be recognized by their companies, they usurped the power of appraisers without recognition of the rights of the insured, and the law will not let them try out such a method and, upon failure, fall back to the method they should have pursued in the first place, but in fact flouted. If there was a waiver of arbitration, then, of course, the appointment of an umpire by the circuit court thereafter was a nullity. The defendant was not entitled to a directed verdict or to judgment notwithstanding the verdict. We find no reversible error and the judgment is affirmed, with costs to plaintiff. McDonald, C. J., and Clark, Bird, Sharpe, Steere, and Fellows, JJ., concurred. Moore, J., did not sit.

[ -20, 5, 16, 42, 2, 18, 38, -60, -3, -5, -14, 29, 11, 13, -23, 22, 9, 30, -38, 0, -3, -16, -33, -11, -18, -36, 41, -50, 54, -7, -32, 20, -21, -9, -45, 6, -6, -17, -46, -28, 23, -20, 46, -35, -20, -2, 18, -42, 95, -5, 3, -9, -2, -20, -30, -34, 62, 22, 11, 17, 5, -33, 28, 7, -9, 0, -30, 19, 6, 16, 41, -15, -3, -13, -5, 14, -57, 40, -37, -14, 29, -46, 48, -43, -48, 68, -7, -18, -45, 6, -57, 1, -20, -50, -13, 11, 48, 49, -33, 10, -19, 31, -29, 7, -45, 48, 38, -24, -40, 21, -4, 6, 13, 34, 43, -9, 12, -14, 15, 53, 47, 28, -18, 25, 9, 59, 8, 8, -53, -28, -16, 21, 16, 77, 44, 10, 16, -54, -18, -12, 26, -10, -47, -19, -32, 30, 25, 18, -35, -30, -7, 4, 24, -9, -2, -11, 18, 1, 0, -63, 5, -33, 1, 38, -19, -30, 48, -12, -21, 9, 15, -48, 27, -12, 13, 46, 74, -53, -30, 21, -8, -19, 37, 14, 17, -35, 18, -24, -13, -8, 76, -65, -39, 16, -28, -7, 32, 50, 22, -8, 30, -36, -44, -33, 21, 29, 18, -19, 1, -24, -20, 28, -16, -29, 18, 39, -37, 22, -37, -77, -38, 44, 14, 4, -10, -81, -10, 44, 58, 0, -34, -2, 18, 46, 18, 15, 9, 6, 49, -5, 38, -31, -14, -5, 43, -37, -18, 0, 9, -7, 10, 33, 19, -7, -49, -16, -5, -29, -35, 24, -46, 4, -33, -9, 34, 8, -16, -4, 11, -11, -41, 4, 30, -52, -1, -41, -38, 3, -7, -9, -15, -25, -50, 17, -47, 40, 14, -7, -38, -28, 56, 2, 16, -34, 38, 1, -47, 4, 7, 0, -18, -22, -15, 7, -13, -24, -43, -39, 0, 11, -86, -6, 6, -12, 59, -26, 3, 14, -28, -7, 16, 50, -26, 27, -28, -37, -1, -14, 0, -40, -38, -18, 20, -9, -62, -13, -7, -45, 38, 21, 42, 15, 19, 21, -51, 5, 22, -3, -3, -7, -14, 0, -22, 3, -20, 12, 59, 43, -19, 59, 78, 45, 25, 25, 18, 55, -5, 24, 4, 16, -3, -2, 4, -7, 17, -17, -10, 23, -72, 15, -10, 3, 2, 17, 12, 16, 19, -8, -63, 13, -46, -9, 8, 71, -42, 35, -27, -25, -40, -2, 12, 25, 11, -8, -40, -31, 43, -50, -27, -13, -15, -15, -26, -52, 32, -6, 14, 16, 14, -18, 45, -35, -12, 10, 0, -57, 76, 33, -36, -22, -21, -17, -8, -37, -24, 1, -12, -15, -13, 32, -4, 21, -64, -6, 8, -15, -50, 2, 33, 15, 9, 38, 56, 12, -3, 69, -47, -29, 26, 38, 1, -19, -2, 10, 24, -3, 18, -7, 73, -44, 11, 37, -36, -23, -27, -4, -12, -40, -13, 19, 14, 75, 12, -42, -12, 17, -32, 10, 14, -13, 28, -28, 12, -26, -22, 5, -72, -5, 17, -30, -33, -26, 0, 2, 32, -1, -22, -38, 7, -17, 28, -13, 4, 20, 39, 50, -36, -10, -12, 14, -57, 12, -49, 5, 9, -30, -47, 28, 20, -7, 10, 7, 20, -53, -37, 29, 47, -19, -13, 11, 3, -13, 21, 11, -2, -6, 5, -20, 53, -1, 0, 1, -12, 21, 11, 61, 0, -13, 35, 10, -5, -11, 7, -11, 5, -15, -15, 3, 19, 25, -57, -14, 10, -19, 1, 26, -8, -1, -9, 36, -12, 10, 16, -56, -6, 8, -1, 20, -32, 0, 38, 19, -32, -4, 35, 9, 8, -9, -6, -7, -39, 20, -43, 15, -10, 9, -18, 5, 33, 10, 21, 22, 7, -20, 5, 27, 36, 27, 55, -11, 45, 23, 9, 18, 17, 22, 22, 3, -4, 34, 13, 3, 15, -66, 2, -8, 8, 33, -43, 21, -42, -6, 12, 4, -47, -11, -9, -18, -29, -57, -25, 13, 18, -6, 14, -11, 6, -16, 16, -47, -11, -15, -57, 45, -19, 17, 72, -37, 11, 11, 16, 9, 17, 16, -14, 7, -42, 94, -31, 80, 23, -3, -6, 64, 9, -6, 3, 9, 49, -45, -1, 26, -13, -45, 76, 14, 7, 5, 8, -61, -12, 1, -15, -20, -31, 26, -50, -51, 18, 11, -34, -2, -4, -19, 15, 35, 6, 17, -28, -29, -36, -62, 78, -48, 6, 22, 48, 17, 32, -25, -1, 3, 14, -13, -38, 18, -16, 31, 56, -3, 33, 8, 43, 12, -56, -19, 11, 1, 67, -31, -18, -3, 30, -19, 1, -3, -32, 9, -11, -3, -15, 41, -22, 4, -22, -8, 4, -49, 46, -57, -3, 3, -43, -63, -2, 1, 28, -31, 0, -11, 20, -7, -38, -6, -5, 9, 32, -9, 11, -20, -48, 16, 15, -12, -26, 48, 13, 8, -25, -20, -24, -6, 9, 27, -23, 25, -30, -19, -17, -39, -24, 4, 16, -59, 29, -8, 5, 0, -31, 73, -23, 56, -22, -17, 3, -38, 3, -22, -11, -8, -6, -27, -45, 7, 10, 4, 45, -15, -6, -27, 43, 3, -17, 53, 8, -50, -14, -19, 12, 54, -46, -29, 20, 53, -18, -13, -4, -37, 44, -7, -9, -18, -44, -5, 14, 32, -29, 32, -23, 27, -12, 33, -24, -87, -11, 10, -1, -14, 0, -6, -6, -19, 42, 5, -24, 22, 8, 4, -67, 65, 71, 5, -7, 70, 23, -42, -41, -31, 11, -32, 32, -28, 23, 53, 23, 45, 0, 15, -23, 0, -20, -20, 47, 3, -5, 44, -2, 9, -27, 43, -9, -24, -13, -66, -6, 10, 13, 19, 6, 53, -57, 12, -11, 26, -10, -64, 6, -51, -5, 31, -14, -10, -10, -32, -35, -4, 55, 24, 5, 53, 29, 30, 14, 53, -23, 24, -31, 26, -37, -10, -10, 24, 9, 12, 20, 16, 62, 30, 0, -3, -9, -11, 15, -24, -62, 6, -11, -6, -13, 16, -26, -30, -42, 18, 7, -22, -6, 26, 11, -43, 0, 55, -8, 11, -14, -21, 26, 69, -45, -5, 15, 28, 6, -14, -41, 53, 21, -19, 28, 13, -38, 36, -9, 1, 4, -15, -55, -7, -16, -37, 68, 38, 2, 64 ]

Brooke, J. This is the second time this case has been before the court. The opinion filed upon the first hearing will be found reported in 180 Mich., at page 208 (146 N; W. 670). As a result of the first hearing this court determined that plaintiff had been overcharged in the sum of $808.67. The case was thereupon remanded to the trial court “to compute the tax against plaintiff as above indicated and enter a judgment in his favor for the balance.” When the matter again came up in the circuit court, following the filing of a remittitur, a difference arose between counsel for plaintiff and counsel for defendant as to the correct method of computing the amount which the plaintiff should recover from defendants. Application was thereupon made to this court for a writ of mandamus, to compel the circuit judge to enter judgment according to the contention of plaintiff’s counsel. This application was denied by this court, and the parties proceeded to trial in the court below. The record made upon the earlier trial was introduced in evidence, and the facts as therein contained conceded to be true, and thereupon plaintiff’s counsel offered in evidence two exhibits. The first, Exhibit 2, dated April >30, 1910, is as follows: “Resolved: That the village treasurer be and he is hereby authorized and directed to proceed with the collection of the special assessments on the property formerly within the village of Fairview and now within the village of Grosse Pointe Park as the same appear on the special assessment rolls of said former village of Fairview, said rolls being: Roll No. 3 for the cost of the construction of the Jefferson avenue sewer; and roll No. 7 for defraying the cost of paving Jefferson avenue. Provided, however, that no interest be charged or collected from May 8, 1907, to May 8, 1910, by said treasurer on the amounts payable on said rolls; and provided further, that where the parties against whose property said assessments were made have paid the parts of the assessments due and payable before May 8, 1907, the time to pay the remaining parts of said assessment be and the same is hereby extended as follows: The time for paying the third part of the assessment for said payment is hereby extended to July 24, 1910. The time for paying, the fourth part of said paving assessment is hereby extended to July 24, 1911. The time for paying the fifth part of said paving assessment is hereby extended to July 24, 1912. The time for paying the fourth part of the' assessment for said sewer is hereby extended to July 24, 1910. The time for paying the fifth part of the assessment for said sewer is hereby extended to July 24, 1911. Interest on all unpaid assessments to run at the rate of six per cent. (6%) per annum to the time of payment, except for three years above stated. Provided further, that all assessments in default on June 1, 1910, be placed upon the general tax roll, as provided by law. And be it further resolved: That the village treasurer send notice by mail of this resolution to the parties whose names appear as owing on said assessment rolls.” A material part of Exhibit 3 is as follows: “The general assessment roll of the village of Grosse Pointe Park for 1910 contains the following assessments fob this payment: Pavement. Interest on Paving. Thomas W. Corby. All that part of P. C. 502 and 692 lying between Jefferson Ave. & Lake St. Clair.. $1,913 04 $358 69 Thomas W. Corby. All that part of P. C. 502 and 692 lying between Kercheval Ave. & Jefferson Ave.. 1,913 04 358 69.” These exhibits were excluded by the learned trial judge and a computation of the tax was made upon the theory that plaintiff, Corby, should be charged in the computation with all statutory interest and penalties. By the resolution of April 30, 1910, it will be noted that interest for three years, from May 8, 1907, to May 8, 1910, was remitted by the village council. A consideration of the whole matter leads us to the conclusion that this resolution resulted from a conviction on the part of the council that the chaotic condition of the affairs of the village, resulting from an abortive attempt to annex a portion of its territory to the city of Detroit, constituted a sufficient reason for plaintiff’s refusal to pay his tax until it was determined to whom he might legally make payment. We are of opinion that the second trial must be considered as a new trial in the light of our refusal to issue the writ of mandamus, and that the circuit judge should have admitted in evidence the two exhibits in question. We are further of the opinion that it was within the legal power of the village council to adjust its claims for interest in the way it did, and that such adjustment was, under the circumstances, no more than equitable, and, further, that it should now be estopped from claiming interest for the three years by that resolution remitted. Upon the question of the power of a municipality to make such adjustments, see Prout v. Fire District, 154 Mass. 450 (28 N. E. 679), and City of Shawneetown v. Baker, 85 Ill. 563. Assuming, therefore, that the exhibits should have been admitted, and, further, that they should have been made effective according to their tenor in computation of the tax, the account should be stated as follows: The original assessments against Mr. Corby’s lands were confirmed on July 24th, 1905, by the village council of Fairview village. One description was assessed.................$1,913 04 One description was assessed................. 1,913 04 Total .......................................$3,826 08 This court held in Corby v. Detroit et at., 180 Mich. 208, that there was an overcharge in the assessments of ........................ 808 67 The amount of proper tax on July 24, 1905, therefore, was ............................$3,017 41 This sum should bear interest at 6 per cent, from July 24, 1905, to May 8, 1907, time 1 year, 9 months, and 14 days................ 323 83 No interest under the provisions of Exhibit 2 should be charged from May 8, 1907, to May 8, 1910. Interest, however, should be charged at 6 per cent, from May 8, 1910, to October 24, 1910, when the tax was returned unpaid to the county treasurer, time 5 months and 16 days (Act 39, Pub. Acts 1899 [1 Comp. Laws 1915, § 2725]) ......................;........... 83 48 The county treasurer’s charges should be added, interest at 1 per cent, a month from October 24, 1910, to June 27, 1911, when Mr. Corby paid the tax, time 8 months and 3 days (Act 262, Pub. Acts 1899).................. 244 38 The county treasurer’s collection fee at 4 per cent..should be added...................... 120 69 This made Mr. Corby’s just tax due on June 27, 1911, when he paid the assessment under protest ....................................$3,789 79 He paid the sum of.......................... 4,906 94 The amount of his just tax was............... 3,789 79 The difference due plaintiff therefore was.... $1,117 15 This difference should bear interest at 5 per cent, from June 27, 1911, to December 31, 1915, time 4 years, 6 months, and 4 days.... $251 96 The total amount of plaintiff’s judgment should therefore be...............................$1,369 11 The case will be remanded to the circuit court, with instructions to enter judgment in plaintiff’s favor for the sum of $1,369.11. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.

[ -29, 79, -2, -7, -94, 7, 18, -28, 0, -3, -6, -13, 27, 29, -4, 28, -53, -43, 18, -4, -28, -16, 9, -23, -23, 44, 4, -43, 2, 21, 2, -1, -22, 48, -33, -6, 35, -1, 14, 21, 8, 9, -19, -49, -24, 10, -7, -31, 5, -21, -33, 12, 30, 17, -18, 1, -34, -7, -16, 9, -20, 15, -19, 23, -9, -17, -12, 0, 28, -26, -37, -19, 22, -19, 33, 5, -67, 14, -34, -2, -53, -42, -6, 31, -42, 21, -22, -57, 37, 6, 13, 21, 28, 15, 30, 21, 35, -3, 21, 15, 4, 1, 4, 50, 19, -20, -32, -36, -32, -17, 23, 22, 82, -21, -20, 3, -3, -19, -13, -38, 27, -31, 27, -11, 9, 17, -26, 24, -37, 4, -6, 2, -27, 5, -3, -13, 4, -47, 6, 44, 12, 26, -4, -17, 23, 13, 1, -3, 0, -2, -53, 16, 10, 16, 27, 12, 20, -57, 39, -11, 36, 5, 19, -34, -41, 15, -6, 34, -18, 2, 69, 16, -9, -29, 32, 6, -6, -19, -12, -26, 6, 7, 11, -26, -17, -38, 7, -27, -3, -21, 16, -15, -49, -29, -1, 41, 0, 5, -54, -17, 2, -5, 11, 0, -9, -3, 56, -10, 0, 34, 1, -7, -17, -4, 17, 8, 9, 3, 4, 35, 27, 23, 34, 20, -38, 7, -11, -2, 17, 2, -22, 11, -11, 21, -4, 5, 38, 47, -8, 6, -48, 20, 4, -36, -30, 12, -56, -1, -49, 24, -32, -7, -31, -23, -19, -28, -12, -2, 33, -6, 12, 51, 5, -19, -45, 1, 1, 20, -7, 14, -42, 52, 8, -1, 1, -16, -22, -19, -18, 98, -45, -73, 4, 37, 18, 4, -11, 42, 22, -6, 8, 19, 20, -13, -3, 1, -8, -23, -1, 48, -44, 9, -8, 30, 41, 7, 6, 19, 2, 21, 16, 30, 7, -6, 27, 20, -23, 0, 30, 11, 34, 17, -33, 4, -2, 19, 25, -8, -44, -60, -3, 31, 3, -9, 35, -24, 17, -26, 1, -5, 16, 30, -25, -15, 1, 0, -40, -11, 20, 25, -9, 24, 8, 46, 29, 8, -8, -48, 6, 30, 53, 31, 63, -41, -18, -22, -17, -1, 24, 54, 33, 10, -39, 17, -3, -21, 20, 6, -38, 40, 6, -60, -9, 18, 1, -6, 1, -23, 5, 17, -25, 6, 35, 20, -18, 12, -3, -33, -32, -40, -1, 38, 37, 13, -11, -3, 18, -27, 27, 24, -9, -34, 23, -46, 10, -40, 0, 8, -4, 0, 37, 39, 26, 6, 27, 6, -4, 14, 9, -18, -36, 22, -9, -64, 28, 0, -5, -33, -17, -24, -32, 50, 11, -34, 0, -50, -35, 13, 27, 25, -18, 13, 17, 18, -26, -26, -18, -57, 78, -45, 26, 14, -8, 8, -8, -22, -37, 2, 26, 43, -19, 34, -2, -52, 20, -9, 6, -12, 10, 36, -21, -70, 13, 33, -44, 26, 42, -13, -28, -5, 42, -14, 6, 24, 65, 9, -40, -13, 4, -11, -22, 3, 5, -39, 8, -21, 28, -10, -18, 11, -4, -19, 17, 20, -5, 28, 30, 6, 36, 57, -10, 7, -27, 0, -10, 38, 37, 5, 21, 10, 4, -9, -2, -5, -24, -54, 0, 6, -2, 10, 5, 24, 43, 20, 21, 20, -2, -20, 5, 2, -9, -7, -1, 43, -51, -53, -3, -36, -13, 0, -21, -22, -2, -49, 28, -20, 27, -49, 3, -52, -26, -9, 8, -21, -69, 19, -31, -48, 0, 13, 23, -6, -59, -35, 36, 42, 12, 28, 22, 46, -26, 10, -23, 29, -1, 23, -39, 6, -5, -7, 10, -23, -42, -42, -41, -11, -34, 16, 56, -9, 55, 25, 18, 31, 11, 54, 3, -40, -3, -4, 29, 22, 13, -17, -2, -12, -3, -14, -99, 62, 21, -7, 35, 69, -27, 0, 7, 23, 39, -10, -26, -16, -42, -25, -33, 41, -74, 12, -32, -3, -40, 44, 45, -1, 19, -18, 19, -17, -2, -41, 40, 12, 15, 66, -36, -3, -7, -9, 60, -14, 6, -45, 3, 6, -13, -78, -46, 56, 8, -21, 15, -13, -26, 32, -26, -31, -29, 31, 9, 17, -6, -32, -25, -18, -27, 3, 7, 16, -3, 18, -3, 4, 22, 24, -47, 25, 16, 28, -16, -49, 20, -12, 21, 9, -22, 37, 13, 19, -18, 13, 4, -71, 15, -25, 16, -18, -2, -32, -45, -12, -31, 38, -18, 28, -34, 27, -23, 2, -40, 6, 30, -37, -17, 7, -10, 30, 32, 33, -38, 52, -27, 41, 41, -21, 11, 42, 3, 16, -8, 61, 5, -3, 23, 46, 15, -13, 28, -5, -14, 20, -72, 26, -15, -38, 10, 29, -72, 4, -10, -32, -3, 30, 14, 12, -31, -69, 16, -8, 3, 11, -15, -46, 12, -16, -3, 23, 31, -9, 43, -22, 30, 49, 28, -16, 2, 39, -49, 25, -10, 25, -3, -36, -16, -39, 31, 11, -34, 28, 31, 13, -18, 35, -2, 1, 7, 28, 26, 12, 9, -4, 67, 0, -35, 9, 0, -34, -5, 12, -8, 13, -2, -17, -39, 13, -14, 27, -10, 7, -21, -6, -35, 18, 3, -8, -21, 31, -18, 29, -2, -2, 57, 20, -48, -5, -13, 43, -23, -38, -10, -42, 17, 38, -43, -34, 5, -9, 3, 14, -19, -78, -71, 20, 25, 13, -33, -28, 8, 21, 6, 38, 30, 58, 11, -8, -14, -18, -37, 25, -11, -30, -30, 20, 32, -8, -37, -27, -2, 28, -8, 36, -17, -48, -38, -39, -47, -22, -21, -30, -4, 23, 58, 35, -8, 18, -43, -10, 32, -20, -16, 24, -7, -7, 4, 14, 39, 36, 15, -49, -3, -10, 6, -74, 0, 24, 2, -16, -21, 29, 16, 21, 8, -22, 30, 52, 5, -54, -26, -42, 0, 8, 21, -30, 65, -12, 21, 25, 30, -4, 30, -20, -42, -38, -24, -41, -4, -2, -1, -38, -3, -28, 38, -8, 14, -5, -41, 21, 44, -14, 15, 4, 4, -41, 5, -19, -27, -23, -3, -24, 61, 4, -18, 2, 37, -26, 46, -28, 58, 37, -5, -13, -15, 55, 29, 6, 41, 13, 8, -4, -37, -58, 4, -23, -21, 10 ]

Bird, J. The plaintiff was employed by defendant Keene driving a team in the city of Battle Creek. On December 12, 1923, he fell from the wagon in which he was riding and suffered a fracture of the os calcis of his left foot, or, in other words, an injury to his left heel bone. An agreement for compensation was reached by the parties and approved by the depart ment of labor and industry, awarding to plaintiff $14 a week. This weekly allowance was paid until June 4, 1924, when defendant filed a petition toi have the same discontinued. A hearing followed, and plaintiff appeared by counsel and contested the petition before Deputy Commissioner Ravens. This hearing resulted in an order discontinuing the payments after June 11, 1924, and closing the case. No appeal was taken from this order. On August 23, 1924, plaintiff filed another petition for further compensation. This petition was heard by Deputy Commissioner Beattie. He made an order reopening the case and awarding plaintiff $10.50 a week, on the theory that plaintiff was disabled to the extent of 75 per cent. Defendant appealed from the order, but it was affirmed by the full board. It is from this order that defendant brings certiorari. The defense interposed by defendant at this hearing was that plaintiff, neither by his petition nor proofs, showed a change in his physical condition since the order was made discontinuing his weekly payments, and, therefore, the order made at that hearing is conclusive of his contention. An examination of the record with reference to this defense shows that no material change was shown in plaintiff’s physical condition, unless it shows a slight improvement. Upon the hearing to discontinue the payments plaintiff showed that his physical condition was unimproved, that he was not relieved of his injury, and was still unable to bear weight upon his left foot, and that he is incapacitated by reason of this injury from pursuing his work as a common laborer, in which he was employed at the time of the accident. Plaintiff’s petition to- reopen his case shows no material change after the previous hearing, neither do his proofs claim any material change. He showed that he had afterward attempted to work, but was obliged to abandon it, by reason of his injury. He then testified: “Q. How was your foot after you did that work? “A. It pained' me more. “Q. What did you quit for? “A. Could not stand on my foot. * * * “Q. Is your foot worse now than it was on the 30th of. June? “A. Not much difference. It swells up when I work. * * * “Q. At the last hearing here, June 30th, were you using a crutch or cane that day? “A. Cane. “Q. Are you getting along without a cane now? “A. I go slow and get along without one. “Q. Is your foot getting better? “A. It pains me a lot yet. “Q. Do you think your foot is getting any better? “A. A little bit, not much.” If plaintiff was in the condition he testified he was in at the hearing to discontinue the weekly payments, he should have appealed from the order of the commissioner to the full board. Taking no appeal, he accepted the decision of the commissioner on his then condition, and is now bound by it. After the order to discontinue, had he been able to show that his condition had changed for the worse, the board would have had jurisdiction to reconsider his condition. His failure in this respect deprives him of the right to have his case considered further by the board. Burley v. Central Paper Co., 221 Mich. 595, and cases cited. See, also, Anderson v. Ford Motor Co., ante, 500. The order of the commissioner discontinuing the weekly payments is res adjudicata on his condition at that time. The award made by the board will be set aside. McDonald, C. J., and Clark, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ 7, 17, -24, 32, 6, 13, 12, -16, 15, 15, -20, 2, 89, -56, 5, -10, 23, 3, 25, 17, -59, -38, 24, -6, -7, -34, -17, -33, -40, 0, 25, 5, -2, 8, -42, 10, 48, 3, -2, -2, 31, -26, -15, -44, -4, -37, -6, -14, 4, -45, 27, -39, -14, -22, 25, 37, 36, 24, -25, -9, -42, 1, 35, -22, 28, -6, 6, 15, -8, -14, -54, 38, 10, 9, -40, -11, -2, 30, -34, 22, 8, 19, 26, 5, -31, 56, -26, -17, 23, -44, -14, 15, -8, 44, 7, -2, -7, 37, 18, -15, -27, -7, 44, -14, -20, -13, -34, -21, -6, 38, -3, 26, 38, 31, 25, -34, 4, 1, -11, 9, 52, -48, -36, -17, -12, -14, -26, -6, -18, 19, 11, -5, -16, 17, 33, -1, 0, -41, -29, -2, 47, 49, -17, -8, -15, 17, -32, 27, -12, 12, 15, -4, 51, -1, 13, -1, 5, 8, 67, -4, 27, 25, -5, -2, -17, -2, -23, 29, 34, -12, 49, 19, 4, -49, 13, 13, 59, -5, -19, 36, -64, -5, 23, -42, -24, -60, -37, 2, 21, -3, 0, -19, -22, -20, 4, -31, 12, -33, 14, 7, 12, -16, -30, 23, -29, 4, 42, 0, 34, 32, -1, -21, 38, -60, -18, 38, 24, 7, -11, -24, 16, 41, 20, -32, -64, -23, 27, 10, 49, 0, -8, 33, 35, 11, 5, 18, 38, -7, 37, -13, -3, -15, -17, -30, -9, -6, -75, -50, 11, -15, 24, 25, -37, 14, -32, -22, 23, -4, -48, 2, -11, 44, 48, 52, 20, -42, 3, 51, 31, -17, 6, -43, 5, -11, -9, -27, -14, -22, 26, -1, -2, 4, -3, 6, -35, 15, -3, -19, -38, -10, 49, -66, 10, -5, 51, -15, 20, 29, -33, -13, 1, -44, -35, 3, 19, 28, -45, -21, 0, 2, -22, -10, 59, -10, 41, 31, 4, -22, 35, -60, -29, 45, -42, -33, -12, 8, -10, -42, -5, -46, -17, 11, -15, 51, -5, -15, 17, 17, 13, 15, 24, 37, 19, 11, -24, 28, -6, -25, 24, 22, 7, -2, 40, -40, -48, 3, 33, -53, -25, 8, 23, -41, -11, -6, -12, 16, -16, -7, -11, 35, 7, 1, 25, -38, -45, -41, 36, 20, -25, 16, 40, -6, 20, -30, -18, 10, -17, -24, -45, -15, -40, -30, 51, 33, -21, 38, 21, 14, -18, -18, -27, 8, -2, -3, 0, -26, 12, -21, -24, 1, 12, -18, -2, -26, 42, 6, 17, 3, -24, -23, 52, -4, -10, -20, 56, 12, -1, -9, -6, -36, 14, -7, 9, -37, 11, 2, 0, -13, -40, -4, 3, 13, -32, -10, 16, 8, -15, 28, 41, -22, 16, 8, -2, 55, -10, 0, 8, -7, 11, -11, -20, -19, -7, -3, 52, 1, -24, 8, 44, 16, 25, -16, 3, 12, 9, -14, -57, -37, 14, 14, -39, -7, 7, 42, -15, -27, -8, -7, 25, 49, 22, 12, -37, -23, -27, 30, -40, 0, -9, 0, -35, -26, -11, -26, 47, -52, 16, -73, 8, 17, -49, -6, -10, -11, 19, 41, 21, 5, -47, 3, 17, 36, -19, -14, 8, -10, -25, 24, 8, -31, 6, -21, -11, -34, 22, -3, 31, -5, -21, -43, -38, 19, 25, -27, -9, -49, -32, 47, 63, 5, 1, -11, 6, -8, -33, 19, 24, 1, 41, 26, 40, 3, 0, 15, 16, 37, 3, 35, 23, -16, -36, 18, 31, 5, -10, 16, -19, 26, -45, -2, -21, -10, -29, -2, -2, -35, 5, 35, -7, -22, -9, 3, 14, -6, 1, 0, 40, -1, 3, -22, -5, 16, -61, 34, 1, 15, -4, 29, 63, -13, -14, 44, -5, -40, 4, -5, -4, 0, 50, 42, -28, -1, 15, -32, -30, -15, -4, 9, -63, -14, 12, -16, 4, -22, -37, 32, 49, 55, -39, -20, 19, -3, 17, -27, -14, -42, -2, -8, -60, -34, -18, 29, 2, -15, 23, 8, 1, 28, -45, -6, -58, 14, -50, 3, -28, -11, 3, -8, 9, 19, 43, 8, 33, -16, 6, -23, -31, 21, 5, 4, 4, 1, 57, 12, -35, 8, 3, 11, 40, -28, -32, 45, -10, 5, -9, 15, 45, 12, 8, -30, -16, 30, -33, 32, 8, 13, -22, 4, 7, 24, 19, 1, -6, 5, 8, 45, 20, 15, -50, -59, 24, -9, 8, -20, 35, 59, 28, -23, -8, -43, 16, 42, -17, -31, -4, -10, -2, 38, -33, -4, 47, -14, 7, 31, -38, -24, 14, -22, -5, 8, -17, -13, 6, 10, 16, -2, -3, -22, -36, 0, 0, -33, 31, 17, -60, -1, 16, -29, 7, -11, 9, 9, 8, -39, 12, 18, 21, -15, -7, -6, 21, -22, 3, 18, -40, -9, -33, 35, -17, 28, -28, -36, -6, 1, 21, -11, 4, -19, -19, -14, -11, 20, -4, 39, 3, -4, 35, 20, 29, -4, -29, -9, -1, -13, 23, -11, 23, -1, -33, 23, 13, 59, -13, -37, 21, 0, -18, -35, 16, 6, 5, -67, -10, 15, -23, 37, 8, -8, -31, 9, 66, -21, -30, 5, 20, -11, -32, 40, -20, 10, 15, -33, -3, 32, -55, -30, -13, -12, -28, 5, 1, -17, -50, -19, 20, 21, -55, -3, 35, 1, 53, 20, -12, 4, -7, 29, 21, -4, 40, -19, 7, -22, -8, 14, -10, 47, 5, -19, 7, 39, -19, 27, -16, -45, 1, -43, -51, 34, 31, 7, 21, 38, 62, 25, -13, -21, -22, -15, -31, 41, -16, -18, -37, -41, 12, 54, -28, 48, 25, -10, 1, 50, -31, 8, 11, 19, -10, 12, -6, 39, 4, -14, 25, -18, 44, 8, 25, -59, -29, 0, 32, 38, -44, 15, -29, -55, 5, -10, 27, 81, 9, 29, 28, 26, -1, -18, -28, -3, 47, 20, 8, -17, 8, 0, 27, 44, 8, -43, -14, -7, 29, -17, -40, -53, 32, 38, 17, -12, 15, -15, 57, -23, -32, 8, -29, 5, -33, -30, -33, -23, -18, -14, -6, 33, 24, -35, 0, -9, -20, -13, -36, -28, -9, 49, -21, -15, 56, 17, -18, 9, 0, 44, -43, -11, 2, 76, -15, -18, -24, 0, 44, -7, 36, -9 ]

Brooke, J. (after stating the facts). In his charge to the jury the court used the following language: “Now, when a person has been defrauded in the purchase of either real or personal property, or in trading for it, he has two courses before him. In other words, as it has been stated, he has an election as to his remedy at law for the same. He may rescind the contract absolutely and restore the property to the party guilty of such fraud, and then sue for the consideration paid, or he may retain what he has received and bring an action to recover the damages occasioned by the fraud; but he cannot do both. He cannot take proceedings both in affirmance of the contract and also in rescission of the contract. In this case the plaintiffs affirm the contract and bring suit for damages alleged to have been sustained by them because of the alleged fraud. “They had a right to do this, just as much right to bring an action in affirmance of the contract as they had a right to bring an action in rescission of the contract. Sometimes it becomes impossible or impracticable to bring an action to rescind a contract because of fraud, because the property may have changed hands, changed ownership. For instance in this case, if either party had disposed of any of the property and had disposed of it to people who were innocent, and acquired any of the property for a valuable consideration, knowing nothing of any claim of fraud, they could not be disturbed, and it would be impossible, therefore, to put the parties in the shape they were originally in. So in such a case it would be impossible to rescind the contract, and the only alternative the plaintiffs would have left would be to bring the action that has been brought in this case; that is, a suit for the damages sustained by reason of the alleged fraudulent representations.” Error is assigned upon the latter portion of this excerpt commencing with the words “sometimes it becomes impossible.’ While it may be true that the portion of the charge of which complaint is made is not strictly a proper statement of the law, and that plaintiff may bring an action in rescission of the contract, even though defendant has disposed of the property received by him, in which event the value of the property so disposed of could be recovered (9 Cyc. p. 433; 20 Cyc. p. 87), we are of opinion that the section of the charge quoted, taken as a whole, is not erroneous, for the reason that, after all, it amounts only to the statement that the plaintiffs were properly in court under the form of action selected by them. Error is next assigned upon the charge of the court with relation to the measure of damages. Upon this point the court charged: “The amount of damages that plaintiffs will be entitled to recover, if they are entitled to recover anything, is the difference between the value of the property purchased, had it answered the representations relied on by plaintiffs, and its value as it actually was. “I will use figures altogether foreign to the figures used here, merely for the purpose of illustration. I fear that if I used the figures here you might think I intended to have you adopt them as correct. For instance, if I buy a piece of property in the city of Petoskey, and I, relying upon the representations of the vendor, believe that it is worth $20,000, when, as a matter of fact, it is worth only $10,000, then I am entitled to recover in an action brought of this kind, if I prove my facts in accordance with the rule laid down, the difference between $20,000 and $10,000, which would be $10,000, which I would be entitled to recover.” After the conclusion of the charge, questions weré asked by certain of the jurors with reference to the measure of damages, in the course of his answers to which the court said: “Now, it is a settled rule of law, in cases like this, the damages allowed the plaintiffs, if they are entitled to recover, is what, from the representations made, they believed the farm to be worth, and then subtract from that what the farm was actually worth, and there we have the damages.” Several assignments of error are based upon these instructions to the jury. The first statement of the court with reference to the measure of damages was correct. The illustration following that statement and the later statement contained in his answer to the jury are erroneous. In the late case of Haener v. McKenzie 188 Mich. 27 (154 N. W. 59), we said: “The measure of damages in such a case, where there is no rescission, is the difference between the value of the premises had they been as represented and what they were actually worth. Wegner v. Herkimer, 167 Mich. 593 (133 N. W. 623).” We are of opinion that the statement of the court that the measure of damages would be the amount of difference between what plaintiffs believed, from the alleged representations made, the farm to be worth, and what it actually was worth, was not only erroneous, but prejudicial. Assignments 5 and 6 are based upon the refusal of the court to charge as requested by defendant. We are of opinion that neither request as tendered should have been given. While it is true that a party defrauded is bound to make complaint of the fraud without unreasonable delay, we are of opinion that plaintiffs in the case at bar are not to be charged with laches. “We do not think that any delay within the statute of limitations can be urged in such a case as this. Dayton v. Monroe, 47 Mich. 193 (10 N. W. 196).” Wegner v. Herkimer, 167 Mich. 587 (133 N. W. 623). The remaining assignments of error refer to the rulings of the court with reference to the admission or exclusion of testimony. It is unnecessary to consider them seriatim. It is sufficient to say that, so far as the witness Kelly was permitted to give testimony tending to vary the terms of the written contract, it should have been excluded. Upon a new trial these questions are not likely to arise. For the error in.the charge with reference to the measure of damages, the case is reversed, and a new-trial ordered, with costs, to appellant. Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Person, JJ., concurred. Bird, J., did not sit.

[ -23, -56, -56, 11, 24, -20, 38, -34, -1, 76, 63, -14, 93, 1, -16, -1, -1, -31, -14, 17, -54, -53, -36, 9, 2, -13, -4, -35, -37, 4, -13, -16, -17, 34, -52, -20, -24, -9, -6, 12, 15, -27, 3, -33, 33, -7, -13, -55, -10, -12, 14, 0, 14, -14, 7, -19, -27, 16, 3, -18, -55, 2, 0, -2, -55, -13, 10, 4, -40, 22, -32, 22, 3, -21, -7, -53, -31, -14, 0, 7, 10, -58, 10, -45, 45, 23, 43, -34, -12, -32, -12, 0, 8, -3, -33, 25, 43, 36, 5, 24, -2, -3, -3, -3, -24, -12, -44, -57, 15, 14, 21, -13, 21, -70, -2, -34, 0, -39, -20, -59, 42, 12, 16, 10, 19, 48, 50, -29, -75, 40, 50, -2, -78, 13, -37, -45, -31, -13, -7, -13, 45, 6, 7, -25, -28, 11, 58, -7, -49, 26, 7, -56, -35, 0, -34, -6, 3, -57, 50, -45, 40, 1, -54, -8, 32, -6, -22, 3, 42, 8, -20, 4, -15, -15, 29, 12, 31, -51, -34, -72, 0, 46, 9, -13, 26, -67, -14, -7, -3, -12, -12, 7, -7, 32, 19, 29, -42, 21, 5, -55, -50, -52, -35, 14, -42, 37, 36, -9, 33, 64, -83, 40, -46, -58, -32, -38, 44, -4, -7, -7, 25, 4, -1, 37, -31, -8, 10, 17, 35, -3, -16, 2, 9, -20, -33, -41, 20, 38, 20, 1, -3, 38, -3, -27, -15, -24, -22, 37, -14, -6, -43, -35, 45, 29, -2, -13, -27, -5, -26, -22, 0, 79, -17, -13, 4, 7, 36, 47, 5, 6, 44, -3, -9, 61, 12, 13, -52, 19, 17, 33, -23, 21, 8, 23, -27, 1, -1, 62, 37, -1, 41, -40, 18, 16, 12, 7, 0, -22, -24, -34, 0, -37, 21, 42, 5, 36, -34, 11, -19, -67, 7, 30, 0, 7, 49, 8, -1, -9, 27, -51, 67, 3, 5, -20, -6, -48, 64, -41, -11, 23, -1, -12, -21, -34, 63, -19, 35, -58, -71, 13, 10, 20, -8, -61, 16, 17, 0, -46, -13, 46, -16, -15, -41, 24, 11, 3, -14, 0, -7, 44, 24, 37, -21, -34, 27, 6, 3, -20, -1, 34, -1, -30, -24, -5, -37, -51, -40, -23, -49, 42, -36, -50, 0, -2, 48, 12, -96, -40, -20, -11, -37, 18, 26, -7, -15, 22, -28, -63, -17, 10, -14, 57, -32, -39, -47, 0, 22, -18, -23, 7, 13, -22, -7, -19, -10, -1, 42, 4, 17, -5, 26, -53, 26, -17, 32, -55, 1, 29, -25, -17, -27, 22, 25, -68, 18, 4, -1, -41, -11, 10, -40, 15, -33, 9, 0, 4, -28, 16, -9, 6, -9, -1, 12, -21, 52, 20, -11, -17, 37, 26, 45, -46, 27, -40, 32, -48, -4, -27, -2, 52, 41, 13, 9, 24, -21, 10, -17, -15, -9, 53, -14, 25, 19, -33, -13, -25, 8, -40, 6, -50, -4, 15, 15, 49, -48, -22, 19, -2, -31, 23, 5, 63, -2, 8, 17, 12, -2, -38, 31, 59, -48, 49, 53, -11, 49, 7, 45, -2, 2, 21, 18, -7, -69, -16, -42, -10, -16, 41, 39, -16, -5, -3, 10, 4, -7, 31, 22, 0, 65, 28, -79, 90, 34, 34, 13, 52, -26, -2, 22, 30, 15, 11, 61, 59, -15, 17, 29, -13, 32, -21, -21, 30, 33, -7, 21, 0, 25, -51, 11, 38, -19, -60, 24, 44, -16, -16, 27, -17, 3, -9, -18, 13, 21, -16, 46, 30, -15, 7, 58, 16, 2, -19, 39, -46, -98, -22, 3, -36, -8, 56, -16, -7, -59, -9, 17, 11, -4, 29, -37, 35, 13, 7, -11, 0, 29, 20, -6, 1, 5, 57, 42, 12, 25, -22, 2, -5, 16, -19, -38, 21, -2, -7, 17, 33, -60, 12, 4, 5, -42, -28, 1, -11, -14, -26, 8, -4, -42, 16, -2, -49, -31, 19, 4, -1, 42, -7, 9, 25, 12, -17, 7, -16, -42, -24, -9, 14, 43, 5, 1, -11, 11, -31, 44, 7, 0, -27, 7, 8, -17, -20, 11, -25, 2, -8, -47, 20, 10, -50, 29, -21, -6, -55, -24, -45, 0, 43, 47, 41, 8, 5, -11, -49, 14, 4, -33, -1, 2, 30, 21, 15, 32, -6, -14, -23, 12, 12, -8, 11, -18, -11, 7, -15, 67, -26, 18, -6, 74, 28, 43, -15, 16, -30, 6, 6, -27, 71, 44, -54, -33, -18, -29, 8, 47, -43, 17, -1, 23, 36, 16, -37, 45, -12, 40, -13, -1, 1, -36, -2, -11, -23, -11, 26, -25, 16, 30, 21, -1, -22, -3, -14, -70, -27, 51, 15, 15, 32, 25, -20, 19, 24, 4, -7, -14, 32, 5, -64, 38, -21, 2, 41, 44, -39, -28, -11, -41, -34, 22, -24, 35, 0, -28, 3, -21, 22, 21, 32, -7, 5, -25, -63, 13, -19, -15, -8, 1, 5, 0, 27, -16, 10, 1, 13, -25, 8, -16, 35, -11, -25, -47, 29, 6, -49, -36, 33, 1, 12, -16, 11, 14, 18, -51, -37, -10, 59, 47, 15, -22, -8, -69, -40, -3, 11, -24, 13, -20, 0, -37, 5, 28, -9, 10, 38, 15, -17, 60, -20, -6, 14, -12, -46, 86, 25, -27, -23, 53, 40, 20, -27, -7, -7, 24, 0, -79, 29, 13, 13, 13, -56, -20, 87, 57, 25, 3, 35, -6, -21, 19, -7, 33, 1, 0, -18, -17, -30, 36, -45, 42, 19, -12, 35, 75, -46, 2, -26, 66, 4, 29, -20, 15, 21, 46, 31, -18, -40, -8, -11, 38, 21, 21, 7, 11, 21, -17, 10, 20, -25, -51, -23, -37, 0, 8, -31, 47, 2, -17, -35, -27, 29, 14, 34, -25, 17, 42, 34, 12, -64, 19, -48, -6, -67, 30, 31, 8, -51, 45, 42, -6, 8, -17, -3, 38, -13, -40, -53, -31, -15, 40, -50, -37, 33, 7, -50, -38, 17, 54, -21, -15, 2, -40, -29, 33, 24, 47, 5, -34, -7, 0, 4, 0, 16, -11, 11, 7, -33, 8, -10, 49, 34, 44, -28, -13, 14, 44, 80, -28, 4, -38, 50, -50, -50, 60, 39, 40, 40 ]

Ostrander, J. It is the contention of respondents, plaintiffs in certiorari, that the testimony fails to prove accidental injury. The testimony introduced on the part of claimant tended to prove that on January 22, 1915, while he assisted another in moving a gasoline engine weighing some 600 pounds, he suddenly had pain in his left groin, noticed a small swelling in the groin that night, consulted a physician, was advised that he had a hernia, and was operated upon for hernia. His claim is for compensation for time lost from February 6, 1915, to April 5, 1915, for medical attendance, hospital and ambulance fees, a total of $167.08. o This amount was allowed by arbitrators, and, upon appeal, the allowance was affirmed. Claimant had worked for the Original Gas Engine Company for about nine years, painting gasoline engines. For three years the conditions under which he worked and the method of doing the work were the same. Claimant described the injury, as well as the conditions, as follows: “Q. What happened, Mr. Robbins? “A. Well, in the course of painting the engines, we have to wash the grease off, and where we wash them there is a slope down to a drain, and pulling that engine up out of there, putting it where we are going to paint them, — a man takes hold of each side of the engine, on the shaft, pulls them up out of there. “Q. And the engine stuck? “A. Naturally, on the hump there. Two of us were working on the engine; Mr. Carr, the gentleman here, and myself. In order to move the engine, Mr. Carr would take hold of one shaft in a stooping position. On the 22d day of January, when we were pulling the engine up out of there, Mr. Carr had the long end of the shaft and I had the short end, gave him a little advantage, but we don’t look at that. Anyway, my side seemed to get behind, and I used extra effort to start it, and at that time I felt pain. “Q. Just describe, if you will, the position you were in, what doing, and where the pain was. “A. Well, we were stooping over, in a stooped position (indicating), pulling, and the pain shot up across my side of my body in the groin. As near as I can figure, the engine we were pulling weighed somewhere in the neighborhood of 600 pounds. I have never previously suffered similar pain in the region of my groin. I have never had any attacks similar to what developed after this pain. The pain I suffered was simply a pain, that shot around there, and I felt weak afterwards. I did not do anything concerning the pain immediately, but noticed it once in a while. I looked my body over that night to see whether there was any injury, and I noticed a small swelling in the left groin. This swelling was. not there when I went to work that morning. I do not know of anything that occurred to me that would have caused the swelling, except this strain and lifting the time I felt the pain. When I discovered the swelling, I was worried about it and consulted Dr. F. A. Jones; that would be on Saturday evening. He did not make any investigation of my body at that time, although I described the sense of pain that I had and the swelling. He did not see the swelling that night, neither did he prescribe anything for me. He said, I don’t remember the doctor’s exact words, something to the effect that a cold had settled in the glands and it would pass away in a day or two. 1 went back to the same doctor again on Monday after that Saturday night. I worked Saturday, and the following Monday I went back to the doctor because the swelling was larger. The doctor at that time made an examination and said that I had hernia.” On cross-examination he testified: “Prior to January 22, 1915, I did not have a hernia. I know what a hernia is, in a way. It is the breaking of the lining of the stomach, and, while I don’t really know whether I had a hernia before or not, I never had any pain or swelling down there. Never had any trouble there. “Q. You don’t know whether you had a hernia or not? “A. Well, according — if that is what I had, I never had one before. I have been employed with the Original Gas Engine Company for almost nine years. “Q. And how long had you been doing this particular class of work? “A. Ever since 1 have been there. “Q. The very same kind of work? “A. Exactly. The conditions of the factory during the nine-year period was not exactly the same as on January 22,1915, ’cause the Original Gas Engine Company have moved into these quarters about three_ years ago and previous to that time, of course we did not have the same floor to work on. “Q. Then for three years you had been doing the work in the exact manner you were doing the work under date of January 22d? “A. (Witness nods yes.) “Q. The engine weighed, you say, in the neighborhood of 300 to 600 pounds? ■ “A. Somewheres in the neighborhood of 600. “Q. You have been handling the same* make of engine right along? “A. Yes; of course, you understand these engines are not the same size. “Q. And when you were lifting the engine on this particular day, at this particular time, you merely felt a pain? “A. A sharp pain, yes. “Q. That was all out of the ordinary that happened at that time? “A. Yes. * * * “Q. You were doing the same class of work you had been doing for nine years? “A. Yes, sir. “Q. There was nothing whatever out of the ordinary that you did on that particular day? “A. No, sir.” And on redirect: “Q. Mr. Robbins, do you ever remember any other occasion where any engine weighed as much as this one stuck and you had to exert yourself as you did in this case to move it? “A. I couldn’t state any particular case, but there has been engines; it is a cement floor, and cast iron has a tendency to stick. “Q. Had it occurred before that day at all, that you remember? “A. Well, I presume there has been engines sticking down there, but I couldn’t name any particular time. “Q. Could you say for sure whether they stuck so you had to exert extra strength? “A. I couldn’t do it.” The history of the particular case excludes the idea of the use, with violence, of an instrument, or substance, puncturing or rending the abdomin'al wall. A physician, the one first consulted by claimant, testified that in his opinion the hernia was caused by the strain in moving the engine. He further testified that when he first examined claimant he was able to reduce the hernia with his finger; that there were no adhesions. In these circumstances he found support for his conclusion that this was a new and not an old hernia. The surgeon who operated upon claimant testified that in his opinion the hernia was produced by the exertion described by claimant. All the experts seem to agree that the visible evidence of the hernia is the protrusion through the inguinal ring of the peritoneum and its contents; “the hernia is the peritoneum going through, accompanied by the intestines or some other substance.” But the testimony for respondents is to the effect that the peritoneum is incapable of sudden, and is capable of very gradual, extension; that the sudden complete development of hernia in a pathological sense is impossible, but the hernia may be felt — the sudden projection of hernial contents into the preformed sáe —for the first time during a straining effort. Various medical authorities to which the court is referred appear to sustain the proposition that hernia is of slow formation and can never arise from a single augmentation of intra-abdominal tension, however great it may be. It may be said that the testimony of claimant’s experts does not deny this proposition; that they regarded the condition which they found — the condition they undertook to relieve — as caused by the strain and exertion of the claimant. They found a hernia, a protrusion, to be reduced, and found cause for it in the described strain and exertion of claimant. The Michigan law does not award compensation for all personal injuries suffered by an employee, but for accidental injuries only. Adams v. White Lead & Color Works, 182 Mich. 157 (148 N. W. 485, L. R. A. 1916A, 288). The vital question which the • Industrial Accident Board had to determine was not whether on January 22, 1915, it was discovered that claimant had hernia, but was whether claimant on that day suffered an accidental injury, arising out of and in the course of his employment. Accepting respondents’ proposition as true, it may be said that upon the occasion in question, by reason of a strain, or effort, of claimant, in performing his duties, an undiscovered and undiscoverable, but previously formed, sac was pushed' through the left inguinal ring and muscles. So much injury claimant then and there suffered, to alleviate, if not to cure, which medical attention and treatment were required. It is compensation for that injury which is claimed and was allowed. Was it an accidental injury within the meaning of the law? It has been said of the expressions “accident” and “accidental,” employed in an act having a purpose similar to ours, that they were used with their popular and ordinary meaning. Happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected. “If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.” United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 121 (9 Sup. Ct. 755, 762). This is a case relied upon by respondents. It has been held that death resulting from a ruptured artery was not accidental when the rupture occurred while the insured was reaching from a chair to close a window, did not slip or fall or lose his balance, and nothing unforeseen occurred except the bursting of the artery. Feder v. Traveling Men’s Ass’n, 107 Iowa, 538 (78 N. W. 252, 43 L. R. A. 693, 70 Am. St. Rep. 212). An examination of cases arising principally upon accident insurance policies, some of which are collected in a note to Lehman v. Accident Ass’n, 42 L. R. A. (N. S.) 562, discloses that in the opinions which seem to be best considered the distinction is observed between the means by which an injury is produced and the result of the producing cause or causes. It is not sufficient that there be an unusual and unanticipated result; the means must be accidental — involuntary and unintended. There must, too, be some proximate connection between accidental means and the injurious result. It is doubtful, however, if in applying our statute, its general purpose being considered, the court should exactly follow the rules suggested and applied in the cases referred to. The statute seems to contemplate that an accidental injury may result by mere mischance; that accidental injuries may be due to carelessness, not wilful, to fatigue, and to miscalculation of the effects of voluntary action. There is testimony in the record, although it is not very conclusive, to support a finding that claimant was suddenly, and accidentally, put at disadvantage by the act of his fellow workman and the sticking of the engine on the concrete floor, and that the rupture and immediate protrusion of the abdominal sac were caused by his efforts to retrieve his position and do his work. It is assumed that it was the first time the sac had been forced through the abdominal wall. If it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the injury he suffered. I decide only the particular case, and in doing so decline to hold, upon this record, that claimant suffered from disease and not from accidental injury. See Grove v. Paper Co., 184 Mich. 449 (151 N. W. 554). The method employed by the board to ascertain the amount of claimant’s wages is questioned. Claimant had been employed by the Original Gas Engine Works for nine years. During the period from February 6, 1914, to February 6, 1915, he worked the entire time except seven weeks — 42 working days. His wages were $19.50 per week. He earned and received $790.15 during the year. The average weekly wages actually earned during the year was $15.20, one-half of which is $7.60. But claimant was- awarded $8.76 a week, or an average weekly wage of $17.52. It was ruled that, having lost seven weeks, claimant had not worked substantially the whole year, in the same employment, immediately preceding his injury, and that 300 times the average daily wage was the average annual earning. The statute, so much of it as is material, provides (2 Comp. Laws 1915, § 5441): “Sec. 11. The term 'average weekly wages’ as used in this act is defined to be one fifty-second part of the average annual earnings of the employee. If the injured employee has not worked in the employment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed. If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed. In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time.” Claimant had worked in the employment, that is, in the capacity and line of work in which he was working at the time of his injury, for many years — not only substantially, but wholly. It was therefore manifestly improper to employ the factor of average daily wages in determining the average weekly and annual wages. It is obvious, too, that the average annual wages of one employed for years in the same capacity and line of work cannot be determined except by comparing the wages of two or more years. A man may change his employment or the capacity in which he follows it. If he has done this at a time substantially less than a year before his injury, then the statute fixes 300 times his average daily wages as his average annual wages. For the man who works for years in the same employment and is injured, the statute fixes average weekly wages at 1/52 part of his average annual earnings. This is the rule which should be applied in this case. The record does not supply the information required to make a finding. It is assumed that the parties in interest can easily ascertain and agree about the annual earnings of claimant for a period of at least three years. It is, of course, possible that the award made is substantially a correct award; but, the rule applied being inapplicable, it must be set aside. Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

[ -5, 24, -10, 35, 31, 5, 0, -31, 33, -12, 4, -39, 60, -37, 16, 6, 58, -22, -19, -17, -12, -76, -6, 6, -8, -43, 42, -25, -52, 36, 38, 1, 11, 6, -15, -3, 40, 20, 18, 21, 1, 28, 27, -71, 0, 13, 7, 23, 18, -15, 78, -11, 10, -27, 32, -18, 28, 25, -29, 1, 3, -17, 50, -68, 8, -2, 20, 28, -17, 24, -44, 7, 4, -42, -12, -13, -12, 98, -1, -32, 14, 0, 52, -12, -44, 64, -21, 14, 16, -49, 0, -37, 10, 29, -41, 0, -49, 51, -5, -2, -10, 11, -15, -35, -24, -12, -20, -46, 47, 14, -24, 35, 19, 22, 8, -35, 25, 1, -44, 27, -8, -26, -21, -12, -14, 31, -24, 4, -15, 41, -6, -10, -12, 17, 14, 11, -21, -33, -32, 14, -27, 43, -13, 24, -19, 9, 4, -5, 19, -21, 0, -11, -14, -67, -36, 19, -47, 5, 40, -5, 56, 0, 17, 34, 22, 24, 30, -1, 23, -16, 36, 2, -9, -61, 32, 27, 26, 4, -61, 41, -84, -48, 22, 16, 13, -12, -32, 64, 34, 3, 14, 30, -35, 21, -1, 0, -4, 11, 36, -20, 55, -5, 0, -48, -6, 28, -10, 12, 37, 4, 11, 19, 19, -39, -54, -11, 18, -18, -1, -29, 1, 13, 3, -36, -19, 4, -29, 18, 12, 6, -27, 36, 41, 6, 23, -53, 62, -30, 71, 19, 43, 8, 7, -11, -32, -23, -18, -44, 34, 0, 11, 8, -9, -12, -36, -16, 24, 22, -47, -39, 2, 45, -7, 33, 41, -39, -10, 32, 22, 17, -9, -50, 15, -21, -26, -23, -10, -2, 22, 3, -26, -2, -15, 31, -42, -36, -10, 24, -40, -47, 25, -63, 5, 0, 32, -9, 23, 2, 6, -18, 15, -43, 15, -17, 34, -5, -11, -8, -3, 6, -13, -40, 38, 22, 43, -19, 8, 34, 16, -5, -57, 23, -21, -37, -7, -5, 3, -12, 15, -10, -17, 40, -1, 84, -10, -28, -23, 15, 18, -10, 20, 32, 12, -27, -34, 30, -4, -36, 57, 12, 28, -31, 59, -16, -29, 56, 77, -25, -15, 33, 50, -35, -8, 13, -19, -21, -23, -36, 0, 60, -5, -44, -1, -16, -21, -25, 20, 26, -17, 28, -6, 17, -18, -84, -36, 28, 14, -41, -22, 25, -8, 24, 39, 19, -13, 3, 9, -14, -47, 31, -46, -25, 1, 0, 9, -48, 25, 6, -3, -37, 21, -1, 0, 14, 10, -21, 44, 18, -30, -54, 47, -17, -33, -16, 45, -9, 19, -18, -42, -50, 26, -60, 14, -27, -31, -28, -19, 10, -27, -6, -50, -2, 13, 17, 12, 62, 28, 50, 84, -11, 11, 18, 35, 48, 34, 45, 20, -7, 31, -9, -52, -21, 15, -14, 23, -32, -3, -64, 43, 2, 50, -16, -9, 22, 38, -3, 37, -26, -14, -48, -29, 6, 5, -39, -33, 10, -27, 38, 38, 9, -4, -20, -42, -36, -45, 27, -35, 15, 4, 0, -77, 6, -24, -10, 69, -37, 31, -58, 40, -24, -93, 12, 0, 7, 36, 1, -26, 5, -22, -4, -31, -16, -22, -13, -21, -70, -12, -6, -7, -64, 43, -36, 17, 21, -33, -25, 44, 10, -42, -64, -28, 29, 17, -14, 23, -35, -77, 26, 16, 68, 0, -9, 35, 35, 25, 2, 52, -49, 5, -5, -9, 30, 15, 34, 27, 8, 6, 2, 28, -39, -46, 31, 38, -7, -14, -20, -13, -14, -35, -3, -17, 16, -13, 19, -67, -48, -22, -5, 4, -16, -6, 2, 19, 47, 67, 19, -25, 12, 14, 8, -8, -48, -52, 10, 19, 30, -23, 34, 26, -20, -5, 42, 28, -44, -42, -29, -34, 14, 41, 24, 33, 25, 6, -19, -11, 4, -1, -33, -53, -71, -50, 51, -63, -9, -6, 36, 27, 26, -11, 23, 40, -41, 48, -8, -15, -38, 11, 29, -29, -65, -10, -35, -47, -16, 5, 25, -26, -6, -39, -11, -15, 13, 5, -11, -14, -3, 15, 10, -10, -20, -2, -2, 5, 10, 20, 1, -40, 9, 15, 16, 25, -23, 68, -10, -4, 0, 11, 0, 41, -37, -12, 10, 47, 25, -10, 53, 25, -22, -12, -28, -16, -10, -22, 47, 16, 17, 25, -17, 31, 17, -14, 32, -22, 6, 49, 31, 22, -10, -77, -51, 3, -29, -15, 13, 32, 39, 16, 9, -4, -37, 0, -36, -18, -7, -4, 13, 30, -11, 4, 2, 16, -6, 19, 11, -16, -27, -6, -36, 35, 13, -34, 6, 23, -1, 56, -30, -16, -28, -2, -40, 28, -4, 61, -9, -40, 3, -18, -18, -10, -24, 5, 22, 27, -46, 17, 16, 26, -35, 38, 22, 15, -56, -3, 52, -26, -19, -24, -9, 32, 10, 35, 12, 15, -38, -5, -24, -9, 2, -9, 2, -13, -9, -20, 16, 16, -62, 33, 11, 42, 13, -12, -40, -29, -11, -6, -25, 33, 22, 7, 26, -11, 73, 2, -57, 1, -16, -5, -32, 21, -32, 8, -44, -43, 54, 31, 23, 15, -16, -13, -6, 59, 24, -1, 50, 9, -58, -59, 39, -10, 36, -17, -31, 37, 52, -6, -19, -7, -42, -6, 7, -39, -23, -19, 10, 33, -3, -20, 54, 0, -19, 66, 2, -30, -53, -8, -3, -7, -15, 76, 23, 6, -82, -32, 1, 17, 7, -3, -51, 3, 39, 20, 37, 20, -22, -14, -30, 39, 34, 16, -15, -9, 47, 18, 42, -4, 16, -22, -50, -67, 9, 0, 0, -15, -31, 8, 39, 13, 26, 7, 13, -11, -18, 11, -24, -29, 17, -18, 23, -11, 33, 19, -38, 0, -8, 72, 28, -3, -54, -26, -17, 35, 18, -16, 81, -51, -83, -15, 11, 7, 56, 21, 42, 13, 6, -16, -7, -4, -13, -25, 7, 65, 13, -36, 22, 20, -3, -8, 33, -33, -38, 26, 36, -30, -18, 20, -29, 34, -1, -36, 38, 6, -33, -17, 38, -6, -19, -30, -41, -16, -8, -55, 38, -6, 34, -17, -66, -12, -26, 57, -22, -5, -24, -8, 39, 9, 11, 26, -32, 44, 4, -23, 41, -26, -55, 32, 37, -8, -38, 58, -15, 47, -20, 32, -28 ]

Hooker, J. The plaintiff’s action was brought to Tecover damages for the alleged negligent killing of three colts, which were run over by the defendant’s train. These colts were pastured upon premises of the plaintiff which were not fenced, and they strayed from these premises into the adjoining woods, and found their way, across lands of other proprietors, to the defendant’s railway, which was not fenced at the place where the colts approached it. They went upon the track, and were run down and killed. It was the claim of the defendant that it was not required to fence its track at this place, for the reason that it was used as a storing and loading place for ties, logs, and other forest products, which constituted the principal traffic of the road, the country being comparatively new. It is conceded that this was not a stopping place for passenger trains. The testimony of the civil engineer shows that, f’-om the station grounds at Copemish, the track is fenced for about a mile and a half south, and nearly to the point where the colts were killed. From that point there is a stretch of about eight miles, to a place called “Manistee Crossing,” or beyond, that there is no fence. At a distance of the length of 54= rails south of the place where the colts were killed, there is a switch for a side track, which runs north 27 rails or more. This switch, and the main track north from the switch towards the place where the colts were killed, and including the place at which they entered upon the right of way, were used as a piling and loading ground for forest products, and skids were constructed there to facilitate such loading; There are other such places, and the engineer testified that the company was in the habit of making them for persons who have timbered lands along the line of road, which the company' wishes to reach, and that it would not be feasible to do this if a fence were to be placed along the way at such points. It appears that the land adjoining the road, at the point in question, was owned by the Buckley & Douglas Lumber Company, but that the railroad company bought ties there from one Woolover, and that the State Lumber Company shipped some forest products from that point. Woolover obtained the ties from the Buckley & Douglas Lumber Company. It does not appear where the State Lumber Company obtained the products shipped by it. We think that the evidence fairly shows that the skid-ways and switch were placed there for the mutual convenience of the defendant and the Buckley & Douglas Lumber Company, which owned a large tract of timbered lands at that point, and that they had no other use, except, possibly, when one or more persons may have been permitted to draw products across the Buckley & Douglas lands for shipment from this switch. We find nothipg to indicate that the general public had access to this place, though it does not appear that they were forbidden. The learned circuit judge permitted the jury to find that this was a bona fide shipping point upon defendant’s road, necessary to its convenience and that of the public. The courts generally hold that statutes requiring railroad companies to fence their railways are not applicable to such portions of the roads as are devoted to the shipment or unloading of freight, or the taking on or discharging of passengers; and this exemption is not' limited to regular stations. It includes flag stations, and it extends to yards and switches, and so much of the main track contiguous thereto as is necessary to the safe, expeditious, and convenient handling of cars to be switched or handled at such point. A discussion of this subject, with numerous authorities, will be found in Elliott on Railways, at section 1194. Several cases in our own State recognize the doctrine. Thus, in Schneekloth v. Railway Co., 108 Mich. 1, a triangular piece of ground at the intersection of two country highways was exempted from fences and cattle-guards, although there was no building there, nor any agent, and trains stopped there merely when they had passengers or freight to deliver, or when some one displayed a signal erected for the purpose. The traffic at that place was probably much less than in the present case, and it' does not even appear that there was a switch. In the case of McDonald v. Railway Co., 113 Mich. 484, a spur track was built at a point remote from a station. This spur extended two miles, to the plant of a concern engaged in the manufacture of lime, and a part of this switch was used for switching passenger trains at times, and was not fenced. The court held that, although there was no public station there, the keeping open of this switch was necessary for het convenience of the public, and there was no obligation to fence it. See, also, Rabidon v. Railway Co., 115 Mich. 390 (39 L. R. A. 405). The evidence indicates that this railroad runs through a new and heavily timbered country, in which the principal industries relate to the removal of the timber. Upon these the railroad is largely dependent for its business. We may take judicial notice- that landed proprietors will seek the shortest possible route to the railroad with their products, and it is probable that it will be mutually beneficial for the railroad company to accept such freight upon the premises of large operators where this is feasible, as is done by all roads where manufacturing industries justify it. We do not find it necessary to say that a railroad company may safely omit to fence wherever it can find a little freight to be shipped. In this case the jury were permitted to find, and we think that the evidence clearly showed, that this loading place was one fully justified by the conditions, and the court might properly have so instructed the jury. He did not, however, and even left the question of good faith to the jury, which we think was unnecessary under the proof, but not injurious to the plaintiff. Inasmuch as the court might have charged the jury that this shipping point was not required to be fenced, the question of contributory negligence is entitled to consideration, in connection with the claim that the train was negligently managed. The court left this question to the jury, because, as he told the jury, there was testimony tending to show that the habit of horses was such that they would not be likely to attempt to pass from a cleared lot into or through, the woods. We think the course taken was as favorable to the plaintiff as he had a right to ask. The same may be said of the instructions in relation to the claim that the killing of the colts was wanton. The judge cautioned the jury against a popular prejudice against railroads. We are not prepared to say that such caution was improper. • It was coupled with an injunction to be impartial and to decide justly. We think the matter was within the discretion of the circuit judge, and that there was no just cause to complain of what was said in this connection. The judgment is affirmed. The other Justices concurred.

[ 13, 44, 63, -7, -49, 38, -1, 18, 11, 0, 4, -10, -11, 33, 31, 1, 0, -37, -23, 32, 24, -27, 23, -1, -36, -54, 22, 18, -50, 3, 7, 38, -6, -5, 15, 9, 15, 11, -9, 29, -1, -4, 41, -41, 52, 33, 11, -13, -5, -41, 45, 0, -12, -54, -7, 39, 21, -3, -42, 9, 30, -49, 11, -3, 7, 2, 0, -6, -4, 0, 4, 7, -55, 3, 49, -13, -9, -5, -32, 33, 22, 38, 32, 2, -9, -9, -25, -49, 3, 20, -12, -23, -40, -4, 26, 27, -23, -13, -18, -14, 8, 19, 12, -40, 13, -10, -13, -55, -26, 29, 9, 14, -13, 10, -1, -44, -25, -68, 9, 41, -15, -34, -15, 25, -37, 10, -16, 37, -42, 31, -8, -46, 15, 21, 55, -2, -39, -44, 17, -14, -18, 50, -19, 12, 19, -61, 0, 23, -10, 7, -35, 28, 34, -57, 33, 16, 35, -6, 30, -7, 30, 14, 16, -8, -60, 14, -8, -6, -49, 56, 0, 18, -6, -9, 53, 17, -31, 31, -47, 17, -8, -19, 31, 7, -27, -14, 58, -3, -26, 38, 42, 0, -7, -91, -30, 26, 13, -33, 19, 59, 4, -22, -44, -20, -42, -20, -25, -23, -6, -22, 18, 39, -49, -1, 12, 31, -30, -18, 30, -36, 24, 28, 0, -17, -20, -34, -23, 12, -5, -12, 6, -23, 19, -20, -15, -37, 9, -19, 20, -10, 39, -13, -46, -15, 3, -23, -18, -35, -3, 27, -16, -19, -49, -23, -5, -17, 25, -31, -43, -21, 23, 13, -29, 33, 31, -15, -21, 9, -28, -7, -15, -14, 45, 17, -10, -17, 29, 18, -22, 5, 59, 4, 0, 8, -43, 10, -39, -21, 0, 27, 30, -30, 12, 1, 12, 35, 39, 2, 32, -17, -2, 8, -17, -24, 29, 68, -38, 6, 15, 2, -18, -17, 37, -10, 21, 21, 22, -10, 0, -80, -26, -24, 12, -10, 34, 12, 15, -12, -3, 39, 33, 27, -2, 47, -33, -33, -9, -21, 0, 3, 8, 35, 16, 0, -45, -17, -6, -4, 10, -9, -1, -8, 40, -46, -14, -7, 13, -6, 20, 36, 38, -29, 6, 19, 22, -72, -44, -47, -7, -16, 47, -15, 54, 8, 43, -10, 21, 62, 15, 41, 22, -17, 17, -12, 6, -12, -35, -21, -80, 63, -38, -6, 16, 44, 11, 15, -23, 48, -2, -33, -32, 6, 19, 5, -4, -9, 15, 4, 0, 16, -2, -39, 52, -16, 9, -1, 12, 18, -32, -24, 53, 20, 69, -25, 12, -17, 27, -38, -57, -13, 19, -21, 37, 26, -16, 36, -5, 3, -39, -44, -42, -4, 22, 1, -30, 5, -22, 71, 34, -37, 12, -26, -16, 9, -39, 32, -4, -40, 57, 8, 14, 5, 48, 0, 41, -2, 12, -38, 72, 29, 6, 13, -26, 24, -8, -63, 56, 13, -12, 2, -18, -8, 11, 42, -21, -48, 21, -44, 70, 51, 30, 51, 0, -49, 14, 12, 9, -8, 33, 50, -59, -53, 32, -27, 10, 13, -6, -1, -19, 43, 41, 10, 20, -34, 0, 44, -46, -2, 6, -27, 21, -24, -39, -44, -2, 20, 22, -37, -12, -52, 31, -3, -15, -22, 40, -33, 7, -5, 2, -13, -16, -4, 19, -16, -9, -43, 40, -29, 16, 22, -17, 9, -7, -57, 4, 16, -84, -52, 5, -1, -14, -38, 4, -35, 28, 7, -18, 10, 59, -18, 2, 43, 46, -18, 12, 54, 3, 5, -22, 26, 2, -31, -57, 2, 24, -18, -10, -4, -45, 58, -41, 5, -14, 10, 14, -16, 23, 36, 11, -2, 15, -17, -16, 29, 16, -23, -32, 44, 15, 69, 3, -28, -2, 17, -42, 37, -4, -36, 32, -21, -13, -3, -49, -14, -35, -4, 31, 32, 8, 2, -45, 6, -9, 59, -11, -11, 10, 18, -24, 17, -16, -47, -47, -41, -25, -17, -77, 13, -17, 15, -30, -8, 36, -22, -13, 14, 17, 32, -27, -27, 34, -3, 12, 34, -40, -10, -13, -31, 0, 4, 72, -32, -10, 1, -2, -33, -6, 26, 27, 62, 40, -13, 42, -32, 37, -1, -17, 43, 3, 2, -15, 17, 37, 18, -4, -16, 10, -29, -34, -55, 17, 35, 16, 41, 38, -9, 4, -57, 5, 46, 49, 11, 32, 12, -16, 3, -21, 14, -18, -40, 40, -7, -24, -28, -6, 2, -4, -30, -23, 13, 2, 28, -35, -1, -26, 9, -40, -32, -30, -25, -16, -40, -2, 32, -45, 0, 55, 14, -10, 20, 30, 23, 43, -11, 27, -65, 7, -3, -32, -78, 52, -24, -53, -13, -40, 10, -7, -25, 22, -5, -4, 6, -48, -35, 48, 44, -34, -12, -20, 15, 0, -16, -19, 28, -7, 26, -26, -6, 7, -11, 16, -12, -6, 3, -29, -6, -24, 36, -6, 22, 2, -18, -47, 0, -18, -53, 13, -8, -22, 19, -24, 1, -25, -50, 2, 13, 15, -2, -18, 39, -11, 65, -6, -12, 10, 7, 20, -33, 75, 2, 35, -19, -55, -15, 19, 6, -6, -25, -13, 24, 1, 15, -23, -11, 42, 19, -12, 26, -15, 34, -16, 29, 2, -22, -28, -28, -4, 0, -27, 21, 6, 0, -68, -59, -34, -7, 17, -39, -42, 11, -14, 28, 7, 13, -38, 0, 6, -24, 17, 0, -17, -38, 43, 27, -4, -26, 7, -5, 98, 15, -2, -14, -12, 34, 16, -55, -32, 10, 43, 29, 0, 53, 15, 14, -1, -70, 6, -33, 17, 17, 2, -44, -5, -12, -57, 0, -72, 39, -12, 4, 5, -13, 43, 36, -40, 59, 0, 6, 1, 59, -29, -59, 13, -52, 27, 27, 14, -51, 31, -3, 17, 37, -35, 21, -10, -8, -22, 13, 1, 13, 9, -5, 20, 61, -10, 10, -40, 13, 19, -15, 0, 19, 20, -3, 5, 23, 32, -12, -3, -13, 0, -7, 10, -30, 63, -11, 2, 52, -18, -43, 40, -36, 6, 56, 20, -21, 9, -23, -41, 38, -56, 16, 29, -14, -11, 34, -21, 14, -55, -66, 3, -50, -51, 48, 21, 16, 13, 32, -15, -41, -73, 14, 1, 52, 42, 55, 3, -4, -5, -23, 21, 14, 37, 52 ]

Grant, C. J. Plaintiff brought suit in assumpsit against the defendants, declaring upon the common counts. A bill of particulars being demanded, he furnished one, declaring his demand to be upon a promissory note dated November 3, 1894, for J>150, due one year from date thereof, with interest at 8 per cent., and signed by defendants. Blanchard was an accommodation maker. The defense was that plaintiff had extended the time of payment without the consent of Blanchard, and had thereby released him from liability. The case was tried without a jury, and the court made a finding of facts and law, and rendered judgment for the plaintiff. It is urged that the court erred in receiving the note in evidence, because an alteration appeared upon its face, which required explanation before it was entitled to be admitted. It was claimed that the word “one” had been changed to “two,” making it read payable in two years instead of one. No exception was taken to the ruling of the court admitting it, and therefore this objection cannot be considered. It was conceded that the word “two” and the word “one” had been written in the note. It was a question which was written first. The note was written by Johnson’s wife. Johnson procured the signature of Blanchard, and then delivered the note to plaintiff, and received the money. The testimony on the part of plaintiff was direct and positive that the note was in the same condition when received by him as when produced upon the trial. The defendants gave evidence tending strongly to show that it had been changed. Both parties conceded that it was executed and delivered as a note for one year. The court found as follows: “The note, when produced in court, bore upon its face a blot or smear, which the court finds by examination of the said note to consist of a blurred ‘two,’ over which there is written the word ‘one,’ and that this condition existed at the time that the note was delivered to the plaintiff.” It is urged as error that the judge, after the submission of the case, made a microscopical examination, in order to determine which word was written first. Whether the court made such examination does not appear. If he did, he committed no error. Judges and jurors have the right to the most critical examination in such cases, and to use magnifying glasses for that purpose. The testimony as to the extension of time was- in direct conflict, and will not be reviewed by this court. Johnson paid a year’s interest towards the end of the year, but this did not operate to extend the time. Plaintiff testified that nothing was said between them about extending the time, and that he made no such agreement. The judgment is affirmed. The other Justices concurred.

[ 0, 8, 39, 33, -18, -17, 44, -2, 4, 50, -15, -21, 21, 0, -2, -9, 16, -18, 2, -77, -44, -36, -29, -31, 6, 28, 5, 20, -5, 20, 4, -1, -18, 19, -46, 30, 76, -9, -18, -1, 26, -43, 31, 0, -32, 4, -3, -17, 0, -11, 4, -56, 21, -30, -30, -32, -2, -71, -17, -6, -44, -49, 30, -44, -27, -37, 3, 6, -9, -52, -19, 21, 28, -18, -48, -99, -10, -21, -47, 0, 7, -25, -6, 4, -24, -53, 24, -40, 59, 29, -19, -11, -31, -31, -16, -16, 38, 8, 52, 21, 0, -6, -39, 20, -17, 46, -22, -6, -42, -25, 9, 26, 19, 1, -53, -30, -15, 23, -29, -50, 0, 39, 37, -10, -41, 33, -3, 9, 2, 53, 30, -8, -71, 35, -1, -14, 0, -31, 10, -41, -3, 34, -24, -1, -49, 40, 10, -12, -24, -5, -13, 8, -34, 38, -40, 11, -20, -70, 47, -27, 31, 42, 14, -40, 3, 7, -18, 13, 51, -22, 3, 21, -60, 2, 3, 57, -1, -39, 12, -17, 1, 39, -44, -16, 30, 24, -20, 31, 23, 25, -1, -30, -54, 26, -15, 3, -39, 2, 58, -36, -11, -12, 14, -11, -6, -15, 22, -73, -9, 52, 6, 9, -8, 8, -3, -15, 30, -30, 0, 40, -67, -23, -30, -3, -25, -13, 26, -4, 20, 0, -34, 48, -23, 12, 29, 8, 41, -4, 4, 6, -46, 18, 12, 1, 14, 18, -57, -27, -1, 42, 6, 44, -5, 27, -3, -22, 39, 14, 17, -8, -5, 13, 6, -76, 55, -26, 10, 12, -5, 31, -15, -62, -2, -20, 5, -12, 10, -13, -8, 33, -34, -10, -83, 17, -18, 16, 13, 18, -38, 21, 1, -22, 38, -46, 41, 43, 28, 17, -32, -13, -33, -19, -1, -31, 17, -28, -7, -20, -41, -51, -23, 33, -40, -9, -9, -15, -34, 8, 23, -30, 13, 38, -20, -16, -7, 20, 18, -13, -8, 43, -18, 3, 0, -42, -9, -2, 24, 2, -2, -28, 7, -7, -38, 25, 18, 47, -33, -34, -28, 37, -29, -29, 1, 17, 23, 31, 5, -31, -14, 34, 11, -3, 7, -48, 39, -8, -11, 28, 18, 15, -32, 10, -9, -60, -30, 18, 49, -39, -4, 33, -29, -8, -38, 4, 20, 11, -64, 0, 8, 30, -61, 7, 19, 18, 28, -1, 12, 8, -42, 14, -7, 27, 28, -22, -59, 46, -17, 20, 15, 36, 25, 15, 23, -36, 17, 2, 50, 14, 5, 5, 25, 3, -41, -11, 27, -3, 65, 6, 15, -9, -22, 32, 43, -13, 42, -21, -58, 11, 16, 8, 4, 13, -47, 39, 9, 17, 31, -2, -12, 19, 24, -29, 17, 83, -15, 35, 57, 11, -23, 3, 16, 21, -30, 25, 3, 30, 3, -18, -31, -11, 5, -25, 28, -1, -35, 27, -6, 12, 6, 13, 21, 23, -21, 2, -2, 32, -6, -32, -45, 12, -10, 14, 2, 35, -3, 11, -31, -6, -50, 5, 1, 2, -5, 33, 56, 16, -9, -6, 15, 23, -34, -3, 2, -32, -11, -7, 60, 26, -20, 71, 39, -12, -17, 39, -37, -7, 20, 37, 4, -6, 34, 40, 12, -30, -16, 5, 24, -27, -10, -23, -57, 24, 32, 47, -12, 15, -34, 11, -11, 27, 29, 24, 54, 30, -56, 27, 70, 45, -11, -28, 0, 22, 20, 3, 46, -21, 62, 19, 31, -23, -8, -31, 5, 16, -5, -2, -40, -28, -25, 22, -12, 19, -23, -21, -18, 6, 13, 25, 0, 49, 17, 14, -40, -8, -9, 13, -27, -44, 25, 37, 46, -5, -34, 4, 36, 7, -59, -14, -23, -63, 16, 15, 3, 17, 11, -47, -19, -104, -7, 13, 39, -46, 37, 0, -4, 11, -11, -23, 10, -29, 40, -49, 33, 27, -15, 72, 5, 20, -4, -13, 25, 33, -9, 20, -1, 38, 7, 10, 52, -51, 28, 6, 35, -19, -3, -2, 46, 6, -2, 15, -1, -22, -22, -9, 12, 9, 4, 5, -14, -8, 13, -17, -5, 24, 22, -28, -9, -15, 38, -25, 6, 36, 9, 25, 12, 12, -31, -32, -10, 4, -23, 6, -55, -14, -12, -7, 13, -19, -31, 12, -12, -22, 20, 17, 12, -19, -12, 52, 39, 0, 41, -30, 3, -11, 18, -5, 0, 31, -23, -31, 7, -45, 29, 7, -25, 14, 5, 17, -9, 21, 0, -22, -44, 29, 18, 29, 8, -21, 20, -35, -34, -2, 1, 6, -15, -19, 32, 9, -11, 57, 45, -3, -1, -7, -59, 11, -28, 6, 0, -34, 24, 4, -14, -72, -36, 6, -6, -5, 3, 3, 10, -29, 30, -56, -37, 17, 8, -40, 24, 6, 6, -10, 7, 54, 57, -23, 0, -39, -3, 63, -5, -61, -28, -34, -17, -55, -37, -18, 8, -14, -7, 2, 21, 47, 17, 28, -9, 7, -17, -46, -34, 19, -4, -8, -22, -3, -11, -5, 27, -11, -14, 25, 24, 31, 41, 3, -43, 30, -33, -8, 49, -24, 5, 12, 2, 27, -4, -12, 8, 6, 21, -7, -2, 49, 7, -27, -32, 58, 19, -61, 12, 39, -23, 8, -21, -26, 20, -8, 46, 26, -13, -25, -4, 11, 40, -26, 0, 0, 22, -18, 28, -16, -23, 17, 0, 25, 23, -42, 33, -20, -41, -22, -34, -31, -12, -49, 21, -9, -21, -31, 17, 2, -1, -25, 9, -20, 33, -29, 15, 29, -16, 10, 17, 2, 38, -20, -10, -39, 2, 42, 36, -27, 24, -31, -28, 31, 23, 29, 28, 15, 40, 35, -8, 12, 32, -14, 13, 31, -18, 28, 6, -7, -8, -14, 13, 19, -9, -69, 14, -26, 20, -36, -14, 31, -9, -9, -19, -17, 3, -22, -45, 30, -8, 43, -6, -28, -10, -9, -25, -10, -7, 22, 1, 5, -9, 19, 47, -29, -8, -20, -18, -25, -49, -24, -24, 14, 57, 6, 19, -6, 4, -36, -19, -13, 25, 48, 11, -18, -40, 4, 31, 55, -35, -19, 1, -46, 42, -23, 26, 12, -12, 8, -4, 31, 2, -29, 40, 2, -40, 0, -2, -5, 25, 17, 31, 20, -26, -47, 7, 6, 11, 5, 15, 12 ]

Long, J. This case was before this court at the April term, 1895, in a mandamus proceeding, and is reported as Fowler v. Wayne Circuit Judge, 105 Mich. 90. The action is in replevin. It appears that March 10, 1888, the property in controversy was owned by Mary A. Closs and Mary H. Saunders, doing business as Closs & Co. The property consisted of horses, carriages, harnesses, furnishings, etc., being the stock in a livery stable owned by Closs & Co., and the business carried on by them. On the above date, Closs & Co. gave to Patrick Blake a chattel mortgage covering all of said property, for the sum of $1,000; the condition being that Closs & Co. should pay or cause to be paid to Blake the debt aforesaid, with interest, and should ‘ ‘ discharge, take up, satisfy, and pay each and every note or obligation which the said Blake may hold against the said first parties, or hereafter make or sign for their accommodation, on or before the 10th day of March, 1889.” On January 21, 1891, Blake assigned this mortgage to plaintiff, George W. Saunders. In the meantime, and on August 17, 1888, Closs & Co. gave a bill of sale of all this property, and conveyed the. title, to Mary H. Saunders; the consideration being $3,500. To secure this payment, Mary H. Saunders gave a chattel mortgage upon the same property to Mary A. Closs for the sum of $3,500, payable in 35 equal monthly installments. Subsequently Mary H. Saunders conveyed the property to Saunders & Co., composed of Mary H. Saunders and William H. Saunders, Jr. Saunders & Co., on April 18, 1889, gave to Hincks & Johnson a chattel mortgage on all this property and other property for $3,600. This mortgage is, in terms, subject to the mortgage made by Mrs. Saunders to Mrs. Closs, but makes no reference to the Blake mortgage. The mortgage given by Mary H. Saunders to Mary A. Closs for $3,500 was assigned to Caleb EL Closs, the father-in-law of Mrs. Closs. The situation in January, 1891, as claimed by plaintiff, was that there remained due on the Blake mortgage, which had been assigned to plaintiff, the sum of $425. Nothing had been paid on the Closs mortgage. The Hinclcs & Johnson mortgage had been reduced to about $1,700. February 28, 1891, John J. Closs, son of Caleb H. Closs, claiming to have become assignee of the Closs mortgage, undertook to foreclose the said mortgage, and took the property from the plaintiff, who was in possession, and advertised it for sale. The notice of sale in this foreclosure proceeding was signed, “John J. Closs, Assignee of Mortgage, by George H. Fowler, His Agent.” This sale was to take place March 7, 1891. Plaintiff, claiming to have acquired the title to the property, on that day brought replevin, and took all of it on his writ,— Snow, Brooke, and Haigh becoming sureties on his replevin bond; and, to secure them against loss, the property was turned over to them. In July, 1891, these sureties caused it to be returned to Closs; and he agreed to release them from all claims on their bond, and that the suit should be discontinued. The plaintiff was in Ohio, but his written assent to this arrangement was procured. This stipulation for surrender and settlement contained a proviso .as follows: “It is understood that, if said Fowler should be found to have held said goods in any other capacity than as my [Gloss’] agent, this release shall not affect any right that he may have.” It appears that Hincks & Johnson had entered into an arrangement with John J. Closs to foreclose the Closs mortgage. Charles B. Lothrop was acting as attorney for John J. Closs; and Bowen, Douglas & Whiting, together with George H. Fowler, were acting as attorneys for Hincks & Johnson; and Mr. Fowler, as we have seen, had signed the notice of sale as agent for Closs. It was at this stage of the proceedings that the property was replevied by the plaintiff. Before the property had been turned over to Closs, it appears that .Atkinson, Carpenter, Brooké & Haigh, as attorneys for George W. Saunders, opened negotiations for a settlement of the matter; and the sureties on the bond to Closs made a written proposition, without conceding or denying the validity of the claims, to pay $1,600 in cash, give a joint note for $1,700, with interest at 7 per cent.,' payable in sums of $100 or more at any time, the whole to be paid in one year, and to give a mortgage on all the property for $2,000, with interest at 7 per cent., payable in installments of $100 or more per month; payments to commence as soon as they had been reimbursed for advancements and liabilities assumed, but the whole to be paid in one year from September 10th. George W. Saunders, by his attorney, approved this agreement. Mr. Murray, of the firm of Hincks & Johnson, testified that he met these parties, and then told them that his firm had an interest in the property taken on the writ of replevin, by reason of the agreement made by his firm with John J. Closs; that he then showed them a copy of this agreement. This arrangement for the payment of the money and the giving of the note and mortgage seems not to have been completed, and the property was turned over to Closs. The attorneys for the sureties on the bond then wrote Bowen, Douglas & Whiting that the property had been returned to Closs, and that he had released them from their obligations on the replevin bond. Haigh had requested Fowler to discontinue the replevin suit, and the sheriff to surrender the bond; and Fowler had declined to do so, on the ground that he held the property for the joint benefit of Closs and Hincks & Johnson, and he would iook to the bond to make good his interest and the interest of Hincks & Johnson. It may as well be stated here that the plaintiff claimed that a foreclosure had been had under the Blake mortgage, and the property bid in by the plaintiff, and that, even if the foreclosure of that mortgage was irregular, there was still due upon it the sum of $425 and interest. This claim was disputed, and defendants on the trial gave testimony tending to show that the Blake mortgage had been fully paid, and in fact that the assignment of that mortgage by Blake to the plaintiff was for the purpose of making a pretended foreclosure to cut off the other mortgages, by the plaintiff’s bidding in the property in his own name. It was also contended by defendants that the property had largely depreciated in value after it came into plaintiff’s hands, and before it was surrendered to Gloss. It also appears that on February 26, 1891, and before Closs took the property back from Saunders, a written agreement was entered into between Closs and Hincks & Johnson that Hincks & Johnson, who held the third mortgage, might foreclose his (Gloss’) mortgage in his name, purchase in the property under the foreclosure, and apply the proceeds — First, to the payment of any and all expenses connected with the foreclosure and of the action of replevin; second, to pay expenses of litigation growing out of the foreclosure; third, balance of proceeds to be equally divided. Hincks & Johnson had notice of the surrender of the property to Closs, and Closs offered, after receiving it, to divide with Hincks & Johnson. Closs foreclosed the mortgage, bidding in the property, and offered to divide it with Hincks & Johnson, or resell it and divide the proceeds. When the replevin case was called, plaintiff asked to discontinue under the stipulation made with Closs. This was denied, and the cause came on for trial, resulting in a verdict by which the jury found that plaintiff was the general owner of the property, and that the defendants did not unlawfully detain it; and, the defendants having waived a return, they found the lien of Fowler, as agent for Hincks & Johnson, to be, with interest, $2,275. Judgment was entered upon this verdict, and plaintiff brings error. It is contended by counsel for plaintiff that the settlement made by his sureties with Closs, and assented to by the plaintiff, is binding upon all the parties, and that his request made to discontinue the suit should have been granted. The argument is that this settlement was made in good faith, and that under it the plaintiff was induced to change his own position, in that he surrendered the rights which he had under the Blake mortgage, and at a later date, supposing the cause to be settled, bought the property back from Closs, and paid him $1,250 therefor. It is also contended that there is nothing in the agreement between Closs and' Hincks & Johnson which made it improper for the plaintiff or his sureties to deal with Closs, and surrender the property to him; that the most that can be claimed under this agreement is that it made Hincks & Johnson co-owners of the Closs mortgage; that the plaintiff could surrender the property to any of the owners; that the owner of an undivided share is, as to strangers, entitled to possession, and may even maintain replevin. It is also contended that Closs was the proper person to deal with; that Hincks & Johnson, having by their agreement obtained the right to foreclose the Closs mortgage, undertook to do it in Closs’ name, caused it to be advertised for sale in his name by Mr. Fowler as his agent, and in this way asserted that the proceeding was his (Closs’), and that he had a right to control it; that, having asserted Closs’ ownership, and the plaintiff having acted upon this assertion, and having commenced his action of replevin against Closs, and having thereafter settled with Closs, the defendants cannot now assert that some one else really owned the mortgage. It is also contended that Hincks & Johnson, as well as Closs, are estopped from questioning this settlement; for, as soon as Hincks & Johnson received notice of it, they put themselves in negotiation with Closs and his attorney, Mr. Lothrop, and came to an understanding with them that the property should be sold under the Closs mortgage, and the proceeds divided in accordance with their agreement; that the property was sold, and bid in by Closs, who then offered to divide the proceeds or make a resale; that thus Hincks & Johnson had ample opportunity to protect themselves, but, instead of doing so, allowed Closs to go on and sell the property, and plaintiff to make a new investment. The contention that the court should have granted the motion for a discontinuance of the suit, under these circumstances, cannot be sustained. As was held in Fowler v. Wayne Circuit Judge, supra, the circuit court could not dispose of the case summarily upon this motion. That was the very point in controversy when the case was here on mandamus, and that ruling must be adhered to. Counsel for plaintiff, by the same argument, contends that the court was in error in refusing to give his request in charge to the jury as follows: “If, after the surrender of the property to Closs, the defendants had full opportunity to protect'themselves by taking the pro’perty under the agreement with Closs, and neglected to do so, the jury should find for the plaintiff.” When the court’s attention was called to this request, he remarked: “I think I have covered that in my general chai’ge. ” In the general charge upon this subject, the court said: “If the jury find from the evidence that the plaintiff, in ignorance of the agreement between Hincks & Johnson and Closs, and believing that the Closs mortgage was being foreclosed in Closs’ right, although for the joint benefit of himself and Hincks & Johnson, entered into the arrangement for the discontinuance, and in pursuance of such arrangement waived his alleged right under the Blake mortgage, and surrendered up the property taken on the writ to Closs, and all this was done in good faith, and that Closs actually offered to carry out the agreement between himself and Hincks & Johnson so far as to the division of the property or its proceeds, and that the property had not deteriorated in value so far but that it was ample to satisfy both mortgages, then the plaintiff is entitled to have a judgment entered in accordance with, the stipulation. If you believe from the evidence in this case that the plaintiff was not informed of the nature of the contract between Hincks & Johnson, and that he believed that Fowler was acting only as the agent of John J. Closs in the foreclosure of the Closs mortgage, and that his (Gloss’) actions and doings were such as to lead an ordinarily prudent person to believe, — that is, Fowler’s actions and doings were such as to lead an ordinarily prudent person to so believe, — and that nothing was done by Hincks & Johnson, or their attorneys, that would ordinarily put a person in the position of the plaintiff or his attorneys upon inquiry as to any other rights which Fowler might have in the premises, and that the plaintiff acted in good faith in attempting to make a settlement with John J. Closs, whom he believed to be the only party in interest, then the verdict of the jury should be in accordance with the stipulation entered into between the plaintiff and John J. Closs.” It will be seen that the court did not give the request in the words in which it was framed, but did so substantially, adding that if the plaintiff was ignorant of the agreement between Hincks & Johnson and Closs, and the property had not deteriorated in value so far but that it was ample to satisfy both mortgages, then plaintiff would be entitled to a judgment to be entered in accordance with the stipulation; that is, to have the case discontinued. We think the court was not in error in this addition to the charge as requested. There was some evidence in the case that the plaintiff had notice of the claim made by Hincks & Johnson before the property was turned back to Gloss. The agreement itself to release the sureties of plaintiff contained a clause that has before been noticed; that is, that, if Fowler should be found to have held said goods in any other capacity than as agent for Closs, the release should not affect any rights he might have. No effort, as it appears, was made by plaintiff to settle with Fowler until after the property was returned to Closs. Defendants also offered proofs tending to show that the plaintiff and his sureties knew of the Hincks & Johnson and Closs agreement before this time. Testimony was also given by the defendants tending to show that the property, at the time of the seizure by plaintiff on his writ of replevin, was worth some $3,500, and that when it was turned back to Closs it had greatly depreciated in value. The court very properly left these questions to the jury, and we think it was not error to couple them with the above proposition made by counsel for plaintiff; for, if the plaintiff knew of the agreement between Closs and Hincks & Johnson, and it was a fact that the property had greatly depreciated in value at the time Closs took it back, then Hincks & Johnson, through Fowler, acting as their agent in the premises, and who is made a party defendant in the replevin suit, had a right to show the value of their interest in the property ; and that interest could not be cut off by the agreement made by Closs with the plaintiff’s sureties, and Fowler, as defendant, would not be estopped from showing it. It is contended that the plaintiff was entitled to judgment under the Blake mortgage; that there was 1425 still due upon it. The Blake mortgage had been renewed from year to year, and had been foreclosed by plaintiff, and the property bid in by him. Counsel for plaintiff asked the court to instruct the jury that: 5‘ The evidence is undisputed that the Blake mortgage had before that time been assigned by the mortgagee to the plaintiff, and by him foreclosed, and that at the foreclosure sale the property was bid in for the plaintiff. And if the jury believe that at that time there was a balance due on this mortgage of $425, and that the goods were sold for the amount of this balance, then the plaintiff got a title which was good as against the defendants; and, unless the settlement alleged is carried out, the plaintiff is entitled to a verdict.” This was refused, and the court charged the jury upon this subject as follows: “ If the jury believe that whatever money had been loaned by Patrick Blake in 1888, and whatever indorsements he had made prior to March 10, 1889, had been paid, then the said Blake mortgage became and was paid and void. If the jury believe from the evidence in this case — from the admissions of plaintiff or otherwise — that plaintiff never became the owner of the Blake mortgage, but that the transfer was a cover to defeat creditors, then it would not be legally enforceable in this case in plaintiff’s behalf, as against the defendants. If the jury are not satisfied that there was any honest foreclosure of the Blake mortgage, then the plaintiff could not recover in this action under the claim of a foreclosure of such mortgage. The jury are the sole judges of the facts as to whether the sale from Blake to the plaintiff was of a valid mortgage, or one that had been paid, or whether it was assigned for anything but a cover, or whether it was-fairly foreclosed, and whether there was a sale or not; and, bearing upon those questions, they may consider the action of the elder William H. Saunders in renewing it after the claimed foreclosure. You may also consider in that connection the claim-made by the plaintiff that it was for the purpose of estopping any possible question as to the legality of such foreclosure. * * * I will say that, generally, if the amount -of money loaned or liability assumed by Patrick Blake prior to March 10, 1889, was paid prior to March 10, 1889, then the so-called Blake mortgage, so far as it affects this suit, was discharged; and the fact that the plaintiff may or may not have procured an assignment of it, and undertaken to foreclose it, should not be taken into consideration by you in arriving at a verdict, as a foreclosure under such circumstances could not affect the holders of the so-called Oloss and Hineks & Johnson mortgage. “The undisputed evidence shows that there was $1,000 loaned on the Blake mortgage at the time it was made, and that there were subsequent advances made by Mr. Blake to the mortgagors and those claiming under them, of considerable amount. The fact that the mortgagors and those claiming under them repaid -Mr. Blake more than $1,000, so long as it was understood between them that such repayment should not cancel the mortgage, but that the balance due should remain secured by it, would not have the effect of discharging the mortgage, and in such case the plaintiff would be entitled to possession under the mortgage as against the Hineks & Johnson and Gloss mortgages, whether the foreclosure was valid or not. I will further add, in relation to this Blake mortgage, that if, after this mortgage was made to Blake, they made payments upon that mortgage, and it was understood by them and by Mr. Blake that they made those payments to apply upon that mortgage, then every payment that was so made should be so applied; and, if there were sufficient of such payments to cancel that mortgage, then the mortgage would be canceled. But if, on the other hand, there was a running account between Blake and these parties, as well as this mortgage dealing between them, and he loaned them money at various times, and they repaid the money at various times, then their repayments of the money advanced, besides that mortgage, would have no effect upon the mortgage, and would be applied only as they themselves agreed upon. ” It is contended that by this charge questions were raised which were not in the case; that there was no testimony tending to show that the transfer from Blake to plaintiff was to defeat creditors, or to show any admissions of the plaintiff; that it was equally mischievous to leave it to the jury to say whether there was any honest foreclosure of the Blake mortgage. It is further contended that the assignment of the Blake mortgage could not have the effect to defeat creditors; that Blake’s creditors were in no way concerned, and the transfer to plaintiff could not affect them injuriously; that the defendants were not creditors, either of plaintiff or Blake. As we have seen, the Blake mortgage was given by Closs & Co., composed of Mary H. Saunders and Mary A. Closs. It was the first mortgage upon the property. It was transferred to plaintiff before he became the owner of the property, and, unless paid, was a valid lien in his hands for the amount remaining unpaid, and was entitled to priority over the other two mortgages. It was put on file in the proper office, and had been renewed as the statute requires. The only question upon it open for discussion was whether it had been paid; for, if the foreclosure was invalid, yet plaintiff would have the right to assert a lien thereunder, as such lien had been kept alive by the renewals. The court was therefore in error in submitting to the jury the question whether the transfer of the Blake mortgage was a cover to defeat creditors of Blake, or whether there was an honest foreclosure of it, so far as affecting the lien which plaintiff claimed thereunder ; and he, being in possession of the property, would be protected to the amount of his lien. It is also contended that defendants showed no right to recover under the Closs mortgage, for the reason that it had never been assigned to John J. Closs, one of the defendants here. The mortgage was given to Mary A. Closs, and by her assigned to Caleb H. Closs, and it remained unassigned by him up to March 23, 1892, when it was assigned to the plaintiff in consideration of the sum of $000. This assignment was made by J. J. Closs as agent for Caleb H. Closs. On the trial, defendant Closs testified that there was no formal assignment of this mortgage by Caleb H. to him; but, as stated in the record, “he had a letter which was identified and marked, but not introduced in evidence.” The court, however, charged the jury that: “The claim of John J. Closs, as you will remember, to the right under this Closs mortgage, was under a verbal assignment. If John J. Closs was not authorized to foreclose the Closs mortgage in his own name, and if Fowler did not hold the propex’ty under the Hincks & Johnson mortgage, then your verdict will be for plaintiff.” The coxxrt’s attention was then called to the fact that there was no claim of any verbal contract of assignment, and he said: “What I mean is, it was not a formal assignment. If it was that which would amount to an assignment, and if he was appointed for the purpose of foreclosing it in his own name, — I will leave these questions to the jxxry.” We find no evidence whatever in the record that the mortgage was ever assigned to John J. Closs, or that he was ever axxthorized by Caleb H. to foreclose it. But, inasmuch as the record does not purport to contain all the evidence, we cannot say that xxo such testimony was given on the trial. For the error pointed out, the judgment below must be reversed, and a^new trial awarded. The other Justices concurred.

[ 23, 2, 48, -21, 8, 12, 16, -6, 44, -58, 40, -35, 16, -50, 58, 18, 38, 14, -8, 19, -12, -17, -55, 38, 18, 19, 29, -31, -6, -10, 21, 17, 12, 81, -29, 19, -18, 22, -30, -42, -6, 19, 29, -10, 4, 43, 34, -36, -8, -34, -23, -4, 28, -12, -8, -5, -3, 17, -13, 28, 19, -53, 15, 16, -7, 20, 11, 21, 53, 13, 22, -35, 10, 0, 9, -20, 24, 42, -33, -10, -7, -76, 26, -47, 4, -31, -25, -29, -41, 23, -28, 42, 9, 5, 17, 21, -8, 8, -26, 39, -24, -51, -14, 43, -3, -6, -47, -6, -22, 21, -21, -27, 67, 2, 15, -16, -55, -5, -18, -1, -16, -26, 27, -6, -7, 38, -32, -26, -43, -4, 33, -21, -23, -6, -7, -34, 11, -9, -20, -23, 64, 16, -35, -61, 9, 2, 13, 0, 12, -27, -39, 36, 23, 42, 39, -51, 18, -19, 34, -19, 45, -6, -1, -31, -44, -12, -7, -28, 2, 47, 57, 37, -43, -58, -8, -20, 34, -31, 6, -28, 18, 6, -6, 9, -29, -9, 37, 19, -8, 39, 41, 2, 2, 5, -32, 18, -1, -9, 28, 0, -7, -39, 5, 6, 48, -10, 5, 0, -22, -41, -5, -22, 5, 23, -11, -1, 9, -11, 5, -17, 51, 0, -10, 64, -40, -42, 0, -42, 20, 20, -34, 38, 51, 11, -39, 11, -72, -19, -16, 22, -23, -11, 6, -26, 2, -36, -37, 8, 21, 73, -19, 13, -9, 55, 34, 42, 9, -21, 6, 26, 29, 26, -65, 0, 76, -17, 7, 12, 26, 24, 33, -32, -6, 34, -55, -21, -21, 11, -12, -46, 63, -33, -3, -4, 7, -1, -28, 7, -20, 36, 2, 6, -19, 1, 1, 35, -11, -2, -4, -8, 24, -11, 44, 2, 8, -23, -31, 13, 0, -31, -18, -32, 52, -32, 18, 33, -15, 45, 22, -35, 22, -38, -34, 23, 45, 5, 58, -36, -46, 41, 2, -42, -18, 12, -34, 0, 70, -13, 14, 4, -4, 14, 15, -3, 8, -41, -18, -62, -7, 3, -48, -10, -14, 44, -60, 12, -16, -25, -29, 46, 11, 17, -2, 30, -1, -37, -45, -35, 26, 29, 54, 56, -24, -22, 21, -1, -49, 18, -20, 46, 11, -29, 20, 37, 37, 0, -38, -62, -16, 7, -19, 19, 11, 3, 3, 15, 19, -35, -85, -52, -4, 5, -23, 4, -16, -14, 0, -5, -14, 41, -6, 13, 7, -4, 9, 15, 19, -13, 35, 56, 5, 23, 22, -6, 79, -18, 85, -7, -42, 25, -16, -7, 32, 14, 40, -30, -25, -4, -26, 36, 35, 23, -17, 61, -21, 15, 0, 13, 57, 30, 48, -13, -17, -11, -31, -30, 21, -29, 5, -4, 89, -11, 18, 16, 13, 4, 0, -13, 15, 14, -56, -17, 16, -50, -39, -3, 49, 4, -4, 31, -61, 10, -18, 12, -23, -28, -96, -71, 16, 34, 73, -58, -18, -44, 36, 16, -18, -52, 0, 15, 20, 13, 55, 10, -10, -7, -15, -21, 14, 43, -17, -64, 7, 47, -25, -16, 5, 6, 10, 34, 44, -14, -11, -25, -22, 2, 65, -3, 12, -3, 1, 4, -36, -14, 10, -26, 26, 8, 2, -11, -8, 29, 26, 32, -55, 2, 63, -39, 24, 10, -15, -67, -3, 8, 6, 25, -15, -22, -2, -10, -49, 2, 6, -33, 58, -49, 28, -28, -7, 21, -26, -23, 0, -10, -23, 0, -6, -6, -53, 13, -4, -19, 0, -11, -11, 44, 4, 11, -5, -1, -27, 18, 0, -3, 36, -35, 0, 45, 5, 38, -16, 18, -10, -4, -7, 6, -33, 55, -35, 6, -16, 0, -9, 31, -15, -5, -37, 21, 0, -20, -14, 15, -56, 7, 8, -15, -6, 38, 1, 31, 18, -40, -15, 55, -22, 25, -13, 4, -22, -48, -46, -7, -31, -42, -51, 20, -47, -21, 33, -28, -53, 41, 18, -16, -7, -2, 26, -12, -95, -8, 59, -36, -34, 25, 35, -56, 20, 20, -35, -32, 18, 4, 50, -10, 60, -13, -21, 45, 47, -10, 18, 12, 50, -26, 34, -30, 23, 6, -10, 5, 24, -23, -37, -12, 38, 13, 3, 0, -38, 15, 23, -1, 19, 51, 26, 29, -4, -25, -37, -23, 35, 8, -16, 4, -3, 10, 0, 5, 8, -15, 3, 8, 5, -69, -5, -4, -29, -9, 1, -3, -5, 18, -35, 21, -16, 43, -16, 31, -75, -53, -32, 19, 3, 14, -27, -16, -37, 27, -6, 26, 40, 50, -19, 0, 22, -23, -26, -34, -20, -53, -44, 83, 17, 37, -13, 73, -31, -30, -8, -32, -2, 34, -45, -45, 55, -47, 13, -3, 4, -35, 28, -61, 20, 10, 0, -14, 75, -17, 47, -11, 11, -48, -19, -44, -79, -19, 40, 13, 17, -22, -15, 11, -8, 17, 21, -8, -16, -44, -23, -4, -60, -27, -15, -51, 0, 12, -6, 15, -14, -13, -71, 8, 13, 26, 29, -15, -32, 18, -16, 17, 19, -40, -6, -27, 24, -12, 24, 22, 15, 4, -38, 17, -32, -6, 46, 18, 8, 5, -10, -28, 15, -42, -56, -18, -75, -53, -45, 15, 1, -15, -17, 4, -28, 25, 17, -45, 13, 22, -40, -4, -18, -19, -40, -33, 21, -20, 30, -15, -4, 36, -47, -6, 0, 42, 3, 22, 11, -12, 18, 26, -25, -10, 5, 19, 39, -33, 33, -47, 57, -25, -55, 20, 12, -7, 17, -17, -15, 14, 21, 37, 9, -12, -14, -24, -32, 13, 19, 20, -13, 8, 56, 35, -41, 5, -48, 38, 64, -3, -22, 48, -33, 17, -4, -2, 5, -35, 18, -14, 15, -45, 64, 14, -4, 47, -34, 7, 16, -7, 31, 43, -20, 35, 31, 56, -35, -41, -42, 1, 3, -13, 8, 3, 40, 4, 24, 1, 53, 11, 11, 30, -31, -36, 38, -34, -18, 31, 11, 19, 39, -41, 6, -42, -52, 79, -4, -29, 1, 20, -14, -20, 20, 0, 23, -3, -11, -28, -17, 28, -10, -4, 15, -23, -7, 22, -2, -65, 3, 44, -3, -19, -10, -3, -6, 10, -4, 26, 18, 7, 42, -41, 34, 18, -22, 51 ]

Grant, C. J. The electors of the relator, acting under the authority of Act No. 352, Local Acts 1893, voted $60,000 for the purpose of raising money to construct public sewers. The respondents, the president and clerk of the village, refused to issue the bonds. The relator thereupon applied to the circuit court of "Wayne county for the writ of mandamus to compel execution. That court granted the writ, and the case is now before us on certiorari. Two questions are presented: 1. "Was the special act of 1893 repealed by the general village act of 1895 ? The relator was incorporated by a special act in 1889 (Act No. 371, Local Acts 1889), which provided that it should in all things, not in said act otherwise provided, be governed, and its powers and duties defined, by Act No. 62, Pub. Acts 1875. Act No. 3, Pub. Acts 1895, provides for the incorporation of villages. Section 7, chap. 14, provides: “All villages heretofore incorporated under any general or special law of this State are hereby reincorporated under and made subject to the provisions of this act, such reincorporation to take effect on the twenty-fifth day of February, A. D. eighteen hundred ninety-five, and all general or special laws by virtue of which such villages have been incorporated are hereby repealed from and after the said twenty-fifth day of February, A. D. eighteen hundred ninety-five.” The village authorities took no action under the special act of 1893 till 1897, when, upon the assumption that that act was still in force, the common council, at the general election, submitted the question of the issuance of these bonds. Section 7, above quoted, does not expressly repeal the special act of 1893. It in express terms confines the repealing clause to general or special laws incorporating villages. The last section of the act of 1895 has no general repealing clause, but expressly repeals certain acts, naming them. Section 22, chap. 9, is as follows: “Should any greater amount be required in any year for the purchase of grounds for erecting public buildings, or for other necessary corporate purposes, than can be raised by the council under the foregoing provisions of this chapter, such amount may be raised by tax or loan, or partly by tax and partly by loan, if authorized by a two-thirds vote of the electors voting upon the question at an annual or special village election. The amount that may be voted or raised in any year, under the provisions of this section, shall not exceed two per cent, of the assessed valuation of the property in the village, as shown by the last preceding tax roll made therein.” The act of 1875 controlled the action of the village in raising money, and contained the same limitation as ife found in section 22 of the act of 1895. The assessed valuation of the village was about $1,000,000. The purpose of the act of 1893 was to authorize the village to raise money beyond the 2 per cent, limitation. We need not cite authorities to the rule that repeals by implication are not favored, and that only when two acts are so incompatible that both cannot stand does the latter repeal the former. There is nothing incompatible in the two acts, and nothing in the latter to indicate an intention to repeal the former. Suth. Stat. Const. § 158; End. Interp. Stat. § 233; Regents of University v. Auditor General, 109 Mich. 134. 2. Was the requisite notice given to the electors? It is urged by the respondents that section 23, chap. 9, Act No. 3, Pub. Acts 1895, controls the notices to be given in such cases, and that requires notices to be posted in six of the most public places, at least two weeks before the election at which the vote is to be taken. As already stated, the vote was taken at the general election, and the same notice was given as is required by law for that election. The notice was given under section 4, chap. 3, which reads as follows: “Notice of the time and place of holding any election, and of the officers to be elected, and the questions to be voted upon, shall, except as herein otherwise provided, be given by the clerk, at least eight days before such election, by posting such notices in three public places in the village, and by publishing a copy thereof in a newspaper in the village, if any is published therein, the same length of time before the election; and in case of a special elec tion, the notice shall set forth the purpose and object of the election as fully as the same are required to he set forth in the resolution appointing such election.” The notices to be given under section 23 relate exclusively to the provisions of section 22, above quoted. It does not refer to the notice under this special act of 1893. That act does not define what notice shall be given. Where the law is silent as, to the notice, the common council possesses the authority to prescribe the method of notifying the electors. The council gave the notice required for the general election, and it must be held sufficient. The judgment is'affirmed. Hooker, Moore, and Long, JJ., concurred. Montgomery, J., took no part in the decision.

[ 47, 51, 21, -8, -54, 0, 14, -20, 11, -20, -35, -4, -18, 25, -7, 27, 4, -28, 1, 22, -9, -27, -19, 11, -25, 1, 36, 34, -51, -28, 17, -40, -65, 47, 5, -25, -1, 23, 20, -27, -56, 3, 5, -31, -20, 84, 0, -62, -10, -21, -24, 4, -27, 76, 23, 2, -16, -40, -36, -24, -55, -5, -26, 15, -18, -36, 28, 10, 26, -2, 36, -56, 14, -52, 39, 8, 26, 13, -5, 0, -28, -52, 14, -46, -75, -39, 6, -13, -18, 22, 14, -48, 6, 27, 11, 20, 47, -16, -5, 2, 39, 10, 18, 19, 23, -5, -20, -20, -2, 11, -8, 5, 22, -3, -20, 28, -47, -16, 19, -19, -5, -27, 25, -10, -1, 10, -76, -2, -60, -38, -7, -33, 3, 17, 26, -67, -33, 17, 69, 24, -12, 33, -26, -49, 18, -22, -10, -8, 0, -20, -16, -2, 8, 14, -39, 15, 8, -44, 21, 9, 29, 19, -6, -2, -50, -3, -36, -12, -8, 6, 19, 60, -51, 30, 4, -48, -1, -10, 0, 39, 6, 32, -25, 24, 55, -39, 20, -3, 22, 34, 70, -18, -35, 3, -2, 23, -21, 6, 22, 30, -36, 18, -31, -3, 6, 0, -17, 40, -13, 36, -13, -43, -17, 11, 37, 0, -14, 21, 63, 45, 44, 40, -24, 51, -42, -17, 3, -14, -16, 2, 13, 5, -17, 14, -19, 16, -54, 46, -48, 40, -33, 26, 34, -2, -35, 1, 34, -45, -10, 39, -4, -11, -1, 42, -13, 31, -37, 9, 14, -47, 50, 24, 6, -67, -10, -28, 17, 15, -6, 45, -5, -6, 57, -23, -6, 18, 37, -42, -50, 0, -36, -58, 6, 39, 54, 43, -80, 20, -56, 11, 27, 25, 7, 25, -28, 45, 13, -19, 26, -47, -18, 36, -24, 26, 55, -2, -31, 15, 10, -15, 5, 39, 19, 43, -18, 7, 17, 24, 26, -20, -7, -6, -21, -47, 11, 8, 3, -10, -45, 2, -21, -24, -4, 44, 9, 28, 46, -25, -18, -28, 47, -21, 8, -20, -9, 13, -46, -9, 26, 1, 0, -25, -3, 17, -23, 1, -13, -6, -17, 7, 0, 56, -44, -22, 2, 11, -15, -1, 1, 1, 6, 34, -36, 29, 43, 23, -2, 20, -47, 48, -9, 5, 40, 9, 27, 0, -9, -28, -53, 4, -33, -8, -70, -46, 2, 25, 12, -44, -79, -11, -4, 11, 11, 35, -5, -9, -20, 35, 42, 23, 12, -43, 30, -103, 51, -20, -31, -58, 57, -3, 49, -3, -4, -52, -39, -6, 2, -10, -4, 33, -4, 26, 25, 12, 24, -41, -52, 27, -43, -27, -40, 13, 58, 54, 2, -36, -33, 5, 2, -31, 35, -1, -62, 24, 26, 38, -40, -26, 63, 14, 1, 27, -41, 15, 20, 50, -26, 7, 0, 1, -61, 20, -35, -55, -19, -11, 37, 16, 38, 29, 63, -14, -16, 5, -44, -20, 18, 33, -23, 0, 8, -6, 20, 39, 34, 7, 25, -18, 9, 43, 51, 34, -25, -31, -37, 77, 5, -17, -7, 10, -21, -41, -6, 66, 28, 35, 2, -3, 19, 43, -35, 0, -53, -53, -2, 67, -6, 53, 8, -23, 5, -9, -29, 27, -6, 0, -1, 58, 0, -38, 4, 19, 1, 53, -5, -47, -28, -27, -19, 9, -49, -21, -32, -36, -9, 7, -27, -27, -7, -6, -26, -67, 35, -15, -12, -50, 60, -58, -35, -4, 0, -34, -55, -15, 16, 7, -2, -57, 40, 50, -12, 0, -27, -18, 85, -9, -64, 7, -11, 19, -8, 40, -77, 15, -12, 2, -47, 53, 27, -2, -9, -3, 19, -32, 21, 8, -24, 1, 15, 20, 5, -23, 12, 54, 44, 35, 11, 20, -35, -3, -15, 6, -4, -83, -8, -43, 7, 8, 7, 62, -6, 11, -18, 34, -25, 20, 63, 45, 42, -22, -58, -72, -63, -52, -27, 17, -47, 34, 2, 40, -21, 15, 15, -35, -4, -5, 10, -9, 48, -29, 8, 0, 51, 3, 39, 8, -14, 51, -23, -62, 3, -65, 12, 21, 14, -23, -44, 22, 12, 35, 4, 5, -65, 2, 3, -30, -25, 14, -20, 7, 65, 5, -61, 14, 2, -3, -1, 14, 24, 25, 9, 3, 5, 33, -65, -3, 5, 2, -5, -66, -1, -72, 31, 7, -10, -7, 58, 4, 4, 23, -40, -36, -75, 7, -52, 6, -24, -47, -43, 24, -27, -16, -15, -17, -36, 24, -20, 44, 30, -34, 27, -29, -67, 54, -16, 34, -24, 22, -26, 27, 1, -6, -37, 22, 4, -7, -31, 48, -24, 33, 6, 37, -38, 21, -7, -23, 1, -43, 27, 9, -6, 31, -31, -18, 21, -41, -7, 21, 4, -24, -18, -3, 3, 35, -5, -50, 33, -37, 0, 4, -27, -13, 42, 26, -33, -21, 33, 10, 47, 14, -25, 22, -42, 17, 25, -2, -31, 47, -1, -19, -28, 17, 10, -35, 26, 6, 2, 38, 17, -60, -19, -13, 30, -40, -1, 65, 14, 49, -10, 37, 62, 47, -18, -27, -14, -40, 16, 12, 8, -33, -56, 20, 6, -25, 0, 17, 0, 9, -9, 34, -2, -12, -8, -15, -22, 23, 2, -1, -5, 51, 55, 28, 5, -45, 7, -50, 0, -51, -18, 24, 23, -40, 1, 24, -12, 7, 10, 2, -16, -47, -50, 48, 23, -27, -37, 30, 37, -3, 57, 11, 42, 52, -10, 31, 36, -38, 1, -21, -33, -33, -33, -19, 1, 11, -23, -71, -12, 18, 32, 32, -7, -10, 43, -34, -42, -38, -12, -45, -16, 15, 37, 34, 19, -11, -55, -26, -2, 19, -15, 35, 36, 16, -40, 43, 39, 0, 57, 0, 48, 4, 9, -18, 15, 20, -2, 4, 26, 6, 11, -40, -71, 0, 56, 20, -19, -19, -10, 73, 16, 2, 31, 53, 18, 44, -41, 4, -13, -20, 6, -38, -9, 50, 8, 33, 9, 51, 11, -21, 5, 44, 25, -13, 80, 55, 7, 15, 45, -21, 0, -27, 40, -31, 20, -13, -36, -39, -54, -41, -14, -21, 38, 4, 43, 37, 5, -21, -13, -2, 26, -18, -18, 0, 44, 46, 22, 46, -13, 25, -9, -39, -3, -15, -31, -11 ]

Montgomery, J. The bill in this case was filed to compel the removal of a building erected upon land claimed by complainant to be an alley abutting complainant’s property, and to restrain defendant from obstructing such alley, or interfering with complainant’s rights therein. The locus in quo is a strip of land 40 by 20 feet in the rear of lot 60 of section 3, Governor and Judges’ plan of Detroit. It appears that on the 27th of April, 1807, a plan of this section was made, showing an alley or cul de sac of the dimensions stated, in the rear of lot 60, and terminating at the side of lot 59, now owned by complainant. This plat did not show the names of the streets, but was apparently accurate in other respects. It was not, however, recorded until the 23d of December, 1848, when it was placed of record, pursuant to a resolution of the common council of the city, sitting as a land board, adopted December 12, 1848. A map of Detroit was made by John Farmer in 1831, which shows this alley. In 1835 another map was made by Mr. Farmer, which shows lot 60 with the rear 20 feet separated from the front portion by a dotted line. Numerous other maps were introduced, — one made by Eugene Robinson in 1879, one by the same publisher in 1885, and still another in 1889; also a map approved by the board of public works in 1886, — none of which show the alley in question. Some testimony was also introduced to show that the dotted lines in the maps of 1831 and 1835 indicated only a proposed alley. As to the map of 1831, this testimony is not persuasive, in view of the fact that in the marginal annotation on that map appears the following: “The dotted lines exhibit the boundaries of certain lots and alleys according to the recorded plan.” One A. E. Hathon made a map of the city of Detroit, the date of which does not appear. The copy which is recorded bears date of 1856. After the Governor and Judges’ plan was made, a conveyance was made of both lots 59 and 60 to "William Brown, describing the lots as 100 feet in depth, which description included the land appearing as an alley on the map. Similar descriptions were contained in the chain of title until 1848, when the title was vested in Albert Crane. March 30, 1848, Albert Crane deeded an undivided one-half to Daniel C. Waterman, describing the property as the undivided one-half of lots 59 and 60 in section 3, corner of Woodbridge and Griswold streets. On May 29, 1849, Waterman conveyed to Crane lot 59 in section 3, Governor and Judges’ plan of Detroit. Complainant derives title through mesne conveyances from Crane. On the 8th of August, 1848, Crane and Waterman conveyed to Charles J. Trombley “lot 60 in section 3, Governor and Judges’ plan, according to A. E. Hathon’s map of Detroit, being 80 feet deep and 40 feet wide, more or less, and bounded in front by Griswold street, on one side by lot 59, and on the other side by an alley, and in the rear by an alley.” One Robert Dermont apparently held title to lot 59 at one time, and complainant’s grantor, by mortgage foreclosure, acquired title. On the 1st of November, 1856, Dermont, as owner of lot 59, and Trombley, as owner of lot 60, entered into a pa^-wall agreement, which recited that “said Dermont is desirous * * * to extend the present wall from its present terminus to the alley in the rear, ” and contains a grant to Dermont of the right to construct a party wall along the line “to the alley in the rear of said lot.” Trombley conveyed to Rahaley, and Rahaley to Seberon E. Tolsma. In each conveyance lot 60 is described as bounded in the rear by an alley. On the 11th of October, 1894, Seberon F. Tolsma procured a quitclaim deed from Trombley, purporting to convey the locus in quo. The title of defendant was derived through this latter conveyance. Defendant thereupon erected the structure complained of. A large mass of oral testimony was taken bearing upon the question of the existence of an alley by prescription. The circuit judge dismissed the bill, and complainant appeals. Defendant contends that, under the authority given to the governor and judges to make a plan, they could not divest title, and that the plan proposed by them was a tentative plan, as evidenced by their subsequent conveyance of the locus in quo as a part of lots 59 and 60, and that, in the absence of any express acceptance of the dedication by the public, the complainant has no standing. There would be force in this contention if there were no evidence of prescriptive right. It is also urged that an estoppel does not arise in favor of the complainant by a conveyance to defendant’s grantors, describing the locus in quo as an alley. This is by no means so clear, as the conveyance to Trombley was made by Crane, he (Crane) reserving title in lot 59; but we do not care to rest our conclusion on the effect of this conveyance. We are all well satisfied that complainant has shown herself entitled, as against defendant and his grantors, to claim an easement in the locus in quo, acquired by user, under a claim of right, not only acquiesced in, but affirmatively recognized, by the grantors of defendant, for much more than the statutory period. The terms of the conveyance under which defendant’s grantors held may not estop defendant, but they are most persuasive evidence that the tenants of lot No. 60 held in recognition of the right of complainant and her grantors. The fact that sheds were built in this alley to shelter teams is by no means conclusive evidence that the space was not used for all the purposes of an alley. The chief use of an alley, and particularly of a cul de sac, is that made by the abutting owners. Paul v. City of Detroit, 32 Mich. 108; Bagley v. People, 43 Mich. 355 (38 Am. Rep. 192); Horton v. Williams, 99 Mich. 423. We are satisfied that the occupants of complainant’s premises have had the uninterrupted use of these premises ever since their building was constructed, and that this occupancy has been with the recognition and consent of the owners of lot 60. This case is quite unlike Dexter v. Tree, 117 Ill. 532, cited by defendant’s counsel. In that case the question was whether a prescriptive right had been acquired in an alley when the instrument creating it described it as a private alley for the sole and exclusive use of the named parties. It was held that the mere permissive use of the alley by a third person, under no claim of right, could not ripen into a right by prescription. In this case the complainant’s and defendant’s grantors all understood that the use of this alley by complainant’s grantors was not merely permissive, but under a claim of right; not only this, but a claim of right recognized by defendant’s grantors. The decree below will be reversed, and a decree entered granting the relief prayed, with costs of both courts to complainant. The other Justices concurred.

[ -16, 50, 45, -73, -4, 16, 14, -20, 4, 1, -7, -22, -13, -7, 58, -9, -2, 16, -32, 32, 3, 4, -43, -85, 56, 60, 63, -1, -1, -23, 37, -42, -23, 82, 2, -3, 17, -6, 52, -35, -21, 12, -55, -12, 53, -20, 2, -7, 46, -6, -79, 20, 8, 25, -56, -57, -29, 25, -26, 41, -14, -19, 16, 13, -6, -7, 23, -10, -10, -25, 14, -16, 19, -17, 8, -12, 14, -63, 4, 3, 2, -15, 25, 2, 3, -3, 13, 3, -11, -7, 2, -45, 13, 50, 29, 17, 30, 56, -2, 2, -4, 71, -45, 23, -5, -67, -3, -9, 73, -30, 54, -13, 26, 20, 18, -24, -18, -42, 40, -10, -23, -45, -27, 25, -24, 19, -52, -26, -8, -5, -7, -18, 5, -23, 28, 33, -31, 29, -4, 57, 14, 27, -12, 12, 14, 53, -62, 26, 5, -58, 26, 34, -22, 20, -6, -24, -13, 0, 27, 64, 32, 6, 47, -19, -69, 39, -60, 4, 1, 32, 17, -27, -5, -37, -11, -36, -44, -19, -23, -46, 50, -17, 15, -14, 9, -6, 15, -1, 1, 4, 51, -19, -30, 13, 6, 35, 0, -25, 8, -20, -27, -23, -11, -58, -31, 4, -54, 30, -17, 0, -20, -45, -17, 53, 67, 19, 66, 0, 32, 18, 9, 26, -26, 29, -44, -12, -6, 37, 32, 30, 19, -9, 1, -24, -13, -21, -55, 35, -17, 36, -6, 37, 1, -21, 41, 22, 63, 43, 16, 16, -31, -4, -6, -75, -7, 16, -16, -19, 27, 13, 29, 4, 42, -8, 66, 29, 53, -38, -17, 28, -54, 21, -14, 3, -38, -47, -37, 34, -14, -5, -49, -21, -79, 3, 24, 3, 27, -2, -62, 50, -43, -21, -31, 8, -44, -20, 20, 2, 61, -9, -30, 36, -13, -5, -14, -48, 10, -20, 61, -13, -12, 0, -9, 5, 34, 36, 39, 61, 22, -18, 43, 18, -15, -18, 5, 26, 46, -21, -43, -5, 47, 23, 49, 64, -49, 54, 14, -18, 7, -32, -8, -11, 12, -12, 54, 41, -25, 7, 19, -20, -57, 20, -37, -31, 8, -35, 1, 0, -11, -21, 8, 29, 46, 2, -3, -82, -74, -22, -35, 7, -42, 29, -30, 56, 12, -18, 20, -57, -70, 46, 0, -35, 1, 0, 32, -9, 7, -36, 33, 11, -54, -1, -8, 24, 1, -35, 33, 11, -32, 3, 44, 43, -18, 32, 0, 46, 31, 12, 23, -5, -4, -1, 81, -21, 5, 11, -61, -67, 27, 34, -41, 34, -20, -22, -13, -30, 14, 0, -7, -9, -44, -19, 55, 44, 37, 29, -38, -21, -11, -36, -23, 10, -46, 29, -2, 7, -52, 27, -15, 14, 51, 46, -43, 0, -15, -14, 30, -37, 39, 20, -11, -13, -78, 22, -47, 1, -48, 21, -14, 2, -35, 4, -20, -54, 32, -13, 23, 36, -23, -28, -7, -1, 29, 5, -56, 22, -14, -17, -72, -20, 46, -20, 71, -5, 29, -25, -1, 20, 33, 48, 24, 56, -60, -21, -37, -6, -37, 33, 34, 3, 3, -51, 4, -10, -8, 50, -20, -44, 53, -37, 12, -52, 23, -27, 76, 59, 27, 28, 24, -11, -1, -37, 12, 44, -27, -13, 17, 34, -24, -1, -7, 4, 47, 30, -12, 26, 9, 9, 21, -20, 30, -22, 4, -65, -29, 36, -24, -31, -24, 43, -67, 4, 42, -11, 10, 9, 47, -6, -11, 36, -45, 40, 37, -66, -12, 21, 4, -20, -14, 8, -22, -38, 10, -16, 35, 34, 19, -29, -30, 17, 4, 9, -69, 8, 41, 29, 5, 99, -39, -9, 62, -51, -3, -25, -41, -21, -11, -31, -11, -43, -5, -17, -7, 24, -13, 91, -54, 0, 30, 6, -2, 19, -35, -18, -2, -48, 33, 12, -40, 71, -10, -5, -16, 23, 31, -1, 39, -5, 28, -14, -30, 34, -41, -12, -25, 90, 5, 34, 0, -23, -71, 16, 29, -30, 27, -34, 69, -8, 51, 1, 17, 16, 32, 26, -20, -39, -24, -49, -1, -23, -5, 56, -24, 6, 20, -6, -16, 72, 41, 37, 20, -4, -81, 28, 97, -11, -54, -29, 0, 66, 41, -32, 7, -41, 13, -20, -10, -46, 30, 15, -6, 0, 69, 11, 10, 18, 12, 7, 17, -95, 78, -41, 8, -8, -28, -11, -31, 15, -9, -22, 49, 28, -21, -9, -29, -7, -32, -24, -33, -24, -10, -26, 6, -34, 10, 44, 16, -16, -10, -76, -26, -5, -34, 4, -53, -52, -11, 28, -52, 19, -22, 18, -7, 12, 15, -53, -3, -3, -3, -25, -18, 12, -32, 8, -23, -9, -12, 1, 40, 33, 7, 18, -49, -42, -19, 13, 17, -5, -19, -37, -34, -38, 0, -15, 15, 25, -28, 2, 56, -7, -16, -34, -44, -17, -10, -45, -18, -62, -20, -7, -43, -11, 18, -8, 10, 12, -39, 16, -4, -3, -33, 4, -12, -38, -1, -5, -27, 10, 9, -58, -20, 30, 11, -5, 52, -20, 18, 2, 2, 19, 54, -14, 2, 19, 6, -22, 10, 50, -13, -6, -19, -28, -9, -8, -34, -17, -43, 51, -12, 35, -67, 35, -16, -19, 36, -13, 18, -15, 35, 26, 60, -9, 13, 8, -16, -15, -11, -41, 16, -26, -7, 7, 8, -30, 19, 9, -7, -3, -18, -10, -15, -43, 15, -21, -28, -14, 15, -46, -40, 24, 44, -32, -13, 16, -52, 27, -33, 18, 16, -35, -84, 0, 1, -1, 52, -5, -3, 65, 14, -70, 21, -32, -61, 9, 9, -50, -59, 41, -15, 16, 27, 35, -5, 8, -16, 22, -6, 59, 0, 53, 14, 10, 13, -55, -35, 7, 25, -21, -4, 1, 52, -49, -29, 21, 7, -22, 36, -9, 5, -19, -10, -10, -25, 40, -3, 45, -66, -3, -7, -32, 18, 50, 8, -3, 11, 10, 26, -11, 4, 55, -46, -30, -8, -5, 16, 64, -51, 30, 18, -41, -3, -19, 31, 20, -8, 12, 70, 12, -6, -31, -21, 20, -75, 13, -22, -19, 5, 34, -6, 30, 17, 35, 10, 0, -9, 1, 15, -8, 31, 15, -15, 18, 46, 30, 18, 38, -68, 44, 0, -52, 39, -3, -52, 36 ]

Moore, J. Plaintiff sued George Minkler by capias. Defendants became special bail therein. Plaintiff recovered judgment against Minkler of $4,000 and costs. Execution was issued, and returned nulla bona. A ca. sa. was then issued, and returned unsatisfied, for the reason that Minkler could not be found within the county. This action was then commenced upon the bail bond by declaration filed February 27,1897, and served on both defendants on March 18th. Defendants pleaded the general issue, and gave notice that defendants had surrendered Minkler in exoneration of his bail on March 24,1897, and were discharged from their liability as bail on March 30, 1897, by Lewis Severence, a commissioner of said court. In support of their contention, they offered and the court received in evidence, against plaintiff’s objection, the proceedings taken in reference to such surrender and discharge, and the court directed a verdict for defendants. Plaintiff appeals. Six days after the declaration was served upon the defendants, they appeared before one of the circuit court-commissioners with Mr. Minkler and the sheriff, with two copies of the bail piece, each of which was sworn by Mr. Jenison to be a true copy of the original bail piece delivered to him upon his signing the bail bond. The original bail piece was in the form given in the statute. Upon one of these copies the following indorsement was made: “Let the defendant in this cause be committed to the custody of the sheriff of the county of Clinton in exoneration of his bail at the suit of the plaintiff in the plea within mentioned. “Dated March 24, 1897. “Lewis Severenoe, “Circuit Court Commissioner for Clinton County.” The sheriff took Mr. Minkler into custody. On the other copy of the bail piece the following entries were made: “I hereby certify that George Minkler, the above-named defendant, has been committed to and remains in my custody by virtue of a committitur of him in exoneration of his bail at the suit of the plaintiff in the plea within mentioned. [Signed] “Alonzo E. Dunn, “Sheriff of Clinton County.” “State oe Michigan, ) County of Clinton, j “On this 24th day of March, 1897, before me, the subscriber, a circuit court commissioner in and for said county, personally appeared Alonzo E. Dunn, to me known to be the sheriff of said county and the person whose name is attached to and who made the above certificate, and who acknowledged the same to be true. [Signed] “Lewis Severence, “Circuit Court Commissioner for Clinton County.” And the circuit court commissioner made the following order: ‘ ‘ In the Circuit Court for the County of Clinton. “William W. Morgan v. George Minkler. “Due proof having been made before me that the defendant in this cause has been committed to, and remains in the custody of, the sheriff of the county of Clinton, let the plaintiff show cause before me, at my office in the village of St. Johns, in said county of Clinton, on the 30th day of March, 1897, at 9 o’clock in the forenoon, why the bail of the said defendant should not be exonerated from their liabilities. “ Dated this 24th day of March, 1897. “Lewis Severence, “Circuit Court Commissioner in and for Said County of Clinton.” A copy of this order was served upon one of the attorneys for the plaintiff March 25th, at his office. The copy was signed in typewriting. Neither the plaintiff nor his attorney appeared before the commissioner at the hearing, and the commissioner made the following order: “The Circuit Court for the County of Clinton. “William W. Morgan v. George Minkler. “The defendant having been, on his own prayer, and by his bail, and in exoneration of his bail, committed to the custody of the sheriff of the county of Clinton at the suit of the plaintiff in the plea within mentioned, and the said sheriff having certified that the said defendant remained in his custody by virtue of such order of commitment, which certificate was duly acknowledged by the said sheriff, an order was thereupon granted that the plaintiff show cause before me at chambers why the bail of the said defendant should not be exonerated from their liabilities; and the plaintiff not having appeared, and proof of the due service of such order on the said plaintiff’s attorneys being produced to me, I do hereby declare that the bail of the said defendant are discharged from all liability as such bail, in the suit in which the within-mentioned bail piece was taken. “Dated the 30th day of March, 1897. [Signed] “Lewis Severence, “Circuit Court Commissioner in and for the County of Clinton.” It is now said these papers ought not to be received in evidence, because the copies of the bail piece, produced before the commissioner, were not certified by the clerk to be copies/and therefore the commissioner got no jurisdiction to act. The proceedings were under 2 How. Stat. § 7338. This section provides that there shall be produced to the officer authorized to accept the surrender two copies of the bail piece. The statute does not require them to be certified copies, and we think the copies produced, sworn by one of the signers of the bail bond to be true copies of the original, were a sufficient compliance with the statute. It is said that the certificate made by the sheriff does not show that Minkler was in the sheriff’s custody by virtue of a committitur of him in exoneration of his bail, made by the commissioner before whom he was brought for the purpose of surrender. "When we take into account the papers upon which this certificate was written, the order of commitment made by the commissioner, and the sheriff’s acknowledgment of his certificate made before the commissioner, we are led to say the objection is not well taken. We have considered the other objections to the reception of these papers in evidence, but we do not think it necessary to discuss them. The plaintiff paid no attention to the proceedings before the commissioner, but noticed the case for hearing. No costs had been paid by defendants. When the proofs were all in, the trial court inquired how much plaintiff’s costs were when defendants’ plea was filed. It was agreed that they amounted to $14. The court directed the defendants to pay this amount forthwith, which was done, and the court directed a verdict in favor of defendants. This is said to be error. Plaintiff claims that because defendants, when they undertook to surrender Mr. Minkler, did not pay the costs incurred by plaintiff to that date, the proceedings were a nullity; citing Mayell v. Follett, 7 Wend. 507; Bank of Geneva v. Reynolds, 20 How. Prac. 18; Cozine v. Walter, 55 N. Y. 304. None of these cases disposes of the question involved here. The case of Mayell v. Follett was one where plaintiff took judgment against the bail before the time had expired in which he might surrender his principal, and the court stayed the proceedings, and said that the bail might surrender the principal, and that on his doing so, and paying the costs of suit, the judgment and execution would be set aside. In Cozine v. Walter the defendant was a sheriff, who was sued by the bail for a false return. He •sought to justify upon the ground that the bail had not paid him his fees when the principal was surrendered. It was held that he could not do so, under the facts of that case. In Bank of Geneva v. Reynolds the bail applied, some months after the time had expired in which they could surrender their principal, for leave to do so. It will be seen that this was an appeal to the favor of the court, and it was held that, under the showing made, the bail should be allowed to surrender the principal on payment of the costs of the action, unless it was shown that they had been indemnified by the principal. In 2 Burrill, Prac. 230, it is said: “If a suit should have been commenced on the recognizance, notice of the surrender having been made should be given to the plaintiff or his attorney, which will operate as a stay of proceedings, provided the render' be made within the time allowed for that purpose by the statute; otherwise, the plaintiff may treat it as a nullity. If the plaintiff proceed in the action after notice of the render, because no tender was made to him of the costs already incurred, nor any rule obtained to stay the proceedings, the subsequent proceedings will be irregular, the statute of itself operating as a stay of proceedings. 3 East, 306.” The plaintiff, though notified of the proceedings before the commissioner, did not appear before him; and no objection was made to the order made by the commissioner upon the ground that the costs had not been paid, nor was the attention of the circuit court called to this fact before the trial began. There is nothing to indicate that plaintiff made any suggestion to the defendants about the costs, or that the defendants had any knowledge of the amount thereof until it was stated in court. The statute providing for the surrender of the principal is silent in relation to the question of costs'. 2 How. Stat. § 7338, subd. 4. We think the trial judge made a proper disposition of the case. Judgment is affirmed. The other Justices concurred.

[ 30, 7, -1, 60, -32, -24, 9, 2, 15, -9, 8, -45, -45, 18, -3, -6, 4, -41, 23, -58, -24, -8, -9, -27, -16, -25, -64, -3, -4, -71, 2, 77, -52, 11, 28, -7, 6, -43, -9, 44, -21, -12, 28, -21, -31, -37, 4, 7, 28, -34, 2, 19, -7, 19, 33, 1, 1, 30, -5, -4, -23, 2, -3, -15, -29, 15, -19, -14, -18, -4, 34, 19, 32, 24, 16, -1, 0, -38, 0, 39, 3, -36, -25, 11, -22, -13, -10, -8, -30, 28, -9, 0, -31, 4, 55, -39, -21, 19, 5, 28, -3, -23, -42, 18, 17, 25, -27, -68, -15, 30, -44, 38, 48, -13, -52, -54, -5, -27, 68, 0, 9, -30, 38, 23, 24, -18, -48, -2, 45, 18, 17, -8, -4, -3, -5, 19, 15, 41, 10, -14, -19, 23, 21, -74, 18, 6, 11, 25, -6, -9, -60, 54, 32, 40, 2, 44, 50, -20, -26, -43, 2, -41, 1, -32, -24, -58, 4, 35, -25, 25, -13, 10, 16, 29, 0, 32, -67, 6, -11, 39, 12, 22, 22, -14, 56, -3, 6, 0, -2, 55, 41, -2, -55, -9, -18, 31, 17, -16, -14, 8, 15, -5, 20, -16, 14, 2, 51, 3, -22, -17, -34, -38, 2, -18, -25, 42, 18, -33, 33, -16, -5, 23, -20, 68, -14, -34, 9, 5, -63, -43, 21, -35, 15, 50, -38, 23, -24, 25, -35, 4, -35, -41, -38, -34, 87, 19, 11, 9, -27, 40, -18, 27, -33, -27, -4, 6, 38, -48, -1, 16, -4, 0, -16, 25, -51, 25, 24, 13, -1, 40, -28, -7, 57, -43, -32, -49, -1, 14, 32, -14, 68, -26, -34, -16, 18, -31, -19, 20, -39, -2, 3, -10, -4, -35, 5, 43, -18, -56, 75, 5, 22, 8, 40, 8, -7, -3, -40, 12, -31, -29, -61, 34, -22, -19, 18, 14, 47, 29, 47, -50, 7, 59, -71, -44, -1, 20, -26, 47, -30, 18, -63, 1, -42, -54, -33, 21, 13, 6, 17, 0, 27, -20, -56, 41, 4, 36, 12, 10, -33, -59, -22, -27, 14, -7, -62, 11, -21, -35, 34, 15, -13, 7, -37, 29, 28, -47, -51, -8, -9, -3, 37, -2, -1, -24, -24, 32, 11, -26, -55, 45, 10, 47, -34, -17, 46, 18, 20, 3, 6, -32, -55, -11, -19, -31, -21, 6, 0, -41, -17, -9, 27, 39, 52, -34, -24, -1, 12, 19, 13, -14, 4, -4, 21, 19, 12, -26, -16, -6, -1, 7, 55, 7, 10, -71, 38, -4, -3, 17, 6, 5, 11, 88, 62, 6, 36, 19, -81, 55, 8, -24, -15, 22, 7, 5, 14, -43, -18, 25, 45, -5, 42, -5, 22, 21, -37, 32, -27, -19, 40, 11, -27, -32, 0, -24, 5, -24, -15, 1, -22, 7, -18, 20, -13, -89, 2, 2, 44, 2, 23, 14, -18, 24, -34, -11, -46, 4, 3, -23, 29, -49, 0, 0, 14, 0, 2, 30, 4, 10, -7, 2, -37, -40, -30, -5, 10, 2, 41, -5, 19, 1, 10, 8, -11, 4, -8, 8, 2, -4, -1, 1, -55, 0, -27, 31, 5, 64, 28, -36, 17, 10, -27, -40, -53, 0, 9, 8, 9, -4, -28, -18, 15, -4, 61, -19, 43, 2, -31, 10, -21, -13, 46, 11, -20, -33, -41, -4, -61, -7, 32, -22, 38, -55, -33, 13, -15, -2, 12, -67, -38, -29, 59, 31, -9, 14, -5, -23, -1, -23, 36, -15, 36, -11, 4, -20, -7, 18, 45, -10, -71, 47, -13, 18, 15, 17, 12, 10, 12, 25, 11, 1, -18, 15, 21, -18, 22, 6, -24, 22, 41, 17, 5, 10, 9, 15, -19, 10, -10, -29, -81, 26, 3, 0, 17, -25, -27, 21, -5, -72, -12, 0, -22, -13, -48, 9, -57, 24, 25, 25, -49, 15, -30, 14, -24, -9, 47, 13, -27, -25, 15, 0, -59, 42, -5, 13, 0, -38, 30, 26, 18, -6, -9, 14, -22, 20, -18, 20, 25, 6, 15, -12, 63, -66, 11, 0, 10, -57, 0, 51, 27, 36, 33, 37, 37, 2, 27, 11, -42, 10, -8, -24, -31, 46, 16, -7, -6, -13, 2, -11, 8, 9, 10, 15, -17, -43, -20, -11, -10, -35, 28, -22, 4, 18, 20, 4, -28, 13, 8, -2, -28, 13, -50, -9, -20, 0, 6, -11, -42, -13, -5, -7, 34, 41, 20, -6, -24, 40, -20, -6, -44, 15, 0, -31, -8, 27, -41, 13, 16, -4, 16, -18, 43, 59, 54, 14, 52, 6, 6, 3, -64, 25, 0, 29, 2, -46, -67, -12, 23, -26, 25, -16, -28, 9, -30, -29, -24, -19, 29, 10, -20, -32, 16, -11, -58, -28, 29, -7, 36, 21, -3, -25, -22, -39, -8, -14, -13, 11, 73, 4, -55, -30, -3, 12, 46, 35, 24, 0, 54, 30, 10, 16, 28, 47, 15, -17, 4, 57, -47, -23, 18, 18, -45, -15, -2, -10, -23, 26, 8, 1, -41, 15, 48, -4, 13, -8, 35, -27, 58, 0, -50, 11, -57, -40, 6, 4, -13, -17, 51, 16, 18, -29, 14, -10, -46, -13, -27, -2, 62, -24, 9, -13, 79, 6, -30, -76, 8, 10, 69, -49, -57, 12, 57, -17, -15, 37, -32, 29, -12, 28, 46, 0, -6, -45, 52, 6, -10, 22, 58, -43, -8, 24, 4, -5, 1, 22, -33, -12, -63, -23, -28, -41, 31, -2, 18, -11, 54, -19, 50, -16, -9, 51, 20, -2, -50, 8, -60, -36, -1, 19, 10, -30, -5, 0, -12, 28, -37, 46, 17, 19, -4, 49, -42, -32, -36, -32, -3, 53, 27, 8, 31, 9, 24, 49, -53, 15, -8, 78, 31, -12, -45, 54, -11, 1, 63, 48, 2, 22, -29, -28, 45, -38, -2, -1, 12, -2, 17, 22, 16, 18, 44, -3, 16, -2, -17, -23, 30, 24, 7, -6, 17, -57, 20, -2, -33, 15, 14, -26, 3, -9, -66, 18, -11, 11, -2, 44, 41, 12, -15, -18, -13, -55, -3, 19, 3, 66, 23, -27, -6, 51, 12, 20, -4, 9, 33, -16, -7, 22, -34, 36, -13, -30, -17, 9, -39, 21 ]

Grant, C. J. This suit is brought to recover treble damages, under section 8306, 2 How. Stat. Defendant failed to pay rent when due. Notice to quit was served September 4th. He did not surrender possession. Plaintiffs on September 12th commenced summary proceedings to eject him. Summons was issued on the 12th, returnable the 17th. The officer, being unable to find the defendant, served the summons on Thursday, the 13th, by leaving a true copy of the same at his usual place of abode, in the manner provided by the statute, and made his return the same day. Defendant did not appear on the return day, and judgment for restitution was rendered. On the 17th and 18th of September, defendant removed his goods from the store, but did not surrender possession till the 27th. The court rendered judgment for the defendant. Sunday intervened between the day of service and the day for appearance. The statute requires that the summons be served “at least two days before the time of appearance mentioned therein.” 2 How. Stat. § 8298. The service was void, and gave the commissioner no jurisdiction. Chaddock v. Barry, 93 Mich. 542 (18 L. R. A. 337). The language of the statute in the two cases is identical. Both parties concede that Sunday, the 16th, is to be excluded from the computation. Substituted service could not have been made till the 14th. Judgment affirmed. The other Justices concurred.

[ -20, 20, -5, -7, -2, -5, 30, 17, 14, 79, 13, 10, -9, 1, 26, -40, 17, 5, -13, -31, 20, -13, 13, -11, 5, -15, -33, -1, -16, -6, -38, -9, 9, -14, 18, 8, 17, -63, 24, 20, 0, -15, 12, -11, 4, -40, -42, 6, 41, -51, 21, -19, -36, -5, 31, -12, -23, 0, 45, -10, 18, -7, -8, -2, -36, 4, -38, 15, 2, 14, 5, 21, 64, 12, 39, -26, -10, -19, -15, 32, 49, 15, 14, 15, -38, -28, 37, -46, 37, -65, -40, 45, -51, -2, 15, -25, 21, -23, 4, -31, -24, -11, -36, -5, -33, -17, 8, -21, -89, -14, 30, -15, 82, -22, -2, 28, 12, -41, 30, -36, 90, -15, 36, -45, 39, -11, -4, -30, 15, 72, 27, 7, -15, 9, 5, -14, -3, 45, -44, -22, 76, 1, -12, 15, -21, -16, 60, 54, -33, 47, -25, 54, -7, 45, 1, 35, 30, -30, 6, -38, 9, 4, -19, -28, 23, -5, -16, 17, -14, -8, 18, -59, -4, -1, 14, 16, -1, -14, -7, -27, -33, -31, -23, -27, 82, 0, -8, -49, 6, -18, 25, -6, 4, 45, -30, 27, 30, 25, -13, -57, -43, -19, -12, 19, 25, -4, 82, -22, 10, 2, 0, -4, -62, -38, -19, -20, 28, -18, 4, -3, -52, -20, -44, 22, -48, -36, -5, 23, 22, 13, -32, 7, 46, -19, 17, -25, 27, 24, -1, 16, 0, 13, -29, -3, -27, 12, -23, -16, 1, 63, 17, -13, -18, 25, -36, -49, -2, 10, 2, 33, 18, 26, 32, -31, -1, -59, 16, 17, -3, 6, -22, 0, -24, -24, 35, -12, -46, 29, 44, 9, 1, -17, -2, -25, -25, 22, 24, -1, 13, 1, -8, 22, 12, 47, 0, 4, 12, 33, -14, 25, 11, 6, -12, 15, -26, -1, 1, -3, -3, -22, -23, 11, -13, -24, 37, -28, 10, -6, 13, -36, 0, 8, 18, 38, -69, -34, 24, -2, -9, -41, 13, 5, -12, -15, -33, 42, 29, -69, 9, -1, 12, -11, -47, 21, 28, 29, 19, 4, -26, 35, -40, -22, 5, 39, 50, 23, 5, -28, 3, 79, 70, -42, -63, -25, 27, 36, -8, 14, 14, 41, 12, -49, 3, 36, -49, -3, 6, -76, -32, 23, 28, -64, -39, -51, 5, 1, -50, -14, 16, 2, -50, 1, 33, -36, 46, -12, -23, -23, 10, 31, -9, -13, 0, 10, -29, -28, -24, -33, 27, 2, 23, -30, -2, 36, -12, -11, -28, -21, -11, -11, 24, 10, -35, -63, 25, -36, 8, 46, 10, 46, 30, 13, 14, -30, 23, 47, -71, -70, -17, -2, 6, 20, -38, 29, 55, 59, -5, 5, 9, 41, 23, 36, 58, 27, 10, 15, 34, 51, 16, -8, 65, -60, -70, 16, -14, 6, 5, -2, -21, 25, -28, 13, 2, 25, -17, 31, -45, -10, 24, 18, 25, 32, 26, -26, -21, 13, -31, -46, -15, 7, 6, 6, 7, 63, -1, -32, -52, 11, -40, 34, -3, -9, -16, 59, 18, 0, -26, 4, -10, -3, -9, 34, 18, -22, 43, 29, -27, 17, 34, -15, -21, -18, -54, -20, -11, 43, 0, 14, -8, -47, 28, -34, 35, -54, -8, 9, 33, -18, 5, 19, 9, 75, 11, 13, -6, 31, -42, 2, 12, 12, -12, 10, -18, -50, -33, 0, 8, 19, 59, 0, -5, -17, 45, 17, 12, -6, 4, 34, -38, 3, -15, -27, -3, 25, 14, 31, -25, -67, 24, -55, -16, 39, 42, -48, 12, -16, 4, -25, 22, 15, -20, 8, -13, -6, -2, -14, -40, -12, 7, 32, 49, -19, -33, -1, 25, -14, -27, 17, -30, 5, 26, 61, 16, -35, -5, -7, 25, -3, 11, 31, 23, -33, -14, 39, -46, -47, 39, -22, 25, -15, 6, 15, 60, -26, -14, 38, 28, -21, -44, 32, -32, 34, -25, -15, -18, -12, -36, -47, -2, -2, -2, 20, -5, 18, 29, -29, 26, -28, 19, -37, -20, -12, -22, 46, 48, -4, -5, -50, 11, 0, 10, -13, 26, 39, 5, -14, -6, -28, -10, 0, -35, 17, 7, 17, -58, -22, 15, -48, 24, -68, -26, -9, 0, 40, 26, 46, -9, 60, -5, -4, -10, 13, -18, 34, -27, 31, -10, 15, 32, 8, -52, 9, 39, 15, 57, 0, 0, 38, -37, 23, 34, 29, 41, -27, 0, -23, 21, -32, 0, -13, 30, 38, -28, 8, -44, -9, -13, -13, -36, 36, -21, 7, 50, -23, -11, -27, 23, 19, 0, 24, 14, -32, 1, 30, 21, 21, -2, -32, -81, 34, 0, 33, 6, 0, 26, 10, -3, -25, 32, -26, -48, 3, 8, 2, 30, 12, 3, -5, 45, -34, -6, -1, 0, -1, 2, -25, 22, -21, -31, 8, 20, -71, -22, -78, -19, 2, 51, 8, -14, -36, -23, 10, 62, -38, 11, 53, -18, 29, -17, -42, -41, -26, -15, 4, 22, -19, 9, 22, -12, 5, 42, 11, 0, -41, -15, 31, -81, -33, -9, -10, 3, -44, 13, 0, -30, 16, 17, -20, 20, 0, -55, -12, 6, -22, -18, 22, 14, -15, -9, -33, -3, 15, -49, -12, 6, 30, -8, -13, 12, -35, -12, 24, -13, -30, 18, -15, -12, -39, 21, 3, 25, -5, -17, 41, -18, -8, 13, -9, 4, -36, 28, -25, -3, -28, 2, -4, 0, -12, -68, 41, 58, 12, 1, 45, 35, -7, -1, -53, -15, -8, 41, -23, 0, -8, 15, -20, -7, -14, -12, 7, 15, -11, -46, -26, 16, -31, -4, -25, 66, 0, 7, 26, 28, -12, 39, -21, 25, -8, -18, 11, -51, -1, -72, -14, 31, -47, 44, -11, 6, 14, -40, -20, 2, -10, -37, -9, 42, 13, 12, -20, -36, 46, 42, 5, -19, 42, 0, -31, -21, 15, 14, -10, 31, -3, 39, 37, 32, -26, -70, -12, 16, -16, -25, 21, -5, 6, 10, 10, 24, 60, -13, -39, -17, -42, -13, 13, -7, 10, -53, -15, 18, -3, 24, 3, 0, -4, -40, 3, 12, 6, -13, -3, 2, 3, 23, -21, 62, 14, -19, -29, -23, 11, -2, 65, -5, 24, -46, 49, -31, 26, 41, 18, -33, 41 ]

Grant, C. J. (after stating the facts). Plaintiff’s wife is not before the court complaining of the transaction. It is. obvious that he cannot recover in his own right for any damages she may have suffered in parting with her property. He had no homestead right apart from hers, and cannot maintain a separate action for damages, even if she had been fraudulently induced to sell the homestead. Whether a husband, when his wife owns the title to a homestead, has, by virtue of the marital relation, such an interest as entitles him to damages when she has by fraud been induced to part with it, — quaere. But, if he has, both must join in the suit to recover the damages. It would seem that the sole remedy ought to be in the one who owns the title. In any event, the law does not tolerate a suit by each. Under plaintiff’s own theory his wife was a necessary party. The proposition that a husband is entitled to damages because, through his “impaired mental condition,” he was “induced and persuaded to cause and procure his wife to trade and sell her land for certain other lands,” does not merit discussion. She alone is interested in such a transaction, and entitled to damages on account of any fraud. Plaintiff had not been adjudged incompetent at the time of this transaction, nor has he yet, for this suit is brought in his own name. The declaration does not allege any fraudulent representations. It does not allege such incompetency as is recognized by the statute of this -State as a cause for the appointment of a guardian. The ■statute requires that he should be “mentally incompetent to have the charge and management of his property.” 2 How. Stat. § 6314. The allegation in the declaration is that plaintiff was “ mentally incapable of reasonably and properly managing and conducting his own business affairs.” Many men lack business ability, judgment, and discernment, but their contracts cannot, for that reason, be set aside. In order to avoid a deed, the party must show that the grantor had not sufficient capacity to understand the nature and consequences of his own act. Jones,, Real Prop. § 48. Were plaintiff before a court of chancery, seeking to set his deed aside, and offering to place the defendants in statu quo, relief would not be granted him by showing that he was “mentally incapable of reasonably and properly managing and conducting his business affairs.” When he seeks in a court of law to ratify his deed and contract, keep what he has, and have a court or jury decide how much more he ought to have had, he must hoth allege and show, in the absence of fraudulent representations, that his mental incompetency was such as would avoid a deed. No such degree of incompetency is alleged. The judgment is affirmed. The other Justices concurred,

[ 3, 9, -20, 2, -21, -14, 26, 49, 31, 26, 10, -37, 83, 36, 0, -16, -14, -31, -13, 16, -13, -42, -35, 58, -9, -36, 7, -6, -6, 3, 31, 5, -51, 49, -16, 45, -14, -48, -11, 13, 19, 0, 17, -1, -13, 16, -14, -41, -1, -26, 26, -29, 33, -3, 43, -32, -30, 24, -16, -73, 8, -19, -11, -13, 13, 55, 32, -32, -12, -38, -42, 17, 3, -12, -17, -40, 9, 12, 15, -6, 29, -45, 40, -40, 29, -6, -4, 47, -66, -28, -12, -6, 32, 12, 4, 12, 35, 29, 28, 49, -58, 1, 45, -6, -27, -30, -14, -45, 44, -21, 37, -3, 5, -10, -38, -15, -16, -57, -55, -25, 36, -17, 14, -5, 35, 24, -8, -33, 6, 2, 37, -13, -34, 8, -22, -23, -21, -16, 4, -33, 0, -21, -5, -46, 0, 9, 41, -36, -38, -6, -21, 35, -18, 1, 1, 3, 19, 10, 35, -29, 53, 28, -33, 8, 3, -19, 24, -27, 13, 23, 49, 38, -62, -20, -6, -21, 34, 17, -32, -22, 9, 13, 37, 15, -10, -52, 12, -1, -37, 11, -6, 4, 6, 48, 39, 56, -30, 23, 16, -44, -6, -32, -47, 57, 62, -12, 14, -40, -8, -19, -43, 41, -6, -76, -30, -40, 38, -32, -20, -18, 83, 46, 12, 40, -31, -38, -3, -54, 33, -3, 6, -16, 8, -26, -26, 1, 33, -23, 14, -19, -12, 25, 11, -27, -16, -31, -8, 30, -35, 19, -29, 3, -38, 30, 22, 19, 12, 42, -16, -43, -14, 9, -17, 8, 16, -19, -11, 34, 0, -13, 34, -21, 14, 54, -2, 16, -48, 62, -15, -1, 50, 9, 31, 20, -50, 11, -1, 9, 24, -17, 53, -44, -4, -21, 27, 44, -1, -34, 13, 20, -20, -15, 10, 32, 59, -21, -1, -11, 0, -38, 25, 24, -4, -3, -9, 12, -42, -7, -40, -32, 13, -9, -12, -40, -2, -51, 10, -57, -38, 73, -13, -7, -31, -27, 48, 2, -4, -45, -68, -22, 43, -52, 33, 0, 32, -19, 6, -21, -26, 41, -30, -15, -24, -5, 58, 1, 24, -33, -32, -15, 7, 22, -16, -33, 0, 18, 14, -42, 39, 25, 12, 14, 19, -19, -33, -43, -4, 5, -3, 14, 21, -5, 49, 23, 10, 42, -94, -9, -20, 44, -26, -32, 51, 13, -4, -40, -44, -9, -34, -21, 6, -8, -49, 6, -63, -27, 18, -24, -24, 12, 0, 22, 46, 3, -2, 3, 104, 34, 9, 40, -19, -31, 4, -34, -28, -35, -8, -26, 5, 15, 17, 7, 53, 10, 100, -45, -40, 2, -16, 68, 26, -25, 19, 34, -9, 18, -14, -24, 39, -5, -17, -5, -40, 48, 29, -8, 61, 27, -21, -57, 30, -5, 37, 3, 40, -61, 8, -55, -29, -7, 13, 13, 28, 37, -12, 39, -43, 37, 10, -10, -19, 56, 25, -44, -22, 22, -35, 16, -11, -51, 42, -39, 14, 7, -23, -69, 2, 25, -20, -14, 61, 27, 12, 25, 51, 20, -52, -7, -6, 50, -46, -43, 53, 31, 13, -20, 29, -22, -21, 33, -44, -41, -68, -33, 3, -18, 8, 42, 37, -11, -4, -11, 12, 21, 2, 39, -5, 16, 51, -37, -47, 70, -17, 32, 30, 43, 20, -3, 46, 20, -20, -40, 9, 20, 17, 27, 13, 18, 45, -16, 16, -2, 9, -12, 25, -14, 26, -23, -21, 54, -15, -66, -2, 21, 10, -3, 0, -2, 36, -18, -35, -9, -4, -43, -30, 6, -41, 6, 24, -39, 10, 3, -8, -13, -33, -45, 11, -25, -14, 64, -30, -45, -48, -34, 28, 6, 43, 2, -4, -17, -13, 5, 56, -50, 3, 23, 7, -44, -5, 58, 46, 15, 44, -20, 0, -31, 39, 22, -4, -28, -3, -2, 30, -5, -26, 43, -30, -32, 8, 13, 2, 16, -24, 33, 32, -15, 0, -4, 5, -48, -37, 29, -88, -9, 40, 2, -19, 11, -14, -11, 19, -53, -7, 20, 29, 51, 13, 13, -35, -17, 7, -19, 19, 58, 44, 10, -2, 13, -21, -24, -32, -54, 49, -18, -21, -7, -12, -46, -13, 2, -38, -9, 8, 21, -18, -13, -6, 56, 22, 19, -4, -7, -48, 51, 12, 29, -42, -16, -48, -56, 26, 33, -47, -36, -8, -12, 5, -63, -23, -1, -31, -45, -37, -46, 18, 1, 62, 0, 17, 7, 50, 9, -19, 3, -32, 16, 35, -1, 39, -4, 0, 46, 13, 10, 31, 18, -32, 3, 70, 5, 15, 0, 23, -13, -16, -66, -36, 0, -9, -15, -16, 43, -44, -41, -19, 45, -24, -44, -14, 11, -51, 1, 13, -6, -11, -22, 53, -14, 51, -17, -14, -50, -16, 29, -2, -11, 53, -38, 38, 27, 9, -17, -21, 0, -24, -10, 24, -6, -16, -20, -13, 3, 0, 16, 29, 48, -20, 66, -21, -22, 46, -52, 0, 49, -16, -25, 35, 38, 11, -6, 11, -18, -29, -25, -24, 0, 70, -21, -85, 21, -9, -85, -18, 62, 3, 0, 40, -51, 1, -7, 3, -47, -36, 3, 104, -24, -59, -55, -2, -9, 32, -51, 3, 4, -29, -68, -20, 23, 23, -3, 13, -8, -29, -49, 1, -30, 6, 27, 17, 10, 10, 16, 5, 35, 4, 31, 2, -22, 28, 4, -9, -17, -70, 59, -77, 29, -1, -10, -31, 18, 21, -13, -6, 74, -11, -30, -38, -16, 2, -5, 15, 31, -37, -1, -13, 5, 25, 44, 37, 9, 49, -50, -57, -13, 18, 28, 22, -26, 2, 37, 14, -1, -39, -45, -29, -40, -1, 28, -8, 0, -7, 5, -23, -7, 72, -21, -29, 1, -39, -25, 54, 20, 1, -3, -51, -10, 37, -7, 22, 1, -18, 42, 52, 21, 1, -2, -9, -11, -3, 47, -16, 28, -46, -14, 32, 2, 69, 25, -32, -20, 44, -56, -17, -25, 13, 30, 12, 13, -8, 0, -20, -46, -18, 46, 65, -2, 13, -41, -56, -51, 19, 55, 12, 37, 0, 23, -15, 16, 47, 0, 9, -32, 22, 2, 56, -9, 34, 53, 57, -55, -52, -7, 101, 17, -70, 9, -23, 46, -11, -17, -17, 36, 19, 61 ]

Grant, C. J. The relator and one Cyrus Johnston entered into an agreement of arbitration, under chapter 292, 2 How. Stat. Three arbitrators were chosen. The proceedings were regular, and an award was duly and legally made. Relator moved for a confirmation. Johns ton moved to vacate the award, upon the ground that the arbitrators exceeded their powers. Upon the hearing of the two motions, the former was denied, and the letter granted. The grounds upon which such award may be vacated are defined in the statute (2 How. Stat. § 8482). Johnston claimed before the arbitrators that he should be allowed an item of $500. . This was contested by the relator. The testimony was conflicting, and the arbitrators decided in his favor. The circuit judge reviewed this evidence, and reversed the decision of the arbitrators. The vacation of the award involved an examination into the testimony 'iipon which the arbitrators based it. Courts do not possess this power, under the statute. Chicago, etc., R. Co. v. Hughes, 28 Mich. 186. The circuit judge was in error in holding that it was in his power to vacate the award if, in his opinion, the ends of justice required it. The award is conclusive, and the court can only refuse to enter judgment confirming it for one of the reasons specified in the statute. Neither of these reasons existed. The circuit judge, and not the arbitrators, exceeded his powers. He should have confirmed the award. The writ will issue as prayed. The other Justices concurred.

[ 1, -22, -14, 50, 2, -26, 59, 20, -30, 58, 8, 10, 14, -38, -21, -26, 16, -2, 4, -33, -28, -42, 9, 14, 31, -13, -4, 11, 11, 33, -36, -56, -21, 27, -23, -31, 5, -12, -6, -28, 41, -29, -16, 64, -60, 38, -12, -30, 41, -57, 0, 28, 6, 27, 12, 29, -5, 30, 0, -5, 14, 21, -9, 31, 17, 0, -7, -11, -16, 14, -20, -38, 19, -2, -25, -3, 7, 4, -14, 6, 63, 24, -1, 12, 6, 15, 33, -44, 51, -38, -21, 4, -15, -49, -14, -8, 39, 25, 23, 24, -31, -28, 0, 19, -21, -1, 28, 6, 48, 24, 21, 14, 10, 18, -47, 51, -9, -45, -10, -54, 0, -43, -2, 42, 20, 6, -13, -32, -9, -6, 7, 0, -44, 5, 8, -38, -2, 15, 9, -37, 18, 35, 29, -58, 11, 6, 32, 25, -83, -15, -6, 23, 9, 62, -5, -44, 27, -38, 9, -24, 60, 48, -33, 29, -16, -32, 13, -31, 37, 12, 12, 0, 11, -38, 0, -5, 17, -11, -36, 25, 0, 35, 10, -13, 56, -7, 0, 35, 2, -24, -17, -26, -27, 15, 2, -9, -11, 29, 22, 52, 4, 11, -24, 25, -22, -38, 37, -28, -6, 37, -5, -6, -37, -90, 14, -34, 38, 10, 22, -13, 29, 9, -2, 76, -44, -75, -10, 20, -15, 8, -30, 50, -8, 8, 108, -17, 28, 28, 46, -31, -12, 32, -32, 11, 2, -19, -91, -25, 10, 6, -37, 26, -3, 57, -41, -69, -42, 5, -73, -7, -13, 9, -51, -25, -30, 30, -34, -13, 30, 15, -39, -49, -21, 4, 22, -29, -2, -28, -23, -9, -12, 38, 12, 8, -95, 52, -20, 20, -1, 21, 81, -16, 2, 18, 27, 23, 24, 35, 15, 7, -27, 3, 14, 29, -4, -30, -24, -20, -6, -8, -1, -35, 15, 43, 18, -31, -39, -27, 51, -52, -18, 45, 5, -50, 9, -18, 10, 6, -4, -26, 20, 48, -15, 41, 37, 17, 11, 17, -7, 36, 26, -29, -29, -53, 20, -7, 6, -20, 34, 33, -4, -26, -47, 2, 32, 8, 18, 5, 20, 21, 18, 22, -20, -44, 6, 43, -1, 6, -18, -11, 24, 23, 44, -3, -7, -3, 11, -57, 0, 9, -50, 17, -11, -17, 34, 6, -45, 7, -24, -12, -43, -50, -36, 33, -17, 114, 40, -4, 30, -19, 20, 3, -9, -1, -40, -4, 12, -29, -48, -16, 61, 16, 4, -20, 56, -17, 4, 48, 25, -50, -21, -14, -3, -13, -44, -27, 35, 13, 6, -8, -18, 8, 7, -47, -16, -8, -3, -18, -83, 57, -22, 14, -25, 1, -17, 11, -33, 28, -43, 55, 14, 19, 0, 59, -9, -3, -33, 0, 43, 11, 3, -11, 30, 42, 18, -63, 15, 66, -9, -3, -25, 0, -21, 38, 3, -1, -43, -21, 7, 3, -10, 43, -31, 24, -10, 63, -6, -5, 22, 47, -26, 21, -12, -11, -35, 0, 16, 9, -20, 5, -11, 22, 24, -65, 45, -20, -40, -78, 23, -6, -30, -11, -21, 38, 23, -3, -22, 14, -54, 12, 26, -46, -42, -34, -20, -3, -68, -7, -3, 10, 3, 46, 52, -70, -4, 20, 1, 18, 25, 11, -26, 4, 6, 21, -32, 28, -75, 3, 51, 34, 18, -40, 13, -41, -27, 20, 37, -22, -13, -34, 6, 16, -4, 23, -18, 16, 6, -28, 71, 81, 30, -32, 41, 8, -30, -32, -9, 17, -37, 27, -31, 7, -56, -46, 36, -21, 23, -8, 5, 6, -18, 38, -24, -35, -12, -9, -18, 24, 43, 26, 39, 33, -56, -6, 31, -35, 18, 23, -20, -13, -5, 52, -24, -7, -37, 47, 44, 11, 29, 40, -1, 56, 4, -88, -25, 13, 23, 16, -15, -13, 35, 13, -16, 11, -23, 20, -26, 6, -28, 0, -10, 25, -15, -38, -5, 5, -16, 10, -18, -10, 21, 17, 31, -18, 39, 3, 31, -3, -12, 0, 15, -23, 12, 16, -29, 10, 33, 32, 9, 24, 40, -14, 65, -1, 17, 20, 13, 9, -29, 77, 12, 0, -23, -7, 9, 43, -31, -32, -10, 81, 8, 26, 0, -1, 39, -30, -6, 52, -22, -17, -15, -7, -4, 7, -5, -16, -14, 25, 27, 54, -14, -4, -31, 53, -30, 31, 27, -21, -74, 10, -19, -10, 0, -41, 10, 32, 49, 14, 32, -33, 13, -29, -9, -3, -22, -19, -18, -36, 12, 11, -40, 43, 51, 20, -40, 16, 20, 70, -27, -25, 24, -64, -19, 7, -12, 19, -8, -25, 27, 14, 0, 1, -63, -27, -40, -12, 36, -18, 43, 31, -16, -83, -1, 37, -3, -26, -5, 5, -27, -39, -13, -16, -8, 23, -13, -47, 28, -75, -37, 46, 25, -49, -10, 23, 3, -33, -37, -19, -34, -29, -48, -10, -15, 16, 1, 2, 13, 22, 31, -35, -2, -23, -2, -45, 29, -6, -14, -13, 9, -2, 39, -15, -18, -43, 13, -7, 10, -6, -26, 50, 6, -58, -16, 45, 42, 16, -8, -32, 31, -15, 50, -8, -26, 16, -15, -5, -34, 31, -46, -4, 8, -37, -40, 25, 13, -48, -2, -35, 56, -15, -12, 42, 0, -78, 20, 1, -5, 71, 27, -21, 47, -36, 40, 22, -61, 5, 9, -20, -44, -13, -6, -15, -7, -2, -11, 29, -10, -12, -42, 41, 22, -11, -12, 47, 3, -27, -14, -62, 9, 18, 4, 10, 24, -12, 58, 10, -16, 27, 35, 40, 26, -7, -28, -69, -28, -15, -8, 0, -6, -11, 24, 31, -56, -32, 28, -6, 24, 15, -42, 22, 4, 1, 6, -9, 57, 31, -58, 19, -52, -20, -6, -33, 22, 14, -45, -49, -3, -21, -66, 13, -18, 8, -3, -6, -5, -24, 17, -10, -41, -46, -2, -10, 23, 44, 23, 62, -19, 21, -30, -6, 11, -10, -21, 28, 6, 19, 30, -18, 0, -34, 13, 15, 0, 42, -11, 12, -14, 40, -37, -18, -7, -1, 6, -25, 12, -7, -3, 5, 28, 8, -14, -23, 4, -44, 7, -22, 23, -16, 18, 6, -11, 19, 46, 53, 31, 74, 5, -49, -3, -31, 14, -35, 3, -24 ]

Montgomery, J. This is an action of ejectment. On the trial the plaintiff showed title derived from the United States, and showed in addition that the defendants held possession under a land contract made by plaintiff to-defendant Fannie J. Shepard, who is the wife of her co-defendant, that the defendants are long in arrears on this contract, and that the plaintiff had given them notice to quit. This contract bore date of February 19, 1889, and contained an agreement by Mrs. Shepard to pay all taxes then unpaid or thereafter assessed. Defendants offered to show that one Kimbark had acquired a title to' the premises on a sale 'of the lands for taxes for the years 1889, 1890, and 1891, and defendant Elisha H. Shepard testified that he had recognized the right of Kimbark. There was, however, no surrender of possession to Kim-bark by Mrs. Shepard, and no actual possession taken by Kimbark. The circuit judge ruled out the evidence of the Kimbark title, and directed a verdict for the plaintiff, and defendants bring error. The only questions presented by brief of defendants’ counsel, and therefore the only ones we need discuss, are, first, whether, in this action of ejectment, Mrs. Shepard is estopped from showing title in Kimbark; and, second, if she is, whether the estoppel applies as well to the defendant Elisha H. Shepard. Defendants’ counsel admits that the general rule is that a tenant or contract purchaser cannot dispute his landlord’s title, but insists that this rule of estoppel is limited to cases which involve possession merely, and that where the title in fee is claimed, as in ejectment, the tenant may show that the plaintiff has no greater right than that of possession. Counsel cites Jochen v. Tibbells, 50 Mich. 33, and Shaw v. Hill, 83 Mich. 324 (21 Am. St. Rep. 607). These cases deal with an estoppel arising from the relation of landlord and tenant, or purchaser and vendor, and sustain the defendants’ view, that the limit of an estoppel arising from such relations alone is as claimed by defendants’ counsel in this case; but counsel seems not to-have discriminated between an estoppel arising out of that relation simply, and such an estoppel as, in our judgment, should be held to exist in this case. The doctrine of estoppel rests upon the inequity of permitting one to allege the existence of facts which by his own conduct he has induced another to believe do not exist. While there are cases in which an application of this rule works a seeming hardship, and while for this reason the courts are careful to see that all the elements of estoppel exist in a given case, there can be no occasion for hesitancy in applying the doctrine where one attempts to set up a title which can only have an existence because of his own default. In this case it was the duty of defendants to pay the taxes for the years 1889, 1890, and 1891; and yet they attempt here to assert that they did not do so, and that, therefore, a third party has acquired title through their default, which they now seek to assert to defeat plaintiff’s title. The circuit judge was right in holding that Mrs. Shepard could not do this. Dubois v. Campau, 24 Mich. 360, and cases cited in note to annotated edition. Nor do we think that Elisha H. Shepard is in any better position in this respect than his wife. Ward v. Nestell, 113 Mich. 185. His possession was in the right of his wife, and there is no showing that Mrs. Shepard ever yielded her right of possession to him. Judgment affirmed, with costs. The other Justices concurred.

[ -18, 0, 18, 15, 1, -2, 18, -14, 1, 27, 0, 23, 7, 37, 58, 12, 50, 15, -3, 1, 11, -26, -79, 6, 26, -20, 66, -6, 27, 50, -1, 33, -23, 41, 7, 7, 39, -6, 1, -3, -7, 49, -41, -19, 33, 13, -9, -18, 28, 34, 12, -2, -7, -5, -47, -3, 4, -18, -29, 9, -6, -33, -9, 13, -22, 2, -17, 5, 12, -48, 4, -8, -21, -42, -33, -19, 20, 11, 40, 5, 10, -5, 36, -51, 2, 50, 5, -19, 35, 0, -14, 4, -39, 25, -1, 39, 30, 8, -20, -19, -14, -13, -51, 32, 9, 0, -16, 0, 12, -1, 14, -2, 44, -23, -7, -35, -23, -8, 3, -5, 37, 13, 14, -2, 20, -2, -47, -17, 12, 31, 13, -14, 6, -24, -48, 42, 36, 32, -18, 0, -13, -11, -31, -41, 16, 45, 2, -4, -59, -42, -33, 23, 28, 30, 21, -20, 60, -12, 16, 6, 3, -10, -9, -19, -24, -45, 11, -21, -13, -7, -1, 12, -23, -22, 36, 51, 28, 26, -28, 0, 29, 25, -17, -11, -38, -47, -22, -2, -8, -6, 6, 0, -5, 11, -24, 65, -48, 39, -16, -8, -1, -7, -2, -36, -6, -19, 47, -33, 28, 16, -45, 21, -23, -24, -24, 15, 54, -26, -49, 1, 23, 12, -24, 12, -46, -70, 9, 18, 7, 13, 12, -22, -5, 39, -12, -8, 34, 4, -30, -15, -30, -16, -19, -29, -2, 0, -13, 27, -13, 17, -55, -21, -35, 71, 18, 23, -16, -32, -30, -5, -27, 32, 6, -35, -25, 12, 7, -44, -17, -23, -6, 35, -4, 80, 8, -33, -47, 9, -43, -39, 41, 0, -15, -24, -79, 27, -7, 50, 7, 0, 0, -20, -40, -9, -7, 69, 18, -24, 43, 32, -8, -38, 35, -6, 34, -20, 18, 2, -8, -38, 21, -16, -30, -37, -3, -16, 7, -11, -16, -26, -6, 2, 32, -3, -17, 19, 5, -12, -36, 66, 17, 8, 8, 15, 23, 9, -31, -26, -20, -3, 15, 5, -6, -12, 17, 24, -7, -8, -28, -19, -24, -20, -31, 70, 28, 12, 17, -16, 23, 26, 31, 13, 10, -33, 17, -14, -24, -24, 14, -12, 23, 8, 1, -7, -44, -14, 15, -25, -38, 33, 0, -35, -5, 14, 28, 1, 40, -54, -33, -11, -19, 14, 31, 21, 1, -21, 16, -13, -27, -50, 7, 1, 23, -41, -46, -30, 14, -3, -10, 35, 26, -8, 24, -13, 11, 33, -2, 0, 45, 20, -17, -19, 35, -13, 2, -33, 36, -4, 18, -17, -36, 35, 28, -11, 47, -7, -22, -27, -7, 44, -6, 42, -29, 33, -20, -23, 6, 20, -12, -45, 19, -21, -2, 4, 27, -10, 39, -8, 45, -1, 31, 12, 66, -3, -16, -52, -24, -25, -28, 24, 10, -12, 34, -8, -31, 0, -2, -1, -33, -16, -14, -23, 0, -17, -8, -12, -64, -49, 21, -5, 34, -23, 27, -2, -3, -48, -20, 8, -14, 51, 33, 22, 45, 3, 5, -36, -29, -34, 21, 61, -15, -22, 34, 19, 17, -6, 23, 7, 68, 59, 8, 8, -9, -4, 30, -22, 44, 43, -7, -12, 33, 35, -47, 24, 0, -12, 34, 1, -72, -26, 3, 6, -15, 12, -40, 62, 22, 9, -11, 31, -38, -51, -33, 17, -5, -20, 26, -21, -23, 8, -7, -20, -2, -47, 5, -14, -9, -53, 7, 7, 8, -4, 35, -31, 11, -3, -6, -23, 44, -27, -49, -37, 61, -78, 1, 1, 7, 52, 9, -12, -11, -38, 23, -2, 27, -41, 25, 32, -6, 13, -42, 40, -42, 0, 36, 0, -8, 15, 22, -9, 52, 68, 2, 39, -24, 29, 25, -62, 12, 7, 52, 18, -25, -17, -10, -38, -3, -3, 19, -19, -17, -18, -8, -14, -9, 10, 0, -7, 20, -13, -21, 10, -38, -8, -12, 20, 15, -26, 65, -28, -43, 12, 19, -5, 24, -18, -8, -25, 23, -3, 39, -38, -13, 54, 41, -24, 41, -1, -11, 31, 37, -10, 38, 21, 23, 24, 25, 7, 51, 52, 31, -17, 37, 10, -8, -13, 31, 16, -24, 0, -5, 5, 8, -8, -20, -9, 5, 23, 23, 27, 68, -10, 14, 26, -25, -16, -22, 34, 7, 23, 21, 15, 47, -8, 2, 28, 34, -23, -39, -19, 30, 0, 11, -41, 23, 21, 38, -18, 15, -33, 6, 37, 8, 0, -19, 8, 2, 10, -54, -40, -7, 30, -29, 9, -31, -25, 7, 3, 4, 0, 0, 20, 18, 12, 44, 13, -8, -28, -24, -27, -8, 6, -6, 18, -22, 13, -69, -30, 19, -20, -18, 25, -9, -52, 38, 4, 1, -22, -12, -1, 50, -53, -46, -7, -10, -27, 47, 1, -7, 1, -2, -8, 3, -54, -63, 1, 8, 9, -43, -9, -1, 42, -1, 21, -29, 19, 0, 18, -34, -15, -19, -55, -3, -27, 15, 12, 8, 14, 5, -20, -8, 30, -35, 5, -20, 15, 30, -16, -44, 30, 9, -50, -20, 11, 31, -39, 5, 14, -13, -24, -37, -61, 0, 4, 27, -9, 3, 4, -30, -8, -28, 13, 14, -32, -34, -43, 1, 17, 8, 18, 35, -2, 5, 9, -2, -21, 2, 29, 7, 13, 10, 8, -26, 6, -20, 4, -11, -39, 56, 45, -36, -1, -40, 37, -39, 6, 10, -22, -39, 39, 4, -1, 29, 22, -16, 11, 16, -35, 17, -35, 0, 31, 37, -18, 27, -27, -4, 8, 11, 6, 13, 26, -12, -6, -13, -17, -30, -14, 9, -1, 17, -15, -49, 17, -15, -9, 0, 9, 5, 37, 0, 6, -34, 37, 16, -11, -3, -39, 26, -16, -23, -3, -30, -16, -31, 38, 18, -63, -6, 25, -48, 83, 34, 33, -28, 7, -45, -15, -79, -26, -12, -11, 1, -49, 22, -3, 84, -7, 2, -25, -3, -36, -32, -23, 8, -1, 27, 21, -10, -5, 15, -4, -105, 15, 24, -5, 6, 7, -42, -1, 17, 27, 56, 19, 25, 6, 3, -10, 21, -42, -2, -38, 31, -36, -9, -47, 59, 35, 8, -63, -49, -25, 44, 6, -40, 46, -63, 35, 23, 0, 13, -15, -28, 36 ]

Montgomery, J. This case comes up for review on a special finding of facts by the trial judge. As the evidence is not before us, the only question which we can consider is whether the finding supports the judgment. The substance of the finding may be stated briefly:' The defendant is a corporation engaged in the manufacture, purchase, and sale of burial cases, caskets, and undertakers’ goods and supplies. The articles of association of said corporation provide that the stock, property, affairs, and business of the corporation shall be managed by four directors, to be chosen annually by the stockholders, and that the directors shall choose one of their number to be president, one to be vice president, and one to be secretary and treasurer, and that the board of directors shall have power to employ such superintendents, clerks, agents, and other employés as they shall deem proper, and shall manage and direct the entire business affairs of the corporation. The by-laws of the corporation provide that the board of directors shall appoint and employ and have power to remove clerks, superintendents, agents, and other employés necessary or proper, in their judgment, for the best interests of the corporation, and prescribe rules for the government of the business and employés, and fix their compensation. They also provide that all notes, obligations, and contracts of the corporation shall be signed by the president, and countersigned by the secretary and treasurer. On the 13th of June, 1895, the plaintiff had an interview with William E. Cox, secretary and treasurer of defendant, in the presence of Joseph H. Walker, president of the defendant. It was proposed that defendant employ the plaintiff as a resident buyer in New York, paying him $25 a month as retainer, and 1 per cent, on goods purchased; it being understood that the plaintiff was to be employed by several others in a like capacity, the scheme being to secure, by co-operation, better prices. The plaintiff was informed by Mr. Cox that he was willing, so far as he was concerned, to enter into such a contract, but, before it could go into operation, it would be necessary to have it approved by defendant’s stockholders or board of directors. A contract to go into effect July 1, 1895, and continue to January 1, 1897, was thereupon drawn up, and signed, on behalf of defendant, by Mr. Cox, as secretary and treasurer, and also signed by plaintiff. At the same time the plaintiff gave back to Mr. Cox a memorandum as follows: ‘ ‘ If, at a meeting of the stockholders, they decide it is not best to enter into the contract with me, the contract is null and void, and to be returned to me to destroy. “ Contract signed June 13th.” Plaintiff was informed by Mr. Cox, in the presence of Mr. Walker, that the stockholders would meet before July 1, 1895. No meeting was in fact held until September following. On June 24, 1895, without the knowledge or approval of any director or stockholder, Mr. Cox wrote plaintiff as follows: “We have further considered the matter of entering into an arrangement with you, such as indicated by contract,' and decided to allow our contract to remain in force. ” This was signed in the defendant’s name, by William E. Cox, treasurer. Plaintiff made arrangements to carryout the contract with defendant and others, and incurred some obligations in so doing. Defendant also sent one or two orders to plaintiff to be filled. This service was performed by plaintiff. On the 27th of September, 1895, a meeting of the stockholders was held, and the contract with plaintiff was disapproved, and similar action was taken on the same day by the board of directors. This action was advised by Mr. Cox after having taken the opinion of a lawyer as to the binding effect of the contract with plaintiff, and as to the steps necessary to disapprove it, and avoid liability thereunder. The finding shows that the board of directors met only at intervals of several months, the dates being January 30, 1894; January 29, 1895; March 4, 1895; April 20, 1895; September 27, 1895; December 13, 1895; January 28, 1896. It was further found: “Mr. Cox has been the secretary and-treasurer of the defendant from several years before 1895,’up to the time of the trial. The financial matters of defendant have during this time been under his control, but in important matters he always consulted Mr. Walker, the president. Mr. Cox, during the time aforesaid, had charge of the buying for defendant, except the buying of machinery, lumber, and general factory supplies. This, Mr. Walker attended to. In important purchases in Mr. Cox’s depart ment, if it was anything extraordinary, he consulted with Mr. Walker, and Mr. Walker conferred with him about purchases in his (Walker’s) department. * * * The matter of the employment of men on the road, or the purchase or selling of goods, did not come before the board. The only salaried members of the board of directors were Messrs. Walker and Cox. After the death of Mr. William H. Powers, Messrs. Walker and Cox carried on the business of defendant; i. e., the manufacturing, buying, and selling, and hiring traveling men, and fixing their salaries, except as to the matters acted on by the board of directors, as above stated. Mr. Cox bought thousands of dollars worth of goods for defendant without consulting the board of directors. The traveling men were hired for no specific time, and were subject to discharge at any time. Neither Mr. Walker nor Mr. Cox ever entered into a written contract on behalf of defendant, except letters and orders for goods, without first having a vote of the stockholders or of the board of directors authorizing it.” The circuit judge found as a conclusion of law that— “Inasmuch as the agreement sued upon was never approved by the stockholders of defendant, but was disapproved by them, and also by the board of directors, the agreement never became operative, and plaintiff has no right of action.” The finding undoubtedly established such a course of dealing on the part of Mr. Cox as would, to one having knowledge of such dealing, be evidence of extended power, and as to one cognizant of the continued exercise of such authority, and with no knowledge of the restrictions placed upon him by the by-laws of the company, the course of dealing was such as to constitute a holding out of Mr. Cox as one authorized to transact most of the affairs of the corporation, so far as they concerned the purchase and sale of wares or the means of accomplishing either. But in this case there is no finding that the plaintiff had any previous dealing with the defendant, or that he knew of the several acts of authority exercised by Mr. Cox. On the contrary, the finding is that he was informed by Mr. Cox that, before the contract could go into operation, it would be necessary to have it approved by the de-' fendant’s stockholders or board of directors. It is also a fact that the by-laws of the company did confer the power upon the board of directors. With this finding of fact binding upon this court, we must hold that the plaintiff is not in a position to rely upon a holding out of the agent as having authority in excess of that which he in fact possessed*. Plaintiff, having notice of the limitations on Mr. Cox’s authority, was bound to see to it that those having authority had assented to this contract. Rice v. Peninsular Club, 52 Mich. 87; 4 Thomp. Corp. § 4887. It is true, as contended by plaintiff, that by-laws of a corporation do not ordinarily bind third persons. 2 Beach, Mod. Cont. § 999; Union Mutual Life Ins. Co. v. White, 106 Ill. 67. But the reason why this is so is that persons dealing with the agents of corporations are justified in assuming that they possess such power as their employment would generally indicate, and are not bound to take notice of limitations of such power fixed by the by-laws. When, however, the third person dealing with an agent has direct notice of limitations placed upon his authority, it would be perversion of that salutary rule to hold that he may ignore such notice, and fall back upon what would otherwise have been apparent authority. The judgment will be affirmed. The other Justices concurred.

[ 72, 15, 41, -10, -3, 35, 4, -36, 42, -7, 59, 4, 15, 49, 19, -28, 27, -19, 15, -19, 39, 0, -32, -51, -9, 6, 15, -6, 14, -12, -15, 23, 22, -12, -33, 37, 33, -14, 17, -6, 14, 67, 26, -6, -27, 0, 48, -32, 20, -6, 25, -14, 21, -12, 21, -18, 18, 34, 3, 28, 0, -64, 63, -1, 15, 8, 5, 0, 3, -14, -35, -23, 0, 8, 27, -70, 17, -65, -21, -25, -3, -45, 46, -49, -79, 26, -14, 0, 16, 14, 0, 17, 4, -13, -14, 13, 55, -25, 23, 9, -23, -46, -23, 12, 16, 37, -30, -30, 11, 37, 4, 10, 37, -5, -35, -32, 19, -18, 22, -14, 30, 6, 5, 23, 1, 19, 11, 26, -28, 38, 7, -18, -46, -32, -19, -13, 0, -19, -22, 18, 14, 60, -35, -17, -65, 50, -45, 25, -65, -17, 26, -6, 28, -2, 33, -55, -54, -22, 57, -22, 7, 8, 36, 0, -17, 11, 5, 0, -71, 20, -44, 31, -26, -22, -4, 23, -4, -4, -15, -24, 19, -9, -12, 31, 0, 7, 33, -7, 42, 5, 5, -11, -48, -36, -8, -6, 11, -32, 13, 28, -55, -11, -35, -37, -41, 7, -5, -10, -45, 14, 9, 17, 24, -5, -15, 34, -30, -35, -31, 5, -15, 21, -33, 53, -54, -20, 34, 18, -16, -5, 9, -3, 23, -2, -17, -14, -43, 0, -4, -37, -43, -39, -1, 1, 40, -56, -18, -18, 2, 16, 14, 42, 42, 27, -29, -28, -50, 12, 8, -35, -1, 45, -63, 34, 14, -55, 37, 2, -31, 0, -43, -50, 69, 28, 42, -10, -1, 23, -26, -48, -31, -33, -29, -81, -54, -24, -26, 6, -71, 12, 23, 65, 25, 13, 46, 8, 24, 28, 14, -28, -34, -5, 28, 22, 10, 37, -69, 19, 16, -31, -19, -42, -8, -8, 27, 37, -25, 54, 39, -18, 1, 28, -4, 15, 66, -12, 40, -71, -16, -3, 19, 8, 26, -32, -66, 17, 12, -10, -7, 24, -23, 0, 23, -45, -21, 16, -20, 0, -18, -9, -18, -27, -36, -9, 61, -2, 39, -20, -15, 41, 31, -10, 17, -8, 0, -16, -43, 5, -9, 33, 28, 32, -54, -9, -9, -47, -4, -27, -40, 68, -29, 0, 14, -21, 18, 25, 6, -9, -10, 26, -34, 28, -17, 73, -51, 11, -60, -31, -21, -28, -48, 74, -25, -10, -21, -17, 2, -40, -2, 30, -71, 24, 39, -13, -1, -18, 4, -51, 34, -2, 22, -37, 8, 10, 40, -32, 4, -3, -50, -62, -50, -19, 22, -23, 0, -15, -15, 3, 26, -13, -11, -19, -16, 25, 30, -17, 27, 23, 52, 19, 80, 0, -25, 45, -5, 47, -16, -10, 68, 20, 23, 11, 27, 1, 26, 31, 6, 18, 2, -4, -12, -24, 12, -46, -18, -45, 30, -6, -13, 19, 3, 50, -1, 37, -22, 14, -32, -27, -6, -9, 23, 2, 11, -9, -15, 37, -35, 2, 8, -4, -29, -6, 27, -38, -71, 15, 6, -46, -4, 18, -5, 13, 0, 13, 35, 22, -17, 40, 11, 76, 75, -10, -60, 55, -6, 42, 3, 7, 29, -47, -17, 26, 7, 66, 46, -19, 14, -17, 11, -34, -28, 10, 37, 2, -7, 4, 32, 10, 33, 1, 24, -36, -16, -22, 43, -2, 39, 27, 21, 25, -57, -8, 3, -3, 60, -15, -13, -21, 34, -14, -15, 9, -28, 57, 7, -31, 38, 15, 9, -36, 38, -32, -4, -27, 14, 33, 12, 8, -32, -34, -30, -21, -14, -6, 41, 9, 24, 7, -2, -11, -7, 37, -28, -58, -68, -37, -19, 32, -6, 2, -24, -78, 24, -45, -39, -15, -18, 9, -44, 17, -7, -1, -38, -41, 35, 7, 7, 30, 9, 28, 27, -30, 15, 23, -9, 23, 9, -18, -51, -30, -12, -19, 12, -19, -22, -29, -34, 55, 32, 7, -11, -23, 39, 9, -9, 5, 44, 5, -3, -16, 36, -33, -11, 26, 52, 7, -11, 2, -23, -21, 40, -18, 4, 15, 13, -2, 13, 11, -25, 52, 5, 7, -43, 6, 14, 38, 3, -9, -7, -24, -17, -3, 8, -34, 12, 24, 63, -30, 19, -18, -20, -20, -27, 66, 75, 24, -21, 44, 10, -50, 13, -38, -2, 19, -26, 47, 3, 25, 6, -36, 23, -37, 11, 3, -3, 66, 19, 11, -15, -82, -3, 2, -49, 29, 6, 27, 1, -81, -33, -13, 24, 22, -7, -21, 3, 20, -19, -6, -27, 43, 2, 54, 9, 5, 43, 3, 6, 0, -28, 3, -22, 34, 36, 23, -19, 26, 2, 15, -12, -4, -41, 16, 2, -8, 9, 4, 14, 16, -23, -14, 54, -10, -9, 61, -14, -43, -21, 7, -18, 26, 17, -25, 25, 18, -1, -4, -6, 32, 4, -29, -29, 19, -31, 28, -1, -21, 49, 26, 25, -8, -14, -40, -6, -52, -10, -3, -30, -32, -8, -10, -15, -15, -1, -26, 25, -59, 21, 13, -2, 19, 18, -23, -61, 40, 26, 36, 19, -8, 3, -65, -15, -6, -3, 31, 30, -7, -54, 48, -55, 41, -17, 23, -48, -10, 16, -86, 0, -23, -1, 25, 40, 13, -41, 16, -22, 5, -48, -23, 7, -67, -26, 47, -38, -34, -24, 19, -5, -3, 3, 22, -27, -25, 66, 13, -33, 16, 65, 0, 29, 32, 4, -68, 16, 20, 8, -34, 26, 14, 23, 9, -20, 11, 23, 23, 41, 14, 28, -43, 9, 7, 50, 3, 3, 43, -33, 38, 11, 1, -5, 40, -8, -16, 20, 32, -15, 3, 23, 5, 0, 16, 7, -45, 33, -16, -6, -30, -16, -54, -2, 1, 29, -31, -16, -44, 3, -23, 7, 4, 24, -23, -23, 24, 11, 24, 0, -24, -31, -17, -7, 0, -50, 40, 9, 42, 59, 8, -40, -36, 19, -42, 41, -55, -20, -72, 9, 7, 33, -20, 3, -12, 4, -12, -48, 51, 14, 3, 25, -9, 20, -14, -6, -27, 26, 1, -39, -14, -14, -21, 5, -26, 11, -10, 7, 45, -40, 4, 5, 32, 3, -28, -1, -12, 29, 43, -19, 30, 2, 5, -9, -4, -29, -3, -61, 20 ]

Moore, J. January 19, 1892, complainants filed their bill of complaint against the defendants. The appearance of defendants, by their solicitors, was entered in February of the same year. In June, 1893, a stipulation was signed by the solicitors for the taking of the testimony, the submission of the case, and the taking of a decree. June 12, 1893,. a decree was entered in said cause. In March, 1896, defendants filed a petition asking for leave to file a bill of review. This application was denied by the circuit judge, and the case is appealed to this court by the defendants. The record shows the litigation to be in relation to which faction of the church of the United Brethren is entitled to hold the church property of the Olive Branch Church at Galien. Between the filing of the bill of complaint and the making of the stipulation, a decision had been rendered in Ohio and one in Indiana which tended to sustain the claim of complainants, and it was doubtless to save further litigation and costs that defendants consented that a decree might be taken in favor of complainants, but without costs against defendants. In December, 1893, the case of Bear v. Heasley, 98 Mich. 279, was decided in this court. In July, 1894, application for rehearing in that case was denied. It is now claimed by defendants that the decree entered in this cause is contrary to Bear v. Heasley, and therefore the decree made in 1893 by consent ought to be set aside. It will be noticed that this petition for leave to file a bill of review was not filed until 20 months after the final disposition of Bear v. Heasley. There is no claim that any fraud was practiced in procuring the decree, and no adequate excuse is shown for the delay in filing this petition. The time for taking an appeal had long since expired. The parties to the controversy knew all ábout the taking of the decree, and for three years were apparently satisfied with it. We can see no better reason for disturbing this decree than would exist for setting aside judgments taken and acquiesced in by the parties thereto, because, in some opinion rendered later by the Supreme Court, the law might be announced in like cases contrary to what the learned counsel employed in the case and the parties thereto supposed it to be when they consented that judgment might be entered. We think the learned judge properly'denied the prayer of the petitioners. The other Justices concurred.

[ -1, -16, 49, 10, -21, 48, 30, -22, -12, 13, 14, -43, 8, 11, 10, -22, 1, 3, 10, -45, -8, 3, 30, 7, 2, -29, 0, -2, -14, 16, 9, -19, -36, 6, 13, -40, 36, -8, 44, 7, -25, 2, -12, -10, -21, -24, 15, 24, 23, -13, 27, -46, -27, 2, -15, -24, -16, -26, 7, 0, -13, 53, 76, 14, 2, -26, -13, -5, -23, 10, -1, 26, -7, 0, -22, -55, -5, -51, -14, -9, -6, -26, 46, -61, 14, 33, 6, 28, 10, 36, -32, -15, -49, -23, 21, 36, 7, -2, 44, 28, 5, 1, -72, 24, -5, 14, -46, 19, 0, -3, 0, 7, 12, 19, -23, -59, -61, 15, 1, -56, 18, 28, 7, 18, -14, 21, 12, -61, -19, 32, -30, -16, -21, -9, 8, 8, 36, -68, 5, -43, -13, 9, -10, -46, -24, 1, -55, 56, 31, -20, 10, 44, 57, 50, -16, -20, -14, -65, 37, 4, 38, 43, -44, -16, 0, 12, -25, -40, 6, -24, -23, 38, -37, 21, 9, -18, 12, -6, -57, 9, -35, 52, 26, -21, 25, -5, -20, 2, -30, -29, -24, -33, -7, -10, 9, -17, -21, -26, 35, 0, -24, -16, -7, 42, -17, 0, 41, 12, 13, 16, -2, 23, -7, 14, -10, 33, 18, -29, -19, 13, -10, 13, -37, 21, -53, -31, 61, 13, -5, -50, -55, 41, 21, 5, 6, -6, 4, 4, -20, 22, -13, -18, -23, -24, -10, 1, 17, 12, 21, 2, 43, 49, -22, 13, -19, -53, -26, -13, -7, -23, -33, -5, 12, 17, -5, -53, 39, -8, 59, 13, 40, -1, 43, 28, 43, 10, -29, -32, 7, -17, -11, 12, 44, 41, 3, 9, 11, -21, 3, 40, -20, 1, -18, 11, 46, 48, -23, 31, 7, -74, 25, -24, -24, -43, -22, 9, -64, -42, 27, -49, -43, 31, -33, -23, 25, 33, -17, -1, 56, -17, 14, -12, -14, 0, -5, 42, 89, 18, -14, 47, 11, 22, 38, 14, -35, 29, 38, -48, -30, 17, 22, -3, -22, 10, -4, 9, -8, -51, -1, 11, -10, 13, -69, 5, 36, 4, -6, -40, -50, 48, -16, 35, 35, -23, 54, 10, -35, -42, 7, 0, -32, -10, -9, -3, -22, 23, -12, 21, -23, 33, -22, 11, -11, 18, 24, -14, -26, 28, -3, 0, -15, 5, 24, 9, -24, -21, 4, 7, -5, 29, -10, 15, -43, 18, -17, 12, 7, 55, -30, 27, 59, 8, -7, 5, 2, 9, -36, -28, 54, -4, 18, 13, -17, -12, -25, -17, 9, 30, -8, 22, -35, -2, 17, -10, -6, 9, -20, -29, -44, -13, -38, 56, -22, 16, -9, -8, -10, 39, 39, 20, 25, -24, 1, -36, 0, 2, 11, -16, 26, -15, 21, 37, -43, 9, -17, 12, -12, 19, 27, 16, -29, 25, -2, 14, -19, -24, 15, 0, 0, 5, 27, 17, 12, 20, -41, 3, -12, -12, -31, -27, 16, 6, 22, 12, -26, 37, -45, -66, -51, 27, 12, 44, 43, -23, 34, 44, 11, -3, 0, 22, -38, 12, 23, -19, 0, 7, 32, 61, -10, -52, -11, -20, 28, -32, -35, 20, 44, 9, 15, -48, -2, 49, -25, 49, -16, 51, -28, 12, -5, -24, -41, 25, 53, 22, 62, -9, -9, -31, 36, -17, 44, -13, 7, -37, -2, -25, -2, 3, -11, 21, 22, -39, -4, -32, 8, 21, 25, 2, 12, 1, 31, 46, 16, 7, 0, 22, 5, 9, 37, -20, -2, -40, -33, -45, 31, -23, -2, 20, -7, -19, 32, -2, 8, -3, 53, 2, 9, 1, 121, 89, -5, -16, -8, -7, 3, 30, -74, 46, -8, 2, 19, -3, -12, 3, -18, 58, -30, -8, 11, -11, -79, -34, 22, -38, -2, -12, 20, 19, 50, -33, -7, 27, -26, 15, -2, 33, 16, 33, 21, 26, -17, 18, 11, -9, -1, 29, -14, 13, 15, -16, 34, 28, 42, -7, -47, -30, 56, -49, 25, 2, 42, -57, -20, 24, -29, -10, -13, 0, -1, 12, 3, -8, 63, 7, -1, -66, -47, 50, -17, 3, -19, -1, 13, -9, -4, 4, -6, 16, -33, -32, 36, -29, -1, -6, -15, -11, 15, -4, 30, -20, -3, -22, 38, -3, -6, -21, -37, 27, 20, -14, -11, -21, -27, -12, -12, 23, -1, -4, 0, -46, 30, 53, 24, 11, -33, 34, 56, 7, 40, -9, -19, 27, -11, -13, -14, 6, -10, -10, 6, 18, 12, -4, -73, -3, 56, 14, 20, -23, -3, -8, 31, -25, -5, 17, -5, -15, -52, -36, -4, -36, 52, 14, 41, -77, -5, -27, 5, -6, -15, 40, 38, -28, -16, -27, -1, -10, 13, -12, 44, -24, -21, -21, -53, 2, 23, -55, 57, -15, -21, 23, 18, -43, -6, -14, 14, 8, -17, -44, -26, -10, -23, -16, 10, -9, -44, 3, -21, 29, 18, 20, -12, 20, -38, -68, -71, -23, -26, -36, 27, -40, -24, 4, 5, 29, 37, -7, -10, -4, -8, -8, 3, -41, -42, -14, 44, -5, 7, 13, -9, 2, -10, -13, 16, -13, 27, 46, -17, 0, -28, 0, -8, -41, 5, 23, -49, -69, 14, -31, 2, 20, 18, -39, 24, -54, 0, 11, 33, 20, 45, -8, -26, -1, -46, 14, -73, -14, 30, 0, 28, -4, 22, -45, 12, -4, 14, 32, 68, 20, -24, -16, -6, -13, 44, 32, -8, 22, -34, -18, -32, -9, -6, 21, 33, 28, 37, -19, -27, 3, -15, 6, 20, -27, -43, -20, 25, -21, 12, 10, 14, -26, 53, -25, -35, 27, -38, 8, 25, 27, 18, 20, 39, 9, 4, -40, -7, -5, -11, -13, 22, -16, 9, 2, 9, -18, -4, -4, 12, -28, -25, -13, -23, -14, -12, 16, 0, 30, -48, -2, -13, -45, -25, -11, 6, -11, 14, 11, 21, 9, -20, 7, 0, 8, -23, 0, 19, 21, -21, -8, 20, 29, 31, -32, -3, 10, 27, 37, 29, -34, -65, -1, 33, 65, 1, -9, 2, -37, -41, -7, -16, -11, -23, 27, 16, 11, -12, -55, -18, 24, 24, -15, -10, -2, 37, 61, 7, 19, -10, -18, -6, -27, 40, -35, -8, 50 ]

Montgomery, J. This case presents the same questions as are found in No. 11 of the April term, of the same title (Hauser v. Burbank, ante, 463); and one additional question is raised, which is that the names of two owners of land traversed by the proposed drain were omitted from the application to the probate court. The return to the certiorari shows that the survey was made at a time of high water, and that, as the thread of the stream was then located, the line of the proposed ditch did not traverse the land of these parties. The commissioner returns that he does not know that the lands of the parties were traversed, but that a release has been given him by the adjoining owner of a sufficient quantity of land to accommodate the entire ditch and the deposits of earth therefrom. The parties who are alleged to be owners of the land traversed are not complaining, and it is apparent that a right of way has been acquired substantially on the line surveyed. We think the plaintiff in certiorari is not therefore in position to complain. The judgment of the circuit court is reversed, with costs of both courts to defendant in certiorari. The other Justices concurred.-

[ -16, 56, 46, -43, -29, 27, 15, 26, 7, 42, 25, -30, 17, 37, 5, -70, 20, -26, 10, -11, -3, -14, 8, 34, 1, 0, 65, 6, -10, 44, 2, 12, -52, 31, 38, 23, 19, 31, 34, 19, -35, 7, 1, -72, 29, 15, -1, 7, -41, 1, -11, 3, -5, -35, -29, -29, -31, -15, -19, -42, -26, 28, 11, 24, -26, 39, 19, -51, 49, -26, -43, 22, -33, -26, 79, 1, 36, 21, 0, -32, -13, 52, 35, -5, 17, -39, -8, -38, 60, 16, 8, -36, -20, -27, 0, 18, 38, 10, -7, 24, 41, -1, 10, 21, -21, -12, -70, -13, 21, -31, 69, 16, -9, -53, -20, -11, 14, -39, -6, -33, -23, 36, 17, 47, -89, -13, 0, -4, -84, 51, 4, -40, -41, -29, 33, -9, -15, 2, -37, 38, 17, -21, 4, -31, -3, 53, 48, -4, 5, -31, 16, 8, -20, -42, 5, -1, 25, -50, 30, 20, 11, 20, -27, -33, -60, 15, 41, -14, 1, -37, 60, 43, 17, 9, 6, -55, 18, 19, 16, 25, 42, -44, 7, 17, -52, 0, -7, -7, -25, -25, 3, -11, 32, 50, -1, 54, -16, 59, 8, 31, -15, -2, -13, 5, -43, 28, -22, -1, -4, -16, 6, 1, 1, -32, 12, -11, 72, -23, -16, -12, 23, 4, 24, -70, -36, 2, 0, 8, 25, -18, 27, -32, 19, 6, 25, 2, 3, 8, -7, -16, 19, 20, -44, -64, 1, 12, 2, -1, -2, 40, -36, -87, -40, 30, 25, -18, -10, 2, -34, -47, 27, 72, 28, -34, -19, -12, 20, -39, 8, -9, 0, 22, -17, -8, -4, -30, -28, 35, -63, 14, 43, 8, -7, 11, -68, 13, -17, 6, 27, 74, -19, -15, -22, 10, -31, 17, 5, -22, 15, -44, 42, -20, 11, -19, 39, 8, -15, 33, 17, 2, -13, 57, -9, 9, -15, 73, 26, -41, -4, 7, -18, 7, 59, -34, -4, 18, 75, 3, -11, 33, 7, 30, 14, 33, 53, -53, 1, -31, -14, 19, 37, -34, 19, -13, 17, -36, -30, 42, 5, -11, -20, 37, -41, 48, -2, -67, -1, -29, -13, 20, 22, 32, -8, -22, 12, -32, -14, -12, 34, 3, -34, -9, -13, 34, -12, 2, 35, 21, -56, -7, -16, -3, 38, -2, 20, 25, -14, -20, -45, 44, 13, -26, 4, 10, -39, 44, 22, 20, -25, -14, -34, 21, -38, 0, -31, 55, -8, -8, -45, -10, -1, -14, 52, 7, -26, 48, 26, 11, 16, 8, 3, -23, -17, -9, -48, -38, 62, 32, 14, 0, -45, 14, 29, -69, 8, 5, -12, -1, -27, 43, -59, -3, -11, -16, -23, -5, 33, 24, 25, -21, 11, 22, -40, 8, -32, 13, 31, -48, 16, -6, -23, 19, 29, -27, -23, -23, -36, 0, -9, -16, 16, 33, 41, 18, -51, 32, 2, 33, -18, 1, 65, -45, -40, -26, -48, -37, -37, 6, 20, 9, 13, -24, 1, -64, 13, -23, -12, -38, -21, 30, 60, 55, -18, -44, 11, -15, -9, 32, 6, 22, 13, -5, 39, -13, -55, 23, 22, 18, 17, -14, 42, -78, -49, -64, -20, 24, 5, 19, 44, -12, 39, 11, -69, -50, -86, -7, -37, -33, 20, 2, -14, 51, 7, 1, -50, 65, 14, -23, -43, -23, -47, -51, 10, -14, 7, 14, -34, -82, -16, -16, 32, 9, 0, -39, 30, -6, 33, 20, 16, -24, 16, 37, 2, -40, -12, 16, -36, 9, 26, 28, -47, -21, -36, -58, -22, 74, -6, -4, 4, -24, -46, 4, -25, -31, -1, -32, 52, 4, 15, 43, -9, 13, -28, 24, 20, 6, 9, 10, -42, -5, 11, -10, 17, 35, 28, 3, -7, -64, 8, -22, -34, 40, -34, 12, -9, -15, -12, 88, -19, 1, 20, 0, -11, 1, 6, -16, 12, -11, -13, 18, 31, -48, -31, -19, -21, -28, 26, 10, 7, -22, -12, 57, 34, 3, 46, -4, -39, -52, 11, -4, 46, 2, 14, 41, 16, 25, -37, 29, -7, 7, 20, -12, 6, 7, 16, -24, 68, 65, 6, 47, 18, -30, 14, -36, 24, 56, 31, 31, 17, -1, 22, -13, 6, -30, -21, -15, 58, 19, -17, 16, 9, 10, 41, 19, 0, 8, 14, 8, -3, -8, -9, 41, 2, 5, -13, 1, -10, -2, -27, -8, 65, -26, -50, -19, -23, 39, 15, -24, -18, 4, -17, 25, 30, -16, 3, 15, 28, -8, -28, -53, -5, 12, -3, 5, 13, 7, 12, 9, -48, 42, -2, -26, -14, -14, 5, -6, -2, 4, -39, -19, 1, 14, -54, -9, -34, -5, -17, -34, 0, 41, 13, -25, 21, -39, -11, 25, -18, 1, 23, -2, -37, -18, -11, 19, 0, -46, -17, -35, 19, 7, 22, 5, -6, 6, 20, 60, 2, 42, -16, 16, 7, 34, 24, 23, 33, -8, -1, 2, 21, -2, -4, -24, 22, -19, 6, -39, -2, 65, 36, -65, -45, 38, 27, -23, 4, 64, 47, -24, 42, -1, 23, -24, -9, 17, 49, -23, 0, 28, -28, -70, -52, -8, 2, -55, 23, 25, -61, 1, 2, 54, -28, -10, 62, -7, 23, 2, -53, 12, -10, 14, 37, 5, 14, 4, 39, -18, 48, 26, -6, -5, -37, 29, -28, -1, -21, -19, -36, -17, -2, 37, -36, 6, -32, 12, -31, -30, -29, 18, -15, 40, 31, -26, 1, 65, -48, -20, -32, 11, 22, 6, -14, 0, -18, 12, -41, -10, -10, 4, -8, 41, 21, 7, -51, -28, -11, -32, 35, -34, -40, 49, 26, 7, 11, -22, -34, 8, -16, -1, -38, 41, -20, -18, 20, 6, 20, -2, 44, -20, -14, -43, -4, -32, -36, 29, 1, 3, 7, 31, 17, 20, 4, 16, 48, 15, 11, 13, -59, -7, -21, -54, -54, -35, -55, -22, 0, 21, 20, 2, -67, 47, 11, -26, -11, -39, 37, -37, 20, 21, 12, -17, -19, -30, 6, 26, -30, 3, -11, -37, -36, -30, 19, 31, 79, -18, -21, -13, -78, 4, -35, -22, 3, 22, 15, -3, 26, -6, 25, 20, 40, -49, -42, 14, 24, 26, -24, 12, -45, 37, 13, -15, 21, 11, -10, 18 ]

Per Curiam. Plaintiff brought suit against one George* Smith under the log-lien law, and attached certain logs and poles, which were the property of the defendant, Lillie. Lillie was a nonresident, and was doing business under the title of the Lillie Lumber Company. One Huebel was his agent. The writ of attachment was personally served on Smith, and on the return day the deputy sheriff returned that he ‘ ‘ had seized the property described, and that he had served a copy of the writ and inventory upon the Lillie Lumber Company, who claim interest or ownership in said property, by delivering to Huebel, the agent of said company, certified copies of said writ and inventory attached thereto; that none of said company resided in this State, and none could be found by him.” Neither the principal defendant nor Lillie, the log owner, appeared. On the return day, which was April 10th, after waiting one hour, the justice adjourned the case until April 16th, and sent a registered letter directed to the Lillie Lumber Company, notifying them that the case had been adjourned until the 16th, at 1 o’clock p. m. On the 16th, plaintiff appeared, and, after waiting one hour, the defendant not appearing, the justice took the evidence, and rendered judgment for $108.65. The present suit was commenced September 11, 1896, personal service being had upon the defendant. The defendant did not appear, and subsequently took a special appeal to the circuit court. The court overruled the special causes, and thereupon trial was had upon the merits before the court, without a jury, and judgment rendered against the defendant for the amount of the judgment which had been rendered against Smith. The case is before this court upon a case made. The case is ruled by Brabant v. Lillie, ante, 167, and is reversed.

[ 11, 36, 32, 30, 1, 28, 42, 25, 11, 42, -7, -13, 11, 6, -10, -29, -14, -38, 35, 16, 8, -17, -11, 14, -5, 5, -44, 11, -13, 81, 16, 15, -47, -11, -40, 23, -42, 11, -25, -3, -28, -3, 61, -25, 17, 9, -2, 10, 62, 4, 1, -12, -27, 6, -26, -33, -18, -5, 19, 50, 18, -68, 13, 44, 33, -18, 7, 30, 12, -22, 0, 76, -11, 31, 42, 0, -47, -14, -17, 57, -15, -23, 25, -23, 5, -39, -66, -18, 17, 21, -49, -20, -71, -7, -10, 9, -11, 19, -23, -4, 43, 24, -7, -1, -33, -38, -14, -46, -19, 51, -20, 19, -15, 17, -64, -39, 13, -38, 59, -28, 3, 17, 26, -1, -8, -1, 4, -23, 15, -12, -15, 10, -2, -9, 19, 17, 16, -45, 8, -12, 42, 23, -17, -2, -11, 22, 72, -29, -45, -2, -9, 96, 16, 29, -18, 13, 51, -14, 39, -78, 42, 12, -18, -64, 11, -17, 8, -12, -25, 8, -36, 26, -25, -2, 28, 38, 37, -19, 21, -2, -13, -17, 9, 5, 20, 27, 38, 1, 12, 43, 35, 19, 16, 7, -35, 9, -17, -1, -23, 8, -2, -20, -21, 14, 29, 11, 56, 43, 2, 0, -1, -1, -52, -34, -16, 72, -48, -6, -12, -35, -12, 41, -18, -18, -38, -67, 41, -23, 87, -18, -24, -9, -25, -35, -40, 8, 33, -35, 13, -38, 2, -5, -75, -39, 57, -54, -57, 19, -2, 9, -46, -39, 31, 26, 23, -8, 20, 13, -4, -7, -21, 0, -7, -14, 14, -7, 37, 31, 5, 51, -15, 1, 71, -17, 3, -33, 17, 19, 12, -39, -8, 7, -2, -21, -51, -27, 23, 21, 1, -8, 1, 50, 25, -28, 29, 50, -2, -46, 11, 44, 12, 10, -3, -19, 2, 31, -23, -30, -5, 7, -93, -35, -28, -60, 17, 32, 25, -10, -20, -47, -13, 20, -8, 38, 69, 31, 8, 25, -12, 18, 4, -18, -12, -28, -51, -1, 52, -14, -18, -24, 21, 26, -68, 60, -39, 17, 47, 7, 20, 7, -36, -16, -44, 9, -47, 0, -12, -30, -3, 38, -2, -13, 50, 18, 7, -47, -21, 2, 19, -9, -27, -13, 35, -56, -8, -32, -63, -9, -46, 5, 20, 1, 17, 7, 27, -21, -21, -31, -36, 7, -22, 1, -6, 39, -23, -23, -28, -22, 9, 1, 25, 34, -5, 15, -60, -12, -19, -29, 4, 9, 7, 2, -2, 11, -13, -46, 5, -2, 39, 7, 85, -17, 0, -19, -9, -25, 21, 44, 24, -13, -13, -19, 9, -10, 47, -23, -2, -17, -26, 14, 6, 18, -12, -18, 20, -71, -12, 35, 42, -54, -32, 0, -18, -40, 0, 25, 11, -51, 18, 36, 23, 26, -21, 60, 8, 21, 22, -6, -31, 31, -16, -9, 38, -25, -23, 21, -7, 6, 9, 47, 4, 48, 47, -23, -35, -11, 28, -9, -11, 2, 12, 59, -11, 3, -62, 37, -96, -13, 9, 45, -23, 4, -18, -14, 30, 5, 25, 82, -17, 57, -7, -57, 40, -1, 9, 25, -12, 48, -12, -32, -6, -8, -60, 28, -27, 42, 25, 8, 13, -8, 7, -22, -21, -6, 7, 30, -37, -13, -49, 4, -24, 60, 16, -8, 8, 3, -5, -6, 15, -24, -5, -18, 6, 2, -9, 28, 3, -14, -15, -15, 56, 20, -5, -44, 49, -27, -6, 10, 12, -8, 3, -42, -25, 21, -5, 17, -53, 46, 38, -15, -44, -55, -32, -14, 14, -25, -14, 15, -19, -6, -42, -19, -42, -18, -40, -33, 5, 18, 39, -22, -29, 34, -40, -1, 30, 4, 7, 52, 38, 11, 29, -29, 0, 45, 29, -2, 26, -17, 17, 39, 2, -19, -23, 25, -7, -35, -33, 4, -5, 15, 3, 23, 20, 25, -14, 53, 40, 53, -28, 17, -2, -36, 22, -24, -10, 31, -4, 6, -6, -5, 20, 16, 44, 58, -34, 6, 37, 9, -19, -16, 20, -4, -46, 18, -1, 20, -70, 12, 0, 20, 40, -52, -7, 9, -8, -30, 20, 21, 22, 10, 16, -37, 43, -28, -21, 53, 21, 21, -8, -25, 3, 21, 33, 14, -47, 34, -16, 27, 4, 9, -9, 19, 13, 23, -24, 0, -30, -37, -11, -22, 30, -31, 35, 29, -9, 29, -10, -46, 21, -86, -3, -29, 0, -33, 13, -5, 28, 31, -31, -27, 29, 60, -34, -11, 8, -32, -5, 19, -44, -18, 32, -54, 11, 25, -15, 54, -4, -4, -32, -2, 59, 13, 21, 6, -17, -30, -7, -16, -23, -2, 14, 17, -5, 34, -27, 24, -97, -56, -23, -27, -31, 58, -29, -35, 28, 17, 24, 32, 35, 41, 9, -51, -28, -1, -20, -43, 61, -30, 17, 18, 12, -69, 43, 4, -48, -13, -28, -38, -7, 1, -31, 9, -5, 25, -18, 69, 2, 66, -18, 13, 11, -26, -41, -34, -10, 9, -5, 37, -8, 28, -44, -36, 4, -25, 36, 7, 15, -14, -7, 15, 53, -48, -66, -49, 28, -28, 10, -18, -18, -38, -12, 14, 9, -19, 32, -11, -9, 13, -22, -45, 12, -15, -13, -19, -55, -50, 30, -10, 16, 25, 10, -53, -8, -32, 4, -9, 41, -17, -19, 21, -15, 6, 20, 29, 18, 9, -3, 5, 38, 22, -19, 0, 12, 46, -26, -9, -3, -1, 12, 13, -16, -12, -26, 31, -4, -13, 14, -41, -52, -29, -43, 43, 32, 33, -12, 3, 19, -31, -31, -23, 38, -44, 3, 26, -52, 19, -27, 45, -13, 33, 46, -4, -39, 27, -17, 57, 49, 25, -12, 34, -48, -8, 18, 7, -5, -6, -3, -80, -24, 17, -18, 39, 29, -21, -4, -5, 36, 14, -15, 9, -16, 15, 51, 43, -46, -18, -58, -10, -3, 5, -18, -25, 7, 20, -4, 14, 24, -11, -14, -70, 4, 3, 17, -23, 1, 6, 22, 9, 0, -19, 30, -34, -11, 4, 38, 19, -74, -6, -22, -23, 39, -9, 68, 11, 29, 17, -38, 1, -20, 27, 8, -30, -13, 49, 46, -11, 23, 50, 7, -11, -70, -59, 32, 5, 60, 28, -71, 25, 10, -22, 35, -3, -22, 52 ]

Per Curiam. The relator brought an action for libel against the Evening News Association, the publication of which was February 6, 1895. The original declaration was filed in February, 1897. It set forth the libelous article in full, and claimed general damages. Issue was duly joined, and the case was ready for trial, .when, on January 24, 1898, plaintiff asked leave to file an amended declaration setting forth special damages, and by innuendoes defining the meaning of the language in the alleged libelous publication. The court refused to allow the amendment; apparently basing his decision upon the ground that it introduced a new cause of action, barred by the statute of limitations. We think it did not introduce a new cause of action, and that it was within the discretion of the court to allow or disallow. We will not interfere with that discretion, when it is exercised. We assume that the judge will exercise his discretion upon this intimation, and we will not, therefore, direct the issuing of the writ of mandamus.

[ 6, -7, 2, 66, 7, 29, 16, -30, 5, 13, -9, -21, 20, 6, 20, -29, -5, -21, 9, 4, -37, -39, -33, 3, -20, 0, -1, 32, -2, 17, 39, 11, -32, -12, -10, -45, -25, -3, -27, -30, 16, -49, 90, 32, -21, -6, -13, -15, 6, -19, 12, -3, 4, 38, -24, 7, -7, -5, -13, 14, -19, 22, -60, -69, -3, 9, 5, -8, 3, 9, 23, 0, 47, -1, -6, -45, -28, -21, -58, 30, -60, -71, 25, -7, -7, 22, 17, 8, -3, -1, 10, -55, -34, -41, -58, 41, -4, -32, 16, 12, -23, -83, -11, 8, -10, 5, -27, -32, 20, 8, -17, 64, -1, -6, 7, -13, 6, 34, 16, -57, 7, 19, 41, 5, -21, 18, -24, 33, -20, -25, -31, 33, 29, 14, 63, 16, 24, -16, 26, -78, -15, -30, 6, -15, 9, 18, 5, 24, -24, 14, -12, 49, 9, 60, -61, -8, 9, -62, 39, 8, 1, 0, -3, 6, 8, 54, -19, -41, -4, 19, -6, -10, -17, 24, -44, 31, -15, -7, -8, 8, -9, 74, 20, 24, 12, -42, -6, -6, 13, 0, 13, -29, -15, 32, 31, -15, 1, 12, 71, -34, 5, 3, -55, 62, 2, -1, -17, -4, -29, 35, -21, 26, -57, -29, 21, -38, -7, -1, -13, 36, -24, -1, 38, 35, 7, -42, 19, -14, -45, -3, 11, 10, -32, 11, -8, 25, -18, 32, 3, -13, -42, 53, -16, 33, 38, 36, 23, -14, 49, 44, 33, -3, 60, 20, 11, -48, -17, -1, -14, -43, 20, 62, -59, 0, 19, -44, -9, 40, -8, -6, 14, 19, 21, -42, -42, -42, 6, -50, -3, -11, 0, 35, -24, -12, -62, 0, 15, -5, 27, 28, 26, -5, -6, 17, 30, 46, 18, 7, -5, -27, 10, -32, 21, -19, 13, -56, -28, -16, 28, -52, -67, 55, -20, 22, -34, -4, -29, 84, 23, -78, -38, -8, 5, 1, 12, -67, 81, -3, -37, 9, 22, 12, 0, 21, 33, 10, 27, 38, -6, 10, 76, 11, -39, 3, -30, 22, -17, -19, -10, 22, -12, -19, 16, 5, 0, -29, -11, -41, 5, -7, 32, 60, -13, -45, 35, 4, 15, -9, -8, 34, -13, -38, -18, -41, -11, 5, 54, 34, 4, 58, -8, -24, 0, -29, 5, -2, -25, -2, 9, -49, -59, -41, -1, 48, 6, 24, -3, 33, 2, 8, 43, -16, 28, 1, -21, 13, -33, 26, 4, 66, 54, 42, 58, 6, -20, 15, 9, -7, 66, 3, -3, -15, 27, -19, -16, -50, 29, -1, 0, -32, 15, -13, -4, -28, -19, 38, -6, 10, 8, 1, -23, 20, 3, 12, 8, -37, 16, -13, 6, -26, 24, 26, -7, -21, -38, 13, -20, 6, 51, 60, -13, -7, -25, 37, -4, -15, -40, -37, -24, -19, -4, -38, -43, 57, -36, 14, -41, 34, -6, -16, 15, -11, -23, -47, -12, 0, 67, 32, 21, -37, 31, 20, -29, -12, -45, 20, -35, -34, -65, 55, 4, 17, -5, -37, -14, 9, 20, -27, 54, 28, 17, -10, -2, 12, 34, 1, 37, -24, -69, -7, -26, -7, -30, -14, -54, 0, 20, -17, 26, -16, 42, -44, -4, -41, -19, 45, -2, -12, -5, 18, 14, 43, 45, 45, -2, -31, 4, -9, 13, 41, -14, -32, -4, -14, -12, -4, -3, -13, 12, -27, 34, 0, 38, -5, -5, 20, -9, -14, -11, 21, 1, -46, -6, 11, -29, 0, 35, 9, 20, 17, -22, 9, -38, 35, 17, -77, 13, -38, -5, -16, -42, 8, -15, -26, 61, 24, -48, -20, 10, 17, -21, 17, 29, -24, 32, 53, 10, -38, 19, 26, 22, 31, -36, 23, -8, -32, -12, 37, 16, 0, -3, -3, 17, -4, 11, -20, -4, -21, -40, -24, -12, -7, 27, -9, -40, 14, -2, 52, -12, 30, -2, -7, 34, 5, 12, 64, 22, 61, 14, 16, 12, 0, -5, -69, -54, -4, -3, 3, -18, -10, -26, -31, -52, -26, 31, 43, 24, 40, -23, -22, 63, -29, 46, 20, 74, -18, 4, 3, 48, -7, -28, 13, 10, -8, 14, 25, -30, -18, -25, 48, 25, 4, -4, 51, 33, 59, 25, 23, 3, -13, -32, 18, -3, 34, 7, -52, -2, -20, 55, -14, -17, -42, 12, -8, -10, -6, 44, -8, -9, -57, 22, 8, 11, -33, -23, 43, 26, 37, 7, -9, 8, 8, 1, -3, -11, 35, 5, -10, 53, -5, -5, 0, 1, 0, -27, -3, -1, 26, -27, 77, 5, -5, -1, -33, 1, -3, -27, 42, 0, -41, 37, 10, 10, -12, -54, -5, -8, 6, 16, -11, -6, -50, 48, -25, 7, 29, 29, 26, 11, -4, -6, -18, -27, 0, 39, -10, 21, -47, 34, 0, 17, -5, 3, -29, -8, 22, 8, -52, 14, -6, 31, -10, -1, 14, -42, 52, -35, 22, -36, -61, 15, -3, -66, 0, -65, -3, -17, 24, -14, -67, 20, -15, 4, 51, 82, 6, -6, 13, 17, 32, 62, -53, -41, 43, 1, 12, -21, -18, -38, 8, 1, -20, -5, 38, -12, 18, -8, 17, -9, -16, 6, 7, -28, -2, 16, -15, -23, -57, 40, 5, 15, 5, -24, -77, 4, 7, 5, 35, 17, 11, -8, -14, 42, -13, -41, 1, -19, -46, 0, -45, -28, 37, -10, 4, -27, 1, -44, -15, -12, 7, 85, -6, -17, 30, 14, -30, -29, 13, -31, -16, -30, 42, 75, 37, 5, -19, 21, -40, 3, -39, 28, -31, 21, -4, 13, 29, -4, 34, -19, -10, 42, 63, 6, -15, -13, 18, 22, -15, -38, 12, 12, 2, -10, -30, -7, 0, 23, -44, 9, 43, -45, -16, 48, -7, -23, -6, -25, -41, -4, -41, -31, -18, 21, -8, -32, 0, 0, 41, -21, -28, -16, 2, 9, -12, -29, -15, -25, -12, -11, -16, 0, -33, 24, 14, -55, -3, -1, 19, -8, 8, -1, -42, -10, 5, -19, -4, -3, -3, 0, -57, 32, 0, 24, 1, -18, 3, -44, 9, 22, 19, 14, 36, 28, -25, -19, -23, 26, 2, -26, -35, -18, 17, 30, 22, 49, 37, -22, -9, -11, -7, -2, 42, -49, -39 ]

Grant, C. J. {after stating the facts). The learned counsel for the plaintiffs state their claims under the two counts of the declaration, as follows: “ The first count is based upon the theory that the Davis Mining Company was not a legally organized corporation, and was designed to permit recovery by plaintiffs in case it should be found there was no such legally authorized incorporation, but only an association of individuals (themselves) under a corporate name. The second count is based upon the theory that the Davis Mining Company was a corporation, at least de facto, all the capital stock of which was owned' by the four plaintiffs. Under each count the bargain claimed to have been made and carried •out by actual delivery (the second count including the capital stock) was the same. ” There is nothing in the record to sustain the theory that the Davis Mining Company was not a legally organized corporation, or that plaintiffs were doing business as tenants, partners, or in any other capacity than that of corpora-tors. They had only the powers and rights of stockholders. The company was duly incorporated, and had a president, secretary and treasurer, and board of directors. It carried on its entire business and kept its books and records as a corporation. It was not only a de facto, but a de jure, corporation. The act of the legislature above referred to recognizes such a corporation as valid, and only declares its contracts void when made in this State before it has complied with the provisions of the law; The court below was therefore right in holding that there could be no recovery under the first count. Under the second count, it becomes necessary to. determine what the contract was and with whom it was made. The offer stated in the letter of December 19th, and the telegram accepting it, constitute the contract. Its terms are clear and unmistakable. All prior conversations and negotiations, whether written or verbal, cannot be invoked to change the letter of the contract. The defendant offered to buy “the Davis Mine, and all the property, machinery, etc., belonging thereto.” It was not an offer to buy the stock of the individual stockholders. This is further made clear by the proposed terms of payment, to wit, to pay all the debts of the mining company and $3,000 to the stockholders. It meant a purchase of the franchise of the corporation, with all its rights and property. The letter was written to the president of the company. There is nothing in the record to indicate that the parties understood that the one was selling and the other was buying the stock of the plaintiffs. Their conduct at the time and subsequently clearly shows that they understood that they were acting in a corporate capacity, and not as individual stockholders. They retained their certificates of stock. They had previously attempted to sell defendant 13,000 shares of it, but he refused to purchase. They made no tender of the certificates until the close of the trial. The original declaration was filed March 26, 1896, and was upon the common counts alone. Nothing .further appears to have been done in the case until July 6, 1896, when plaintiffs filed an amended declaration containing a special count setting forth that they were the owners of the property, and describing it, and that they had sold it to the defendant for $26,000. To this amended declaration the defendant pleaded the general issue. Subsequently, by the permission of the court, he filed an amended plea, giving the special matters in defense as stated in his letter of January 31, 1896. Plaintiffs, by leave of the court, on March 20, 1897, filed a second amended declaration, in which for the first time they alleged a sale of the stock. There was no corporate action taken by the stockholders or by the directors authorizing the transaction. The assignment of the lease was made by the president and secretary in behalf of the corporation, and on the face of it was a corporate act. Stockholders do not own the corporate property, and cannot mortgage, sell, or convey it. The title is in the artificial being called the corporation, not in the stockholders. Such property is not under the control of its stockholders, whether they act separately or collectively. The laws under which these corporations are organized provide the agencies and methods by which their property can be sold and transferred. Randall v. Dudley, 111 Mich. 437; Humphreys v. McKissock, 140 U. S. 304; Fitzgerald v. Railway Co., 45 Fed. 812; England v. Dearborn, 141 Mass. 590; Button v. Hoffman, 61 Wis. 20 (50 Am. Rep. 131); Baldwin v. Canfield, 26 Minn. 43; Gashwiler v. Willis, 33 Cal. 11 (91 Am. Dec. 607). In Smith v. Hurd, 12 Metc. (Mass.) 371 (46 Am. Dec. 690), Chief Justice Shaw said: “The individual members of a corporation, whether they should all join, or each act severally, have no right or power to intermeddle with the property or concerns of the bank, or call any officer, agent, or servant to account, or discharge them from any liability.. Should all the stockholders join in a power of attorney to any one, he could not take possession of any real or personal estate, any security or chose in action; could not collect a debt, or discharge a claim, or release damage arising from any default; simply because they are not the legal owners of the property, and damage done to such property is not an injury to them. Their rights and their powers are limited and well defined.” In Button v. Hoffman the court say: “These general principles sufficiently establish the doctrine that the owner of all the capital stock of a corporation does not, therefore, own its property, or any of it, and does not himself become the corporation, as a natural person, to own its property and do its business in his own name. While the corporation exists he is a mere stockholder of it, and nothing else.” The artificial being known as the Davis Mining Company was still in existence after the alleged sale and transfer to defendant. The transfer of the stock-book to him, either individually or as secretary of the company, did-not operate to cancel the stock standing in the names of these plaintiffs. They might have sold the stock to an innocent purchaser, who would take a good title. Such certificates, in the absence of some provision of law to the contrary, stand upon the same basis as commercial paper, and innocent purchasers and pledgees take title by assignment and delivery. McLean v. Charles Wright Medicine Co., 96 Mich. 479, and authorities there cited. We are forced to the conclusion from this record that this was a corporate contract, and void under the law above cited. While the corporation might be estopped to plead such a contract in its defense, it cannot maintain an action upon it without annulling the law. Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430, 55 Am. St Rep. 457); People’s Mut. Ben. Society v. Lester, 105 Mich. 716; People v. Hawkins, 106 Mich. 482. If, however, all the stockholders of the corporation could by unanimous action contract, instead of the corporation, acting through its properly authorized officers, it would not aid the plaintiffs. What such a corporation could not do in its corporate capacity all its stockholders acting together could not do for it. If the act or contract of the corporation is void under the law, so, also, is the joint act or contract of all the stockholders, designed to accomplish the same purpose, and thus evade the law. The judgment is affirmed. The other Justices concurred.

[ 50, 1, 5, 17, 4, 18, 22, 6, 14, 59, 47, 13, 66, -13, -34, -13, 4, 9, -1, 1, -26, -3, -17, 10, -9, -41, 6, 12, 5, 35, 4, 0, -35, -42, 0, 74, -14, 17, 1, -11, -18, 32, 54, 29, -13, 0, -10, -72, -16, -44, 62, -14, 46, -19, 48, -28, -22, 11, 8, -20, -23, -58, 53, 25, -25, -13, 3, 2, 27, -25, -44, 30, 17, 7, 10, -45, 3, -28, -29, -10, 3, -29, 45, -33, -3, 34, 41, -26, 35, 10, 29, 7, -24, 11, 10, 9, 12, 3, -3, 30, -6, -48, -9, 0, 6, 1, -12, -31, 51, 11, -46, -12, -10, -27, -49, 0, -2, -22, -4, -42, 4, -13, -9, 13, -43, -12, -15, -23, -41, 0, 0, -35, -62, 29, 6, -24, -32, -36, -9, 1, -54, 58, -31, -43, -39, 45, -13, 34, -39, 10, 0, -29, 19, 23, -63, -8, 7, 0, 23, -57, 57, 27, 39, -10, -50, 9, -18, -26, -23, 26, 8, -11, -76, -15, 37, -4, -19, -18, -30, -53, -33, -8, -22, 12, 18, 0, 9, 8, 3, 30, -7, -5, -2, 22, -42, 19, -14, 34, 40, -55, -25, -8, -64, 36, -18, 3, 27, 31, 30, 23, 13, 46, 0, -47, -14, 8, -16, -71, 27, -42, 23, 5, -30, 23, -20, -40, 40, -21, -44, -13, -24, 50, -24, -1, -2, -26, 64, -8, 46, -11, -32, -30, -37, -49, 4, -35, -53, -35, 17, 62, -16, -14, 4, 75, -28, -46, 1, 45, -29, -19, -12, 29, -41, -19, 12, -47, -57, -7, -6, 56, 8, -52, -15, -2, -26, -19, -4, 29, -38, -45, -7, 1, -12, -5, -28, 32, -45, 7, -24, 2, 66, 14, 48, -8, 71, -50, 59, -4, 20, 4, -9, -3, 23, -15, 32, 49, -32, 11, -20, -41, 36, 9, -25, -19, 38, -14, 24, 25, 40, -46, 30, 62, 10, -46, 66, -35, 41, -42, 22, 10, -30, -14, -9, -55, -15, 19, 19, -2, -28, 14, -35, -2, 1, -23, 1, 1, -59, -42, -33, 30, -38, -29, -13, 6, 17, -3, 10, 2, -19, -26, 22, -41, -3, -2, 0, 9, 4, 0, 43, 27, -23, 52, -15, -20, 10, -30, 21, -15, -71, 16, -9, -14, 52, 3, 77, 7, 4, 27, -35, -37, -23, -24, -27, 36, -6, -24, 10, -14, -4, -4, -42, 33, -32, -8, -69, -16, 9, 22, 5, 19, -19, 9, 13, -3, -45, -14, 46, 16, 52, 68, 6, -32, -44, -41, -3, -61, 30, 4, -38, -3, -39, 19, 25, -25, -35, -34, -33, 0, -82, 5, 9, 7, 2, 32, -2, -16, 8, -26, 21, 0, -17, 39, -55, 26, -29, 66, 32, -36, 18, 10, 41, -2, 67, 4, 19, 3, 41, -28, -14, 23, 15, 33, 18, 11, 19, 10, -25, 22, -12, -13, 2, 83, 0, -20, -15, -1, -10, 8, 22, 2, 7, 33, 38, -38, -54, 17, -14, -9, -1, 0, -14, 2, 9, 12, 17, 81, 7, -27, -8, 67, -20, 7, 24, 16, -3, 56, 11, 11, -60, 13, 31, -26, -48, -7, -12, -9, 23, -9, 62, -16, 12, -28, 13, -23, 4, 27, -29, 2, -12, -21, -41, -11, -12, 41, -24, 23, 24, 27, 39, -5, -39, 4, 7, 32, 17, 35, 14, -9, 25, 12, -68, 13, 36, -59, 51, -7, 6, 35, -9, 15, -32, 7, -3, 58, 32, -47, -5, -14, -16, 43, 2, -10, 35, -19, -30, 13, 9, 6, -16, -16, -40, -14, -39, -3, -43, -33, 29, -36, -1, 26, -19, 19, -47, -52, -18, -41, 30, -25, -56, -17, -29, -28, 31, 1, 17, -18, 9, -24, 26, 28, 18, 1, -18, -37, 13, 25, 1, 8, -19, 31, -16, -25, -8, 44, -5, 17, 14, 30, -23, 4, 20, 14, -9, -33, 4, -3, 0, 39, 39, 19, -18, -4, 52, -51, -5, 24, -20, 5, 5, -48, 37, 3, 20, 1, 8, -32, 0, 55, 54, -34, -4, -13, 38, 1, 49, 8, 36, 0, -8, 7, -21, 16, 33, -49, 50, 21, 7, 0, -50, -5, -2, -4, 0, 16, -26, -25, 19, 35, 0, -14, -26, -3, -22, 49, 6, -10, -35, 15, 28, 2, 52, -38, -24, -34, -34, 0, -4, 62, -48, -64, 32, -55, 56, -12, -12, 38, 21, 6, 7, -30, 47, -39, -34, 28, 5, 7, -14, -24, -11, -21, -3, 7, -1, 34, 0, 41, 25, -11, -27, 40, 32, -27, -27, 43, -3, 6, -58, 27, -11, -43, -26, -14, -21, -32, -32, 8, -57, -46, 13, -22, 24, -17, -6, 46, -4, -15, 74, 43, 24, 40, -13, 10, 2, 48, -15, -98, 2, -13, 9, 53, 23, 8, 33, 0, 1, 15, 13, -13, -33, 3, -40, -24, -29, 44, 42, -1, 13, 13, 33, -21, -24, -29, 27, 8, 1, -11, -35, -12, -19, -45, -14, -51, 12, -23, -1, 33, -1, 27, -12, -19, 9, 4, -40, 11, 19, 29, 7, -7, 17, -5, -15, -44, -21, 12, 49, -25, -85, 26, -29, -47, -3, 26, -31, 24, -35, -22, 3, -7, -3, 0, 30, 50, -35, 32, 17, -36, 17, 44, 0, -9, 3, 15, -8, 26, -6, 25, 15, -21, 2, -11, -34, 25, -21, 18, -2, -18, 27, -13, 17, 40, 5, -40, -33, 1, 38, -16, 46, -33, -2, -1, 4, 25, -21, 29, 20, 43, 35, -4, 13, 61, 41, -21, -12, -36, -21, 56, 51, -3, 9, 24, 54, 29, -12, -28, 18, 6, -5, 93, 12, 39, -25, 43, -20, -23, 23, 3, -14, -14, -30, -15, -15, -22, 5, 0, -12, -50, -6, -18, 11, -24, 26, 15, 78, -1, -8, -15, -41, 37, -1, -64, -18, 24, 4, 34, -8, -1, -15, 12, -10, -45, 50, 1, -11, -16, 15, 8, 29, -32, 6, -25, 58, -13, -19, 28, 2, 33, -8, 2, -13, 12, 48, 4, -16, 33, 40, -36, 13, -12, -2, -29, 21, -29, -10, 18, 2, -15, 23, -19, 40, -21, -53, -43, 51, 31, 3, 33, -17, 15, -17, 4, 24, 24, -7, 30 ]

Per Curiam. April 12, 1898, relator caused a writ of garnishment to issue out of the Muskegon circuit court. The writ was personally served on the garnishee defendants, who answered, denying all liability, and thereupon moved the court to dismiss the writ for the reasons (1) that the affidavit for the writ was made and sworn to on April 11th, one day before'the writ issued; (2) that the affidavit is contradictory, in that it states that “ said cause is a personal action, arising upon an implied contract, upon which defendant is indebted to plaintiff in the sum of $26,-250,” and in the next paragraph it states: “ Said sum of $26,250 is due said plaintiff from said defendant on a certain judgment rendered against said defendant, Amazon Hosiery Company, 'by the circuit court of Cook county, in the State of Illinois, said court being a court of record and of general jurisdiction, in a suit wherein the said Union National Bank of Chicago is plaintiff and the said Amazon Hosiery Company is defendant.” This motion was granted by the court, and the writ of garnishment dismissed. The record.shows that the date of April 11th in the affidavit is an error, as no suit was in fact commenced until April 12th. An amendment of the date should have been permitted. Millard v. Lenawee Circuit Judge, 107 Mich. 134; People, ex rel. Dickinson, v. Simondson, 25 Mich. 113. See, also, Wattles v. Wayne Circuit Judge, ante, 662. The affidavit for the writ is not contradictory in its terms. While the action is upon a foreign judgment, it is upon contract, within the meaning of the statute. Wattles v. Wayne Circuit Judge, supra, and cases there cited. The order quashing the writ of garnishment must be reversed, and the writ reinstated, with costs in favor of relator.

[ -3, -18, -35, 12, 24, 51, 96, -30, 23, 23, -20, -58, -9, 15, -6, 2, 32, -13, 39, -5, 8, -1, 21, -29, -3, 14, -13, -3, 46, -18, -45, 13, -4, 17, 11, -62, -47, 20, 0, -14, -30, -1, 11, 19, 8, -18, -13, -27, -8, -44, -12, -47, -58, 59, -8, 31, -31, -35, -59, -11, -3, -31, 20, -23, -33, 7, -6, 32, 41, 25, 18, 19, 36, -2, -50, -43, -41, -13, -24, 41, -2, -29, -31, 36, -20, -10, -8, 11, 33, -12, -9, 14, -81, 16, -7, 10, 19, 19, 8, 39, -2, 21, -16, 49, 6, -27, -7, -84, -27, 19, -12, -6, 41, -36, -14, -5, -15, -18, 38, -36, 7, -7, 55, 41, 15, 19, -9, 7, -6, 40, 37, 48, 0, 1, 35, -10, 10, 17, 0, -59, 18, -41, -5, 19, -22, 17, 57, -8, -54, -14, -46, 22, 8, 26, -28, 9, 49, -43, 7, 0, 32, 18, -21, -27, -7, -32, -26, -7, 35, -37, -26, -5, -8, -22, 12, 5, -14, -73, 0, -4, -15, 33, -39, -36, 31, -31, -8, -33, 40, -36, -28, 18, -1, 47, 32, 50, -20, 9, -6, -28, 52, -19, -14, 5, -26, -10, 44, -43, -27, 53, -21, 10, -10, -27, 3, -33, -9, -9, -16, 30, -23, 0, 16, 34, 10, -19, 39, -36, -9, 33, -11, -23, -1, -11, 1, -12, 2, 43, 47, -3, -14, 23, 18, -23, 42, -11, -44, -28, -6, -2, -33, 0, 37, 27, -39, -37, -8, 17, 0, -5, 11, 48, -38, 1, -23, -24, -3, 60, -12, 4, -39, -7, 22, 11, 59, -11, -47, 4, 25, -2, -43, -1, -43, -28, -45, 12, 30, -16, -2, 39, 40, -6, -36, 21, -22, 60, -5, -11, 20, 22, -4, -17, 51, 7, -32, -16, 5, -24, -18, -42, -12, 13, -9, 32, -14, 2, -17, -1, 25, -60, -15, 22, -8, -17, 27, -41, 13, -29, -16, 7, -35, -42, -29, 22, 38, -27, 27, -19, -13, -31, -4, 28, -41, 22, -57, 57, 31, 16, 1, 27, -6, -5, -9, 40, 18, -10, -33, -7, -6, 27, -2, 27, 1, -58, 53, 56, -31, -29, -1, 72, -27, -12, -2, -6, -45, -59, -55, -9, -22, 36, -2, -89, 14, 12, -8, -19, -41, -16, -10, 3, -47, 5, 32, 24, -17, -36, -27, -28, -50, 19, -12, 22, 30, -1, -7, -24, -26, -8, -7, -15, 37, -11, -16, -2, -3, -57, -4, 16, 49, -8, 30, -26, -17, -34, -27, -18, 11, 2, 11, -8, 18, 56, 20, -22, 16, 50, -15, 8, 9, -14, 40, 24, 6, -31, 15, -22, 9, 8, 6, -12, 80, -42, 18, -27, 39, -4, -28, 23, 65, -4, 23, -35, 25, 52, 2, 12, 12, 3, 5, 34, -12, -8, -19, 24, -66, 23, 26, -27, -5, 24, -15, 1, 25, -37, -10, 27, 42, -54, -27, 7, 27, 0, -27, 58, 15, -62, -44, -13, -18, 23, 1, 2, 18, 2, 54, -2, -14, -18, -37, -24, 18, -16, 47, 37, 0, 40, 48, -30, 5, 25, -6, -3, -71, 19, 8, 1, 3, 32, 4, 3, -4, -16, 8, -8, -13, 35, 7, 4, 32, 36, 22, 96, 8, -15, 13, 3, -54, -12, -29, 16, -29, -56, 13, 5, -49, 42, 32, -41, 26, -31, 37, 30, 40, -22, 41, -61, 1, -53, -9, -10, -6, -52, -27, -9, 9, -21, -16, -32, 32, 20, -21, 29, -49, -88, 30, -24, -27, -19, 0, 20, -10, 10, -41, -24, 6, -37, -29, 2, 53, 45, 41, 41, -53, 6, 10, 3, 35, -15, -16, 19, 21, 0, 1, 7, 19, -43, 0, -9, 10, 78, -16, 0, 24, 15, 4, -11, 6, -62, -52, 22, 16, -3, 23, 17, -11, 20, 11, 45, -13, -44, -3, 5, -22, -7, 11, -34, -47, 22, 0, 4, 6, 48, 26, 23, 7, -11, 80, 27, 26, -6, 0, -19, 12, 42, 6, 23, -6, 33, 39, 53, 13, -47, 31, -1, 22, -41, -23, 20, 26, -6, -24, 14, 2, 1, -29, -2, -13, 26, 8, -3, 22, -6, -23, 34, 35, -10, -18, 17, -2, 13, -22, 37, 4, 23, -48, 1, -45, -1, 106, 4, -46, -42, 42, 13, 5, 28, 28, 1, -60, -38, -12, 2, 2, 31, 39, -40, 27, -4, -29, -7, -3, 27, 6, 32, 23, 47, 11, 20, -37, 12, -2, 14, 30, -19, -7, 7, 39, 60, -2, -6, 8, -8, 1, 4, -7, 37, -14, -29, 35, 36, 12, 3, -11, -11, 14, 23, -14, 2, -4, -13, -1, -1, 31, 2, 4, 44, 26, -14, 34, 0, 57, -6, 3, 23, 38, -54, 21, -22, -24, 22, 37, -50, -24, -44, -53, 11, 9, -3, -14, 7, 7, -13, -12, -29, -3, 36, -18, -11, 24, -8, -26, -16, 8, -23, 3, 3, -40, 18, -15, -46, -1, 59, 20, 10, -18, 1, -21, -35, 0, 22, 23, -37, -54, 8, -17, 30, 27, -30, 26, -15, -34, -16, -50, -25, 9, 74, 12, -3, -51, -48, 38, -12, -12, 28, -29, 27, 1, -18, -21, -6, 11, 32, -34, -27, 41, -39, -37, -13, 1, -31, 33, 12, -15, 10, -17, -22, 44, -42, -6, -24, 33, 46, -7, 2, 16, 11, -7, -30, -40, 43, 5, 2, 30, 61, 19, 0, -11, -88, -4, -27, -6, 22, 20, 33, -2, -22, -6, -47, 13, 40, 38, 2, 6, -30, 20, 10, -18, -1, -9, -17, 16, 19, 20, 3, 25, 28, 38, 35, -25, -4, -7, -30, 1, 50, 2, 5, 27, -18, 23, -5, -54, -19, 74, -34, -40, -23, -10, 30, -18, -11, -38, 29, 30, 38, -20, -45, 7, -16, 5, 0, 39, 29, -15, 23, 15, 33, -5, 6, 39, -2, 0, -30, -45, 3, -55, -1, 80, -15, -55, 27, 20, -20, -53, -5, 34, -42, -43, -7, -29, -45, 38, -3, 17, -20, 2, -50, 3, -23, -11, 3, -24, -22, 53, -33, 15, -38, 5, -4, -3, -3, -29, -28, 72, 30, 16, 2, -42, -4, -5, -9, 17, -18, 24, -1 ]

Hooker, J. On May 1, 1881, Fletcher and the Jewetts executed the following writings, each party accepting and keeping that signed by the other: “Alpena, May 1, ’81. “We agree to pay Gr. N. Fletcher one dollar and twenty-five cents per acre for the E. i of S. E. i section 21, and the E. $ of N. E. ‡ section 28, 31, 5, within four years, with interest, provided the said Fletcher shall decide to pay all the back taxes on said land; and, if not, then the $25 this day paid shall be in full for all his rights in the same, and he shall, at the end of four years, give us a deed of all his interest in the same. “S. S. Jewett. “Burt E. Jewett.” “Alpena, May 1, 1881. “For a consideration of twenty-five dollars, this day paid me by S. S. Jewett and Burt E. Jewett, his son, I sell them all my interest in the east half of the southeast quarter of section 21, and the east half of the northeast quarter of section 28, all in town 31 north, range 5 east; and for the further sum of one dollar and twenty-five cents per acre, provided the taxes shall hereafter be canceled, or if I shall choose to pay the same up to this time; if not, then said Jewetts shall receive from me a deed of all my interest, within four years, they paying-all taxes from this time. Interest to be paid me by them from this time, if I pay the taxes or they are canceled. The $25 now paid shall be in part. “ George N. Fletcher. “If in case I take the $1.25 per acre for the above, I will give them a warranty deed of the same. “George N. Fletcher.” On November 8, 1881, Fletcher conveyed the land described in the writings to the complainant and his partner, Donald McRae, subject to the Jewett contract, which Fletcher at the. same time assigned and delivered to them. Subsequently McRae transferred his interest to the complainant. In November, 1883, complainant paid the taxes mentioned in the writings, and became entitled to. receive $1.25 per acre for the land, which, under the terms of the contract, was to be payable four years from its date. The defendants afterwards tendered to the complainant $250, and demanded a warranty deed of the premises. The complainant refused to give a warranty deed of the premises, but offered to receive the money, and give to the defendants a deed of all of the interest he had received from Fletcher; but this they declined, and refused to pay the money without receiving a warranty deed. This bill is filed to enforce the complainant’s lien, and a decree was entered in favor of the complainant, providing for a sale of the premises in case the defendants should fail to pay the amount of the decree; and providing, further, that, in case of such payment, the complainant should execute and deliver to said defendants a “deed of the premises, with the usual covenants of warranty, except as to acts and incumbrances affecting said lands, caused by or through the defendants, subsequent to May 1, 1881.” The defendants have appealed. It is not disputed that the defendants owe for the land, having never paid for it; but they insist that the tender discharged the lien, or, if it did not, it should have the effect to stop interest. We are satisfied that a proper construction of the two instruments constituting the contract entitled the defendants to a warranty deed, in case Fletcher, the vendor, should pay the taxes, and thereby become entitled to receive $1.25 per acre. This right was not lost by reason of the sale to the complainant, who took the land subject to the defendants’ rights. But, while this is true, we are not convinced that the complainant acted in bad faith in refusing to receive the tender upon condition that he deliver a warranty deed. While he knew that the defendants claimed the right to such a deed, it does not appear that they gave him any information concerning the writing held by them. He distinctly denied it in his testimony, and stated that he had no knowledge of such a paper until the trial, and that he supposed that the writing in his possession correctly stated the nature of the deed that the defendants were entitled to. We are of the opinion that his conduct was not such as to justify the forfeiture of his lien or the stoppage of interest. The defendants have had the use of the land and the money, and we think should pay the amount due upon the contract. Renard v. Clink, 91 Mich. 1 (30 Am. St. Rep. 458); Post v. Springsted, 49 Mich. 90; Sager v. Tupper, 35 Mich. 134. The learned circuit judge, who saw the witnesses, took this view of the case. His decree is affirmed, with costs. The other Justices concurred.-

[ 33, 21, 2, -35, 17, 35, 34, 5, 57, 0, -34, -36, -11, -5, -21, 42, -33, -36, -5, 25, -52, -57, -27, -25, 35, 15, -21, -19, -17, -7, 43, 101, -53, 11, 48, -23, -68, 13, -32, -22, -27, 54, -35, 15, 61, 67, -42, -38, 8, -39, 29, 22, 51, -9, 9, 19, 3, 4, -3, 3, -12, -44, 0, -26, -30, 9, 20, 17, 60, 19, -36, -33, 10, -19, 59, 54, 34, 27, -40, -44, -7, 9, -21, -59, -55, 0, 10, -69, 97, 26, -15, -25, 57, 57, 32, 31, 18, 62, -13, 43, 35, -3, 0, -7, 34, -65, -23, -20, -31, 53, -88, -13, 28, -26, 3, -31, -9, -2, -12, 14, -23, 23, -12, 23, -19, 71, -75, 19, -8, 7, -20, -48, -3, -41, 14, 15, 7, -55, 50, -8, -3, 23, -16, -11, 33, -61, -45, -23, 1, 33, -8, 18, 16, -18, 49, -38, 68, 15, 21, -54, 10, -11, 8, -79, -72, 37, 58, 3, -59, 58, 88, 37, -32, 4, 49, -39, 19, 6, -20, 6, -1, -5, 3, -27, 16, -73, 41, -14, 0, 76, 10, -47, 61, -61, -5, -29, 10, -15, -9, 11, 13, 16, -1, 11, -30, -26, 0, 18, -32, 36, -31, 9, -33, -18, -12, 104, -42, -38, 36, -22, 62, 14, -11, -34, -45, -2, 26, 15, 27, -13, -31, 0, 2, 8, -77, 0, -75, 11, -44, 15, -44, -88, -33, 2, 0, -5, 23, 50, -17, 35, -72, -18, -64, -11, -19, -27, -5, -23, -11, -20, -48, -6, 53, -8, 36, -45, 7, 0, 45, 45, 57, 0, 0, 13, -64, -43, 15, -86, -38, -33, 54, -66, 6, 30, 25, 8, -13, 20, -25, -30, -4, 8, 67, -45, 9, 34, -27, -19, 84, -55, -25, -35, 29, 10, 36, -14, -1, -16, 30, -19, -14, -10, -29, 12, 15, -71, 18, 1, -30, 17, 2, 9, -17, 52, -37, -13, 32, -2, 23, 58, -19, -14, -40, 12, 5, 4, -1, 8, -20, -46, 7, 47, 25, 12, -9, 5, 35, 20, 29, -37, -8, -26, -22, -10, -63, 21, 40, 45, 33, 8, 36, -12, 12, -6, -3, -20, -28, -5, 22, -17, 40, 49, 4, -13, 24, 27, -23, -15, -10, -1, -30, 24, -3, 50, 45, -31, 16, -34, -62, -17, -38, 39, 3, 33, 20, 9, 6, -47, -40, -67, 12, 20, 22, 0, -7, -23, -2, -15, 9, 2, 9, -58, -21, -76, 21, -27, -2, -5, 26, 30, -5, 7, -2, -12, 74, 6, 20, 13, -26, -45, -39, 32, 30, 10, 61, -16, -24, 55, -12, 10, 41, 27, 28, 22, -11, -47, 8, 7, 32, -12, 19, -22, -30, 67, -15, -24, 56, -12, 17, -21, 2, 9, 53, -45, 20, -8, 40, 7, -19, 16, -20, 11, 25, -69, -20, 12, 8, -17, 1, -41, 15, -65, -29, 28, -2, -74, -3, 36, -1, 1, 92, -73, -5, -35, 1, -26, -16, -11, 51, 79, 29, -2, 24, 25, -11, 17, -8, 10, 63, 39, 25, -47, 18, -28, 25, 42, 11, 8, 33, -25, -19, 26, -45, -49, 28, 8, 43, 52, -14, -46, -51, -33, -41, 27, -7, -26, 7, 16, 12, -5, -42, -14, 16, 8, -26, -13, -22, -12, -42, 13, -12, -21, -22, 12, -21, 35, -16, -43, 8, 26, 24, -1, -17, -75, 3, 1, -20, 38, -73, 30, -22, -14, 34, 22, 3, -21, -58, -34, 4, 29, -31, -26, -6, -10, -9, 1, -52, 6, -27, 66, 8, 13, -67, 35, -16, 17, 70, 62, -35, -28, -1, 42, -60, -9, -6, -10, -3, 37, 0, 19, -14, -12, 36, 33, 13, 11, 76, -50, 3, 6, -18, 15, -22, 3, 5, 52, 31, 50, -64, 27, -5, -27, 8, 33, -29, -1, 9, 22, 7, 32, -31, -55, -102, 17, -4, 53, -26, -49, 31, -56, -15, -15, 53, 10, 16, 33, -24, 52, -26, 1, 39, -29, 52, 21, 33, -20, 15, -13, 23, -19, 16, -12, -11, 22, -22, 37, 15, 78, 66, 54, 14, 24, 20, 9, 89, -41, 1, 21, -65, 25, -6, -10, 12, 2, -42, 0, -5, 5, 6, 5, 42, 49, -61, 17, 29, -46, -8, 8, 9, -7, 11, -2, 49, -10, -30, 31, -49, 39, 18, -37, 32, -38, 29, -5, 24, -13, 24, -32, -51, -4, 18, 49, -42, -34, 40, 54, -32, 13, -7, -55, 5, -32, -82, 80, -8, -2, 33, 36, -28, -15, 14, 26, -20, 70, 105, -42, -57, -29, -47, -6, -34, 11, -33, 22, 16, -9, -37, -31, -38, -32, 28, 80, -81, 6, 17, -33, -17, 1, -18, -41, 4, 18, -13, -84, -27, -40, 37, 3, 55, 27, -21, -14, 28, -52, -79, -12, -9, 5, -5, -21, -9, -29, -59, -7, 19, -23, -1, 24, -34, 22, -14, 37, -21, -25, -32, -27, 0, 1, 29, 26, 2, 46, -30, -17, 50, -5, -4, 5, -53, 16, 40, -31, 3, -4, 9, -30, -46, -17, -20, -25, -36, -42, 6, -13, 28, -35, -13, 34, -30, -22, 0, -20, -17, -3, -61, -33, -18, 20, -65, 20, 8, 6, -7, 21, -10, -26, 44, 11, -17, 4, 20, -3, -27, -30, 21, 7, -14, -15, 69, -15, -77, 7, -43, 31, -14, 19, 36, 10, 10, 18, 7, -31, -17, -11, 0, -26, 11, -12, -20, 16, -42, 51, -21, 1, 18, 16, 23, 13, 42, 32, 20, -10, -55, -13, -59, -20, 0, -16, -3, 92, 42, -15, -43, 14, 4, 25, 49, 18, 44, 46, 1, -3, -57, -8, -13, -20, 19, -42, -35, 0, 54, 34, 0, -29, -37, 19, 19, -19, 34, 2, 6, 13, 46, 67, 17, -27, -68, -1, 27, 11, 1, 0, 28, -37, -10, -13, 20, 35, -31, -99, 38, -37, 21, 0, 43, 68, 57, 16, 24, -18, 62, -32, -15, 48, -13, 53, 36, -41, 5, 33, -3, 9, -11, -8, 45, -21, -1, 7, -24, -38, -21, -36, -7, 50, 23, 7, 33, -7, 26, -72, -58, -9, 12, -7, 24, 30, 54, 29, 28, 0, 55, -77, 5, 18 ]

O’Hara, J. This case comes to us on leave granted to appeal an order of the circuit court denying defendant’s motion for accelerated judgment. The question as agreed upon and stated to us is: “Must a suit under CL8 1961, § 436.22 (Stat Ann 1970 Cum Supp § 18.993) be filed and served within the two year limitation contained in the statute.” We have caused “served” to he italicized in the quoted question because the parties agree that the complaint was filed within the two-year period, and that a summons and copy of the complaint were promptly delivered to the sheriff for service. The complaint was filed six days before the two-year period expired. Process was served six days after that period. The statute provides: “Any action shall be instituted within two years of the happening of the event.” Again we have added the emphasis for under the wording of the statute the question really is, when is the action “instituted?” We deem it advisable to eliminate possible confusion which might arise by reason of the use in the dramshop act of the wording “any action shall be instituted within two years of the happening of the event.” (Emphasis supplied.) The fact that the particular statute under consideration uses the word “instituted” rather than “commenced,” which is found more often in statutory and case law language dealing with the limitations of actions is, we think, of no significance. For our decisional purpose we treat the terms as synonymous. We discern no legislative intent to the contrary. Thus, the question becomes, when is an action “commenced” within the terms of the dramshop act? Regrettably perhaps, to “commence” a civil action in our state, has two meanings. GCR 1963,101, and its statutory counterpart, RJA § 5856, provide: “A civil action is commenced by filing a complaint with the court.” This admirably succinct statement would please the most caustic critic of legal verbosity and ambiguity. However, as is pointed out by the author’s comments on the following page, it isn’t all that simple. “The declaration that an action' is commenced by filing a complaint was not intended to govern the point in time at which statutes of limitation are tolled. This is separately controlled by statute.” Logically enough the next step would seem to be to look at that statute. Alas, not so; for under the holding of our Supreme Court in Holland v. Eaton (1964), 373 Mich 34, 40, that is what is not done: “In light of the above, it is clear that our construction of the time limitation period in the dramshop act must lead us to only one conclusion, namely, that the intent of the legislature was to exclude the application to suits under the dramshop act of the savings provisions of the general statute of limitations.” Thus, the requirements of the tolling provision of the general statute of limitation, with its 90-day maximum period within which service of process could be made after the filing of the complaint, is inapplicable here. In Troy W. Maschmeyer Company v. Haas (1965), 376 Mich 289, the Supreme Court came within one vote of applying that salutary uniform period of 90 days to all statutory limitations. The Court divided equally (A-4) and the decision is the law of that case only. Now, in order to divine (and we use that term advisedly) the answer to the direct question of when process must be served in order to toll the statute in this case, we must examine a body of case law decided when “complaints” were “declarations”, and equity was invoked by hill; when process was either a “summons” or a “rule to plead”, and when a different rule applied, when process was delivered to an officer for service, and to a private person. It is understandable perhaps why two learned trial judges came to diametrically opposite answers to identical questions. Little useful purpose would he served by a detailed analysis of all the cases bearing on the question. Suffice it to say that under what is brief-referred to as the “old rule”, Detroit Free Press Company v. Bagg (1889), 78 Mich 650, a suit was not commenced until process was served. This was changed by the holding in Christe v. Springfield Fire & Marine Insurance Co. (1919), 207 Mich 12. In 1923, without mentioning Christe or Bagg, the Court addressed itself to the difference between process served by an “officer” and a “qualified person”. In 1926 the Court affirmed the rule that: “The suit was commenced when the summons was in good faith placed in the hands of the officer for service.” Peoples Mortgage Corporation v. Wilton (1926), 234 Mich 252, 255. (Emphasis supplied.) In 1940 the Court applied the rule concerning service in actions at law to suits in equity (Home Savings Bank v. Young [1940], 295 Mich 725, 730). In 1942 in Nathan v. Rupcic the Court proclaimed the general rule: “The general rale relating to the commencement of suit is that a suit is commenced when the summons is in good faith placed in the hands of an officer for service.” Nathan v. Rupcic (1942), 303 Mich 201, 204. In 1954 the Court discussed Bagg and Christe, Wilton, Young and Rupcic in Korby v. Sosnowski (1954), 339 Mich 705. That case was started in the Common Pleas Court of Detroit. The Court relied on Rupcic and restated the general rule, the immediately above-quoted. We are bound by Holland v. Eaton, supra. It is unequivocal. We must then perforce apply case law and not the provisions of the general statute of limitations. We think the case law is somewhat unclear. As once said by Mr. Justice Brandéis, “It is often more important that the law be settled than it be settled right”. We treat the question of whether service of the summons must be made within the two-year limitation period contained in the dramshop act as unsettled. We here hold: In a suit under the dramshop act an action is instituted when the complaint is filed and the summons is placed in the hands of an officer in good faith for service. We adopt the rule “in the hands of an officer” rather than a “suitable person” because it is the language most often used in Supreme Court case precedent. It will, unless and until changed by our court of ultimate jurisdiction, constitute a clear-cut rule for the circuit bench and bar. We do not undertake to decide how soon after the summons is placed in the hands of an officer, service in fact must be made in future cases. Such anticipatory decision would be imprudent. Sufficient unto the day, the evil thereof. We hold here personal service six days after the expiration date of the limi tation period was reasonable and no prejudice to the defendant in preparing Ms defense arose thereby. Having held that the summons need not be served within the two year period of limitation in the dram-shop act; and it being brief- and record-conceded that the complaint was filed within that period, and that the summons was promptly delivered to the sheriff in good faith for service, it follows Judge Moore, the trial judge here, was correct. The order denying the motion for accelerated judgment is affirmed, costs to the plaintiffs-appellees. J. H. Gtillis, P. J., concurred. The dramshop act — so-called. MCLA § 600.5836 (Stat Ann 1962 Eev § 27A.5856). 1 Honigman & Hawkins, Michigan Court Eules Annotated (2d ed), p 34.—Reporter.

[ -15, -13, 16, -12, 4, 30, 37, -34, -3, 76, -4, 14, -15, 40, 54, 38, 16, 5, -11, 1, 50, 53, 0, -3, 6, 0, 4, 6, 38, 26, -6, -20, -14, 52, -19, -28, -16, -30, 36, 37, 51, -2, 43, -25, -6, -28, 10, -51, 25, -7, 50, 7, -52, -22, -16, -2, -3, 1, 5, 7, -48, 29, 0, -51, 44, 1, -9, -19, -11, -41, -16, -30, -8, 0, -36, -27, 8, -22, 19, -4, 6, 19, 50, -38, -10, -7, -2, -21, 5, -32, -18, -3, -37, 0, -36, 26, -22, 34, 23, 18, 5, -9, 1, -21, -85, 20, -22, -97, -68, -27, 6, 55, 22, -76, 1, -2, 13, 30, -14, -31, 24, 64, 67, 14, 27, 7, -9, 16, 16, 29, -25, 29, 50, 6, 12, 23, 44, -2, 38, -54, -10, -22, 17, -32, 6, -4, -11, 38, -35, -28, -4, 16, -33, 0, -34, 27, 35, -48, -8, -40, 62, -25, -37, -33, 9, -45, -58, 9, 23, 0, 0, 4, 13, 25, -17, 13, 19, -9, 24, 48, -54, -29, 16, 28, 3, 16, -43, -5, 22, 16, 49, -43, 24, 52, 57, -8, 22, 21, 12, -32, -16, -55, 18, 4, -6, 16, 23, 0, -16, -12, -82, 7, -24, 26, -9, -51, 19, -22, -7, 74, -71, -11, 33, -14, -18, -41, -2, 3, 12, 22, -9, 22, -45, 32, 15, -40, 4, 71, 29, 58, 28, 22, 15, -31, 9, 7, 22, -33, 37, 48, 14, 53, 55, 2, -5, -75, 4, -2, -27, -30, 5, 39, -12, -66, -11, -32, -23, 63, -43, 33, -9, -1, 25, 41, 11, -17, -28, -31, 57, 5, -22, 11, 33, -16, -43, -24, 0, -5, -12, 40, -33, -3, -21, 29, 1, 39, 17, 23, 31, 12, 10, -50, 19, -8, 15, -36, -41, -5, 13, -25, -46, 19, 12, -28, 0, -23, 15, 36, 51, -38, 38, -3, 34, 19, -42, -74, 50, 14, -25, -32, 43, -45, 8, -2, 5, 13, 51, -26, -51, 39, 21, 16, 7, 9, 15, 18, 44, -64, 33, 15, -15, -7, 11, 29, 31, 9, -63, -40, -45, 12, 26, -16, -8, -39, 9, 29, 14, 7, -8, 27, -37, -13, -1, -9, -67, -45, -3, 0, -5, 10, -8, -52, -28, 3, 19, 23, -54, -7, 20, 16, -3, 17, 13, -16, -29, 0, 12, 5, 16, 13, -22, -21, 47, -3, -14, 8, -22, 10, 20, 56, 18, -25, 7, 37, -65, 5, -24, 5, 18, -17, 50, -12, -6, -44, 6, -61, 7, 13, 2, -52, -10, 35, -25, -9, 20, 21, -27, -5, -22, -28, -10, -23, -19, 18, -26, 5, 2, -48, 43, 9, 50, 53, -4, -13, -6, 40, -18, 27, -7, 57, 66, -42, -39, 66, -1, 8, -64, -38, 20, 28, -12, -1, 15, 35, -51, 49, 16, 46, -7, 0, -26, 43, 0, -12, -46, -36, 16, -4, 19, -31, 17, -19, -31, 10, -53, 8, -39, -31, -43, 27, -16, 23, 34, 8, 16, -35, -2, 11, -1, 16, -39, 18, 32, -21, 21, 33, 38, 33, 31, 14, 16, -52, 15, 30, -33, -60, 12, 4, 9, -70, 108, -10, -3, -94, -56, 62, -63, -32, -24, -16, 15, 75, -5, 34, -16, 8, -11, 0, -7, 44, 10, 0, -19, 47, -22, -14, -5, -13, 67, -13, 30, 21, 38, -6, -2, -45, -11, -24, 28, -2, -10, 49, 18, 37, -4, -14, -9, 3, 39, -57, 16, 10, -14, -18, -16, -67, 14, -9, 36, 8, 6, 6, -44, -1, 71, 10, -80, -84, 30, -35, -5, 2, -21, -51, -31, -11, -16, 3, -2, 7, -6, 8, -20, -4, -14, -28, -6, 26, -1, 14, -34, -22, -18, 12, -37, 8, -2, -5, -10, 4, 1, -27, -50, -44, 6, -19, -7, 54, 17, 5, -18, 44, 10, -8, -53, 39, 25, 37, 3, -10, -22, 3, 6, -33, 13, 24, -30, -39, -2, -5, 8, -52, 4, 20, -36, -1, 14, -15, -7, 15, 6, -19, 36, 41, 12, -13, -20, -39, -2, 0, -52, -11, 70, -108, -12, 9, 75, -3, 7, -9, -16, -61, 22, -6, 28, 76, 39, 48, 6, 6, -14, -28, 18, 32, -1, -14, -23, -5, 47, -22, -59, 2, 12, -83, 27, 6, -7, 0, -2, -5, 0, 12, 11, -12, -13, 41, -12, -37, 27, -81, -12, 40, -29, 0, -14, 0, 0, -31, 22, 5, -15, -27, 36, -25, -13, -43, 4, 44, -13, 5, 23, -26, 0, -22, -2, -1, -32, -39, -49, -4, -3, 16, -5, 12, -21, 1, -17, -6, 62, -43, 35, -22, 31, -9, 39, 52, 23, -13, 50, -8, 10, 12, -1, 14, 22, -19, 11, -25, 26, -8, 21, -19, 1, -12, -6, 41, 5, 36, 41, -31, -6, -28, 35, 40, 20, 9, 2, 24, -26, -75, -8, 13, -14, -10, -53, -23, -22, 57, -9, -41, -4, 24, 9, 22, 25, -25, 23, -19, 29, 6, -12, 14, 33, 53, -5, -18, -3, -4, 19, -15, -2, 35, 17, 16, 10, 47, -17, -11, 0, -33, 33, 18, -58, -18, 9, 15, -1, -44, -4, -12, 10, 14, 35, -23, 18, -23, -30, 25, 12, -4, 55, 16, -25, -22, -25, -35, -39, -85, -5, -42, -65, 12, -15, 9, -22, -21, 4, -38, -49, 8, 35, 2, -3, 17, 7, 4, -17, 19, -5, -22, -3, 52, 40, 2, -4, 49, -12, 0, -66, 23, 45, 7, 50, -2, 43, 27, -13, 3, 34, -16, 54, -5, -19, -19, -4, -2, 33, 18, 0, 2, -12, 5, 21, 5, 19, -35, -17, -19, -37, 35, -49, -16, -24, 40, -18, 12, 5, 35, 19, 8, -79, -31, -43, -38, -16, 15, 7, 55, -11, 7, 21, 2, -8, 18, 15, 10, -6, 9, -22, -5, 4, -11, 13, 18, 14, 66, -3, -47, -13, 91, -1, -56, -25, 12, -13, 46, -16, 24, -21, -32, 20, 36, 4, 18, 8, 3, -33, -18, -28, -1, 9, 63, 14, -19, 15, -15, 29, 10, -17, -6, -44, 25, 15, 7, -49, 13, -3, -53, -70, -23, 10, 11, -58, 21 ]

McGregor, J. The pertinent facts are extracted from the certified concise statement of the material facts and proceedings, viz.: “On June 11,1968, a preliminary examination was held in the municipal court for the city of Livonia before the Honorable James McCann, municipal judge. The defendant, John F. Morgan, had previously been charged with negligent homicide by the people of the State of Michigan. During the course of the examination, the people attempted to introduce the testimony of officer Raymond Laundrosh who had been called to the scene of an accident involving two vehicles. * # * Officer Laundrosh testified that when he appeared at the scene of the accident there were approximately fifty (50) to seventy-five (75) persons present. Officer Laundrosh further testified that he did not know who the driver of one of the vehicles was and sought to have that driver identify himself by asking on three different occasions who was the driver of the vehicle in question. Defense counsel objected to this line of questioning and particularly to the identification of the defendant, John F. Morgan, who, according to the officer, stepped forward and identified himself. Defense counsel’s objections were based upon the case of People v. Gilbert (1967), 8 Mich App 393 and the 5th and 14th Amendments to the United States Constitution. The court overruled the objections and allowed officer Laundrosli to testify as to who had stepped forward and also to point out in the courtroom the defendant as the party who had identified himself. Subsequently the defendant was bound over to circuit court * * * was arraigned * * # and stood mute. The defendant then filed a motion to quash the information and discharge the defendant. * * * The * * * court entered an order denying the motion and the defendant filed his application for leave to appeal.” The question dispositive of the principal issue is whether or not a police officer is precluded from testifying at a later prosecution that the defendant stepped forward when the officer, prior to any Miranda warnings to the persons assembled before him, asked of the crowd, “Who is the driver of that truck?” The identity of this defendant was not known to the police officer, and the officer had not yet begun to focus accusatorily on this defendant in order to seek information from him. The officer was confronted by approximately 50 to 75 persons, and his question was addressed to the group and not specifically to this defendant. The record does not show that the officer had any reason to suspect Morgan as a perpetrator of a crime. Defendant contends that Michigan statutes require him to report that he was the driver of the vehicle to the nearest police officer on pain of a misdemeanor in the event that he failed to do so. The purpose of the Michigan accident report statute is to apprise the police that an accident has occurred, and to furnish statistical information as to the number and cause of accidents. Defendant relies upon People v. Gilbert (1967), 8 Mich App 393, in which the Court decided that incriminating admissions, such as those involved in the instant case, made in the course of making an accident report as required by statute, were not admissible in evidence. In the Gilbert case, the defendant was charged with manslaughter for negligently driving his automobile while under the influence of intoxicating liquor. The investigating officer testified that when he arrived at the scene, shortly after the accident, he noticed that the defendant appeared very much disturbed and detected the aroma of intoxicating beverages on the defendant’s breath. About one-half hour later, at the hospital, the officer questioned Gilbert. The Court, in its decision, stated: “In response to the question of who was driving the automobile, asked by the police officer in order to fill out the report required by statute, the defendant made incriminatory admissions that he was driving and that he was drunk at the time. Defendant was responding to the questions asked and was thus required by statute to speak. That the statements made were incriminatory is beyond dispute.” (Emphasis added) People v. Gilbert, supra, 399. The police were performing a required police function in investigating the Gilbert accident. There is no indication in the instant case that the police officer knew or suspected that a crime had been committed at the time he asked the critical question here involved, as to the identity of the truck driver. Until an accusatorial finger points at the defendant, none of his constitutional rights are violated. Nothing in the record shows, states, or even indicates that the critical question was asked by the police officer “in order to fill out” the report required by statute, and therefore, the decision in Gilbert, supra, relied upon by the defendant is not analogous. Defendant has predicated his appeal on an untenable position. The examining magistrate and the circuit court rulings on the question of the admissibility of defendant’s reply to the officer’s question as to the identity of the truck driver were correct. Defendant also cites Miranda v. Arizona, supra, as supporting his contention. However, Miranda is inapposite to the situation herein. People v. Gilbert, supra; People v. Patton (1968), 15 Mich App 198. Affirmed. All concurred. Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974). MCLA § 257.622 (Stat Ann 1968 Rev § 9.2322). CL 1948, § 257.624 (Stat Ann 1968 Eev § 9.2324).

[ 58, -7, 4, 7, 38, -17, -49, -32, -29, 37, 23, -33, 14, 13, -10, 18, 3, 29, 43, -80, -17, -52, -23, 18, -43, -19, 22, -4, -34, -2, 0, -25, 11, -60, 22, 0, 58, -58, 12, 28, 38, -13, -1, -88, -25, 7, 19, 1, -26, -12, 17, 4, -20, 26, 14, -27, 14, 27, 5, -2, -39, 5, -15, -25, -41, 37, -4, 45, -31, -14, -37, 16, 1, -27, 13, 1, -17, -18, -5, 12, -1, 35, 29, -27, 37, -31, -26, -55, 29, -43, 46, -1, -19, -47, -8, -43, 23, -36, 39, -32, -17, 21, 20, -9, -19, 58, -105, 15, 48, -28, 2, -6, 64, -13, -9, -44, -4, 24, 24, 38, -2, -15, 41, -3, -19, -9, 8, 4, -16, 23, 63, 3, 33, 4, 6, 10, 33, -13, 17, 45, -19, 45, -1, -41, 53, 22, -47, 19, 29, 16, -22, 20, 22, -21, -64, -48, 12, -50, -1, 26, -4, -7, 30, -37, -4, -12, -7, 35, 17, -29, 16, -1, 55, -4, 38, -25, -40, 26, -27, 16, 14, -30, -8, -40, -20, -21, -44, 9, 6, -14, 27, 17, 15, 7, 56, 36, 0, 23, -3, -8, 13, 4, 14, -67, -54, -18, 20, -22, 32, 8, 1, -29, -1, -15, 7, -58, 25, -12, 18, -51, -20, -31, -2, -41, 1, -39, -29, 16, -35, 38, 80, -8, -15, 22, -64, -26, 45, 8, 64, -9, -5, -11, 24, -14, 24, 2, -27, -41, 0, -27, 23, 23, 27, -38, -35, 6, 21, -16, 7, 18, 30, 23, 26, 32, -59, 4, -8, 54, -36, -38, -34, -7, 3, -32, 10, -8, 1, 22, -14, 35, -12, 9, -15, 33, -31, -49, 8, 43, -31, 13, 60, -13, -70, -33, 31, 4, 45, 14, -35, -23, 71, 11, -2, 26, -47, -26, 22, -3, -26, 41, 48, -3, 19, 23, 56, 9, 1, 0, 40, 2, -37, -4, -25, -29, 0, -6, -1, -9, 33, -68, -27, 27, -16, 14, 19, -26, 8, 23, 16, 15, -24, -21, -23, -19, 20, 11, 16, 50, -54, -38, 35, -1, -5, -7, 17, -9, -23, -20, 49, -15, 15, -34, -1, 59, -33, -3, -71, -55, -15, 24, -34, -65, -20, -6, -40, -40, 57, -47, -1, 34, -41, -19, 1, -7, -13, -31, -10, -23, -36, -1, 14, -14, -37, -24, -5, 45, -5, 46, 35, 16, 14, 24, 3, 43, -32, -14, -4, 6, 10, -28, 9, 17, 22, 18, 10, -39, -2, -9, 18, -45, 14, -31, 57, -36, 60, 20, 0, 52, 49, 25, 37, -22, 59, -50, 4, 6, -32, -57, -17, -10, -5, -14, -28, 36, 4, -12, -29, -22, -20, 18, 38, 33, 40, -45, -37, 59, 23, 4, 12, 31, -73, -37, -30, -30, 33, 10, -30, -21, 9, 9, 26, -11, -27, 16, -52, 3, 11, 0, -30, -29, -10, 15, 15, -23, -68, -13, -33, -5, 69, 23, 7, 2, -69, -15, -26, 8, 4, 9, -29, 0, 5, 55, -27, 13, 8, -51, 58, -12, -13, -20, -13, 39, -16, 24, -34, -17, -12, 0, 5, 18, 47, -8, 14, -20, 4, -12, -10, -50, -40, 1, 63, 19, 72, -6, 107, 26, -7, 9, -3, 10, 35, -3, 23, -17, 24, -52, 21, 0, 61, -14, 34, -5, 15, -41, -8, -77, 51, -20, -43, 21, -17, 6, 49, 57, 13, -8, -12, -2, 73, -45, -18, 94, -1, 20, 6, 43, 17, 56, -19, 13, 39, -4, 18, 22, 5, -22, 46, -47, -13, -49, -53, 16, -42, -12, 21, 7, -53, -30, -31, -6, 71, -9, -28, 46, 9, 0, 33, -10, 22, -43, 25, -11, -27, -15, -41, -3, -74, 18, 17, -6, -20, -7, -26, 18, -37, -40, -9, 39, -6, -23, -22, -23, -64, 10, -5, -23, -14, -33, -9, 6, 4, -7, 54, 1, -3, -58, 3, -46, -67, -20, -38, 36, 25, -24, 4, -15, 9, 31, 14, 35, 27, 35, -24, -24, -22, 0, 26, -32, 15, 4, 51, -14, -27, 25, 16, 50, 52, -30, -35, 29, -9, -31, 15, -11, 16, 17, 1, 1, 20, -33, -11, -7, 47, -9, 28, -17, 8, -22, -13, -10, -40, 4, -24, -11, -21, 13, 15, -25, -10, 51, -54, 57, -11, 20, 34, -2, -26, 9, 13, 13, -36, 48, 33, 10, 19, 26, -14, -14, 2, -39, 45, 33, 57, -42, 14, -1, 39, -22, 9, 2, 0, 7, 60, -36, -26, -40, -9, -7, -6, -6, -5, 9, 53, 9, 0, 63, 22, -11, -11, -38, 38, -5, 23, -13, -64, 5, -10, 45, -1, 8, -55, -39, 22, -22, -29, 32, -10, -45, 19, 0, 9, -7, -23, 0, 32, 5, -19, 24, -65, -6, 37, -3, -2, 25, -11, 0, 17, -34, 37, 11, -15, 27, 26, 12, 27, -29, 28, 45, 20, 15, 29, 2, -43, -66, -46, 0, 9, 7, -22, -30, 15, 3, 45, -27, -70, -26, 29, -73, -4, -6, -31, -3, 15, 38, -7, 14, 37, -23, 13, -7, 46, 30, -19, 34, 37, 41, 0, 0, 11, 62, -10, 81, -25, 6, -16, -26, -12, 17, -37, -10, -8, -9, -21, -28, -3, 51, 26, -39, 27, 22, 35, 19, 45, 30, 22, -30, 9, -23, 1, 42, 26, -51, 46, -7, -4, 37, 20, -31, -42, 24, -24, 16, 1, -23, -38, -16, 54, 59, 27, -34, 34, 0, -47, 12, 32, -15, 1, 66, -25, 38, 4, -5, 4, -37, 16, 25, -60, -22, 28, -44, -5, 19, -3, 6, 4, -27, 18, 8, -35, 39, -29, -16, 5, -46, 30, 6, 15, -25, -79, -4, -18, 6, -59, 29, -11, 5, -30, 7, -33, 21, -31, -30, -6, 5, 26, 11, -2, 8, 17, 1, 14, -2, 16, -20, 41, -7, -26, -21, 28, 49, 38, 19, 4, -51, 33, -13, 0, -21, -32, -28, -56, 6, -8, 43, 80, -6, -33, -38, -18, 8, -16, 7, -12, 23, -42, 38, -43, -1, 23, 12, -5, 49, 19, 44, -10, -41, 3, 2, -6, 39, -23, -26, -30, -27, -11, 26, 8, 16, -48, -21, -35, 43, -52, 27 ]

Per Curiam. Plaintiff brought this action in Presque Isle Circuit Court alleging in separate counts that defendant owed $1100 plus interest of 6% on the unpaid portion of a $1500 note, and that defendant also owed a balance of $900 plus 5% interest on an open account. The defendant in answer admitted liability on the note for $1100, but denied that the note was to bear interest. Defendant further denied that any amount was due on open account. At trial, the plaintiff called as its only witness the president of the defendant corporation. Plaintiff, therefore, placed heavy reliance on the signed note and its account books plus what it alleged to be defendant’s non-compliance with GCR 1963, 602 (re the note) and MCLA § 600.2145 (Stat Ann 1962 Rev § 27A.2145) (on the open account). The trial court sitting without a jury found that defendant had failed to comply with GCR 1963, 602, and that there was sufficient evidence to find defendant liable under it for both principle and interest. The trial court found the defendant’s liability under the note to be $1,551.89 plus interest at six percent from March 1, 1968. As to the alleged balance dne on the open account, however, the trial court said: “Plaintiff seeks judgment in the sum of $900 claiming that goods were sold and delivered to defendant on an open account. Defendant files a sworn answer denying liability and claiming that plaintiff has failed to account for collections pursuant to an agreement between the parties. Plaintiff moves for judgment relying on MSA § 27A.2145. However, the file does not show that a copy of the affidavit and account, together with the complaint, was ever served personally on the defendant. In such case, the defendant’s answer stands, and defendant has testified that he does not owe anything on the open account. Plaintiff did not rebut this evidence and relies solely upon defendant’s failure to comply with MSA § 27A.2145. The court is not convinced by a fair preponderance of the evidence that defendant owes any sum on the open account.” On appeal, the plaintiff asserts that the trial court erred in denying recovery on the open account. A careful review of the record convinces us that the trial court’s findings that defendant did not owe the sum claimed or any other on the open account was clearly erroneous. GCR 1963, 517.1. The pleadings do not show by proof of service that the complaint, account and affidavit were served on the defendant as required by § 2145. The defendant did not deny the account by separate affidavit as required by the statute. The account and affidavit were attached to the complaint filed with the court. Defendant did not object to the alleged failure to serve the account and affidavit. Had such an objection been made plaintiff could have proved such service by other means. GCR 1963, 104(2). Defendant waived any objection to proper service of the account and affidavit. Although the defendant denies that its president testified that his company owed anything on the open account, a review of the record shows the contrary. Defendant’s president testified, contrary to the pleadings, that payments should have been credited to the open account. He claimed certain credits for commissions but did not identify such credits. He also admitted that he had sold the merchandise to another and had gone out of business. Viewing his testimony as we do, we must conclude that the trial court’s finding as to the open account was not substantiated by the record. A redetermination of plaintiff’s claim on the open account should be made by the trial court not inconsistent with this opinion. Remanded for further proceedings. Costs to await final determination.

[ 2, -42, -19, 23, 0, 28, 76, 7, 39, 63, -10, 28, 29, -4, -31, 19, 9, 14, 36, -70, -6, -74, 6, -10, -16, -9, 18, 59, 45, 13, 26, 21, -71, -9, -27, -21, 30, 8, 8, -16, -34, -53, 79, 5, -35, -17, -32, -4, 37, -12, 70, -4, 12, -17, -9, 6, 3, -16, -19, -22, -11, -48, 55, -52, -40, 7, -16, 31, 1, -11, -22, 53, 22, 25, -15, -44, -29, -2, -22, -2, 2, -20, -6, 24, -27, 5, -8, -30, -24, -3, 30, 45, -37, -22, -20, 5, 2, 7, 70, 7, 2, -58, -12, 19, 26, 43, -48, -71, -35, 11, -23, 10, 1, -53, -10, 5, -16, -1, 27, -54, 0, 4, 17, -65, 18, 20, -35, 5, -25, 34, 27, 19, -45, 14, -47, -34, -41, -23, -4, -40, 1, -14, 13, -11, -13, 21, 39, -14, 28, 0, -46, 27, -10, 19, -38, 17, 4, -35, -11, -58, 47, 2, -10, -65, 15, 25, -1, 46, 26, -42, 36, 36, -32, -32, -19, 3, 33, -61, -5, 0, -8, 20, -7, -2, 46, 3, -57, -13, -11, -4, 6, -29, 20, 33, 13, 20, 16, 23, 5, -47, 6, -41, 7, -6, -10, -12, 80, -33, -46, -11, 31, -23, 10, -32, -15, 2, 21, -28, -15, 46, -46, 36, -40, 5, 21, -17, 20, -21, -32, 1, -45, 11, -47, 68, -25, 44, 80, -35, 15, 21, -48, 39, 2, -67, 19, -8, -74, 10, -25, 11, -2, -12, -14, 22, -64, -10, -5, 3, -24, -28, -7, 21, -31, -2, -28, -28, -14, 42, -26, 8, -28, -29, 8, 17, 32, -24, 8, 2, -46, -40, 52, -3, 2, 6, -8, -28, 20, 26, 13, 17, 25, 31, 14, 3, 51, 16, -7, -36, -1, 30, -28, -53, 46, -17, -2, -18, 1, -3, -71, -26, -7, 96, 9, -50, 73, -30, -6, -21, 50, -9, 33, 1, -22, 27, 17, 3, 31, -43, 29, -24, -3, 23, -6, -60, 19, -33, 13, -14, 38, 39, 26, 19, 0, 11, -6, 44, -22, 0, -26, 18, -46, -10, -33, 39, 50, 20, 22, -2, -39, 16, -9, 20, 21, -32, 45, 39, -4, 17, -8, 61, -59, -24, -17, -80, -60, -10, -10, -46, -50, 27, -21, -20, -24, 36, -3, -21, -66, -23, -9, 20, -58, -4, -6, 8, -15, -15, 1, 0, -63, -41, 33, 3, 39, -22, -20, 9, -7, -47, -3, 19, -3, -5, -35, 33, -22, 0, 74, 26, 70, -9, 36, -13, -42, -40, 29, -75, -22, 24, -17, 14, 5, 29, -24, -26, 58, -4, -20, 12, 14, 14, 57, -1, -12, 0, 73, -33, -7, -30, 46, 41, 34, -38, 5, 11, 15, 44, 5, -7, -34, -68, 29, -12, -4, 46, 70, 4, 20, -14, 36, 44, -25, 42, 1, 68, -69, -3, 1, 0, -16, 24, -50, 65, 16, -24, -9, -16, -31, -39, -8, -16, 20, -1, -37, 51, 26, 2, -51, -19, -32, 55, -56, -15, -9, 43, 41, 14, -20, -22, -5, 23, -43, 31, 34, 23, -4, 4, -9, 1, -30, 53, 33, 24, -37, 18, -3, 8, -9, 16, 38, 32, 32, 30, -17, -19, 2, -11, -16, 43, 5, 30, 0, 60, -22, 43, -3, -4, -58, -23, -16, -1, -21, -9, 84, 27, -22, 15, 47, -4, -4, -33, -6, 27, -4, -36, 18, -18, 8, -16, 8, -45, -6, -4, -26, 4, -46, 3, -7, 22, 20, -76, -22, 0, -11, -56, -51, 19, 4, 31, 6, -21, 11, -13, -10, -13, 11, -19, -36, -33, 40, 77, 6, -7, -52, 15, 12, -2, -8, 75, -2, -42, 95, 17, 28, 6, 0, -70, 33, -58, 3, -10, 9, 8, 20, 34, 10, -17, -13, -39, -10, 27, 17, -30, -12, 14, -48, 17, -16, 20, -24, -42, -25, 29, 25, -9, 11, -1, 12, -20, 0, -12, 21, 119, 46, 49, -21, -8, 14, -9, -12, -30, 3, -41, -5, 40, 4, 43, 9, -13, 32, 4, 10, -59, -9, 18, 64, -11, -24, 33, -7, -56, -46, 0, 11, -10, -6, -10, 7, 35, 11, 10, 8, 31, -34, -8, 8, -6, 14, 39, -33, 39, 7, -20, -32, 30, -42, -19, -43, 3, 17, 31, 6, -24, -15, 0, -12, -20, -26, 53, -25, -18, -7, -38, 25, -15, -30, -10, 60, 38, -30, -8, 6, 44, -28, 37, -2, 4, 29, -25, -47, 25, 28, 1, -15, 0, -30, 17, -19, 13, 0, 20, 28, 29, 1, 35, -6, 17, -23, -44, -18, -20, 3, 21, 19, -7, -15, 23, -26, -10, -16, -22, -37, -5, 37, -11, -28, 72, 51, -38, 38, 21, 34, 23, 15, 19, 19, -30, 2, -2, -30, 56, 5, -7, -23, -41, 20, 53, 14, 17, -29, -12, -9, 0, -9, 27, -10, 21, 10, 37, 16, 46, -48, -19, -10, -47, -25, 49, 1, -20, 13, 5, -19, 41, 8, -8, -27, 69, -13, -14, -26, 14, 7, -35, 19, -20, -53, 11, 15, -13, -54, -38, -20, -18, -22, 13, 18, 14, -35, 1, 33, -28, 28, 5, -14, -36, -33, -3, -8, 32, -15, -14, 23, 4, -64, 16, 92, 34, -47, -7, 32, -29, 10, 44, -11, 19, 60, 5, 47, -24, 16, -15, -54, 38, -21, 10, -9, -4, 31, 0, -39, 2, 18, 35, 19, -42, -17, -52, 1, -55, 16, 1, 10, 17, 7, -20, 8, 57, -6, -1, -17, 51, 29, 6, 8, 13, -5, 51, 43, -29, 28, 7, -19, 0, 34, -23, 3, -2, 30, 7, -16, -24, -1, -25, 16, 40, -15, 9, -17, -51, -26, 56, 16, -65, 17, 5, -39, 6, -6, 2, -5, 5, -45, 25, 11, 24, -20, 1, -25, -43, 16, -3, -36, 22, -6, 2, 22, 7, 35, -18, -23, -2, -36, -27, -19, -24, -4, -7, 33, -33, -17, 41, 14, -43, -27, 39, -3, -13, -55, 16, -27, 7, 26, -24, 10, 7, 26, -29, 69, -8, -12, -10, -10, -23, 8, -8, -6, -64, 54, 49, -8, 0, 14, 22, 60, 4, 50, 8, 13, -23, -2, 38, -44, 13, -30, 47 ]

Larnard, J. This is an appeal from a circuit court order terminating parental rights. This case originated in the Probate Court of Lapeer County, where a petition was filed alleging that Barbara Ellen Franzel was a neglected child under the provisions of MCLA § 712A.2(b), (Stat Ann 1962 Rev § 27.3178 [598.2]). The probate court found that it had jurisdiction under the above statute and entered an order terminating the parental rights of Barbara’s mother, Veronica Franzel. An appeal was taken to the circuit court where a jury trial was conducted on the issue of neglect and the jury found that Barbara was in fact a neglected child. A separate hearing was conducted by the circuit court on the issue of a proper order of disposition and an order terminating all parental rights was subsequently entered. The first issue presented on this appeal is whether the jury verdict finding Barbara to be a neglected child was contrary to the weight of the evidence presented. Proceedings under the Michigan statute, MCLA § 712A.2(b), require a two-step procedure. First, a finding must be made that the case falls within the statute, thus giving the court jurisdiction over the matter. Second, if it is determined that the court does have jurisdiction, it must make a proper order of disposition. In re Mathers (1963), 371 Mich 516. Appellant cites the cases of Fritts v. Krugh (1958), 354 Mich 97, and In re Mathers (1963), 371 Mich 516, to the effect that a showing of neglect must be made in order to justify the termination of parental rights under MCLA §712A.2(b). Accepting the correctness of this position, the question becomes whether or not sufficient facts were shown to bring the case within the statute, which in relevant part provides that the court shall have: “(b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county, “(1) Whose parent or other persons legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical or other care necessary for his health, morals or well-being; “(2) * * * or whose mother is unmarried and without adequate provision for care and support.” The appellees’ theory in the circuit court was that the case fell within (1) above because the mother had neglected to take proper care of the child and had shown a marked preference for the older child, and also under (2) above, because the mother was unmarried and without the means to adequately provide for the child. The record indicates that various persons testified regarding the issue of neglect. Mr. Ealph Samuelson, a social worker, testified that Barbara’s mother contacted him before Barbara was born, and discussed the possibility of giving up the baby, and also indicated that she did not feel the same way about Barbara that she felt about her older child. Mrs. Patsy Meachum, another social worker, testified that on November 30, 1965, she placed Barbara in a foster home acting at the mother’s request. She further testified that when the child was left at the foster home, the mother showed no signs of emotion and failed to write down the name and address of the foster home, whereas when the older child was temporarily placed in foster care, the mother showed a great deal of emotion and was careful to get the name and address of the foster home. Further testimony by Mrs. Meachum indicated that the mother had said that she felt differently about Barbara than she did about the older child, that she wanted Barbara to be adopted and that on one occa sion she indicated that she was desirous of having both children placed in a foster home so that she could travel with a man who worked for a carnival. Manley Gordon French, a minister in whose home the mother and children had lived for 11 months, testified that the mother had neglected Barbara and showed a definite preference for the older child. He further testified that: “There was a recurring difficulty of stale bottles, carelessly prepared formula, wet diapers, not changing frequently enough, matters of this type that we were assuming the responsibility for, and evidently, it would not have been done had we not done it.” Mr. French also stated that Barbara’s mother showed partiality in dividing clothing between the children, always giving the best to the oldest child, and that the mother did not give Barbara the kind of love and care that a child that age needs. The criteria for determining what constitutes neglect is not at all clear. However, in Fritts v. Krugh (1958), 354 Mich 97, 116, the Court said: “There must be real evidence of long-time neglect or serious threats to the future welfare of the child.” The repeated failure to care for the physical needs of the child, together with a marked lack of affection and marked preference for another child, were sufficient to support the finding by the jury that Barbara was neglected and that such finding was not contrary to the weight of the evidence. Appellees’ theory was further based on MCLA § 712A.2(b) (2) because of the fact that Barbara’s mother was unmarried and without adequate means to care and support Barbara. Appellant admits that the mother was unmarried, but contends that she was able to provide for the child since she was receiving money from Mrs. Koss and from Aid to Dependent Children. However, Mrs. Koss admitted that the source of this money was certain social security payments which terminated in the fall of 1965. The ADC payments were received when the mother was living with the Frenches, and they terminated when she placed the child in foster care in November of 1965. We therefore find that this provision of the statute MCLA § 712A.2(b) (2), was satisfied by the above findings. Appellant claims that the form of the jury verdict was improper and that the verdict should be reversed on account of this error. We do not agree with appellant’s contention that the form of the jury verdict requires reversal. The following form of verdict was given to the jury by the trial judge: “One possible form, we find the court does have jurisdiction; two, we do not find that the court has jurisdiction.” The verdict announced by the foreman of the jury was that the court should have jurisdiction, rather than does have jurisdiction. When this ground was raised in the trial court, the judge indicated that he had questioned the jury and was satisfied that they had made a proper determination. The determination of this question falls under the principle that errors in the form of the verdict can be corrected by the court. Standard Oil Co. v. Gonser (1951), 331 Mich 29. The court very clearly instructed the jury they could find for the appellee only if they felt that the facts were within the statutory language. The jury found for the appellee and the use of the word “should” can be regarded as surplus verbiage to which the appellant attaches undue importance. We find no merit in appellant’s contention that the original petition was collusive and filed as a means of circumventing the adoption code. The second stage of the proceedings under the above statute, the proper order of disposition by the court, is alleged by the appellant to have been improper. After a determination of neglect has been made, thus bestowing upon the court jurisdiction in the case, the remaining question becomes what disposition is in the best interests of the child. The underlying philosophy of this determination was set forth in the opinion of Greene v. Walker (1924), 227 Mich 672, 675, holding: “The paramount question under the law in all cases of this character is the welfare of the child. All other considerations must yield to this one. The dying wish of the mother, the desire and purpose of the father, the otherwise superior right of either father or mother even the wish of the child herself, are and must not be entirely controlling.” And in the case of Weiss v. Weiss (1913), 174 Mich 431, 438: “While the wishes and affections of the parents for the child are not to be ignored, they are a secondary consideration. The primary consideration is the welfare and happiness of the child, from the standpoint of education, moral and religious training, good influences, care, kind treatment, pleasant environments and future prospects.” The record indicates that the trial court conducted extensive hearing on the matter of the proper disposition of Barbara. At the hearing, testimony was taken from Bernice Tunison, juvenile court case worker; Ralph Samuelson, a social worker; Veronica Franzel, Barbara’s mother; and Eleanor Koss, Barbara’s grandmother. At the time of the hearing, Barbara’s mother was 20 years old, was working as a barmaid and earning approximately $75 a week, and contributing $10 a week to the support of the oldest child who is living with Mrs. Koss. The mother had given birth to a third illegitimate child which was being passed back and forth between Mrs. Koss and another relative. Both Mr. Samuelson and Mrs. Tunison testified at the hearing that they were of the opinion that parental rights should be terminated, whereas Mr. Michael Carter, Barbara’s guardian ad litem was of the opinion that the mother should not have custody at that time, but did not want the rights terminated permanently. There was also evidence presented as well as testimony that Barbara had a special problem with allergies and needed special care. We find, from a completed search of the record, that the trial judge made an exhaustive determination of the facts in this case and made proper order of disposition in the best interests of the child, Barbara. Our Supreme Court, in the case of In re Ernst (1964), 373 Mich 337, 342, 343, stated: “In such circumstances we have no right — no right whatever — to overrule or disregard Judge Fenlon’s finding and order upon the best interest question; ‘the determination of the judge as to the facts being conclusive’.” See Corrie v. Corrie (1880), 42 Mich 509, followed to the point in In re Sneden (1895), 105 Mich 61; Carpenter v. Carpenter (1907), 149 Mich 138; and In re Gould (1913), 174 Mich 663. Affirmed. No costs, a question of public policy being involved. All concurred.

[ -3, -20, -16, -18, 53, -30, 25, 12, -29, 1, 2, -18, -4, 7, -24, -48, -1, -30, -24, -45, -8, 35, 12, 47, -13, -37, 45, 35, 19, 22, -64, -56, 40, 17, -15, -12, 59, -43, 43, 2, 23, -25, 36, -42, -11, 10, 29, 21, 3, -27, 7, -20, -37, 33, 62, 6, 57, 12, 33, -14, -40, -8, -24, -16, 19, -19, 24, 9, 7, -58, 38, 5, -30, -4, 55, 20, -2, 0, 27, 100, 16, -8, 28, -12, 71, 4, -31, 35, -62, 0, 10, 20, -63, -5, 21, 10, 7, -22, 18, -46, -9, 14, 23, 6, -57, -5, -9, -51, -11, -20, -4, 35, -7, 12, 4, 11, 8, 10, 10, -3, 15, 4, 17, -30, 25, 4, -30, -28, 43, -19, -47, -4, 33, -12, 44, 16, -13, -11, 8, -23, 38, -21, 56, -19, 25, -28, 1, -27, 30, -35, 17, 4, 39, 77, 17, 17, 12, -36, -5, 16, -22, 17, 15, -34, -11, -97, 35, 91, 14, 7, 37, 18, 31, -19, -17, 42, -2, -1, -18, -7, -19, -26, 21, -22, -44, -11, -29, -9, -45, -36, -3, 40, 22, 13, -30, 59, 56, 40, -47, -1, -41, 22, 62, 14, 13, -21, 20, -45, -42, -47, 17, 52, -19, 14, -37, -67, -35, -1, -49, -9, 9, -41, 49, -15, -33, -38, -28, -2, -44, 0, 66, 38, 34, -21, -23, 39, -16, -11, 9, -6, 35, 28, 22, -21, 11, 60, 8, -3, 49, -3, 33, 45, 7, -8, -40, -19, -8, 2, 4, 4, 50, 20, -49, -3, -16, 36, -6, 31, -22, -77, -9, 17, 15, -11, -52, -11, 20, 14, 42, 31, 16, 27, 0, 27, -38, -18, -3, -11, 9, 18, -42, 30, -21, -45, 39, -12, -1, -20, -3, -21, -6, 30, 8, 74, -17, -13, 3, 15, 1, 11, -23, 52, -4, -24, 8, -3, -57, -34, 39, 4, -6, -18, -18, 11, -39, -5, -17, -23, 37, 10, -6, 16, -10, -13, -2, 12, 0, 30, -4, -1, 48, 12, -19, 23, 25, -24, -13, 0, 9, -47, 14, 59, 57, 24, -51, -79, -20, -72, -51, 5, -43, -18, -23, -6, -2, 46, 20, -42, 29, 0, -10, -11, 24, -2, -40, -3, -12, 4, 25, 58, 17, -12, -19, 32, 19, -29, -55, 23, 15, -20, -17, -44, -9, 1, 6, 2, -7, 17, 25, -17, 59, 27, -3, 56, -39, 45, 23, -27, 1, -26, 9, 25, 60, 46, -2, -25, 23, -35, -32, -41, -22, 45, 77, -37, 5, -45, 9, 2, 52, -2, 28, 30, 4, -17, 51, -21, 2, 15, 25, -15, -55, 7, 11, 24, 11, -21, -19, -10, 1, -41, 47, 51, -23, -26, -8, -6, -53, 18, -42, -52, -13, -31, 36, 18, 10, 3, -15, 14, 30, 3, -35, 9, -20, 12, -6, 70, 13, 18, 6, 6, 19, -5, -33, -12, 11, 12, -19, -36, 14, -20, -28, -17, 12, 31, 3, -35, -17, 20, -51, 4, 37, 14, 88, 17, 23, -52, 30, 3, -43, -21, 12, -1, 27, -6, -46, -4, 18, -22, 11, 7, -11, -17, -11, -3, -38, -34, -8, 8, -26, 46, 46, 26, -2, -7, -9, 26, -20, 25, 4, -28, 0, 15, -3, 0, 11, -83, 18, -9, 15, -22, 9, -17, 0, -45, 31, 14, -24, -4, -14, 3, 20, 13, 22, 19, 10, -55, -50, 0, 5, -27, 31, 25, 7, -4, -2, 38, 37, 13, 9, -22, -12, 12, -62, -39, 3, -15, 58, -45, 47, -25, -35, -48, -43, -38, -29, -57, 10, -41, 30, -53, 8, 15, 13, 14, 10, -15, 17, 1, -13, -40, 23, -9, -20, -2, 32, 23, -5, -18, -11, 45, -70, -13, -38, 34, -77, -3, -43, -56, 59, -9, 16, 13, 25, -28, -29, -9, -9, -24, -6, -40, 7, 44, -45, 27, -22, -14, 15, -18, -5, 59, -42, 65, -35, 3, -38, -35, -28, -17, -11, 18, 26, -3, -19, -9, 58, 42, 20, 38, -2, 20, -53, 48, -67, 45, -68, 6, -15, 27, 18, 38, -56, -3, -23, -22, -3, 70, 15, 48, 36, -15, 2, 0, 62, 0, -31, -63, -9, 56, -43, -14, -8, 37, -5, 31, -72, 35, -16, 10, 6, -56, -48, 65, 39, 11, 6, -1, 16, -53, -12, 41, -62, 24, -10, -55, 4, -23, 6, -27, 0, -33, 25, 18, 17, 14, -42, 29, 7, -3, 39, 17, 0, 8, -11, -42, -45, 5, 29, -31, -11, 22, 4, -21, 40, -22, -43, 0, 65, -2, -17, -12, -15, 16, -23, -22, 8, 9, -60, -10, 12, -43, -22, 13, -74, -34, -4, 22, -23, 18, 16, -96, -21, -11, 11, -19, 17, -14, 59, -22, -36, -13, 23, 27, -25, 16, 54, 52, -23, -14, -4, -28, 56, 7, -38, 6, -20, 48, -60, -3, -16, 35, 30, -8, -3, -32, -19, 27, 54, 22, -47, -34, 39, -33, 22, 22, -56, 36, -16, -5, 2, -1, 28, 53, 23, 6, -26, -29, 5, 22, 28, 27, -43, -14, 0, -59, -2, 42, 6, -3, 32, -3, 25, 7, -48, 50, 39, -25, -3, -7, -6, -1, -18, 59, -17, -38, -2, 52, 3, -26, 16, 51, -63, -78, 18, 24, 24, -83, 0, -33, -71, 46, 64, -19, 21, -9, 40, -6, 15, -2, -21, 6, -31, 9, 29, 1, -5, 42, -12, -25, -53, -27, -8, 0, -3, -32, 7, 17, -26, 16, 20, 11, -2, -20, -1, 45, 23, -2, 4, 10, 35, -80, 5, -1, 29, -8, -48, -8, -15, -46, -20, 34, -4, 27, -34, -10, 60, -49, 27, 13, -1, 33, 1, 17, -51, 8, 32, 13, 33, 21, -32, 17, 8, -19, 24, -28, -27, 33, -9, -5, -55, 7, -26, 16, 8, 36, 42, -56, 47, 0, -5, 23, -27, 42, -9, -12, -11, -43, 10, 23, -2, 28, -43, -5, -13, 13, 2, -50, -79, -18, -56, -43, 19, -6, 27, -16, 1, 41, 16, -17, 36, 31, 38, 0, -18, 12, 47, -40, -26, -46, -14, 16, 12, 39, 47, 8, -8, -37, -17, 15, 3, -16, 19, 17, 30, 22 ]

Quinn, J. December 13, 1968, tbe trial court granted General Motors Corporation’s (hereinafter referred to as defendant) motion for accelerated judgment. Judgment of dismissal entered and plaintiff appeals. May 23, 1964, plaintiff, a Negro employed as a crane operator by defendant, dropped a die from the crane he was operating. Effective May 28, 1964, plaintiff was transferred from crane operator to press operator. At plaintiff’s request and effective August 31,1964, he was transferred to crane hooker. Prior to May 23, 1964, four other complaints on plaintiff’s operation of the crane had been received by defendant, and plaintiff had one prior demotion for his unsatisfactory performance as a crane operator. Plaintiff was a member of UAW-CIO, Local No. 1292, which with the international union, was plaintiff’s collective bargaining representative. Defendant and the unions executed a collective bargaining contract September 20,1961 which was in effect May 23, 1964. Among other things, the contract placed sole responsibility for transferring employees with management and provided: “Any claim of personal prejudice or any claim of discrimination for union activity in connection with transfers may be taken up as a grievance. Such claims must be supported by written evidence submitted within 48 hours from the time the grievance is filed.” May 27, 1964, plaintiff filed a grievance with his foreman which read: “Protest management removing me from the crane operator group. Demand that I be returned to the crane operator group at once.” On the bottom of the grievance slip under the heading “Disposition by foreman” is the following: “The complainant was properly transferred to the press operator classification. Grievance denied.” This is dated May 28, 1964 and signed by the foreman. January 15, 1965, plaintiff filed an application for the issuance of a complaint against defendant with the Michigan Civil Rights Commission alleging in essence that his transfer from crane operator was discriminatory because it was based on his race. This claim was dismissed by the commission April 27, 1965 and no appeal was taken by plaintiff. November 17, 1965, plaintiff filed his four-count complaint in this action. Counts two and four set forth plaintiff’s alleged action against his local union. Count two alleges that plaintiff’s transfer from crane operator was discriminatory and based on his race in violation of Const 1963, art 1, § 2, and CLS 1961, § 423.303(c) (Stat Ann 1968 Rev § 17.458[3] [e]). Count four alleges that plaintiff’s local union violated its contractual duty fairly and adequately to represent him with respect to his grievance. On the basis of a stipulation entered into between plaintiff and the local and international unions, the trial court dismissed plaintiff’s action against the unions. Count one of plaintiff’s complaint alleges that defendant transferred him from crane operator be cause of his race in violation of the constitutional and statutory provisions cited, supra. Count three charges defendant with violating the discrimination provisions of the contract of September, 1961 by transferring plaintiff from crane operator because of his race. The basis for the cause of action set forth in counts one and three is the charge of racial discrimination. The accelerated judgment of dismissal below was based on the fact that plaintiff had failed to exhaust his remedies under the collective bargaining contract. This is a recognized basis for the relief granted, Billings v. Levitt (1968), 10 Mich App 399. The rule is not applied if it is shown that conduct of the employer amounts to a repudiation of the contractual procedures or if it is shown that plaintiff was prevented from exhausting the contractual remedies by the union’s wrongful refusal to process the grievance, Vaca v. Sipes (1967), 386 US 171 (87 S Ct 903, 17 L Ed 2d 842), Harrison v. Arrow Metal Products Corporation (1969), 20 Mich App 590. There is nothing in the record before us to indicate or from which we may infer that the employer repudiated the contractual procedures. Similarly, there is no showing that the union refused, wrongfully or otherwise, to process plaintiff’s grievance based on alleged discrimination. Plaintiff never filed such a grievance. Affirmed with costs to defendant. All concurred.

[ 14, 4, -30, 35, 26, -1, 29, -22, -4, 19, -23, 6, 10, -20, 16, -31, 15, -13, 3, -34, -1, -28, -1, -11, 4, 6, -1, -90, -12, -15, -58, -23, -25, -29, -22, 4, 9, 16, -14, -15, -4, 2, -36, -10, -8, 17, 4, 22, 45, -17, 10, -7, -2, 21, 3, -9, 0, 15, -30, 52, 7, 23, 15, -17, 67, -4, -27, 10, -54, 14, -35, 7, 24, -38, -73, -45, -4, 14, -47, -24, 2, -31, -7, 23, -18, 73, 5, 46, -17, -45, -23, 47, -25, 25, 0, 18, -5, 31, -7, -53, -23, 27, -11, -1, 12, -30, 1, -38, -21, 3, -20, -11, 21, 3, 19, -50, 46, 32, 3, 19, -1, -39, -19, -20, -35, -13, -18, -9, -28, 88, 13, 25, -25, -3, 8, 19, 61, -15, -9, 3, 9, 6, -13, -14, -13, 6, -9, 20, -13, -17, -36, 22, -10, 0, -25, -13, -1, 8, 38, 25, -6, -17, 38, 17, -5, -16, -40, 13, 1, 9, -51, -30, 15, -51, 23, 9, -28, 7, -60, 30, -20, 25, -27, -4, 11, -35, 20, 13, -10, 3, 21, -11, 17, 24, -21, 43, 17, -55, -4, 21, 45, -4, -15, -21, -25, 35, 30, -55, -8, 49, -13, -2, 15, -53, -16, 29, 11, -22, 3, 4, 25, -18, -20, -2, -28, -38, -5, 41, 60, 5, 27, -3, 9, 4, -4, -22, 36, 1, 52, 17, 25, -3, 21, 0, -33, 12, -40, -50, 23, 52, -1, -19, -11, -8, -5, -40, -36, 12, 26, -9, 11, 4, -10, -7, -8, 14, -59, 29, 6, -43, -10, 3, 48, 23, -5, -42, 11, 24, 58, -15, -28, -3, -63, -65, 3, -11, 41, -53, -69, 21, 15, 21, -8, -21, 57, -19, 40, -16, -50, 6, -63, -58, -13, -29, -8, 3, -56, -9, -9, 1, 4, -62, 37, -37, 52, -27, -6, 23, -2, 12, 21, 47, -17, 5, -7, -16, 0, 46, 69, -16, -3, -12, -37, -3, 11, -38, -16, 44, 51, 17, -2, 21, -13, -54, -19, -14, 5, -6, 59, -12, 33, -25, 6, 5, 67, 32, 64, 8, -62, 36, 24, -61, -13, 2, 14, 19, -51, 5, 28, 39, -9, 0, 20, -32, -27, 35, -34, -9, 30, 64, 25, -39, 28, -114, -15, -34, 3, 30, -2, -11, -20, -7, -29, 50, 51, 17, 22, 36, -10, 21, 41, 10, -78, -76, -2, 8, 31, -75, 22, 0, -27, -47, 22, 33, -11, -11, 15, 11, 13, -8, 47, 3, 11, 18, 47, 24, 36, -50, -16, 32, -31, -27, 28, -7, -7, 64, 21, -27, -1, 13, -18, -41, -34, -19, 26, -59, -34, -10, 29, -10, 33, 65, -8, 27, -17, 6, -39, 10, -38, -2, -58, -9, -13, 45, -21, 8, 8, 15, 26, 8, -26, 0, 22, 44, 4, -28, 13, -31, -3, -12, -5, 26, 13, -27, -47, -41, -1, -16, 12, 4, -11, 36, 9, -6, -30, 13, 0, 33, 7, -23, -52, -22, 22, -6, -1, -11, 4, -69, -14, 34, -29, -37, 23, 19, -7, -19, -22, 63, 1, 55, 1, 23, -5, -2, 7, -72, 4, -15, 15, -24, 77, 11, 53, 56, 29, 3, -19, 18, -9, -45, 11, 22, 12, 26, -30, -3, -68, -33, -15, 1, 62, -36, -3, -25, 25, -25, -2, 7, 22, 2, 2, 20, 4, 49, 18, 16, -18, -1, 26, -6, 8, 28, 37, 52, 24, -7, 50, -3, 2, -2, -68, -16, 26, 23, 8, -16, 41, 48, -5, 32, -12, -23, -25, -34, 106, 29, -17, 9, 1, 2, 58, -37, -72, 20, -23, -25, -19, -12, 39, -16, -8, 22, -28, 4, -3, -6, -45, -22, 26, 63, 13, 26, -23, -28, -22, -30, 25, -24, 19, -8, -1, 25, -12, 11, -8, -10, 68, 10, 3, -42, 21, 15, 73, 14, -31, -56, 6, 5, -17, -14, -17, 16, -3, 1, -26, -55, -5, 0, -35, -46, 8, 16, 8, -10, -6, -46, 14, -34, 10, -35, 40, -5, 39, 7, 47, 30, -26, 28, 28, 29, -42, -5, -49, 1, -3, -50, 43, 31, -8, -10, -22, 20, 0, 39, -7, 35, 10, -30, -5, -19, -76, 21, 23, 29, 9, 19, -22, 0, 4, 15, 3, -65, 26, -10, 20, 88, 23, -19, -50, -58, -26, 43, -2, -10, 10, 51, -22, -30, -34, -51, 13, 26, 8, 48, 8, 12, 7, -10, -65, 32, 44, -36, 6, -18, -59, -10, -25, 3, 1, -34, 4, 15, 27, 24, -32, -18, 30, -10, -37, -7, 32, -57, 55, -16, 3, 41, 1, 9, 23, -31, -48, -29, 20, -45, -10, 16, -16, -11, -36, -44, -22, -74, 39, 33, -51, -15, 6, 33, -1, -25, -7, -33, 13, -20, -16, -11, 2, -1, -31, -45, -14, 35, -25, 36, 14, -63, 22, -27, 4, -51, -18, 35, -16, -70, 33, 21, -48, -3, -24, 39, -6, 52, -61, 23, 13, -108, -3, -19, 20, 31, 78, -12, 33, 87, -48, 9, 16, -12, 20, 13, 23, -48, -27, 47, 5, 17, 0, 77, -23, -50, -3, 0, -43, 48, 15, -2, 1, -26, 10, -10, 10, 6, -49, -19, 0, 65, -51, -39, 54, -29, 34, 0, 3, -9, 1, -41, -29, 58, 81, -19, -2, 9, 2, 27, 10, 24, 27, -26, 42, 16, 55, 10, -8, -50, -11, -4, 2, 15, 33, -32, -9, 34, 47, 24, 18, -16, -50, -61, -38, -1, 20, 19, 1, 11, 19, 24, 12, 21, 74, 0, -37, -12, -31, -28, 49, 23, 5, 45, 36, 45, 22, 25, 40, -49, 23, 58, -29, -34, -29, 43, -11, -23, -10, -6, 1, -73, -58, -30, 4, 36, -49, 31, 27, -10, 25, -15, -39, -15, 5, -50, 34, -12, 21, 22, 42, 0, -12, -39, 0, -31, 7, -5, -37, -45, 8, -14, 4, 25, 8, -7, 23, -15, -13, 62, 78, -72, 2, -33, 27, 14, 37, 30, 29, 42, 35, -29, 23, -44, 39, 22, 22, 16, 2, -15, 42, -1, 52, -33, 2, 28, 32, -6, -85, 29, 26, 39, -43, -8, -33, 8, 26, -33, -10, -23 ]

Per Curiam. On September 12, 1967, plaintiffs purchased certain lots in the Township of Green Oak from Mary M. Shields. On April 3, 1968, the defendant filed a petition for condemnation in which an easement was sought by defendant for a sanitary sewer across a portion of one of plaintiffs’ lots. The plaintiffs were not named in these proceedings and received no notice of the progress of these proceedings until January 21, 1969. Plaintiffs then commenced an action against defendant asking that the circuit court declare the condemnation proceedings a nullity as to their land and to enjoin the defendant from entering upon their land to construct a sewer. The defendant answered and moved for a summary judgment in its favor alleging that there is no genuine issue as to any material fact. This motion was supported by an affidavit of the supervisor of defendant township who stated that the entire easement in question obtained by defendant lies wholly in and on a roadway maintained by the Livingston County Road Commission and is and has been open to and used by the general public for an excess of 25 years. Plaintiffs did not refute this statement in their opposing affidavit. After a hearing, the trial court granted defendant’s motion for summary judgment on the ground that there was no genuine issue as to any material fact. On appeal, plaintiffs contend that the grant of summary judgment in behalf of defendant by the trial court was erroneous because there is a question of fact as to whether plaintiffs should have received notice of the condemnation proceedings. The defendant has filed a motion to affirm pursuant to GCE 1963, 817.5(3). Based on the affidavit submitted by defendant and the evidence extracted at the hearing of March 24, 1968, we think it is undisputed that the easement in question runs wholly in the public roadway. As a result, it was unnecessary for defendant to seek condemnation of a part of plaintiffs’ land. See MCLA § 221.20 (Stat Ann 1958 Rev § 9.21). MCLA § 247.183 (Stat Ann 1958 Rev § 9.263); Village of Grosse Pointe Shores v. Ayres (1931), 254 Mich 58. It is well settled that the mere existence of issues of fact is no bar to entry of summary judgment for defendant, if, upon resolving all such issues in favor of plaintiffs, the defendant would still be entitled to a judgment as a matter of law. Whittenberg v. Carnegie (1950), 328 Mich 125. Even if the admitted question of fact with respect to the condemnation proceeding is decided in favor of plaintiff, the undisputed fact that the easement lies wholly on a public road, requires that defendant be granted a judgment in its favor as a matter of law. The question presented here on appeal is unsubstantial and requires no argument or formal submission. The motion to affirm the decision of the trial court is granted.

[ -12, 50, -2, -15, -28, 48, 29, 11, 2, 34, 2, -58, 26, 50, 15, -21, -24, 13, -14, 18, -33, -16, 15, 9, -16, 13, 32, 27, 17, 17, -19, 13, -40, 25, 13, -59, 8, -9, -2, 23, -25, 12, -24, -21, -15, -3, 26, 7, -12, -16, 37, 28, -3, -37, -30, -10, -34, -20, -14, -58, -23, -16, -30, 17, 35, 38, 7, 22, 27, -27, -41, 12, -20, -61, 11, -4, 0, 18, -19, -19, -11, 10, 44, 37, -29, -5, -49, -13, 7, -10, -30, -38, -29, 8, 3, 49, 3, -40, 11, -25, -9, 69, -4, 31, 9, 15, -24, -42, -5, -45, 32, -10, 24, -23, -8, -23, 41, -25, 0, -20, -14, -54, 54, 23, -15, 16, 4, -20, -10, 25, 25, 16, 0, 20, 25, -14, -19, -19, 18, -5, 8, -28, 6, -31, 28, 26, 8, -28, 24, -5, -28, -7, 11, -9, -10, 45, 40, -68, 43, -9, 47, 29, -5, 7, -40, -1, -18, 32, -14, 7, 28, -32, 28, -34, -28, -42, -27, 30, -16, 20, 36, -39, 11, 29, -82, -56, -21, -21, -30, -16, 21, -14, 18, -7, 2, 73, -28, 23, -30, -8, 27, -55, 25, -29, -33, 10, 16, -34, 1, 49, -8, 20, -10, -26, 16, -42, 60, 33, 16, -1, 15, -16, -16, 4, 39, 18, -32, -24, 2, -25, -7, -1, 11, 26, -19, 10, 9, 43, 10, 39, -12, 50, 15, -30, -15, -18, 0, -36, -4, 27, -5, -6, -28, -28, -26, -49, -36, 37, 2, 7, 27, 72, -36, -15, -59, 21, -33, 13, -68, 12, -64, 50, 6, 0, -34, -25, -12, 12, 1, 20, -25, -25, 12, 3, -12, 43, -5, 22, -18, 5, -15, 23, -55, -2, 14, 23, 20, -37, 2, 21, 0, -9, -1, -1, -4, 9, -4, 26, 42, 4, 21, 16, 48, 17, -32, 53, 0, -15, 44, -32, 11, 56, -23, -10, -18, 16, 35, -23, -11, 44, -9, 31, 10, 32, 40, -2, 8, -52, -24, 14, 46, 26, 24, -17, 30, 0, -53, 1, 9, -2, -37, 6, -4, 20, 2, -35, -26, -10, -14, 41, 9, 54, 36, -16, -30, 2, -25, -30, -17, 40, -17, -19, -6, 38, -13, -36, 21, 15, -31, 42, -9, -27, 27, 48, 37, 15, -27, 5, 7, -18, -59, -83, -3, 42, 6, -5, 6, 37, -17, 14, 1, 14, -11, 44, -16, 43, 14, -29, 15, 16, 19, -4, 13, -29, -13, -10, 29, 6, 35, -24, 17, -10, 18, -15, -35, -43, -19, 5, -1, 30, -35, 49, 2, -31, 46, 46, -16, -35, -20, 17, -25, 63, -2, -57, -23, -53, 0, 41, 8, 25, 0, 54, -7, -14, -13, 8, 19, -37, 54, -27, 2, -24, -16, -17, -6, 16, -41, -24, 28, 4, -7, 60, -26, -1, 32, -29, 26, 41, -22, 14, 26, -26, -39, -23, -50, 5, 21, 19, 5, -23, 26, -11, 41, 27, 54, -36, -16, -43, 24, 25, 15, 43, -30, 1, 13, 7, -29, 7, -19, 49, 5, -11, 13, -1, -5, 47, 69, -44, 29, 14, -24, 15, 10, -16, 21, 33, 23, -5, 13, 9, 36, -5, -37, 19, 0, 11, -9, 7, 31, 9, 30, 61, -9, 22, -2, -5, -3, -52, 13, 0, -24, -15, -19, 14, -10, -47, -43, -57, 11, -22, -42, 28, 11, -23, 64, -10, 37, -54, -2, -4, -30, 13, -3, -76, -30, 32, 18, -13, 3, 35, -28, -33, -48, -62, 9, 20, 53, -7, -1, 4, -10, -21, -17, -33, 11, 6, -46, 14, 28, 13, 27, -33, -31, -16, 4, 2, 12, -26, 1, -37, 33, -34, -32, 30, 16, 37, 26, -33, 50, 0, 4, -4, 18, 31, 47, -11, 11, 32, -39, 40, 7, 22, 9, 8, 32, -8, -15, 22, 23, -6, -16, -2, -36, -16, -23, -48, -43, 3, -12, -7, -28, 63, 7, 0, -18, 55, 23, -12, 37, -37, 65, -34, -18, -26, -40, -15, 28, -11, 27, 62, 13, -18, -43, -4, -17, -31, 47, 10, 49, 50, -7, -14, -15, 23, -33, -59, 14, 43, 0, -37, 6, -1, -3, 42, -25, -59, 3, 21, 26, 23, -12, 17, -16, 28, -58, 48, 19, -7, -10, -43, -50, -11, -12, 15, -21, 41, 22, -2, 27, 18, -12, -3, -21, -19, -5, -30, 39, 6, -12, 25, -2, 50, -14, 35, -11, -12, 47, -24, -58, -61, 17, -25, -19, -6, 65, -13, 35, 31, -24, 11, -9, 0, 18, 3, -9, -21, 31, 5, -13, 11, 45, -3, -27, 0, 20, -40, -1, -38, -35, 44, -78, 21, -2, -34, 17, 34, -24, -34, 28, -20, -22, -21, -11, -11, -13, -20, 15, -52, 12, 14, -31, 6, -36, -6, 18, 1, 26, 9, 17, -18, 50, 52, 19, 22, 1, 26, -63, 3, 8, 56, -6, -53, -2, -65, 10, -18, -33, 30, 32, -10, -1, 52, -9, 9, 9, 10, 45, -59, -2, -27, 64, -47, -24, 48, -9, -14, 3, 15, 4, 0, 6, -40, -40, -56, 0, 16, -43, -30, -9, 22, -38, 35, 43, -3, 31, 2, 6, -45, 16, -6, 63, 29, -38, -8, 20, 14, 5, -36, 35, -23, 10, 66, -26, -32, 35, -46, -25, -26, 2, -20, -51, 2, 3, 8, -44, -1, 1, -10, 8, 57, 50, 37, 16, 36, -24, 3, -15, 2, 14, -16, -27, -16, 17, 19, -32, -27, 13, 13, 8, 31, -39, -64, 23, -2, -5, 0, -30, -69, 7, 14, 53, 20, 10, -39, -33, -9, -39, 51, -45, 11, -30, -24, -10, -19, 29, 0, 32, -57, 9, 14, 2, -38, -5, 39, -17, 20, -41, 36, -12, 29, 9, -25, 34, -1, -49, -23, 4, -19, -27, 8, 40, 34, -9, -37, 12, 8, 23, 15, 18, 56, -30, -10, -17, 20, -19, -53, -3, -4, -48, -4, 16, -61, -31, 6, -1, 0, 13, -13, 1, -40, -5, -10, 2, -40, -30, 1, -30, 5, -9, -2, -3, 30, 17, -2, 37, -7, 54, 0, 25, -14, -54, 37, 61, 25, 15, -1, -30, -4, -19, 0, -1, 2, -31, 50 ]

Stone, C. J. This is an action of assumpsit to recover for commissions claimed to have been earned by the plaintiff on sale of stock and bonds for the defendant. The declaration contained a special count to the effect that defendant, through its proper officers, entered into an agreement with the plaintiff, in February, 1911, whereby he was to act as its solicitor for the purpose of securing purchasers of the stock and bonds of the said corporation, and it agreed to pay to said plaintiff a commission of 20 per cent, on any stock of the said defendant company sold to any person or persons introduced to, or brought in communication with, the officers or agents of the defendant by or through the efforts of the plaintiff. It was further alleged that whereas, prior to October 16, 1911, the plaintiff introduced to and brought the officers and agents of defendant into communication with certain persons therein named, for the purpose of interesting said persons in the purchase of stock and bonds of the said defendant company, and whereas thereafter the defendant, through its officers and agents, did sell to said persons 2,800 shares of stock in said defendant company, receiving therefor a valuable consideration, and whereas the par value of said stock is $10 per share, there was due to the plaintiff the sum of $2 for each and every share of said stock sold by defendant, through its officers and agents, to said named persons as aforesaid, which had not been paid although demand had been made for same, etc. There were also added the usual common counts, including the count for work and labor done and performed by plaintiff for defendant. The plea was the general issue. Upon the trial there was a sharp conflict, between the plaintiff and defendant, in the evidence as to what the contract was between the plaintiff, and E. L. Buell, the secretary and treasurer of the defendant. There was no claim made by the defendant upon the trial that Buell exceeded his authority as an officer, or that he was not authorized by the defendant to make any contract which he did make with the plaintiff; and, as stated by the trial court in its charge to the jury: “You have an issue, and that is, was a contract made as the plaintiff says it was?” The plaintiff testified, among other things, that he first met Mr. Buell in connection with said matter at the office of the defendant, 610 Majestic Building, Detroit, on February 26, 1911. He testified that Mr. Buell had before that time sent him a letter, and that he called to see him in response to that letter. Plaintiff testified: “I went up and asked what kind of a proposition he had, and he said, ‘I would like you to go to work for the Standard Lime & Cement Company.’ At that time it was called the Standard Lime & Cement Company, but was afterwards changed to the Charlevoix Rock Product Company. I said I would be glad to go to work for them, and asked him on what condition.” A letter seems to have been here introduced in evidence and marked as an exhibit. It is a peculiarity of this record that, while it refers to many exhibits, not one of them is set out, and we are unable to know what any of them contained. The plaintiff continued his testimony: “Mr. Buell wanted me to go to work for the Standard Lime & Cement Company, that was later the Charlevoix Rock Product Company, and I asked him how much it was, and he said that he would give me 15 per cent, on all bonds sold and a bonus of 50 per cent, that I could either keep for myself or give to the customers. That I gave to the customers. I thought they were more entitled to it than I was; and he would give me 20 per cent, of the stock sold and 40 per cent, at par. Stock was then selling at 50 per cent.; that was $5 a share.” He then testified that he started out and commenced to work for the defendant. It was conceded, during the trial of the case, that the Charlevoix Rock Product Company and the Standard Cement and Lime Company were one and the same company; the name having been changed. The witness testified at great length about the work which he did in selling stocks and bonds, and he testified that, in a subsequent conversa tion with Mr. Buell, one I. N. Aldrich was referred to by Mr. Buell as a good “closer.” He testified: “I got acquainted with Mr. Aldrich through Mr. Buell. Mr. Buell told me that he had been interested with him in the Marengo Cement Company, of Marengo, Indiana; that he was a quick closer and could close up quicker than I could, and for, me to look after the prospects, and I would get my 20 per cent, commission anyhow. Mr. Aldrich would close them up for me, and I could pay Mr. Aldrich 5 per cent, on my commission that I would get from Mr. Buell.” Then he proceeded to testify to numerous dea]s in which Mr. Aldrich became interested, and gave testimony generally in support of the declaration. We gather from the plaintiff’s testimony, generally, that he does not claim that he ever, personally, closed the sale of any stock with any of the persons that he interviewed, but that he brought to the office and introduced such persons, who were taken charge of either by Mr. Aldrich or Mr. Buell, and that sales were consummated. He does claim, however, and testified to having sold some of the bonds of the defendant company. On behalf of the defendant, Mr. Buell testified that the plaintiff never made a sale of stock for the defendant and was never paid any money by the defendant at any time; that what stock he did sell, or assist in selling, was private stock belonging to individuals; and he denied that he had any agreement or arrangement with reference to Mr. Aldrich, as testified to by plaintiff, he claiming that the persons, or solicitors who closed the transactions, were the ones who were entitled to the commissions. On his direct examination, after testifying to his connection with the defendant company, he said: “Sorenson first.began to sell the stock of the Charlevoix Rock Product Company in the latter part of February, 1911. He worked for the company until about the first of .November, the same year. “Q. Did he have any contract with the company? “A. No, sir; I paid Sorenson for the commissions upon the sales of any business that he did.” Upon cross-examination, his attention being called to a letter, apparently the one about which plaintiff had testified, the following occurred: “Q. Now, calling your attention to this letter that is dated October 20, 1910: “ ‘Mr. Charles Sorenson, “‘No. 916 Bellevue Avenue, “ ‘Detroit— “‘My Dear Mr. Sorenson: ‘“You will remember the writer having had some talk with you regarding a cement proposition at Charlevoix, Michigan. We now have our bonds ready and are in a position to pay a good liberal cash commission, as well as 50 per cent, stock bonus.’ “Now, who was ‘we’? “A. It is the company. “Q. What company? “A. The Charlevoix Rock Product Company. “Q. Now, when you said, ‘we have a proposition,’ you meant the company had? “A. Yes, sir. “Q. Well, in response to this (indicating), Mr. Sorenson at some time did come in to see you? “A. Yes, sir. “Q. Did you tell him, T want to hire you for myself,’ then, yes or no? “A. No, sir. “Q. Did you tell him who you did want to hire him for? “A. Yes, sir. “Q. Who did you say you wanted to hire him for? “A. I wanted him to sell bonds for the Standard Cement & Lime Company; that is now the Charlevoix Rock Product Company. We fully decided not to make the cement, and changed the name. “Q. At any rate, ‘We now have our bonds ready and are in a position to pay a good liberal commission as well as a 50 per cent, stock bonus’? “A. Yes, sir; that is what we paid him for all he sold. “Q. That is, you paid him a cash commission? “A. Yes, sir. “Q. A 50 per cent, stock bonus? “A. Yes, sir; allowed that. “Q. All right, you don’t call that a contract? “A. No, sir; that is not a contract. * * * “Q. Now, then, you did agree for the company to give Mr. Sorenson 15 per cent, on the sale of bonds? “A. Yes, sir. “Q. Did you agree with him to give him 20 per cent, on the sale of stock? “A. Yes, sir. “Q. Did you agree that in case any of the stock was sold at par that there was 40 per cent, due him? “A. I explained that. “Q. Yes or no to that question. “A. No, sir; the company never paid only 20 per cent. “Q. How soon after the sending of that letter, that I called your attention to, did you see Mr. Sorenson? “A. I could not say. It was some little time after that he came in. “Q. Well, was it answered in person? “A. Yes, sir. * * * “Q. Well, as a matter of fact, as I understand your testimony to Mr. Trevor, the only thing that Mr. Sorenson did was to sell two bonds for the Charlevoix Rock Product Company? “A. Yes, sir. “Q. To Mrs. Emig, and I think to Mr. Martin? If he sold bonds for the price that the company wanted, then the 50 per cent, of stock was his? “A. It was an option to use the stock as he saw fit. * * * “Q. So that he never sold — Mr. Sorenson never sold a share himself from your standpoint, and was entitled to no compensation for a share of stock while he was in the Charlevoix Rock Product Company? “A. No, sir.” For the bonds sold, about which there seems to be no question, the witness testified that he paid the plaintiff by his own personal check; he saying: “I paid him out of my own personal check book. The company settled with me. * * * “Q. Isn’t it a fact that you told Sorenson that any person that he got, that bought stock or bonds, that the commission was his, no matter who closed it? “A. No, sir; I never told him that.” There was further testimony of the same character, and the plaintiff testified in rebuttal that his contract was never changed. The case was submitted to the jury by the trial court in a very clear charge, in which the court, among other things, used the following language: “It is the claim of the plaintiff here that some time in the year 1911 he entered into the employment of the defendant, the Charlevoix Rock Product Company, at that time known by a different name, and that the terms of the contract he entered into were these: That he was to sell the stock, or the bonds of the company; that on the sale of stock he was to get 20 per cent.; that on the sale of bonds he was to get 15 per cent.; that he was to sell the stock at $5 per share; and that he further claims that if he sold at par he was to get 40 per cent.; that he was to use his endeavors to interest parties in this proposition; that, having gotten them very thoroughly interested in the proposition, he was then to report his prospects as probable purchasers to the company and the ‘closer-in,’ or somebody with more experience or more knowledge of the affairs of the company, was to go forth and close the transaction; but that he was, nevertheless, to receive the commission for the same for the work that he had done in leading the prospective purchaser that far in the transaction. “Now, that is the contract in brief words, that the plaintiff claims was made; that is the understanding the plaintiff claims he had when he entered into the work. Now, if you find that such an understanding was reached, of course, that sort of an understanding would constitute a contract. Now, the defendant says that such was not the case at all, that the terms - of the employment were different from what the plaintiff says the terms were, and that the man was not engaged either as to the terms or manner in which he claims he was engaged, and that as to each different transaction a full understanding was had with respect to each particular transaction. Now, it is for you to say whether the plaintiff has maintained his case, or whether the defendant has satisfied you that the situation was as defendant claims it was. (If you find that plaintiff was engaged as the plaintiff claims he was engaged, and that as a result of his labor stocks or bonds were sold, whether those stocks or bonds were out of the treasury of the company or of some person else, if the sale of them resulted from his having reported them to a superior, and the superior officer having taken advantage of his work and sold to the purchaser a different piece of property from the piece of property that the plaintiff had been attempting to sell, the plaintiff, nevertheless, would be entitled to-compensation which the contract said he should receive for .that particular sale.) - Now, in giving you this kind of a statement, do not misunderstand me. I am not finding any facts for you; I am not saying that the officer of the company did the things; I am saying, if you find that to be so, then certain results would follow. It is for- you to say whether or not that particular thing did happen, because the testimony with respect to that has been placed before you. You have seen the parties upon the witness stand.” The jury returned a verdict for the plaintiff in the sum of $851.40, and judgment was entered thereon. At the close of the plaintiff’s evidence, and again at the cloke of all the evidence, the defendant moved the court for a directed verdict in its favor, upon the ground that there was no evidence before the jury that showed any liability on the part of the defendant ; that, taking the plaintiff’s own testimony that he sold some bonds or stock, there was no testimony that he sold any stock that the defendant ever got a dollar for. Th'e defendant also requested the court to charge the jury as follows: (1) That under the proofs in the case the plaintiff could not recover. (2) That the plaintiff had not shown that either alone, or by the aid of any other person, he sold any of the stock of the defendant for it, and is not entitled to recover. (3) That in order for plaintiff to recover a verdict it was necessary for him to show either that he sold some of the capital stock of the defendant owned by it, or that he, together with others working with him for that purpose, sold capital stock of defendant belonging to it, for which he did not receive any commission. (4) The plaintiff would not be entitled to any commission for any sales of stock made to any person or persons after he left the employment of the company. There was a motion for a new trial entered by the defendant based upon the following grounds: (a) Because the verdict was contrary to the evidence. (5) Because there was no testimony to sustain the verdict, (c) Because the proofs introduced showed that the plaintiff performed no services for the said defendant for which he was entitled to any compensation under the pleadings and evidence in said cause. (d) Because the proofs in said cause show that, if any services were performed by said plaintiff for any person whomsoever in relation to the capital stock of the defendant, such services were performed for Elbert L. Buell, and not for the defendant, (e) Because the proofs in said cause show that plaintiff did not sell any capital stock issued for the defendant, but that, if he had anything to do whatever with the sale of such capital stock, it belonged to private parties and not to the defendant. (/) Because the proofs in said cause show that Elbert L. Buell paid the plaintiff in cash for all services performed by him for any person in the sale of the capital stock issued by the defendant. (g) Recause, under any view of the facts shown in the evidence, the verdict rendered in said cause was excessive. (h) Because the verdict in said cause was contrary to law. (i) Because the verdict in said cause was contrary to the instructions upon the law as given to said jury in open court, O') Because the court erred in refusing to direct a verdict in said cause in favor of defendant at the close of the evidence therein offered by the plaintiff, also at the close of the testimony in the case. The court in denying the motion for a new trial used the following language: “Briefly, the facts are that the plaintiff was employed to work for the Rock Product Company. The man who hired him was authorized to effect that sort of an agency. Under the terms of this employment, all prospective buyers discovered by him brought a certain commission to him, even though the sale was actually brought about by some other. It appeared that some sales were made subsequently, but it was the defendant’s claim that this stock was not the stock of the company, but was the stock owned by the agent who had hired Sorenson. Plaintiff was never, according to his testimony, acquainted with the difference in the ownership of the stock. His testimony was to the effect that he assumed that his work regarding it was no different from his work respecting other stock. The whole matter was distinctively a question of fact —rather various questions of fact, and I do not see how the defendant could justify itself by putting in a position of trust with power t'o employ agents, an officer, and then excuse itself for paying a commission on the sale of an agent’s personal property when the seller was not apprised of the difference in the ownership of the property he was selling. Under the theory of the plaintiff as presented to the jury, it would have been possible for a verdict much in excess of this amount to have been returned, and the motion for a new trial will be denied.” The defendant duly excepted to the reasons given by the trial court in overruling the motion for a new trial, and has brought the case here upon writ of error. The first eight assignments of error relate to the rulings of the court upon the admission of testimony. We have read the record with care, and are of opinion that there was no reversible error in the rulings of the court upon that subject. We do not think the assign ments or error upon those rulings present a meritorious question. The remaining assignments of error, beginning with the ninth, relate to: (1) The court’s refusal to direct a verdict for the defendant; (2) the refusal to grant defendant’s several requests to charge; (3) the court’s misstatement of the alleged contract; (4) the erroneous statement by the court of the plaintiff’s theory of his contract to the utter exclusion of the defendant’s theory; (5) the court’s denying of defendant’s motion for a new trial. 1. As we have already indicated, in our opinion there was such a conflict in the evidence of the respective parties that a question of fact was raised for the consideration of the jury as to what the contract was. In our opinion, the court did not err in refusing to direct a verdict for the defendant. 2. We find no error in the refusal of the court to give defendant’s requests above referred to. The first, second, and third requests to charge contained no merit for the reason, already stated, that a question of fact was presented for the jury. Defendant claims that the third request to charge raises the point that plaintiff could not recover for sale of bonds, because there is no such claim in the declaration. Such evidence was competent and relevant under the count for work and labor. No bill of particulars of plaintiff’s claim was demanded in so far as the record shows. The fourth request to charge was properly refused, because if the jury believed the claim of the plaintiff he was entitled to commissions for sales to persons whom he brought to, and introduced to, the officers of the defendant, and whether a sale of stock was actually made before or after he left the employment of defendant would be a matter of no importance. 3. The third and fourth points of defendant’s position may be considered together. We have set. forth so much of the charge as purports to contain the substance of the contract claimed by the plaintiff and the claim of the defendant relating thereto. We find no error in the charge, and are of opinion that the trial court was correct when it gave that portion of the charge embraced in parenthesis, to which the twelfth assignment of error refers. If the plaintiff was correct in his claim that he was hired by the defendant, through its secretary and treasurer, to sell stocks and bond's of the defendant, or to introduce prospective purchasers to the defendant where sales were consummated, as claimed by plaintiff, we do not think the defendant could escape liability by substituting stock or bonds of individuals, where the plaintiff had in good faith negotiated for the sale of the stocks or bonds of the defendant company, as claimed by him. Lastly, we think that the trial court’s denial of defendant’s motion for a new trial was not erroneous, for the reasons given by the trial court. We have examined this entire record with care and find no reversible error therein. The judgment of the court below is therefore affirmed. Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.

[ 8, 35, 11, 6, 0, 21, -4, -3, 7, -14, 53, 29, -23, 9, 9, 2, 4, -20, 53, -27, -17, -28, 25, 4, -8, -17, 12, -83, 5, -13, -50, 2, -38, -56, -27, 67, 9, -31, -14, 17, 3, 40, 35, 2, -29, -9, -4, -64, 39, -14, 30, 6, 21, 23, 6, -47, -2, 22, 46, -4, -29, -65, 50, -45, 28, 12, -14, 9, 56, 7, -30, 17, 29, 25, -18, 9, 3, -24, -32, -28, 0, -13, 32, -4, -67, 24, -9, 2, 12, -20, 10, 13, 13, 33, -4, 0, -25, -7, -19, 7, 10, -7, -56, -10, -19, 20, 17, -34, 11, 31, 4, -17, 27, 5, -33, -25, -31, -55, -16, -46, 7, -42, -39, 40, -35, 22, -32, -24, -27, 23, 5, -3, -26, 37, -14, -26, -22, -27, -3, 23, 37, 3, -66, 14, 28, 27, -1, 24, -32, 17, -33, 6, 26, 34, 27, -12, 13, -1, 51, -69, 39, 13, 9, 2, -21, 0, -47, -28, -35, 4, 4, 23, -7, -61, -39, 4, 8, 0, -34, 38, -5, -4, 8, -18, -5, -65, 27, 4, 11, 39, 23, 33, -14, 71, -38, 21, 17, 20, 32, 0, 13, -21, -14, -21, -30, -34, 31, 33, 28, 51, -27, 3, 26, -55, -22, 35, 9, -42, 34, -41, 6, -49, -20, 43, -9, -77, 31, -12, -42, 20, -9, 1, 37, -34, -37, -25, 20, -10, 58, 25, -61, -21, -15, 7, 29, -61, -51, -4, 19, 11, 6, 10, 0, 20, -3, -15, 8, 3, 7, 31, 19, 44, -40, 58, 15, -46, -22, -5, 3, -8, 16, -47, 5, 14, -11, -50, -37, 1, 18, -28, -1, -27, -35, -9, -13, 14, 20, 1, -51, -36, 23, 45, 75, -52, 23, 34, 49, 8, 15, 18, -38, 23, 16, -19, 9, 3, -14, -17, -21, -8, 5, -32, 31, -5, 11, 16, 23, -10, 25, -40, 18, 36, -42, 53, 59, 0, 53, -33, 31, -65, 22, 8, 9, -21, -49, -21, 24, 16, -10, 10, 39, 40, 51, 18, -26, -7, 5, -41, 12, 0, -68, -89, -18, 24, 9, 22, 48, 8, 1, 27, 53, 11, 41, 24, -14, 0, -45, -11, -12, 64, -10, 51, -25, -14, -1, -16, -27, -17, -68, 87, -17, 16, 16, 5, 47, -30, 1, -1, -16, 10, -37, 60, 16, 51, 5, -6, -11, -51, -54, -18, 18, 27, 4, -27, -76, -21, 31, 39, -8, 34, 32, -32, 25, -13, 0, -26, 52, 42, -10, 19, 22, -42, -17, 2, 53, -18, 24, 16, -59, -35, -18, 28, 16, -17, -8, -45, -44, 20, -5, -1, 12, 0, -16, 35, 36, -38, -3, 29, 47, 16, -22, -4, 8, 30, -23, 38, 12, 6, 11, -12, 9, -38, 34, 9, -16, 6, 64, -26, 4, 46, -4, -10, -19, -2, -27, -6, -41, -35, 18, 10, -17, 29, 10, 13, -54, -22, 8, 27, -13, 3, -11, -14, 37, -31, -4, 18, -45, 15, 33, 27, 0, -26, 1, 2, -24, 19, 10, -32, -33, 43, -29, -14, -24, 2, 88, 8, -15, 40, -9, 27, 33, 44, -36, 33, -29, -29, 22, 2, 36, -26, 5, -58, -5, -7, -19, 14, -1, 0, -4, -13, -5, -4, 11, 31, -42, 20, 0, 25, 18, -22, -47, -23, 35, -25, 10, 17, 44, -29, -14, 16, -39, 0, 6, 12, 37, 6, -2, -27, 25, 39, -26, 15, 46, 13, 0, 0, -15, 22, -16, -61, 0, -19, 25, -25, -36, 13, 56, 3, 0, 29, -21, -22, -23, -35, 20, 13, 25, -9, -7, 57, -8, 0, -54, -18, -62, -47, -11, 58, -2, 7, 23, -20, -3, 0, 49, 9, 0, -27, -2, 36, 3, 2, -10, -24, 47, 34, -49, -10, -43, -2, 9, -41, -47, 41, -33, 3, 35, 23, -26, -19, 16, 3, 11, -7, -17, -52, -32, 38, 52, 2, -35, -30, 72, -14, 20, -23, 4, -24, -7, -52, 5, -2, -12, -22, 32, -23, 25, 20, -16, 11, 39, -4, 8, -47, 9, 46, -12, 39, 19, 10, 36, 22, 21, -3, 18, -1, 0, 33, -20, 8, 15, 20, -36, -24, -26, -1, 41, -14, 22, -53, -13, -49, -13, 30, -2, -33, -15, 28, 8, 15, 53, -60, -25, 7, 18, 53, -18, 8, -46, -20, 4, -42, 47, -23, -31, 44, 13, -21, -71, -60, 58, -38, 17, -3, -25, 52, -19, -45, -54, -49, 24, -8, -33, -4, -13, -11, 12, 66, 23, -5, 2, 22, 24, 41, 42, 12, -28, -22, -37, -1, -77, 66, -4, -49, -34, 28, -7, 10, -2, -56, -38, -24, -16, -15, 0, -29, 42, 13, -2, -24, 6, -21, -30, 15, -43, -18, 11, -6, 50, 12, 43, -32, -3, -31, -21, -20, 53, 12, 2, -6, 1, -4, 3, 56, 1, -11, 18, 33, 18, -1, -63, -14, -15, -52, 30, 21, -40, 13, -1, 3, -69, 12, -17, 19, -15, 8, -11, -10, -37, 11, 47, 10, 19, 20, -21, 42, 28, -50, 0, 23, 5, 15, -36, -15, 35, -33, -41, 3, -30, -35, -3, -2, -25, 12, -39, -17, -20, 3, 27, 4, -11, 23, -84, -29, 33, -25, -38, 5, 4, 34, 26, 50, -36, 12, 25, 28, -16, -22, 33, 27, -39, 4, 13, -9, -20, 7, 67, -38, 3, 63, -27, -53, -46, -25, 32, -36, -30, 30, 52, 12, 17, 18, 33, 44, -8, 51, -18, -16, -24, 22, 75, -43, -25, -10, -80, 76, 20, 26, 23, 59, 28, -12, -37, -38, -14, 26, -3, 33, 34, 36, -26, -38, -4, -32, 33, -14, 2, -53, -39, 6, 46, -5, 1, -32, 17, -6, -37, -28, 3, 32, 45, 19, 13, 23, -33, -54, -33, 0, -1, -27, 51, 23, -16, -8, 14, -11, 21, -15, 5, -11, 25, 1, -46, -8, -2, -16, 19, 2, 0, -43, -15, 16, -17, 37, 20, -14, 19, 18, 7, 58, 28, 39, -50, 33, -13, -10, 42, -11, -7, -65, 0, -32, 24, 30, -6, -5, 17, 15, 33, -10, -14, 10, 21, 24, -40, 37, -14, 25, 12, -82, 5, 16, -22, 54 ]

Fellows, J. Plaintiff received an injury by a particle of steel becoming imbedded in his right eye. That the accident arose out of and in the course of his employment is conceded. As a result of the injury a traumatic cataract formed which was removed by an operation, the expense of which was borne by defendant. Since the operation plaintiff has one-sixtieth normal vision without the use of a glass, but with a strong glass his vision with that eye is above normal, but his two eyes do not co-ordinate. If he uses the uninjured eye, he can not wear the strong glass on the other; if he uses the injured eye with the strong glass he must cover the other eye. The eminent specialist, Dr. Campbell, testified: “Yes, before he could use this injured eye he must have a very strong glass, and that very strong glass so mixes him up with the other eye that he cannot utilize it. So, consequently, if he ever uses this eye, it will have to be when the other eye is excluded from vision. This is a common thing with corneal cataract. * * * “Q. Doctor, then, in your opinion, has the applicant lost the useful vision of his right eye? “A. I might answer that by saying that industrially he has lost the use of the vision of that eye.” The testimony establishes that while plaintiff has useful vision with each eye, he can use but one of them at a time, and the commission, reversing the finding of the deputy commissioner, held that he was entitled to the statutory compensation for the loss of an eye. Preliminary to the main question, it is insisted that the claim for review was not made within the ten days. The return shows that the claim was received within the time but the letter was not opened and the claim stamped until the following day. The commission had the power to extend the time; it declined to dismiss the case, and heard it on its merits. If the actual date of receipt controls, the claim was seasonably filed; if not, the commission haying declined to dismiss and having disposed of the case on its merits, we may assume it would have extended the time as good cause appears for such extension, and it would profit no oné to dispose of the case for this technical reason and send the case back only to have it up here again on the main question. We shall, therefore, dispose of the case on its merits. The main question is new to this court but it has received the attention of the courts in several other jurisdictions. Frings v. Pierce-Arrow Motor Car Co., 182 N. Y. App. Div. 445 (169 N. Y. Supp. 309), was very like the instant case. It sustains defendants’ contention. The workman with the aid of a proper glass had at least normal vision with the injured eye, but it would not with such glass co-ordinate with the uninjured eye. It was held that he had not lost an eye or the use of an eye; two justices, however, dissented. The same division had the question before it again in Smith v. F. & B. Construction Co., 185 N. Y. App. Div. 51 (172 N. Y. Supp. 581), where by the use of glasses the workman had but one-third vision with the injured eye and sustained the award for the loss of an eye. The court distinguished the case in this particular from the former holding where the workman by the use of a proper glass had normal vision, and said that the “rule in the Frings Case should not be extended beyond the facts there found.” The supreme court of Illinois had the same question before it in Juergens Bros. Co. v. Industrial Com mission, 290 Ill. 240 (125 N. E. 337). It was there said: “Plaintiff in error contends that should Kaage lose the sight of his good eye he could by the use of lenses gain the use of the injured eye, and therefore he has not lost the sight of the injured member. The question before this court is whether or not this man has for all practical uses and purposes lost his eye. The application of laws of this character should not be made to depend upon fine-spun theories based upon scientific technicalities, but such laws should be given a practical construction and application. For all practical purposes when a person has lost the sight of an eye he has lost the eye, and to say that the statute providing compensation for the loss of the sight of an eye' does not apply here because of the remote possibility of Kaage losing his good eye, whereby he can through artificial means gain a certain amount of use of the injured member, is to place a construction on a remedial act which deprives it of all practical effect. Such could not have been the intention of the legislature in passing this act.” To the same effect will be found O’Brien’s Case, 228 Mass. 211 (117 N. E. 1), and Stefan v. Elevator Co., 106 Kan. 369 (187 Pac. 861); and in Purcell v. International Motor Co., 91 N. J. Law, 707 (103 Atl. 860, 104 Atl. 894), and Oliver v. Christopher, 98 Kan. 660 (159 Pac. 397), it was held that the failure of the eyes to co-ordinate could be considered in cases involving partial disability under the statutes of the respective States. These are the only cases dealing directly with this questioni which we have been able to find in the time at our disposal. The weight of authority sustains the findings of the commission and we are persuaded that the reasoning of the majority cases is fundamentally sound. The award will be affirmed. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and Wiest, JJ., concurred.

[ 1, -24, -18, 38, -55, -2, -6, 8, -13, 62, -17, 16, 72, 19, 19, 10, 28, 10, -13, 8, 10, 37, -28, -2, -27, 3, -38, -4, 2, 36, -56, 28, -7, 6, -37, 70, 55, 20, 26, 11, 71, -27, 17, -8, 7, -38, 34, -5, -6, -14, 67, -17, -10, -14, -2, 16, 21, 14, 15, 1, 3, 22, 25, -11, 10, 62, 2, 3, 30, 1, -33, 12, 21, 16, -28, -77, 3, 31, 15, -17, -23, -49, 25, -16, 0, 69, 6, 17, 0, -56, -5, -34, -25, -63, -27, 28, -12, -7, 30, 90, -60, 26, -40, -6, -19, -6, -31, 9, -8, 16, 21, -20, -6, -4, 54, -22, -6, 24, -19, 17, 30, 16, 21, 4, 24, 21, -8, -40, -8, -27, 29, -49, -2, 64, -35, -10, -14, -5, 20, -9, -31, 23, 7, 34, -34, 46, -22, -5, -39, 17, 9, -17, -51, -9, -45, -40, -24, -16, 50, -36, 30, 34, 13, 36, 26, 11, 0, -28, 12, 47, 28, -19, 45, -10, 32, 5, 29, -31, -39, -20, -19, -7, 45, -16, 35, -6, -52, 27, 29, -5, -5, -28, -43, 11, -27, 17, 15, 6, 25, -46, 15, -26, -12, 51, 9, 18, -23, -9, 35, 56, 2, 16, -1, -61, 24, -22, -25, -42, -47, -47, -24, -23, 30, -25, -63, -19, -47, -6, 47, -29, -9, -4, 39, 30, 16, -34, 23, -23, 29, -36, -5, 30, -26, 4, 27, 12, -31, -7, -15, 56, 19, 5, 3, -51, -32, -88, -40, -4, 14, -31, -74, 68, 7, 21, 46, -31, 27, 7, 38, -5, -7, 9, 49, 10, -40, -70, -8, -16, 44, 38, 19, 5, -50, 24, -105, 9, 5, -20, -43, 8, 2, -24, -10, -1, 33, 25, 20, 20, -73, -26, 29, -28, -12, 54, 29, 0, -42, 13, 47, -39, -48, -25, 28, -18, 5, -26, -1, 30, 4, 0, -28, 47, 29, -12, -28, -51, 24, -21, 13, 10, -54, 39, -4, 51, 27, -3, 20, -45, 16, -38, 29, -36, 18, -16, -7, 20, 44, -62, 38, 0, -27, 35, 16, 9, 33, 48, -14, -51, -59, 5, 54, -26, -22, 24, 0, -39, 35, 0, -18, 47, 7, -30, 38, -35, 16, 20, 2, -21, 25, 30, 40, -15, 21, -83, -18, -23, -63, 7, 4, -44, -37, -22, 37, 30, -17, -7, -33, -38, 12, -1, 9, 2, -29, 12, -9, -18, -5, 4, -13, -3, -27, 47, -28, 1, 12, 9, 33, 20, 6, -3, 44, 29, -20, -54, -4, -10, -45, -14, -23, -19, -12, 11, 8, -30, -15, -24, -17, -4, 11, 1, -47, -41, -57, 24, 24, 97, 7, 25, 26, -6, 7, 9, 45, 37, -12, 17, 4, 21, -13, -14, -7, -35, -52, -12, -7, -28, -8, -37, 50, 6, 19, -10, 1, 1, -3, -9, -47, 32, -37, -28, -5, 26, -14, 10, -6, -31, -22, 4, 17, 25, 18, -3, 3, 15, -63, -6, -16, 8, -71, -26, -49, 2, -22, 38, 60, -39, 15, -51, 54, -30, -64, 2, 17, -18, 10, 0, -26, 0, -2, 39, 27, -29, -49, 39, -14, 4, -50, 5, 20, -55, 1, -9, 32, 35, 4, 19, 10, -19, -40, -17, -70, 28, 14, 6, 28, -27, -20, 84, 11, 40, 9, -2, 31, 24, 20, -26, 39, 56, -5, -30, -31, 30, 1, 38, 17, -13, 8, 7, 23, -3, -8, -24, 40, 59, 7, -16, 31, -6, -45, 12, -39, 28, -15, -19, -51, -3, 37, -71, -26, 9, 15, -3, 7, 35, -19, -4, 20, 6, -12, 41, -12, 11, -24, -41, 15, 14, 26, 21, 65, 19, -21, 32, -38, -78, -38, -26, -9, 32, 30, 4, 29, -4, -3, 24, -15, 15, 14, -31, 17, -16, -44, -66, -25, -8, 33, 25, -19, 21, -28, -30, 19, -37, 32, 11, 19, -3, -6, 64, -3, -1, 2, 27, 6, -10, -40, 36, -21, 12, -27, 32, -35, -42, -10, -33, 30, 10, -34, 9, 14, -32, 26, 0, 63, -26, 15, -18, 13, 17, -6, -26, -16, -35, 34, -17, -7, 44, -61, -33, 46, -41, -17, 0, 2, -23, 0, -13, 24, -30, -14, 38, -48, 24, 10, 18, 52, 19, 30, 3, 45, 23, 0, 69, -15, -24, 28, 25, -27, -4, -24, 8, 18, -6, 39, -7, 43, 22, -22, 4, 18, -5, 3, -61, -29, -1, -30, 18, -2, -30, -1, 12, 14, 10, 44, 19, 25, -27, 13, 3, -33, -2, -71, 21, -27, -56, -37, 6, -17, 13, -7, 7, 31, -20, 20, -41, 6, -19, 0, -47, -10, -20, 12, -38, 29, 0, -15, 38, -28, -51, 6, 16, -22, -12, 20, 11, -18, -59, -7, 2, 17, 27, -23, 0, 22, -31, 15, -59, 3, -34, 6, -25, 8, 41, 53, -27, 20, 15, 53, -37, 2, -19, 15, 9, -6, 27, -26, -42, -6, -49, 8, -21, 18, 14, -35, 7, 47, 31, 0, -19, 17, 35, -1, 1, -40, 56, 55, -5, -31, -13, -6, 5, 18, 8, -25, 36, 31, -27, -33, -26, -36, 0, -46, -54, -33, -7, 0, -10, 12, -23, 16, 11, -37, -15, -4, 17, 27, -42, 0, 45, -1, -52, 51, 14, -3, -11, -57, 52, -38, -55, -6, 42, 22, -17, 1, -18, 0, -74, 9, 2, -62, 20, 31, 10, 19, -17, -8, 10, 12, 59, 35, 16, 22, 44, 20, 52, 66, -33, 31, -9, -19, 16, 5, 2, -8, -3, 51, -7, 33, -37, -6, -8, 14, 22, 12, 5, 20, 42, 46, 18, 20, 29, 27, 26, 7, 1, 60, -5, -10, -92, -26, 32, 36, -27, -20, 34, -48, 9, 1, 13, -39, 6, 7, -14, 0, 14, -37, 7, 11, -35, -47, 5, 0, 29, -36, 7, 21, 62, 14, -28, -61, -47, 59, -1, -20, -8, 11, 26, -43, -34, -4, 38, -30, -49, 28, -38, -15, -55, 32, -4, -26, 11, -27, 39, -38, 30, -8, -33, 35, -5, 74, 31, 31, 15, -21, 35, 62, 1, 37, 65, -28, -40, 0, -16, 55, -35, 6, 10, -56, 0, -70, -27, 30, 22, 43, 5 ]

Ostrander, J. The brief for appellant contains a meager statement of facts, followed by a subdivision headed “Legal Points,” which is in turn followed by one headed “Argument.” To the point where argument begins there is no reference to any error relied upon or to the manner in which any question involved is raised. Under the heading “Legal Points” it is said: “It was negligence on the part of the railway company not to give due and timely warning of the approach of its cars to street intersections when a street car stopped there discharging passengers. “It was negligence on the part of the street railway company not to maintain a constant and careful lookout ahead when a street car was stopped discharging passengers on a parallel track when the danger of collision was greatly enhanced. “It was negligence on the part of the street railway company under section 13 of Ordinance LIII of the city of Saginaw to propel its car at a wanton and reckless rate of speed in the city as this south-bound car was propelled at a rate of speed of, to wit, 30 miles per hour. “It was gross negligence on the part of the street railway company to propel this southbound car at great speed contrary to ordinance past an intersection where passengers were just being discharged from another car on a parallel track one block from a large factory. “The evidence discloses no contributory negligence on the part of the appellant, and it was error to direct a verdict upon that ground.” It is needless to say that no compliance with Supreme Court Rule 40 is attempted. As has often been pointed out, obedience to the rule not only saves labor on the part of the court, but aids the court in apprehending the precise points which áre involved and the appellant’s contentions. An examination of the record discloses that, plaintiff having rested his case, counsel for defendant moved the court to direct a verdict for defendant upon the ground — the sole ground — that upon the undisputed facts plaintiff was guilty of negligence contributing to his injury; that the motion was granted, a verdict returned, and judgment thereon entered. It also appears from the record and brief for appellant that, while numerous exceptions to rulings of the court were entered, some of which are made the basis for assignments of error, two principal rulings" affecting the re- suit are questioned — one the direction of a verdict upon the ground that plaintiff was himself negligent; the other the exclusion of the contention of plaintiff that testimony had been introduced or offered tending to prove the gross negligence of defendant. I say this appears, but am not entirely certain that the second point is correctly stated. A considerable portion of the brief is a criticism of the alleged non judicial attitude of the court during the trial and the manner and language used in the rulings made. Assuming that the second point stated is involved, it is proper that it be first considered. It is alleged in the declaration, in negativing the asserted duties of defendant, that it wholly and wantonly failed to give any warning of the approach of the car which did the injury, and that the car was driven negligently and wantonly at an unreasonable and improper rate of speed. Further, generally, it is alleged that by the gross negligence, omission, and fault of the defendant plaintiff was struck and injured. Plaintiff preferred no requests to charge, and I am referred to no page of the record for evidence that gross negligence of defendant was relied upon. No ruling of the court upon the subject is referred to; but it appears that after hearing argument of the motion for a peremptory verdict the court took a recess until the next morning. During the recess the court prepared a memorandum of his charge, and upon the coming in of court, the jury being present, the court was interrupted by counsel for appellant as follows: “May it please the court, before the court makes a statement, I desire to say at the adjournment of court last night the court made a request that I be prepared this morning to show the court that under the declaration filed in this case there was a charge of gross negligence. “The Court: I have decided the question. If you desired to do that you should have presented them before. “Mr. Lloyd Crane: This is the first opportunity I have had. I respectfully ask the court to show you the Michigan decisions I have here. “The Court: I decline to hear you.” There was more said to the same effect, and the court proceeded with the charge. It is alleged with a videlicet that the car which injured plaintiff was traveling at the rate of 35 miles an hour. Witnesses riding on the car from which plaintiff alighted described the speed of the car which struck plaintiff in various terms, as that it whizzed past; seemed to be making up time; went at a tremendous rate. The witness Lipinski testified in part as follows: “Q. Can you give us an idea, from your experience, with having driven in automobiles, say, at 15 or 16 miles an hour, about how fast this car was going?” The witness was riding in the car which struck plaintiff, the speed of which she was asked to estimate, and she replied: “A. About 30 miles, I think, an hour.” I do not find other testimony of the speed in miles per hour. She had testified that she had driven in automobiles and had asked and been informed as to the rate of speed they were going. She qualified in no other way to testify as to the comparative or actual speed at which a vehicle was moving. It was sought to show by her that she knew the motorman of the car, having traveled on his car many times during a period of four years, that in going to her work she preferred to take his car because of the speed with which he drove it, and that he drove it faster than other motormen with whom she had ridden drove their cars. In offering some of the testimony of Miss Lipinski which was excluded the purpose was stated to be to show that the motorman on the car on which she was riding — the car which struck the plaintiff, was incompetent. • But I find no testimony admitted, or excluded, tending to prove his incompetency. ' I am not prepared to hold that the declaration, considering all of its averments, does not allege gross negligence. Indeed, if the point was controlling, I should be inclined to hold that gross negligencé is charged. It fairly alleges that a street car had stopped for passengers to alight, and that passengers were alighting therefrom; that upon a parallel track a car was driven at great speed, without warning of its approach, in entire disregard of the fact that passengers from the standing car, some of them, would be likely to cross the street from behind the standing car. But the doctrine of comparative negligence does not obtain in this State, and the gross negligence of defendant, if established, does not in all cases relieve an injured plaintiff from"1 the consequences of his own negligence. Contributory negligence of plaintiff may not prevent a recovery in a case where the defendant, who knows or ought to know of the precedent negligence of plaintiff, does him an injury. Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581) ; Richter v. Harper, 95 Mich. 221 (54 N. W. 768) ; Borschall v. Railway, 115 Mich. 473 (73 N. W. 551). “It may be said that in such a case the negligence of the plaintiff only put him in position of danger, and was therefore only the remote cause of the injury, while the subsequently intervening negligence of the defendant was the proximate cause.” Cooley, Torts [1st Ed.], p. 674. Assuming that the declaration alleges gross negligence of defendant, I find no testimony admitted, or offered and excluded, which in the view I take of the main contention required the court to submit the question of defendant’s gross negligence to the jury. The first assignment of error is based upon the rul ing directing a verdict for defendant. In the brief the plaintiff, appellant, recites the facts relating immediately to the injury as follows: “As a passenger for hire the plaintiff boarded a street car on the west side of Saginaw, and was conveyed to his destination at the corner of Holden street and South Washington avenue, arriving as before stated prior to 7 o’clock on this wintry morning. Washington avenue runs north and south, and is intersected at the point where this accident took place by Holden street, running east and west. The defendant company owns and operates parallel tracks on Washington avenue; north-bound cars using the easterly tracks, and south-bound cars the westerly'tracks. The car upon which the appellant was riding was a northbound car, and therefore upon the easterly tracks, and upon signal stopped upon the north side of the street intersection to allow the appellant and another passenger to alight. The car was stopped on a line with the sidewalk at this point, and the appellant allowed a lady to alight ahead of him, and then he alighted. The cars operated by the defendant company during the winter season were the large inclosed cars that projected over the rails about 18 inches on either side. After the appellant had alighted he stepped back about 2Vá feet away from the car to the east and allowed it to pull out and proceed north in the neighborhood of 30 feet before moving. The Bartlett Foundry was located to the west one block, and, as this was his first morning going to work there, he stopped before crossing the tracks and looked north for an approaching car, and then to the south for any vehicles or automobiles. Seeing no danger, he started to cross the easterly track and proceed slowly, and again looked north, and saw only the rear of the car he had left, and this he estimated was probably 55 feet from where he stood. The way was seemingly clear, and he proceeded toward the westerly track, and when he had taken only a few steps from where he stopped to look, and while he had not reached the westerly track, and was still between the tracks, he was struck by a south-bound car going at a terrific speed, and which sounded no warning whatsoever. The impact of the collision was received upon the right side of his head and body, and he was struck by the projecting portion of the car and thrown forward and to the east, and only in this way escaped being ground to death under the car.” In argument it is said: “We contend first that a street car company does not acquire by its conferred franchise a - servitude or right to priority of way upon the highway as does an ordinary freight or passenger railroad company by gift, transfer for consideration, or condemnation as to land over which it runs its tracks. A street car and a pedestrian have equal rights of the same kind to the concurrent use of the city streets. Bremer v. Railway Co., 107 Minn. 326 (120 N. W. 382, 21 L. R. A. [N. S.] 887), and cases there cited. “We contend secondly that it is not contributory negligence as a matter of law for a discharged passenger to attempt to cross a parallel track when he has looked and his view is obstructed by the projecting back of a retreating car, and when it is conceded the motorman was propelling the car by which he was struck at a reckless speed, and did not give the accustomed signals. “We contend thirdly that upon the following conceded facts: (1) The car striking plaintiff was running at excessive speed, to wit, 30 miles per hour; (2) no warning or signals were given to acquaint plaintiff of the on-coming car; (3) the car had such impetus that it went over 200 feet after striking the plaintiff before it could be stopped; (4) the plaintiff waited until the car he had left had gone north about 30 feet, and looked both ways before attempting to cross the parallel tracks; (5) the plaintiff was struck before he reached the westerly tracks, that is, while he was between the tracks — it was error for the trial court to direct a verdict for the defendant.” It is not conceded that the motorman was propelling the car at a reckless speed and did not give customary signals, 'but there was testimony tending to prove, as I have shown, a considerable rate of speed, and that no signals were given. There are, too, many important facts which were testified to, not embraced in the state ment made by the plaintiff. At the point where plaintiff alighted and for a considerable distance in each direction Washington street is 100 feet wide, and 40 feet of the width are paved. Plaintiff was 30 years old, in health, with unimpaired hearing and vision. He was reasonably familiar with the surroundings, knew of the double tracks and the use which was constantly made of them. There were neither vehicles nor people interfering with his progress nor demanding his attention. Except as the car from which he alighted interfered with observation, the view to the north was unobstructed. He could have seen a car 1,700 feet away. It follows necessarily that he did not look for an approaching car at all, or, if he looked, it was from a point where his view was obstructed by the car from which he alighted. Whatever the legal consequences may be, what plaintiff did not do is put beyond question by the undisputed physical facts. He did not look to the north for an approaching car from a place where his view was for any considerable distance unobstructed by the north-bound car from which he alighted. If he had done so, he would have seen the approaching car. In the line of his progress to the west, and while he was in a place of safety, he would have seen the approaching car if he had looked for it. The case must be considered as though plaintiff had testified that, if he had looked from the space between the rails, and while he was in a place of safety, he could and would have seen the on-coming car, and did not look. Under the circumstances, what did ordinary care for his personal safety demand of him? That passengers alighting from street cars often pass to the rear of the cars and cross the street is a circumstance, a fact, affecting the conduct of those using the street with vehicles. The view of persons alighting from the car and the view of drivers of vehicles approaching from the direction in which the car is moving are alike interfered with for a time by the standing or moving car. Drivers of street cars, traveling in the same street, in opposite directions, on parallel lines of track, cannot, in prudence, ignore the fact that they are approaching a car from which passengers are alighting. But the duties arising from the circumstances are reciprocal. The alighting passenger, desiring to cross the street, owes the duty to exercise reasonable vigilance for his own safety. He knows that an approaching car cannot turn out for him; that it is heavy and cannot be instantly stopped. He knows that until he is in a position to see an on-coming car he cannot be observed by its driver. He can in an instant put.himself in a position where the sharpest lookout and most careful management will not save him. In my opinion, the case is ruled by Clark v. Railway, 168 Mich. 457 (134 N. W. 463). The judgment is affirmed. Stone, C. J., and Kuhn, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

[ -32, -3, 42, -16, -20, -41, 38, -26, -5, 31, -9, -2, -15, 5, 56, -29, 11, -17, -24, 17, -23, -34, -1, -25, -21, -24, 19, -33, 15, 28, 70, 2, -31, -8, 8, 39, 18, -3, 42, 11, 59, 9, 28, -67, 13, -6, 28, 18, 11, -53, 18, 42, 2, -2, -14, 9, 23, 35, 1, 30, 43, -41, -20, -30, 12, 16, 29, 23, -60, 2, -78, 32, 22, -16, 0, -2, 9, 55, -1, 0, -7, 0, 38, -26, 6, 35, -5, 6, -25, -16, 15, -24, -17, -18, 1, 34, 0, -4, -17, -5, -34, 52, -7, -18, -37, 25, -5, -44, 23, -6, -21, 83, -16, -24, -13, 9, 19, -20, 13, 27, 30, -26, 36, 43, -35, -16, -38, 51, -35, 16, 2, 6, -7, 20, 94, 15, -36, -55, -22, 22, -27, 29, 0, -4, -39, -5, -4, 34, -9, -48, -30, -20, -38, -71, -34, -32, -26, -15, 38, -6, 61, 18, 31, 35, -26, 33, -14, 6, -17, 5, 26, -14, 53, -72, 42, 2, -46, -20, -62, -12, 4, 21, -8, 3, -29, -21, 1, 9, -29, -12, 40, -23, -7, -16, 5, 9, -6, 34, 31, 4, 14, -22, -21, 6, -61, 22, -26, 11, 12, 31, -6, -14, -18, -27, -5, -20, -40, -65, 16, -45, -38, -9, -14, -48, -9, -32, -47, -11, -62, 38, -15, 27, 3, 9, 7, -28, 2, -55, 66, -12, 62, -4, 9, -12, -3, -1, 9, -38, 10, 39, 27, 10, -35, -28, -4, -34, 8, 10, -31, -46, 54, 75, -27, 62, 9, 10, -20, 11, -11, -22, 19, -18, 12, -18, -29, -76, 14, 4, 57, 21, 13, -6, -25, 10, -10, 24, 5, 55, 0, 5, 3, -67, -20, 49, 49, 23, 41, 26, -30, -44, 17, -24, 2, 16, 67, 13, -23, 43, -18, 13, -19, -43, -11, 8, 53, -4, -2, -14, 78, -32, -46, 30, -14, -26, 12, 12, 31, -26, 17, -36, 15, 42, 38, 48, -3, -29, -25, 4, 6, -15, 5, 21, 15, -32, 10, 37, 34, 7, -19, -11, 0, 9, 34, -40, -13, -28, 24, -63, -1, 9, 15, -2, 20, -16, -10, -22, -2, 27, -16, 45, 17, -55, -15, -15, -12, -37, 57, 23, -41, 78, -38, -29, 27, -52, 13, 11, -40, -33, -13, 37, -36, -15, 43, 24, 0, -5, -10, 60, -38, 28, -26, 3, 30, -17, 10, -21, 49, -9, -31, 33, -24, -4, 74, 22, -3, -9, 18, -16, -6, -38, 20, 3, 19, -4, 2, 20, 0, -38, -12, -34, 28, -11, 40, -29, -38, 10, 7, -15, -25, -32, -61, 24, 19, 22, -21, -8, -2, -12, 15, -44, 34, 14, 66, 42, -21, 11, 33, 27, 12, 21, 30, -28, -12, 23, -19, -44, -11, -30, 69, -14, -13, 23, -16, 23, -12, -8, 0, 9, -34, -36, -53, -11, 22, -74, -27, -21, 15, -29, 43, 16, 19, 65, 4, -37, -50, -10, -38, 16, -23, 18, -24, -19, -30, -5, 9, -36, 32, -40, 38, -6, -5, 7, 30, 14, 1, 20, -41, -19, 5, -21, 6, -14, -25, -43, -53, -15, -5, -36, -16, -5, 49, 14, 4, 22, -33, -5, 22, -6, -12, -4, -18, -15, -4, -36, -7, -24, 4, 8, 7, 7, 0, 26, 20, -14, 17, -21, -64, -24, 13, -36, 27, 18, 17, 17, 27, 29, -32, 28, -1, -65, -29, 40, 18, -62, -32, 41, 24, 25, -33, -21, -7, 27, -11, -22, -48, -2, 13, -3, -15, 21, -2, 14, 31, 3, 26, 12, -12, 36, 40, 33, -6, -31, -41, 22, 14, 13, -49, -51, 25, -12, 37, -36, -14, 32, -12, 10, -28, -6, 52, -14, -39, 1, 10, -10, -33, -21, 19, 16, -29, -49, -18, 5, -62, -14, -1, 25, 20, 8, 7, 6, 8, 38, 73, -17, 31, -41, -77, 56, -8, 25, -43, 31, 1, -54, 15, 35, -20, 24, -65, -50, -3, 14, -25, 0, -28, -13, -25, -30, 21, -11, 38, -11, -24, 19, 24, -32, 12, 15, -24, 57, 41, 8, 26, -55, 2, -62, -31, 38, 85, -18, 0, -5, 6, 35, -40, 10, 43, -10, 19, -43, 4, -2, 27, 9, -42, -43, -13, 35, 59, -2, 32, 14, -7, -9, 0, 36, 12, 6, -69, 37, 46, 12, -10, -29, 9, 25, 46, -35, -16, -4, -20, -9, 17, 4, -35, 16, 42, -53, -15, -5, -25, -11, 20, 7, -40, 30, 23, -33, -6, 6, -14, 12, 100, -23, 30, -12, 6, 31, -6, -58, 16, -37, 20, 1, -33, 19, 2, -11, 0, -1, 7, -26, -21, -49, -56, 83, 51, -56, 34, 18, -22, -15, -5, 56, -8, 10, -11, 23, -24, 9, 35, -2, -7, -12, 6, 0, -6, 17, 0, -9, -10, -17, -24, 48, -43, 14, 1, 73, 30, -15, -2, -10, -32, 0, 27, 17, 31, 56, -12, -3, -23, 41, 8, -2, -28, 0, 0, -45, 56, 6, 72, -8, 10, 51, -21, 28, 35, 25, -20, -14, 45, 9, -42, 40, 37, -13, 7, 5, 39, -8, -19, 1, 33, -9, -1, 0, 1, -13, 6, 72, -35, -2, -40, -17, -6, 10, -71, -19, -20, -50, 16, 37, -6, -28, 11, -13, -10, -16, 13, -8, 17, -59, 23, 26, -38, -51, -14, -69, 40, 27, 31, -9, 37, -5, -34, -23, -59, 11, 14, 32, -14, 39, 29, -2, -34, 36, 4, -25, -43, 2, 3, 24, 23, 7, 8, 33, -70, 8, 73, -8, -34, 14, 27, 4, -64, 35, -10, 33, 10, 40, -9, -41, -4, -28, 38, -23, 7, -7, 13, 0, -35, -35, -58, 73, -1, -53, -35, 0, 3, 2, 0, 9, -29, 35, 23, 12, 6, -18, -35, -32, -2, -1, 41, 0, 20, -42, 4, -11, -16, -5, -36, -12, 10, -1, -16, 12, -12, -20, -38, -8, 35, 2, 21, 47, -41, -7, -2, 0, -9, 56, -30, 7, -47, 0, -44, -21, 0, 14, 25, -35, 16, -19, 15, 23, 32, -4, -20, 14, -8, 29, -16, 31, 30, 25, 63, 41, -46, -53, -27, -34, 20, 72, -6, -9 ]

Stone, C. J. The bill of complaint herein was filed to reform and correct the description of a certain parcel of land in the village of Holly contained in a deed to the defendants and in the deeds to other predecessors in title as far back as and including a certain deed executed by John Lacey and wife to Frances A. Rumley, bearing date August 21, 1880. It is undisputed that James G. Mitchell’s plat of the village of Holly was dedicated on May 10, 1855, and, when dedicated, Oakland street, which runs east and west through said village, was 100 feet wide. Lots 16 and 17 are located on the north side of Oakland street, and are 110 feet in length north and south by 40 feet wide east-and west, and the strip of land in dispute is said to be 16% feet north and south by 25 feet east and west, toward the rear of these lots. It is also undisputed that on the 27th of September, 1867, by order of the circuit court for the county of Oakland, one rod of both sides of Oakland street was vacated and abandoned by the village for street purposes, and it is claimed thát adjacent lot owners immediately took possession of the abandoned part of the street. Prior to 1880 one John Lacey was the owner of lots 16 and 17, and other lots lying east thereof, of block 1 of said plat, and had been the owner for a number of years. On August 21, 1880, he and his wife executed a deed to Frances A. Rumley. In said deed the description of land was as follows: “Commencing on the south line at the center thereof of lot 16 in block 1, James G. Mitchell’s plat of Holly village; thence east 45 feet; thence north 90 feet; thence west 25 feet; thence north to alley; thence west to a point north, of the place of beginning, thence south to the place of beginning, being on section 33, town 5 north, range 7 east, Michigan.” It is the claim in the complainant’s bill that Mr. Lacey made an error in the starting point of the description of land contained in said deed, that he intended to sell and convey to Mrs. Rumley, and that Mrs. Rumley intended to purchase, and supposed she had purchased, a piece of land which would be properly described by starting at the north boundary of the street, or one rod south of the original lot line, and that the correct description should have been as follows: “Commencing at a point one rod south of south line, at the center thereof of lot No. 16 in block 1 of James G. Mitchell’s plat of Holly village; thence east 45 feet; thence north 90 feet; thence west 25 feet; thence north to the alley; thence west to a^ point north of the place of beginning, thence south to the place of beginning, being on section 33, town 5 north of range 7 east, Michigan.” The bill in its stating part seems to have been filed on the theory that there was a mutual mistake of both parties in the description of the premises conveyed, not only in this deed, but also in the deed of Mrs. Rumley to one James H. Cummings, by James H.' Cummings to James R. Winglemire, and by James R. Winglemire to the defendants, and that a similar mistake occurred in the deed to the complainant of the property lying east of that, which has been above described, contained in a deed by the heir and legatee of said John Lacey to the complainant, which deed bears date July 5, 1910, in that the starting point in all these deeds should have been one rod further south than that given in the several descriptions. These claims and allegations of the complainant are all denied by the answer of the defendants; and, among other things, it is the claim of the defendants that they and their immediate grantor, Winglemire, had been in the possession of the disputed strip of land for many years, cultivating it and claiming to own it, and that the defendants were bona fide purchasers under a warranty deed from said Winglemire bearing date November 13, 1909, the consideration of which deed was $1,000; that they purchased and went into possession of said property without any notice or claim that the complainant or her predecessors had or made any claim to the strip of land in dispute. It will be noted that the vital question in the case was whether there was a mutual mistake in the point ending at 90 feet north of the starting point, at which the boundary or description runs west 25 feet. Whether that point was correctly located there, or should have been 161^ feet further south, is the important question in the case. It is undisputed that at the time John Lacey and wife executed the deed to Mrs. Rumley he had a large barn located next to the alley in the northwest portion of his remaining property, which was built upon a stone foundation, and that there was a shed some 10 or 11 feet wide upon the south side of the barn extending the whole width of the same east and west. That shed seems to have disappeared some years ago, and long before the defendants made their purchase. If the defendants’ claim is correct, the southwest corner of this barn encroached upon the disputed parcel for a distance of about 5 feet north and south and 2 feet east and west in the northeast corner of the disputed parcel. At the hearing the facts were a good deal in dispute. After reading the entire record, we are impressed with the wisdom of the rule frequently announced by this court and distinctly stated in Kinyon v. Cunningham, 146 Mich. 430 (109 N. W. 675), viz.: “To justify the reformation of a written contract upon the ground of mistake in drafting the same, the alleged mistake must be proved by clear and satisfactory evidence, and the mistake must have been mutual and common to both parties to the contract.” Mrs. Rumley was examined as a witness for the complainant at the hearing. Much of her testimony is vague, indefinite, and unsatisfactory. We think it does appear that it was her understanding at the time that the south line of the property which she was purchasing was the street where the sidewalk was, but how far north she was to go from there before turning west in her description she was entirely “at sea.” She was also quite positive that she did not purchase any part of the land occupied by Lacey’s barn; and, while she testified as to the intention of Mr. Lacey, it is very evident that such testimony was a mere conclusion of hers. On cross-examination she testified as follows: “I just bought the Lacey land described in my deed. I did not buy any other- land. I simply bought what was described in the deed. In the deed we have referred to I bought all of the land described in the deed and took possession. “Q. And occupied it up to the time you sold it to Mr. Cummings? (Objection by complainant’s counsel.) “The Court: Your description in the deed does not cover, apparently at least, the claims of 16% feet said to be vacated for a street-while you say you bought just what is described. You ought to know what the description is before you answer the question. “A. Yes; but I suppose the description in my deed, would show. “The Court: That is disputed. It is clear the deed does not show. “A. Well, I bought from what I call the lot line. I meant that I bought from the lot line.” Whereupon the description in the deed was read to her, and the question was then asked: “Q. That is the land you purchased from Mr. Lacey, is it not? “The Court: Now, if you answer that question as it is, it'conflicts with your direct testimony in this case, if you don’t know what the description means. “A. I don’t know. I couldn’t tell the number of feet or anything about it. “The Court: Did you ever study that description to know what it is? “A. No; I never did know anything about it. I suppose I deeded this same property to Cummings that I received from Lacey.” We have referred to this testimony of this principal witness in the case upon the question of mistake to show its unsatisfactory character. Even if we were to hold that the evidence was sufficient to show a mutual mistake made by Mr. Lacey and Mrs. Rumley, we are then confronted with the question whether these defendants, having purchased and paid for this property and entered into possession of it, as we think the evidence fairly shows they did, under their deed above alluded to, should be disturbed in such possession. It has been held as a general rule that a deed will not be reformed against a bona fide purchaser for value without notice, assuming the grantor to be lawfully entitled to convey the very quantity denoted by the description in his deed. We gather from the evidence that there was nothing in the whole transaction even to put these defendants upon inquiry as to any right or claim of the complainant or her grantors in this small parcel of land. It is too well settled to need citation of. authority that no reformation of a deed can be made affecting the property after it has gone into the hands of a bona fide purchaser for value without notice. Dart v. Barbour, 32 Mich. 267; Toll v. Davenport, 74 Mich. 386, 397 (42 N. W. 63); Culbertson v. Witbeck Co., 92 Mich. 469 (52 N. W. 993). A bona fide innocent purchaser for value and without notice is the peculiar favorite of a court of equity, and the authorities unite on the proposition that a mistake in a written instrument will not be corrected against such a party. 34 Cyc. pp. 956, 957, and' cases cited. The most that can be said against the defense in this case is that, when the defendants purchased the property, they were informed by their grantor that the Lacey barn projected upon the northeast portion of their premises to the extent of 2 feet in width east and west and about 5 feet in length north and south, and some manure had been from time to time thrown out from the southwest corner of said barn upon their premises. This would be notice to them of any claim which the complainant or her grantor had in that part of the premises so occupied and used. This, however, constituted but a very small portion of the piece of land in dispute, and no resort to equity was necessary' to adjust those rights. It is a significant fact that in the deed to the complainant, after following the metes and bounds contained in the other deeds, there is a specific description of the vacated property as follows: “Also the land adjacent to above grant on south, released from Oakland street, by an order of the circuit court in [equity] chancery on the north side of said street; all of said lands are in block 1, James G. Mitchell’s plat of Holly, on section 33 town 5 north, range 7 east” —thus making a specific conveyance of the rod in question. There are many objections raised by defendants’ counsel to the right of complainant to any relief in the case, which we do not discuss or rule upon, because we are convinced that, taking the entire record, the complainant has not sustained the burden cast upon her to show that a mutual mistake was made in the deeds referred to, and especially that no such case has been made out against these defendants which should disturb their rights in this property. In our opinion, the bill of complaint should be dismissed, without prejudice to the rights of the parties to resort to a court of law to adjust their rights, and the decree of the court below is reversed, with costs to said defendants. Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

[ -7, 2, 52, -39, -11, 8, 38, -13, 35, 19, 22, -11, -13, -3, 14, -3, -19, -63, -1, -19, -3, -70, 4, -35, -3, 4, 35, 28, -4, -3, -7, 23, -32, 32, 75, 21, 67, -13, 0, -6, -67, -40, 43, -51, 27, 38, 4, -16, -5, -59, -40, -45, -3, 15, 7, -26, -66, -30, -3, -15, -26, -3, -16, -51, -29, -8, 27, 12, 46, -40, -6, 14, 16, -91, 21, 34, -18, -25, -63, 29, -48, -10, 47, 21, -14, -13, 23, -11, -22, -19, 0, -3, 6, 75, 5, 22, -6, -8, 1, -6, 19, 47, 6, 9, 30, -48, -24, -46, -3, -36, -13, -41, 24, -23, -3, -14, 27, -20, 64, 0, 21, -15, 16, -27, -63, 46, -26, 4, -20, -18, 9, -32, 17, -13, -12, -14, -10, -51, 82, 21, 18, 0, -46, -27, 8, -34, -45, -19, -13, -66, -16, 31, -14, 4, -10, 24, 53, -10, 26, -14, 17, -28, 40, -63, -50, -5, 36, -27, -9, 61, 30, -27, -31, 11, -39, -32, 24, 37, -15, 10, 21, 1, 12, -34, -18, -31, -38, 15, -31, 18, 61, 15, 7, -87, 0, 5, -5, -11, -46, -33, -24, -48, 30, -61, -23, -6, 25, 9, 22, 48, -15, -49, -51, 40, 12, -12, 52, -42, 64, -16, 9, 18, 14, 36, -13, 3, 15, -23, -9, -10, -14, -23, -47, 2, -52, 10, 5, -3, -15, -11, -9, 4, -24, -11, -9, 87, 26, -8, 26, 31, -22, -13, -38, 2, -12, -8, 19, 11, 0, -10, -23, 25, 14, 44, -21, 10, -17, 31, -11, 72, -34, 3, 19, 31, -12, -6, 10, -67, 24, 48, -16, -32, 56, 31, 30, 28, -18, 49, 16, 2, -12, 0, -24, -11, -21, 28, 12, -48, 13, -32, -29, 10, 13, -49, -6, -7, 14, 0, 68, 16, -23, 14, 37, -31, 13, -1, 22, 22, 30, -6, 42, 24, -10, 13, 8, 60, 32, 34, -18, 24, 16, -6, 24, 40, 49, 35, 24, -60, 13, -11, 71, 35, 31, 31, 13, 9, -25, -11, -15, -13, -14, -20, -42, 37, -25, 13, 1, 8, -9, 58, 45, 56, 17, -27, 6, -20, -42, -42, -9, 35, -32, 21, -42, 72, 19, -11, -22, 6, 29, 75, 60, 21, 22, 65, 78, -61, -27, -50, -29, -19, -15, 25, -26, 12, 29, -6, 12, -8, -47, -35, 0, 47, -17, 74, -23, 33, -14, 60, 32, 24, 31, -40, 20, -37, 17, 15, -4, -68, 18, -7, 56, 41, 10, -53, 3, -47, 29, -5, 25, -6, -35, 17, 14, 10, 42, -9, -42, -2, -32, -1, -16, 32, -35, 30, -45, -31, -20, 61, 43, -55, -1, 34, -49, -3, 24, -2, 56, 19, 26, 12, 60, -22, 0, 25, -29, -12, 3, -13, -46, 44, -52, 15, -23, 16, 21, -8, 67, 9, -16, -21, 50, 17, -25, -7, -11, -42, -2, 39, 3, 17, 41, -33, 1, 36, 67, -12, -43, -74, 15, 37, 0, 24, -17, 9, -33, 5, 3, 40, 64, 62, -50, -36, 2, -6, 4, 33, 35, -47, 29, -13, -32, -17, -25, -29, 10, 14, 59, -20, 11, 40, -22, 6, -23, -14, -2, -26, -53, 79, 16, 5, 25, 0, 22, 34, -20, 12, -15, -48, -25, 2, -39, 0, -24, -42, -34, 30, -23, -29, 36, 5, -19, 1, 18, -54, 50, -12, 69, -44, 25, 37, -26, -13, 39, -35, 4, 14, -13, 28, 24, 18, -46, -49, 15, 5, 32, 1, 0, 55, -43, 58, -19, 4, -57, -22, 5, -6, -43, 29, 51, -22, -8, -76, -6, 0, -25, 15, -16, 11, 14, -10, -30, -30, 4, 38, -4, 40, 2, -28, 14, 35, -38, 0, 9, 20, 23, -23, 13, 29, -24, 4, -36, 2, 26, 23, 40, -10, 9, 25, 31, -21, 10, -74, -66, 9, -35, 31, -45, 45, -6, -7, -65, -1, 22, -25, 16, -24, 18, -28, 24, 65, 53, -24, 1, -23, -16, -30, 29, -10, 36, 6, -33, -48, -13, -10, -53, -34, 4, 55, 65, -19, 29, 25, -3, 15, -9, -21, -25, 1, -5, 36, 33, -7, 17, 7, -4, 11, 25, -19, 7, 29, 0, 81, 7, 24, -14, 67, 37, -1, -26, -54, 25, -10, 9, -22, 2, 40, -5, 28, 2, 38, -24, -16, -43, -40, -44, -10, -12, -40, -26, 10, 13, 39, -13, -39, -48, -50, -25, 22, -2, -10, 5, -80, -75, 2, 23, -12, 42, 8, -53, -8, 7, 7, -50, 26, 45, -51, -53, 41, -45, -26, 14, 9, -15, -54, -16, 18, -2, 9, 2, 12, -34, 39, -17, 1, -21, -24, -21, -9, 18, -17, -3, -26, 4, -28, -41, 30, 19, -59, 28, -10, -31, -26, -34, -16, -17, -14, -16, -46, 25, -3, 31, 28, -43, 31, -2, 5, -93, 13, -17, -2, 6, -9, -25, -71, -13, 38, 41, 33, 16, 14, -2, -2, 23, -31, 76, -1, 14, 5, -1, 10, 32, -2, 32, 7, -14, -36, 6, -40, -12, 28, -30, -14, -10, 15, 12, -23, 7, -1, 44, -18, -38, 16, 17, 0, -46, -2, 22, -24, -18, 27, 32, -42, -22, -82, -27, 34, 54, -32, 35, 32, -7, -57, -29, 23, 19, -16, -24, -61, -14, -6, 2, -17, 31, -54, 9, 21, -1, 49, 41, 28, -1, 44, -1, 8, -34, -15, -31, -11, -39, -36, -18, 27, 3, 5, -42, -49, 2, 0, 24, -9, -26, -91, -11, -49, -49, -11, 29, 9, -68, 25, 20, -51, 25, 20, -40, 15, 54, -18, -43, 42, -34, 42, -37, 16, 20, 26, 46, -39, -2, 46, 24, 65, 45, 5, -11, -52, 3, 14, 24, 0, -4, -12, 72, 42, -43, 13, -72, -3, -24, -59, 37, 11, 8, -30, -1, 0, -15, 36, 32, -22, -35, -4, 6, 48, 15, 10, 12, 41, 32, 38, 9, -52, 21, 46, 15, -2, -10, -13, -3, -18, -2, -19, -31, -33, -6, -31, -42, 21, -23, -25, 54, 3, 21, 9, 31, -45, 31, 18, 6, -8, -51, -1, 31, 63, 4, 59, -1, -6, -37, 0, 51, -21, -1, 25 ]

O’Hara, J. Defendant appeals of right from a judgment of $2,900 awarded plaintiff for breach of an employment contract. The contract was for 9-1/2 months of teaching in the defendant school district for $5,800 payable at two-week intervals for the 1967-1968 school year. Her authorization to teach was a 90-day substitute teacher permit obtained for her by the school district. Her services were terminated at the end of the first semester. There is no claim that plaintiff’s services were in any manner unsatisfactory. Rather, it is conceded that she was a “competent and effective” teacher. She was replaced because she was not “certified” and a properly certified teacher became available for her position in January of 1968. It is the defense of the school district basically that its superintendent could not apply for a continuation of her temporary permit because the application included an oath-supported statement that no properly certified teacher was then available. The contract plaintiff and defendant executed contained the following provision: “This contract shall terminate if the certificate shall expire by limitation and shall not immediately be renewed or if it shall be suspended or revoked by proper legal authority.” Plaintiff never had a “certificate”. The proviso has no effect on her rights under the contract. The defense may be legally viable as applied to a teacher protected by the teacher tenure act but it is inapplicable here. The irreducible fact is defendant district ill-advisedly executed a contract for the whole school year with a teacher who at the time had a teaching permit for only 90 school days. The district was well aware of this fact. There was no concealment or misrepresentation on the part of the plaintiff.. The penalty for eihployment of an unqualified teacher when one properly certified is available is loss of a certain amount of financial state aid. The defendant district suffered this sanction in the past. It is understandable perhaps why it chose to terminate plaintiff’s services when it did. The district placed itself in its untenable position. Lee B. Lonsberry, the Supervisor of Teachers Certification for the Michigan Department of Education, was called as a witness for defendant district. He testified in part as follows: “Q. Have you had an opportunity in your position to advise [school] boards as to whether they should sign a contract with a [temporary] permit teacher? [Bracketed material added for clarification.] “A. I have advised during the clinics I referred to earlier, repeatedly throughout the state that I did not think it was good policy to issue contracts to permit holders. “Q. Do you think that the nature of the contract here for one year in the form of a tenure contract is good policy? “A. I do not.” We hold that where a school board undertakes as here to contract with an applicant who has only a temporary permit, which is effective for a period shorter than the period for which the contract assures employment, the hoard (district) cannot he heard later to complain that the permit expired and was not renewed and, therefore, that the hoard is relieved of its contractual liability to the teacher who, in all other respects, was blameless. The judgment below is affirmed. Costs to appellee. All concurred. MOLA § 38.71 et seq. (Stat Ann 1968 Eev § 15.1971 et seq.).

[ 32, -37, -46, 6, 39, -4, 0, -6, -25, 22, 45, -12, 49, -18, 24, -26, 23, 22, -24, -32, -69, 7, 7, 2, 6, -21, 29, -39, -26, -8, -13, -12, -9, -29, -9, 0, 47, 1, 16, 7, 16, -9, -45, -31, 0, -15, 12, 13, 20, 13, -21, 42, -19, 15, 38, 1, -26, -17, -10, -3, -62, 48, 24, -34, -57, -31, 24, 69, -15, -12, -24, 45, 21, -47, -37, -8, -23, -13, 27, 43, 31, -18, 45, -71, 38, 18, 19, -19, -19, 12, -23, 32, -36, -1, -53, 18, -21, 2, 52, -2, 21, 0, -4, 4, -29, -32, -25, 0, -50, 30, 10, 28, 55, -43, -26, 22, 2, 17, 47, -8, 31, 17, -16, -39, 67, -19, -22, 1, 14, -24, 13, 13, -45, 7, 26, 28, 29, -12, 90, -23, -39, 27, -22, -47, -5, -39, -10, -25, -55, -41, -57, -29, 35, 25, -15, -15, 62, -12, -10, -59, 66, -15, -9, 21, -19, -78, 14, 7, 47, -20, 78, 9, 3, -41, 2, -22, 60, 24, 31, 18, -46, -28, 11, -45, 62, -35, -51, -35, 38, 63, -8, -18, -6, -42, -1, 38, 5, 42, -45, 11, -9, -5, 6, 38, 6, 7, -16, -44, -6, 47, -24, -21, 13, -27, -57, -28, -11, 66, 7, 21, 13, -26, 5, 15, -10, -82, -31, 19, 10, -19, 32, 43, 13, 11, -9, 14, -22, 57, 80, -26, 19, -6, -27, -1, -34, -68, -45, -18, 31, 16, -27, 2, 23, 10, -30, 19, -32, 34, -49, -28, -5, 44, 6, -9, -11, -18, -6, 83, 3, -40, -1, -20, 11, 19, 31, -24, -57, -28, 7, -2, 8, 74, -50, 48, -41, 39, 12, 29, 4, -38, -5, -32, -25, 2, 30, -37, 25, 36, -28, 35, 9, -34, 72, 31, -10, 28, -27, -31, 40, -19, -42, 20, 21, 10, 26, -34, -50, -88, -25, -15, 18, 10, -3, 13, -2, -43, 19, 0, -21, -36, 41, -33, -40, 14, 58, -31, -23, -18, 6, -21, 55, 5, 37, 5, 37, 17, -43, 7, -14, -33, 32, -2, 17, 27, 8, 6, 20, -1, 14, -19, -33, -5, -17, -58, -9, 46, -4, 24, 51, 1, 30, -55, 5, 2, -8, -24, 19, -8, -37, 34, -39, 0, -43, 40, -6, -14, 26, -14, 24, -70, -44, -9, -9, -33, 28, -2, 49, 36, -27, 8, -1, -4, 25, -10, -1, -64, -60, -44, -53, 46, -13, 2, -8, -34, -17, -32, 68, -56, 37, 4, 39, -27, 2, 42, -7, -46, -39, 8, 24, -3, 0, 28, 46, -12, -33, -38, -14, -23, -39, -5, -1, 12, -80, -3, 19, 67, 21, 24, -39, 9, 38, 24, 14, 47, 5, -22, 2, 14, 29, 47, -31, -33, 45, 4, 10, -42, -34, 19, -15, -3, -7, -6, 6, 76, 20, -23, -19, 11, -23, 39, 38, 13, 51, -46, -19, 15, 36, -37, -49, 10, 11, -4, -66, 42, -6, 20, 47, -37, -8, 67, -30, -27, 48, -38, -34, -52, 0, -34, 9, -45, -29, 9, 10, 49, 1, -72, -4, 8, 39, 27, -15, 24, -40, -30, 26, 27, -44, 1, -1, 29, 36, 99, 88, -3, 28, 27, -18, -2, 2, -23, -42, 45, -32, 64, 50, -39, -55, -33, 25, 37, 56, -31, -12, -9, -72, 14, 32, 16, 38, -40, -38, 38, 6, 29, 8, -5, -43, 32, 2, 44, 8, -45, 13, -11, -33, -12, 51, 8, 14, -4, 35, 34, -13, -17, -35, -15, 30, 8, 38, -17, 31, 19, -7, -30, 5, 5, 39, 10, 24, 27, 4, 2, -43, 18, -1, -17, -44, 35, 4, -41, -8, -10, 9, -80, -6, -53, 37, 77, 33, 36, -13, 23, 40, 21, -26, 80, 36, -46, 35, -49, 31, 4, -25, -15, -20, -21, 11, -3, -16, 3, 31, -26, -20, 40, -33, 17, -20, 17, 17, -52, -18, -14, 42, -56, -5, -31, -41, -29, 36, -40, -35, -17, 3, -4, -50, 4, -39, 16, 0, -39, -24, -31, 40, -30, 12, -21, 51, 12, 2, 3, 21, 44, -21, 4, -25, 16, -31, 15, -20, -21, 40, 27, 17, -20, -15, -92, 29, 38, 1, 24, -28, 50, -36, 3, -28, 40, -26, -6, 27, 73, -28, 26, -26, 1, -14, 7, 13, 16, -68, 24, 7, 28, -12, 38, 9, 33, 46, -36, 11, -45, 36, 56, -42, -22, -15, 6, 42, -5, 8, -41, 22, 0, -20, -18, -7, -10, 30, -31, -65, -61, -7, -76, 30, -15, -51, -19, -10, 4, -28, 40, -32, 17, -19, -6, 31, 18, -4, -46, 15, -16, 30, 7, 10, 0, 57, 10, 48, -24, -32, -45, 16, 26, 0, -5, 20, -56, -20, 1, 4, 16, 10, 8, 23, -4, -13, 33, 2, 41, -5, -40, 1, -10, 7, 40, -17, -2, -51, -26, -10, -26, 16, 60, -40, 35, -33, 28, -31, 2, -38, 23, 13, -9, -24, 7, -12, 7, -4, -32, -44, 6, 2, -22, 61, -14, 0, 3, -57, 5, 21, 15, -8, 1, -1, -38, -2, 17, -11, -3, 13, -56, -20, 10, 6, 1, 34, -7, 21, -34, 34, 27, 1, 1, -48, 26, 31, 82, 11, 22, 67, 13, 28, -14, 43, 23, -16, 35, 0, -20, 22, -2, 20, 6, 9, -30, 0, -15, -2, -23, 18, 23, 42, 72, -7, -23, -17, 4, 21, 30, 20, -23, 25, -2, -31, -50, -19, 28, 48, -58, -3, 22, -1, 30, -13, -28, 41, 17, -40, -16, 29, -24, -6, -52, -35, -48, 30, -1, -15, 15, -44, -1, -1, 14, -10, 56, 43, 22, 63, -27, -7, -10, -40, -22, -6, -22, -5, 44, -15, 34, 13, -3, -37, 58, 40, 14, -107, 11, -35, 21, -13, -22, -36, 56, 34, -7, 30, -4, 36, -8, -31, 16, 12, 9, 21, 20, -13, -17, -6, 20, -5, -12, -22, -3, -39, 29, 29, -2, 9, -34, -76, -75, 14, -22, 40, -31, -25, 5, -18, -30, 55, 23, 28, 30, -43, 19, 30, -3, 59, -36, 12, 44, 22, -7, 12, -34, 23, 21, -10, -25, -12, 5, 52, 42, 29, 26 ]

Per Curiam. The information charged the defendant with possession of a burglary tool, specifically a pressure puller commonly known as an “old man.” MCLA § 750.116 (Stat Ann 1962 Rev § 28.311). He pled guilty to attempted possession of a burglary tool and now appeals his conviction and from a denial of his motion to set aside his guilty plea. The motion to set aside plea asserted that: (1) the tool was specially designed to open a telephone coin box, that opening a telephone coin box is a misdemeanor (MCLA § 750.113 [Stat Ann 1962 Rev § 28.308]) and, therefore, the court was without jurisdiction to entertain a plea of guilty in respect to the charged offense because the only possible crime that could have been committed with it was that misdemeanor; (2) the defendant was arrested March 5, 1968, but did not plead guilty until April 22, 1969 and he was denied a speedy trial. The defendant’s first question, although stated in terms of jurisdiction, does not, in our opinion, raise a jurisdictional issue. The defendant pled guilty to a crime known to the laws of this State. The court had jurisdiction. Upon his plea the defendant was convicted. He does not assert that his plea was coerced or other wise involuntary. It does not appear whether the defendant sought to offer testimony or other evidence in support of the claims and factual assertions set out in his motion to set aside guilty plea and supporting arguments; in any event, the presented record does not support those factual assertions. A motion to set aside guilty plea is addressed to the trial judge’s discretion. We have no basis for concluding that the trial judge abused his discretion in refusing to set aside the defendant’s plea of guilty. Affirmed.

[ 43, 0, -35, 10, -59, 13, -49, 6, -4, 61, 51, -2, -29, -46, -7, -27, 20, 24, 35, 1, 2, -22, 38, 33, -14, -67, 24, 48, 6, 33, 41, 8, 20, -39, 2, -35, 18, -9, 21, 34, -27, -15, 27, 7, -25, 7, -52, 20, 4, -35, 59, -19, 5, 22, 33, 2, -10, 0, 25, 44, 13, 10, -43, -40, -25, 18, -26, -17, -12, -33, 26, -36, 20, 3, 18, 0, -15, 94, -2, 29, 24, -15, 21, -24, 55, 0, -10, -34, -41, -67, 23, 6, -23, 2, 22, -18, 3, 7, 25, -37, -25, -32, -47, -45, 75, -13, -41, -39, -26, 14, 7, -6, -6, -8, -14, -28, -33, 3, -10, -35, -23, 7, 16, 23, 0, 17, -22, -50, 22, 7, -20, 54, 17, -72, 47, 46, -8, 11, 32, 19, -8, 6, 50, 16, 36, -49, -38, 51, 18, 72, 19, 30, -41, 1, -2, 3, -39, -18, -27, 0, -54, 34, -6, 11, 21, -38, -32, 43, 0, -5, -6, 4, 31, 35, 39, -47, -35, 22, -14, 5, -30, -2, 16, 9, 13, 14, 25, 27, -34, -7, 12, 24, 0, -2, 51, -8, -18, 5, 42, -13, -32, -20, 31, 7, 11, -36, 12, -9, -21, -27, -40, -4, 1, -23, -61, -34, 25, -35, 5, 49, -30, 39, 5, 0, -39, 13, 12, 27, -4, 23, 3, 21, 9, 30, 2, -1, 27, -48, 32, 45, -20, -1, 25, -12, 33, 4, -14, -1, -51, -68, -44, 21, -1, 40, -6, -6, 9, -26, -53, -12, -17, 9, 2, 23, -26, 20, 13, -41, -47, -6, 17, 17, 17, 17, 18, 19, -81, 37, -1, -78, 30, 12, 22, 15, -43, 35, -5, 7, 42, 6, 37, -22, -43, 13, 14, 67, 18, -40, -44, -23, 16, 7, 24, -48, 32, -26, 55, 9, -24, 17, 37, -13, 9, 54, 25, -1, 17, -3, 13, -11, -83, -13, -20, -23, 1, -29, 31, -9, 63, -12, 12, 9, 15, -18, -42, 4, -23, -10, -36, 37, -18, -26, -15, -44, 17, 4, -34, 30, -38, -10, 25, -1, 2, -9, 54, -14, -22, -23, 32, -26, 25, -21, -9, -17, 36, -44, 6, -18, -5, 28, -40, -58, -32, -8, -16, 2, -1, 11, 1, -8, 21, -16, 32, -20, 0, 35, 2, -41, 14, 19, -2, -12, 12, -52, 62, 17, 13, -38, 30, -4, -32, -16, 25, 0, -42, 11, 7, 56, -39, -16, -10, 13, 68, 99, -31, 8, 4, 28, 24, 13, -36, -14, -1, -38, 5, -4, -41, -7, -4, -54, 52, 0, 0, -39, 14, 81, -49, 17, 24, 11, -47, -48, 14, 2, 55, 27, -44, -25, 35, -3, 14, 61, -29, -30, 18, 54, 26, 0, 40, -17, 20, 14, -36, 1, 36, -47, -49, -27, 46, -10, 12, 25, -11, -2, -12, 47, -11, 45, 7, -22, -14, 22, -2, -13, -16, -8, -38, -42, 43, 5, -2, -12, 23, -27, 5, 28, -35, -18, -2, 69, -16, 1, -6, 18, 67, -7, -13, -8, 41, 5, -36, 29, -10, 19, 7, -9, 25, -2, -45, 48, -22, -51, 0, -27, -19, 12, -80, -31, -20, 18, 37, -49, -5, -30, 0, 22, -19, -53, 13, -1, 26, 49, 39, 51, -30, -5, -1, -14, -24, 5, -24, 26, 17, -6, -4, -22, -37, 19, -40, -42, 28, 0, 61, 35, -29, 14, -26, -39, 32, 1, -18, 21, -19, 37, 10, 14, 15, 3, -3, 3, 34, 77, -28, -30, -26, -19, -53, -33, -6, -62, -16, 32, 20, -53, 1, -11, -94, -5, -5, -4, -3, 11, -26, -11, 79, -18, 27, 26, -45, -19, 88, 8, -2, -29, -17, 10, 0, -28, -67, 10, 3, 5, -28, 8, -15, -54, -44, 0, -46, -20, -1, -29, 0, 13, -17, 14, -24, 18, -35, -4, -39, 38, -13, -10, -16, 16, 29, -5, 3, -9, -4, 26, 3, 31, 63, -20, -60, 12, 43, -33, 1, -4, -12, -23, 16, 72, -14, -11, 0, 3, -25, -30, 0, 12, -16, -15, -50, -30, 45, -50, -28, -25, 15, -52, -5, -20, 9, 18, 8, 27, -2, 5, 64, 9, 32, 15, 31, 38, 4, -2, 12, 72, 23, 1, -2, -24, 32, -18, -19, 25, -63, 4, -14, 0, 22, -39, -20, -48, -55, 14, 11, -48, 28, 19, -2, 25, 45, 11, 15, -49, 4, -50, -1, -22, 25, 18, -45, -2, 19, 28, -33, 9, -18, -1, 15, 22, 39, -48, -8, 0, 55, -18, 14, 17, -1, 27, 7, 21, -27, -49, -11, 47, -1, -47, -14, 26, -21, -40, 29, 33, -10, -54, 21, 37, -32, 2, -41, -44, 72, 27, 5, 45, 9, 18, -3, -16, -42, -26, 27, -3, 50, 0, -63, 9, 13, -16, -29, -15, -10, 36, 26, 1, 42, 9, -33, -12, 31, 15, 8, 31, 19, -8, -7, -12, -4, -48, 22, -1, 19, -25, 23, 24, -58, -47, -7, -9, 38, -46, 20, 19, 14, -30, 26, 10, -5, 7, 29, 23, -39, 47, -18, -19, 42, 8, 22, 2, -17, -53, 7, 62, 39, -4, -54, 4, 23, -18, 27, 44, -2, -45, -8, 54, -15, -26, -22, -2, -24, -3, 60, -11, 15, 21, 109, 21, 18, 22, -64, 20, -42, -11, -21, 0, 32, 17, -2, -41, -39, -44, -30, 45, 7, 36, -33, 19, 29, -5, 6, -26, -15, -17, 54, 6, -15, 8, 56, -7, 14, 16, -47, -12, 19, -15, 11, -16, 33, -39, -34, 6, -15, -14, -47, 60, 55, 29, 38, -30, 6, -14, -49, 21, 10, -22, 14, -16, 30, -9, -32, -28, -4, 7, -44, -13, -31, 5, -30, 28, -48, -13, 19, -5, -28, -19, -2, -52, 39, 3, 28, -28, 13, -1, -47, 23, 9, -22, 68, 67, 16, -37, -43, 0, 6, -35, 2, -13, 66, 4, 0, 19, -20, 24, 18, 3, 20, -20, 56, 17, 7, 39, -53, -10, 50, -45, -16, 41, -30, 37, 17, -51, -17, -15, -37, -13, 44, -21, 0, -2, 20, -19, -12, -2, 8, -6, 14, -20, -18, 7, -17, 6, -34, 16, -39, -7, -78, 67 ]

O’Hara, J. In the narrow — and sometimes dimly-lighted — corridor of permissible judicial review of findings of fact of the Appeal Board of the Michigan Employment Security Commission, two familiar adversaries worthy of each other’s rhetoric meet again. General Motors Corporation is the appellant. Nominally, Horace Bruff and 5,815 other GM employees are the appellees. The UAW-CIO, by its attorneys, have appeared in their behalf throughout the proceedings. The question presented is the entitlement of the claimants to employment security benefits. Appel lant GM2 contends they are not. The Union urges that they are. The controlling section of the statute in effect at the time the claims were allowed was § 29 of PA 1936 (Ex Sess), No 1, as amended by PA 1955, No 281 (CLS 1961, § 421.29 [Stat Ann 1960 Rev § 17.531]), which read in pertinent part: “(1) An individual shall be disqualified for benefits: “(b) For any week with respect to which his total or partial unemployment is due to a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed: Provided, however, That no individual shall be disqualified under this section if he shall establish that he is not directly involved in such dispute. For the purpose of this section, no individual shall be deemed to be directly involved in a labor dispute unless it is established: (1) That, at the time or in the course of a labor dispute in the establishment in which he was then employed, he shall in concert with 1 or more other employees have voluntarily stopped working other than at the direction of his employing unit, or (2) That he is participating in or financing or directly interested in the labor dispute which caused the stoppage of work: Provided, however, That the payment of regular union dues shall not be construed as financing a labor dispute within the meaning of this sub-section * * * .” (Emphasis added.) It is essential to point out that the question as here framed cannot arise again because the above-quoted statutory provision was amended by PA 1963, No 226 and again by PA 1965, No 281, effective July 22, 1965. The amendment materially affects the basis for future disqualifications. The cases involve 5,816 claims for unemployment compensation benefits. The unemployment occurred in 11 General Motors plants in Michigan. The periods for which benefits are claimed vary from case to case, but all claims together cover the benefit weeks ending September 16, 1961 through October 7, 1961. During this period, GM and the union were engaged in collective bargaining negotiations which the referee found to have been predominantly local in nature. Six of the 11 plants of the corporation were struck and picketed following the failure of the parties to reach agreement over these local issues —the strike deadline of September 11,1961, had been set by the union’s president, Walter Eeuther. Pickets were removed and offers to return to work were made by the local unions at various times prior to September 24, 1961.- The claims of each of these plants cover the period between the making of such offers and the resumption of full scale production and recall of the employees. The remaining five plants were not struck, but were compelled to curtail operations due to the effects of the strikes at the other plants. The claims at each of these plants cover the period between the curtailment of operations and the resumption of full scale production and the recall of the employees. Based upon findings of fact which are unchallenged by GM, the Appeal Board concluded that benefits should be paid for all weeks claimed with the exception of weeks when a plant was actually on strike, save only as to the Cadillac plant which will be discussed separately later. The decision of the Appeal Board was affirmed by the Circuit Court of Ingham County as not being contrary to the great weight of the evidence. It is almost as important in this case to understand what the employer does not claim as what he does. First, GM asserts that it does not seek reversal or modification of any finding of fact on the ground that the finding was contrary to the great weight of evidence. Rather, GM argues that impermissible inferences and conclusions were made from the facts as found, and that the controlling law was erroneously applied to those facts, inferences and conclusions hy the majority of the Appeal Board. Second, GM iterates and reiterates that it has at no time contended that the plant in which each claimant was employed was anything other than a separate “establishment” as that term is used in the act. In consequence of this position GM contends that Park v. Employment Security Commission (1959), 355 Mich 103, is totally inapplicable. Appellant takes particular exception to the language of the learned circuit judge that its legal argument is “a rephrasing of the ‘functional integration’ ” argument rejected by the Supreme Court in Park, supra. We fully appreciate GM’s vigorously urged contention that Parh is inapplicable. What we consider GM’s position to be is that it transcends permissible inference or logical conclusion to hold that a national automotive strike with GM as the “target”, called at national level, “causing hundreds of thousands of General Motors employees to collectively withhold their labor power”, by action that could only be authorized by the Executive Board of the International Union, could by some legalistic metamorphosis become at some point in time during negotiations a local strike in separate establishments concerned only with local issues. It seems to us GM is urging a “proximate cause” test, as that term is used in negligence law. This is to say, the national strike initially caused the total stoppage of work and that what happened at a given time in local plants are non-proximate, irrelevant causes. In logic, there may be force in this position. From the standpoint of the controlling law, which we cannot disturb, it cannot prevail. We are unable to accept GM’s contention that what was decided in Park is not an issue here. Appellate issues, like friends, sometimes can be chosen, but sometimes, like relatives, they are thrust upon us. Park is thrust upon GM. The case cannot be swept under the rug of review. Logically or not, the Appeal Board found factually that local issues in separate establishments did exist. The record, including GM’s annual report, which was an exhibit, supports this finding of fact. We may not disturb it. We do, however, find a misapplication of law with regard to week No 38 (ending Sept. 23,1961). After finding as a fact that certain claimants were disqualified for that week by reason of a work stoppage due to a labor dispute in the establishment in which they were last employed, the board made an additional finding. We set it out herewith: “There is, however, another controlling element as to week No 38 (week ending Sept. 23, 1961) and that is in respect to the corporation’s efforts to resume production during said week after having been closed down by the strike. It would appear that the Corporation endeavored to make ready for production within a reasonable period following the tentative agreement and did, in fact, resume production on September 21, 1961 (at the Cadillac plant). “We are of the opinon that Park, supra, is not controlling as to week No 38, but is more compatible with the principle of the case of Buzza v. Unemployment Compensation Commission (1951), 330 Mich 223. “It has been held that a labor dispute disqualification * * does not necessarily end with the settling of the issues in dispute but such disqualification may continue for a reasonable period thereafter if, because of the nature of the employer’s operations or because of necessary and reasonable make-ready operations, it is not possible to resume production immediately (citing Peaden v. Employment Security Commission (1959), 355 Mich 613). ¿i. “The employer utilized the period from September 18,1961 to September 21, 1961 for make-ready operations * * * [i]t is deemed that the stoppage of work existed because of the labor dispute, and they are disqualified for benefits * * * for said week.” As noted by GM in its brief: “Paradoxically the Board majority failed to disqualify claimants from the Chevrolet Livonia Spring and Bumper, Fisher Fleetwood and Fisher Livonia plants for an additional week to allow reasonable plant make-ready time at those plants even though evidence of need for such time was undisputed on the record.” We agree. We can find absolutely no factual difference between the situation at the Cadillac plant and the others specified in GM’s brief. Hence, we hold that as a matter of law, the appeal board misapplied its cited cases as to the Chevrolet Livonia Spring and Bumper, Fisher Fleetwood and Fisher Livonia plants. The order of the circuit court affirming the appeal board is modified to impose the same disqualification upon claimants from the above-specified plants as was imposed upon claimants from the Cadillac plant. In all other respects the order of the circuit court is affirmed. No costs, neither party having prevailed in full. The relevant statutory provision which was in effect at the time the claims were allowed was § 38 of PA 1936 (Ex Sess), No 1, as amended (CL 1948 § 421.38 [Stat Ann 1960 Rev § 17.540]), which read in part: “The findings of fact made by the appeal board aeting within its powers if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive, but the circuit court of the county, in which the claimant resides or in which the employer’s principal place of business in Michigan is located, if no claimant is a party to the ease, or the circuit eourt for the county of Ingham shall have power to review questions of fact and law on the record made before the referee and the appeal board involved in any such final decision, but said court may reverse such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence * * * ,” We shall so refer to the parties throughout the decision.

[ 64, -6, -5, 36, 79, 1, 23, -48, -14, 3, 0, 14, 32, -44, 31, -28, 31, 15, -8, 24, -12, -46, 25, 41, -17, -14, 19, 15, -24, 25, -75, -18, -27, -10, -30, -47, 26, -26, 3, 13, -40, -10, -36, -33, -23, -5, -19, 25, 34, -25, -21, 1, -48, 36, 60, 20, 12, 18, -26, 22, -24, 17, 67, -12, 20, -16, 31, 6, -2, 25, -25, -4, -20, -17, -30, -16, 36, 21, -22, 10, 19, -14, 24, -37, -11, 30, 9, 38, 10, -52, -13, -24, -33, -3, -15, -21, -36, 56, 12, 13, -42, 19, 36, -3, -17, 6, 27, 9, -5, 38, -13, -1, 12, 17, -4, 2, -14, -6, 22, 23, 18, -9, 8, 50, -26, 31, -29, -5, -59, 40, 0, 14, 12, -3, -23, 20, 43, -13, 45, 11, -13, 15, -26, -59, -16, -4, 56, 0, 22, -7, -19, -5, 21, -32, -59, 4, 47, -27, 58, 34, 9, 1, 6, 58, -16, -19, 2, 25, 42, -34, 4, 8, -9, -25, 15, 0, 20, 10, -40, 34, -46, 4, -60, 24, 3, -13, -25, 1, 39, 20, 13, -12, 50, 16, 12, 44, 42, 33, -33, 37, 32, -25, -5, 12, -22, 10, 5, -6, -23, -5, 11, -12, 13, -36, -19, 8, 36, 13, 39, -26, -22, -14, -54, 17, 11, -54, -23, -15, 21, -11, -2, 1, 81, 3, -23, -15, 17, -36, 72, 19, -18, 1, -6, 24, -46, 3, -32, -10, 74, 30, 39, 17, 20, 28, -51, -49, -29, -3, -10, -39, -21, 47, 3, 4, -26, -36, -12, 72, -36, -39, 16, -12, 53, -9, -43, -36, 17, 3, 58, -34, -59, 40, -53, -3, -64, -2, 12, -77, -17, 12, 51, -27, -1, 37, 23, -27, 13, -2, 54, 63, -59, 14, 4, -49, -25, 4, -25, -70, 48, 6, -14, -29, 19, -21, 52, -21, 8, 24, 38, -25, 6, 0, 16, -6, 14, 1, 6, -8, -7, -60, 17, -26, -25, 16, 27, -38, 11, 24, 35, 5, 23, -8, 33, -10, -2, -4, 45, -7, 52, 0, 42, 29, 8, -15, 45, 41, 57, -4, -87, -34, -22, 5, 19, 31, -22, 2, -58, -47, 27, 7, 3, -18, 24, -6, -49, 2, -43, -7, -16, 49, 21, 12, 22, -49, -8, 26, -10, -34, -30, 0, -61, -69, -15, 36, 0, 26, 44, -1, -32, 34, -20, 0, -18, 4, 33, -78, 39, -34, -84, -9, -20, 18, -14, 35, -13, -22, 54, 2, 2, -63, 42, -17, 14, -19, -2, -22, 12, 57, -31, 63, 11, -47, -19, -47, -43, -9, 0, -77, -37, -48, 9, -21, -21, -4, 23, 0, -35, -8, 31, -20, -2, -3, -41, 31, -48, -42, 17, 42, -25, -32, -49, -10, 33, 33, 47, -22, -26, 1, 37, 60, -46, 0, 27, 46, -6, -40, 0, -20, 17, -50, 13, 9, 18, -19, -74, -27, -26, -24, 1, -14, 31, 3, -6, -21, 3, 1, -18, 0, 0, 8, -16, 38, 46, -22, 20, -51, -32, -117, 5, -8, -50, -39, 26, 81, 35, -31, -4, 38, 26, 7, -14, 1, -18, -20, -2, -24, -47, 10, 6, -27, 37, 7, 105, -1, 54, 5, 14, 50, -71, -45, -8, 33, -14, 28, -17, -77, -26, -11, 67, 17, 18, -29, -26, -22, 53, 13, -12, 0, 33, 5, -49, 13, 39, 39, -31, 33, -54, 60, 54, -20, -28, 50, 41, -4, 17, 32, 69, -18, 3, 17, 7, 0, 20, -10, -9, -23, 16, 36, 38, -64, 26, -106, -6, 23, 81, -6, -8, 38, 10, 41, 50, -23, -54, 7, -14, -15, -1, 16, 29, -23, -14, 44, -16, -44, -50, -18, -14, -15, 12, 48, 42, 53, -13, -33, -47, 42, 31, 1, 3, -51, -8, 5, -18, -48, 6, -25, 13, -8, -28, 45, 18, 8, 50, 21, 14, -70, 0, -5, -8, -52, -1, 56, -3, -46, -22, -5, 6, 18, -29, -73, 26, 6, 37, 16, 19, 13, -27, -10, -15, 14, 58, -3, 44, 60, 68, 24, -18, 4, -40, 22, -51, -43, -13, 26, -7, 20, -19, -24, -9, -24, 44, 51, 23, -28, -57, -19, 0, -19, -4, -37, -38, 25, -1, 0, -36, 31, -35, -16, 50, 31, 19, -34, -4, 9, 4, 44, -16, -30, -61, -18, -52, -14, -32, 0, -2, 46, 44, -78, -44, -20, 5, 0, -33, -1, -14, 12, 27, 8, -57, 36, 42, 23, 52, 40, 9, -4, -20, -17, 24, 15, -39, -5, 10, 40, -19, -17, -10, -24, -41, 5, -1, -48, 44, 35, -30, 10, -70, 11, 27, -31, -36, 10, 4, 2, 8, 45, -26, -32, -48, -5, -11, -22, 13, 0, -47, -43, -41, 0, -11, 16, -4, -14, -7, -59, 8, 13, 46, -24, -10, -6, -21, 16, -25, 31, 28, -38, 0, -9, 50, -10, -18, -16, -11, 10, -23, 38, -27, 26, -39, -4, 6, 15, -5, -67, 65, -12, 8, -40, 35, 27, 3, 18, -1, 66, 32, 25, 8, -21, 6, -46, 13, -47, -36, -12, -11, 43, -11, 47, 13, -27, -1, -28, -56, 55, 5, -19, 5, -31, -5, 30, 11, -11, -11, 19, 1, -4, -47, 22, 15, -13, 35, 3, 40, -18, -21, -26, 1, -11, 16, -7, 30, -53, 61, -26, 26, 28, 20, -16, -21, 19, 39, 41, -18, -6, -18, -16, 7, 8, 12, -45, 40, 62, 5, -12, -22, 77, -12, -12, -31, 4, -3, -13, 10, -10, 13, 7, -8, 42, 41, 3, -43, -33, -37, -28, 13, -8, -7, 5, -29, -1, 6, -24, -3, 16, 45, -9, -9, -11, 15, -40, 9, -9, 2, 0, -47, -20, -7, 20, -8, -11, 0, 5, 32, 33, 39, -33, -5, -15, 13, -33, 3, 37, 36, 36, 61, -26, 33, -28, -42, -37, 4, -16, -2, 5, 34, 22, 14, 45, -4, -16, 39, -4, -13, 42, 23, -55, -19, -23, -33, 26, -4, 68, 16, 30, -2, 9, 13, -19, 83, 15, 56, 16, 15, -10, 48, 16, -35, -37, 33, 12, -7, -23, -26, -14, 8, 57, -42, -27, -42, -33, 21, -20, -25, 6 ]

T. M. Burns, P. J. On October 8,1965, the former owners of the plaintiff corporation executed an alleged agreement, promissory note and check all solicited by and running to the defendant, (AIMS corporation), a Missouri corporation. All parts of this agreement were executed in Roseville, Michigan. The complaint alleged that for some time before and after the date of October 5,1965, the AIMS corporation had been doing business in this state although not being licensed to do so as required by Michigan laws; and also that said foreign corporation was operating as a real estate broker in the State of Michigan, although it was not licensed as a real estate broker under Michigan law. MCLA § 451.201 (Stat Ann 1964 Rev § 19.791). Under this agreement, AIMS corporation was to refer prospective real estate purchasers, who would be located in the Roseville, Michigan area, to the Flo Engel Co., and if a sale was consummated, twenty-eight (28%) per cent of the gross sale commission was to be remitted back to AIMS corporation. There were also other provisions of said agreement, one of which gives rise to AIMS’ action, against Hoover in Missouri. That provision of the contract requires Hoover to purchase a quantity of marketing brochures from AIMS annually. On November 30,1965, Hal K. Hoover, a Michigan resident and licensed real estate broker under the laws of the State of Michigan, purchased all of the common stock of the Michigan corporation known as Flo Engel East Side Company, Inc. He changed the name to Hoover Realty Co. Together with other reasons, under MCLA § 451.213(i) (Stat Ann 1964 Rev § 19.803 [i]), Hoover could not split a brokerage commission with anyone not licensed as a Michigan real estate broker, hence Hoover could not honor said agreement. On March 24, 1966, Western Finance Corporation, a Missouri corporation, an alleged “holder in due course and assignee of AIMS corporation”, commenced suit against Hoover Realty Co. on the promissory note in Macomb County Circuit Court, State of Michigan (X66-1017). This litigation terminated by a stipulated dismissal with prejudice on October 11, 1966. AIMS corporation was not served with process or otherwise made party to the Western action. On February 23, 1967, AIMS corporation instituted suit against Hoover in the Circuit Court of the County of St. Louis, State of Missouri, based upon Hoover’s alleged breach of contract in that it had failed to purchase certain advertising brochures from AIMS. AIMS contends that the Missouri Circuit Court obtained jurisdiction over Hoover by service of process upon an agent of Hoover pursuant to paragraph 6(f) of the agreement. Hoover denied the agency, and moved to quash the process. In September, 1967, Hoover, defendant in the Missouri action, instituted suit in the Macomb County Circuit Court seeking to have the contract declared a nullity and praying for the following relief: (1) Rescission and cancellation of the October 8, 1965 contract. (2) That any judgment declare sums due from defendant to plaintiff as damages. (3) That AIMS be enjoined from any other litigation based on the agreement as well as is'&ue a temporary restraining order enjoining AIMS from proceeding with its action, previously commenced, against Hoover in Missouri. The temporary restraining order was granted and an order to show cause was issued requiring AIMS to appear and show cause why said order should not be made permanent as prayed for in Hoover’s pleadings. AIMS filed a motion to dismiss Hoover’s complaint and a motion to dissolve the temporary restraining order along with a supporting brief. On May 29, 1968, the trial court issued an interim opinion. The trial court entered its order, dated June 24, 1968 denying AIMS’ motion to dismiss Hoover’s complaint and continuing .the temporary restraining order previously granted. Leave to appeal was granted by this Court. Hoover filed a motion, during the pendency of these appeal proceedings, to include as part of the record on appeal, the file and records of case number X66-1017 wherein Western was plaintiff and Hoover was defendant. On June 6, 1969 the Ma-comb County Circuit Court granted Hoover’s motion. Should plaintiff Hoover’s complaint be dismissed because there is a prior pending action between the same parties involving the same claim? The central thrust of defendant’s argument is that GCR 1963, 116.1(4) demands that plaintiff’s complaint be dismissed. GCR 1963, 116.1(4) allows a motion to dismiss a new suit involving the same parties and the same subject matter as that existing in a pending action: “* * * by motion filed not later than his first responsive pleading, a party may demand * * * that judgment be entered dismissing one or more claims asserted against him upon any of the following grounds: “(4) another action is pending between the same parties involving the same claim.” In support, defendant cites the case of Petosky Asphalt Paving Company v. Malow (1961), 363 Mich 13; Chapple v. National Hardwood Co. (1926), 234 Mich 296; Pinel v. Campsell (1916), 190 Mich 347. These cases are not on point as, in them, both prior and subsequent suits were begun in Michigan while in the instant case prior suit was commenced in Missouri and subsequent suit was commenced in Michigan. Defendant argues that since the Missouri court first obtained jurisdiction, it has the exclusive right to decide the matter in issue. Mulford v. Stender (1921), 215 Mich 637; Richey Land and Cattle Company v. Miller & Lux (1910), 218 US 258 (31 S Ct 11, 54 L Ed 1032). These cases do not address themselves to the question in this case whether the pend-ency of a prior action in one state is a ground of dismissal of an action subsequently commenced in another state. These cases are therefore regarded as inapposite to the question in this appeal. The rule in Michigan and elsewhere is that a suit pending in another state, or foreign jurisdiction does not constitute a prior pending action subjecting the subsequent suit to a plea in abatement or motion to dismiss. McKey v. Swenson (1925), 232 Mich 505; In re Elliott’s Estate (1935), 285 Mich 579, 584. 1 CJS, Abatement and Revival, § 63 states as follows : “The general rule, that the pendency of a prior action, between the same parties for the same cause of action, whether by law or in equity, may be pleaded in abatement of a subsequent action therefor * * * applies only where two courts have concurrent jurisdiction of the same cause of action and where the prior action is pending in one of such courts, and the subsequent action in another; and therefore such a plea, ordinarily, will not be sustained, where the prior action is pending in a court of foreign or different jurisdiction, or as otherwise expressed, where the two actions are pending in courts of different sovereignties such as in courts of different states, * * * .” 1 Michigan Law & Practice, Abatement and Revival, § 8 states the Michigan rule as being that: “Although a prior action pending in the state, whether in a court of concurrent or inferior jurisdiction, in the same court, in another court of the same county, or in a court of another county, may constitute a ground for abatement of a subsequent action, the pendency of a prior action in another state generally does not abate an action in this state.” (Footnotes omitted.) The trial court did not err, therefore, in refusing to abate this action because of the prior pending action in Missouri. Is the issuance of the injunction restraining AIMS from proceeding with the prior action clearly erroneous? Defendant relies primarily upon GCR 1963, 718.6 which provides: “No injunction or restraint may be granted one action to stay proceedings in another action pending in any court in which the relief may be sought on counterclaim or otherwise in the pending action.” Defendant contends the word any indicates an intention on the part of the rule to include cases in foreign jurisdictions within its prohibitions. We do not view it so. We consider that GCR 1963, 718.6 just as GCR 1963, 116.1(4), is understood to concern only cases pending in Michigan. This case is properly within the rule as stated in Pere Marquette Ry. Co. v. Slutz (1934), 268 Mich 388, 390: “Where an action is brought in a foreign state for the purpose of evading or avoiding the laws of this state, or for other unjust and inequitable purposes, harassing its citizens and causing them irreparable injury, injunction is properly brought.” See also 31 Mich L Rev 88 (1932). By its action in Missouri, the defendant seeks to avoid the effect of our Michigan statutes controlling the licensing and fee splitting of real estate brokers. Therefore, this is a proper case for the issuance of an injunction. Viewing the situation as we do, we find that the trial court was not clearly erroneous in issuing the injunction against AIMS. Affirmed. Costs to plaintiff. All concurred.

[ -47, 15, 10, -37, -16, 11, 0, 10, 7, 2, -7, 41, 17, -9, -12, -4, 56, -1, 5, -22, 21, -26, -20, 5, 55, -38, 67, -57, 59, -27, -37, -1, -22, -14, -49, -1, -12, -17, 3, -27, -63, 6, 30, 32, -7, -11, 14, -30, 52, -24, 17, 21, 18, 28, -6, -68, -12, 34, -12, 8, 30, -50, 48, 26, -3, -10, 41, 59, 116, -16, 15, -1, 0, 6, 55, -8, 19, 21, -40, -61, 10, -39, 25, -10, 13, 17, -22, 16, -14, -19, -45, -43, 9, 23, 9, 31, 15, 21, -24, -24, 19, -2, -5, 16, -19, 5, 9, -23, 11, 10, -31, -9, -37, 13, -56, -13, -12, -34, -8, 44, -48, -21, -12, 37, 40, 11, 1, 12, -42, -16, 0, -22, -21, 31, -65, -19, 27, -49, -25, -3, -23, 1, -4, 15, -24, 62, 28, -59, -6, -40, -19, 14, 18, 55, 16, -36, 47, -46, -10, -71, 42, -1, 0, 21, -25, 15, -10, 10, -33, 31, 29, -26, -38, -10, -24, -6, 39, 56, -34, 1, 4, -54, 0, -12, -7, -15, 39, -4, 27, -26, 61, -30, 4, 40, -54, 6, 0, 69, 13, -10, -17, -69, 0, -8, 8, -10, -14, 42, 47, 37, 2, 35, 17, -10, -11, -13, -20, -26, 28, -33, 2, 8, 0, 12, -10, -41, 1, -26, -22, 3, -34, 11, -33, -26, -27, 10, 37, 71, 31, 34, 18, -24, -27, 15, 42, 20, -37, -27, 61, 31, -45, -1, -11, -19, -23, -31, -17, 48, 16, 3, -29, 20, -51, -2, -28, -13, -32, -20, -15, 34, -4, -1, 38, 8, -76, -22, -17, -2, -9, -60, 2, -55, -4, 41, -14, 61, 37, 23, -84, 26, -11, 41, -43, -50, 3, -2, 0, -32, 13, 41, -64, 0, 22, -15, 43, -19, -18, -26, -2, 32, 39, 2, -18, -21, -9, -7, 26, 36, 13, -75, 76, 46, 26, 72, -35, -22, 46, -20, 17, -6, 31, -20, 10, 3, -34, 10, 40, -25, -37, -18, 45, 27, 41, 20, 22, 36, -21, -25, -45, 4, 12, -53, 16, 9, 23, 15, 38, 70, -43, 21, 2, 42, -11, 13, -49, 39, 11, -41, 48, 34, -21, 77, -15, -22, -29, -14, -34, -9, -24, 25, 20, -17, 36, -6, 38, -42, -31, -8, -5, 31, -71, -18, -7, 26, 20, -99, 14, -17, -42, -27, 0, 46, -45, -8, -15, -11, 40, -22, 0, -9, 8, 4, 15, -3, -43, 6, 59, -36, 42, 8, 37, -33, -62, -70, 9, -12, 7, 41, -1, 30, -14, 63, 17, -37, -5, -5, -59, 45, -23, 30, -29, -26, -11, 45, -21, -37, 2, -32, 40, 34, 18, 72, 6, 5, -57, 27, 13, 46, 0, -22, 23, -39, 53, -3, -39, -14, 51, -16, 0, 43, 0, -14, -55, 0, -27, -41, 1, 3, -1, -48, -14, 22, 1, 3, -26, -31, 12, -16, 1, -7, 32, 12, 32, 34, 11, -14, -19, 5, 17, -25, 13, -85, 48, 28, 44, 16, 3, -15, 1, 57, -33, -51, 21, 58, -3, 41, -30, -37, 11, 47, -14, -24, -29, -30, -3, 1, 24, -12, 35, 28, -23, -17, 8, -19, -15, -9, 30, 66, -52, 17, 28, 6, -12, 48, -38, 11, 22, -18, -36, 11, -70, -34, -17, -21, -21, 48, -5, 15, 31, 4, -36, 48, 43, 2, -8, -38, -39, -16, 10, 19, -47, 29, 70, 11, 7, -12, -23, -21, -5, 34, -31, -9, 7, -29, -34, -14, 72, -24, 10, -25, 11, -40, -39, -10, 39, 12, -4, 39, -1, 24, -26, -75, -31, -37, -31, -33, 6, 40, -20, -62, -35, -34, 19, 31, -34, 12, 37, -25, 24, -7, 10, -30, 28, 26, 16, 7, -4, 37, 0, 67, -32, -16, -9, 1, 15, 26, 34, -1, -12, 0, 30, 35, -9, -15, 15, -30, 25, -29, 89, 18, -49, 8, 33, 0, -64, -3, -6, -16, 0, 4, -28, 3, -5, -49, 42, -69, 50, -33, 51, 0, -45, 56, 24, 11, -20, 18, -9, -11, 55, 20, -30, 3, 5, -22, 54, -20, 53, -27, -47, 28, -3, 4, -51, -58, -26, -8, 4, 9, -18, -52, 5, 12, 26, 76, -1, 29, -30, 3, 15, -2, 7, -41, 4, -10, -17, 48, -23, 35, -29, -28, -4, -51, -5, -67, 37, 35, 23, 4, -21, 28, 40, -34, 27, 30, 0, 53, 10, -40, -11, 0, 0, 11, -9, 50, -1, -21, -8, 53, 4, -51, -9, 15, 48, 4, 1, -28, -47, 11, -22, -52, -10, 3, -17, -2, 0, 12, -56, -38, 22, -38, -17, 11, -39, -29, -26, -17, 34, -24, 36, -34, -13, -37, -3, 37, 19, -3, -9, 40, 45, -37, 0, -9, 30, -1, -68, 11, 40, -6, 20, -23, -20, -16, -14, 48, 17, -76, -2, -30, 53, 2, -34, -15, -20, 2, 31, 77, -39, 21, -17, -23, -45, -37, 19, 39, -50, -17, -38, -7, -11, 33, 20, 1, -8, 8, 0, -19, 67, -40, -7, -22, 10, -27, -42, -43, -33, -7, -59, 32, 31, -79, -22, -29, -47, -12, -1, 58, -21, 20, 44, -8, 52, -8, -39, 35, 20, -23, -36, -14, -13, 41, -7, 4, -5, 27, 31, 43, -6, -31, -1, -22, -35, 41, 15, -24, -5, -7, 50, -3, -7, 62, -17, 0, -65, -22, 21, -38, 55, -55, 25, 0, -10, -28, 2, 17, -19, 48, 36, -13, -21, 5, 21, 3, 33, 27, -51, 28, 5, 37, -13, 46, 30, -34, -52, -2, 21, -46, 8, 58, 53, 18, 21, -7, -7, 50, 32, -6, 6, -45, -18, -31, 33, 27, -12, 41, 12, 9, 5, 0, 0, 9, -50, 3, 49, 66, 8, 15, -30, 0, -39, -7, 40, -4, -56, -29, 40, -28, -6, 18, 16, 6, -46, -29, -65, 36, 7, 25, 13, 15, -17, -46, 41, 6, 43, 53, -6, -27, 23, 70, 41, -13, 31, -41, -13, -10, 14, 22, 31, 32, 28, -8, 55, 7, -3, -20, -6, 25, 5, -26, 24, -12, -10, -71, 27, 50, -35, 31, -8, 33, 33, 12, 8, -57, -80, 18 ]

Bronson, J. Leon Rockwell and Myrtle Rockwell were married on April 25, 1947. Leon and Myrtle each had children by previous marriages. On February 4,1957 the couple executed a post-nuptial contract in which each agreed not to claim any part of the other’s estate. Plaintiff expressly relinquished “all claim to any allowance, dower, homestead, or any other right in and to the real or personal estate” of Leon Rockwell. The intention of the parties to the contract was that their marriage should not alter the legal rights of their children from their prior marriages in the real and personal property of each of them. The agreement provided that each of their estates would rest in the heirs as determined by will or as if no marriage had taken place. On January 18,1965, Leon Rockwell published a will bequeathing to plaintiff an amount less than that to which she would be entitled under an election. Two years later Leon Rockwell died. On July 3, 1967, plaintiff filed in the Benzie County Probate Court her election to take against the will pursuant to MCLA § 702.69 (Stat Ann 1962 Rev § 27.3178[139]). On January 8, 1968, plaintiff filed with the probate court a petition for a widow’s allowance. The estate filed objections to the petition. On March 29, 1968, the probate court dismissed plaintiff’s petition for widow’s allowance, struck her election, and held the post-nuptial agreement valid. Contending that the agreement was invalid for lack of consideration and because it was contrary to public policy, plaintiff sought review in the circuit court for Benzie County. The circuit court affirmed the probate court’s hold ing, and leave to appeal was granted by this Court on May 29, 1969. On appeal, plaintiff raises two issues: 1. Whether a post-nuptial contract is invalid because contrary to public policy. 2. Whether a post-nuptial contract fails for lack of consideration when the husband only waives any claim in the future estate of his wife should he be the survivor. I. Post-nuptial agreements are not invalid per se. In the majority of jurisdictions, including Michigan, a post-nuptial agreement by a wife to release her interest in her husband’s property on his death is valid if it is fair and equitable and supported by sufficient legal consideration. 49 ALR 116, 122, citing Randall v. Randall (1877), 37 Mich 563; Rhoades v. Davis (1883), 51 Mich 306; Owen v. Yale (1889), 75 Mich 256; Wright v. Wright (1890), 79 Mich 527; Dakin v. Dakin (1893), 97 Mich 284; Chittock v. Chittock (1894), 101 Mich 367; Bechtel v. Barton (1907), 147 Mich 318; La Plant v. Lester (1907), 150 Mich 336. See, also, Const 1963, art 10, § 1; MCLA § 558.13 (Stat Ann 1957 Rev § 26.229) M & D Robinson Company v. Dunitz (1968), 12 Mich App 5. There are several situations in which Michigan Law recognizes the validity of agreements such as the one involved in the instant case. Post-nuptial agreements made during an existing separation are thought to further judicial policy favoring settlement of controversies over litigation. In re Berner’s Estate (1922), 217 Mich 612. In addition, Michigan is one of the majority of jurisdictions that approve post-nuptial agreements in which a wife releases her interest in her husband’s property on his death (see Const 1963, art 10, § 1, and MCLA § 558.13 [Stat Ann 1957 Rev § 26.229]), if it is a fair and voluntary one for a fair consideration. Wright v. Wright, supra. See, also, 49 ALR 116, 122. However, objections are validly raised to post-nuptial agreements where those agreements seek to effectuate a separation or contemplate a future separation. In re Berner’s Estate, supra, at p 620. Plaintiff contends, citing language from Day v. Chamberlain (1923), 223 Mich 278, that the present case is within this latter category. Bay, however, is distinguishable in that the preamble of the agreement held invalid in Bay made it clear that the parties contemplated a separation in the near future. The present case involves no thought of such a separation. The public policy objection to post-nuptial contracts pointed out by the Court in Randall v. Randall (see footnote 1) and raised by plaintiff here does not arise in this case. The instant agreement did not undertake to provide for a separation. There is nothing in this record to suggest that the agreement was calculated to bring about a separation. Nor is there anything in this record to suggest that a separation was contemplated by the parties. To the contrary is the statement in the agreed facts that “at all times during this marriage * * * the parties lived together amicably and peaceably without dis pute or controversy”'. The fact is that the parties lived as husband and wife for 10 years after the agreement was executed and until the husband’s death. The circuit court rejected plaintiff’s argument that the agreement encouraged possible separation: “No authority is cited indicating that a post-nuptial contract is inherently disruptive of the marital state and hence suspect”. In Ransford v. Yens (1965), 374 Mich 110, the justices of the Michigan Supreme Court voting for affirmance, in particularly applicable language, said: “[T]he parties now before this Court entered into said agreement with the hopes that the marital journey they had commenced as rather elderly people would continue on without discord if they eliminated the only dispute or problem they faced, namely: The eventual disposition of property owned severally at the time of marriage as well as that acquired jointly during the marriage.” 374 Mich at p 116. The absence of intention of the parties to separate was determinative in Ransford v. Yens, supra, which affirmed, by an equally divided court, the circuit court’s validation of a post-nuptial agreement by which the parties relinquished for sufficient legal consideration their claims to the other’s separate estates. Four justices affirmed in Ransford, finding that the intention of the parties was to provide for the eventual amicable disposition of their property. The holding for affirmance was made in spite of two provisions of the agreement which looked to the possibility of a divorce. The instant agreement does not contain any reference to separation found offensive in Bansford. Indeed, it was entered into for a purpose found salutary in Bansford, namely, to provide for disposition of property favoring the children by previous marriages of the parties. II. It is plaintiff’s contention that the post-nuptial contract lacked sufficient consideration in that the husband’s promise to relinquish any right in his wife’s estate even in exchange for the wife’s promise to relinquish her dower and widow’s allowance amounted to nothing since he had no such right. The circuit court thought the mutual promises of the parties contained in the agreement constituted adequate consideration for the contracts, citing for this proposition Keller v. Keller (1926), 121 Kan 520 (247 P 433). The trial court on the basis of Keller felt that since neither of the parties had executed wills at the time of the agreement, each was waiving a share in the estate of the other to which he or she would have been entitled under the laws of intestate succession. Plaintiff argues that if such an analysis is followed, each party gave up only a possibility and not a present interest amounting to consideration. Michigan cases have discussed consideration in post-nuptial contracts in terms of dollar valuation and the Michigan Supreme Court has approved agreements where dollar amounts or an equivalent flowed to the wife in return for her release. Thus, in Randall v. Randall (1877), 37 Mich 563, $1,000 was “sufficient”, and in Rhoades v. Davis (1883), 51 Mich 306, $900 was “good” consideration. In the more recent Hansford, case, $4,600 was acceptable for release as to property worth $6,000 at the husband’s death. In Wright v. Wright, supra, the Michigan Supreme Court said, “there is no legal objection to an arrangement between husband and wife, for a fair consideration, to extinguish her right of dower.” Plaintiff makes a strong case by relying on the decision in Wright. She gave up her prospective dower, allowing her husband to make a will giving her nothing in return for a waiver by her husband of his curtesy right, one not recognized by Michigan law. In return for a waiver of nothing more than an expectation, plaintiff argues, of a possible future inheritance by intestacy, the wife relinquished a statutorily defined and protected right. It is plaintiff’s contention that the post-nuptial contract in the present case attempts to achieve that result which was overturned in Wright. Under the facts as found in the present case, we must hold for the Estate of Leon Rockwell. In so doing we do not mean to overturn the line of case precedent cited supra. However, what we find here is that there was “fair consideration” flowing to plaintiff. Myrtle and Leon Rockwell each came to their marriage with children by previous marriages. It was their intention by enacting a post-nuptial agreement to insure the sanctity of their estates for their own children by those previous marriages. While it is true that Leon Rockwell gave up merely an expectancy, it is also true that he gave up the right to any share of Myrtle’s estate upon the event that Myrtle, should she predecease Leon, would have her will contested and found inadequate at probate. It is further true that Leon could have by trust and gift given to his children that which he thought was protected by the post-nuptial agreement. Now that Leon is deceased, it seems somewhat unjust to say that Myrtle has the option of contesting the post-nuptial agreement or allowing it to stand. Had Myrtle predeceased Leon, it is doubtful that he could have come into court and argued that since he had given inadequate consideration, the post-nuptial agreement must fail. Therefore, Myrtle seemingly, were we to accept plaintiff’s position, would have the option upon Leon’s death of upholding the post-nuptial agreement or refuting it. In the instant case there is testimony to the effect that Leon’s estate appreciated greatly after the post-nuptial agreement while Myrtle’s did not. In our view, a party to a post-nuptial agreement cannot sit idly by and wait to see which estate appreciates or diminishes before opting to act within the framework of the post-nuptial agreement or to refute it. While it is true that the statutorily given right of dower and homestead are important ones and must be protected by our courts, in the present case we find that Leon’s forbearance from distributing his estate by any method other than under the post-nuptial agreement should not be set aside at this late date. Accordingly, we affirm the order of the probate court and the opinion of the Benzie County Circuit Court. Affirmed. One commentator has thought that to deny a husband and wife the right to adjust property rights “might easily tend to foster the undesirable separation.” Kunz, Family Law, 12 Wayne L Key 319, 339 (1965). Indeed, going even further (as noted supra), Michigan recognizes post-nuptial agreements made during existing separation of married persons. See In re Berner’s Estate (1922), 217 Mich 612, and Randall v. Randall (1877), 37 Mich 563. Bandall points out, the objection to post-nuptial agreements: “The chief difficulties with such contracts are encountered when they undertake to provide for a separation of the parties and a breaking up of the marriage either with or without a divorce. It is not the policy of the law to encourage such separations, or to favor them by supporting such arrangements as are calculated to bring them about. It has accordingly been decided that articles calculated to favor a separation which has not yet taken place will not be supported * * * ”. p 571. The justices for reversal felt that the agreement was void as against public policy because it anticipated a possible future separation. In further support of the trial court’s decision, see Ransford v. Yens, supra, Carmichael v. Carmichael (1888), 72 Mich 76, and George v. Conklin (1960), 358 Mich 301. In that respect it might be argued that he relied upon the post-nuptial agreement.

[ 18, 3, -22, -26, -19, 9, 14, 34, 19, 15, 5, -8, 58, 72, -27, 22, 0, -2, -23, -43, -78, -18, -62, 33, 11, -6, -25, 13, 17, -33, -13, 54, -87, 21, 12, 2, -30, -53, 8, -7, 5, -20, 9, -7, -20, 10, -14, -46, 0, 7, 4, 2, -19, 2, 30, -7, 2, -5, -30, -43, -11, 51, -22, 38, 27, 25, 72, 40, 25, -17, 8, -52, 2, -5, 14, 1, 10, 14, -22, -21, 84, -32, -7, -1, 18, -11, -15, 42, 1, 2, -54, 1, 13, 27, -4, 0, -29, 7, 0, 49, -20, -15, 30, 15, 13, -1, -20, 15, 12, -56, 3, 2, -28, -12, 15, 35, 11, 33, 25, -30, 17, 33, -7, -33, 26, -39, -25, -4, 24, -31, 61, 37, 38, -51, 0, -14, 13, 36, -53, -45, -3, -7, 34, -48, 29, 35, -14, -79, -57, -78, -9, 9, -1, 35, 75, -41, 25, -53, 32, -14, 39, 1, -10, 49, -8, -6, 9, 2, 0, 24, 38, 6, -28, -33, 19, -2, 48, -9, -24, 0, 12, 1, -22, 3, -16, -35, -5, -6, -57, 5, -16, -37, 41, 37, 13, 37, -32, 20, 1, 42, -30, -59, 21, 57, 0, 40, 3, -38, 7, 7, -30, -12, -28, -77, -63, -3, 24, 5, -43, -5, 47, -25, -10, -23, 0, -16, -24, -64, -39, -21, -53, 34, -8, -15, 13, 16, -51, -22, -21, 25, 16, -33, -26, 20, 2, -47, -20, 73, 57, 73, 21, 10, -46, 56, 44, -1, -29, 34, 12, -28, -35, 65, -54, -19, 0, 11, 3, -31, -15, 36, -9, 20, -2, -7, 0, -81, -21, -42, -14, -31, -5, 20, -19, 24, -11, 12, -51, 8, 22, 28, 29, -28, 26, -15, -10, 26, 4, 35, -21, 1, 10, 68, 73, 44, 24, -3, -60, 20, 6, -30, -37, 37, -4, 15, -15, -6, -14, -16, -7, 8, -12, 0, 12, -2, -13, -31, 24, -1, 7, 36, 10, -3, -1, -33, 24, -7, 46, 69, -96, 6, 45, 29, 54, -5, 16, -6, -1, -19, 21, 14, 30, 7, 8, -12, -27, 37, 87, -29, -28, 30, -22, 59, -27, 6, -15, 9, 16, -21, 62, 4, 24, 54, -5, 1, 28, 9, -17, 58, -16, 59, -32, -9, -3, -15, -24, -17, -49, -12, 6, -18, -38, -41, -59, -23, 37, 71, 50, -24, -32, -9, -12, 21, -45, -16, -16, 17, -44, -3, -98, 1, 19, 4, 43, -6, 3, -18, 26, 32, -52, 23, -19, 0, -55, 22, -60, -19, -28, 14, -3, 16, -20, 22, -6, -22, 46, -9, -41, 17, -5, 56, -18, 21, 27, -41, -1, -18, -16, 4, 27, -20, 26, 13, -5, 59, -19, -53, 71, 24, -46, -22, 0, -19, 56, -33, -14, -20, -52, 36, -34, 3, -58, 3, 7, -16, 10, 13, -15, 10, 27, 7, 12, 29, -6, -49, 18, -22, -15, -14, 15, -66, 17, -25, -21, -5, 10, -41, -13, -22, -4, -22, 19, 43, 0, -9, 51, -39, -50, -48, -8, 10, -13, -68, 25, 56, 47, -18, 93, 5, 13, 24, 4, -5, -16, -8, 8, 32, 21, 15, -6, 50, -63, 53, 6, -38, -13, -26, 13, 6, -5, -40, -14, 66, 9, 46, -26, 44, -12, 5, -17, -28, -29, -107, -14, -33, 15, -1, 6, 11, 34, -32, 36, 6, 10, -7, 9, -13, -6, -58, -18, 62, -38, -26, 57, -14, 4, 20, 30, -39, -6, 14, 11, 52, -8, -4, 31, -24, -17, 44, -22, 4, -31, 29, -8, -15, -22, -1, 47, -5, 34, -27, 16, 45, 3, -33, -81, -50, 26, 37, 1, -5, 12, 14, -4, -35, -6, 43, 29, -31, 36, 40, -10, 54, -12, -4, 18, 42, 29, 1, -4, -3, 24, -5, 4, -23, -9, 11, -4, 5, 43, -53, 14, -8, 16, 5, 3, -83, -18, -55, 16, 29, -15, 35, 36, -15, -3, -46, -50, -25, -22, 37, 20, -39, -31, 59, -1, 35, 72, 11, 13, 6, 47, 50, 9, -7, 35, 34, 78, 43, 18, 44, 28, 45, 13, 13, 17, 2, 20, -25, -10, 11, -8, 35, 0, 2, -37, -11, -7, 54, 26, 11, 25, 23, -33, 36, -87, 0, -71, -50, -51, -24, 10, 23, -46, -23, -60, 8, 33, -18, 16, -14, -59, 41, -37, -17, -12, 0, 21, 19, 0, -22, 23, 29, -15, -2, -17, -18, 58, 9, 9, -42, -11, -13, -1, 2, -11, 23, -14, 0, -28, -1, 0, 17, -52, -18, -16, -15, 17, 54, 10, -19, -17, 28, -31, 10, -43, 5, -2, -15, 17, -33, -4, -14, -8, 6, 0, -2, -13, 25, -7, 11, -17, 27, 39, 9, -52, -15, 39, -32, -23, 88, 14, -63, -7, 18, 19, 4, 40, 29, 9, -63, -9, -27, -15, -15, -28, -4, -54, 49, -12, 33, 2, 4, 16, 17, -22, -26, -25, 41, 23, -81, 62, 1, -15, 26, 22, 30, 7, -34, -19, -19, 18, -6, 10, -25, -33, -2, 16, 24, 25, -62, 3, -65, -62, 5, 52, 47, 1, 24, 14, -41, 26, -53, 17, 61, -36, 31, -58, -10, -25, 5, 23, -6, -4, -25, 34, 1, 35, -11, 50, 18, -14, -36, -38, 5, 50, 74, 51, -49, -13, -30, -50, 21, -22, 5, -54, 39, 35, -35, -29, -20, 46, 39, -12, 23, -40, -4, 19, 0, 37, -15, -12, -4, -2, -65, -22, -5, 23, 27, 25, 29, 29, -37, 11, -40, -15, -4, -4, 8, -46, -17, 55, -41, 0, -61, -59, -35, -4, 27, -9, 15, 60, 13, 21, -4, 22, -34, 51, 78, 1, -43, 1, 3, -55, -61, -9, 23, -12, -37, -1, 8, -2, -34, 23, 49, -16, 16, -19, 0, -31, -2, 0, 50, -13, -32, 21, -35, 49, 26, -46, -9, -1, -22, -16, -7, 13, 0, -12, 11, -20, -10, 5, -29, -17, -1, -13, -5, -1, 37, -43, -36, 57, -22, -35, 4, 37, 1, 17, -29, -11, 32, 4, 18, -12, 24, 4, -50, 6, -13, -49, -41, -19, 24, 45, 47, -17, 70, -34, 0, 31, -68, -14, -20, 10, 5 ]

Clark, J. Certiorari to the department of labor and industry. On April 24, 1925, the department awarded compensation to plaintiff. Fitzpatrick Brothers, copartners, who were held as the employers, and their surety, here contend that plaintiff was an independent contractor, not an employee, and that therefore the award should be vacated. Fitzpatrick Brothers had contracted with the city of Ironwood to collect and dispose of garbage. Their employees did the work for some time. Then it was agreed by and between Fitzpatrick Brothers and plaintiff that plaintiff take over the collection and disposal of garbage under the contract with the city. Under such agreement plaintiff supplied two teams, which he fed and cared for, and he supplied wagons and equipment. Usually he himself worked. Sometimes he did not. He hired such men as he required. He could discharge them or any of them. He laid out and used as he thought best routes for collection of garbage. His hours were not fixed. It was upon him to produce results agreeable to the contract with the city, nothing more. For this he was to and did receive from Fitzpatrick Brothers $30 per day. The less he had to pay to helpers the more he had for himself. The number of his employees varied. So his daily profits were not uniform in amount. Twice a month he went to the office of Fitzpatrick Brothers. The amount due him was determined by the number of work-days in the half month at $30 per day. At his direction a part of the sum due was disbursed by Fitzpatrick Brothers’ checks to his employees. The remainder plaintiff himself received. Fitzpatrick Brothers were interested in seeing that plaintiff’s work met the requirements of the contract with the city and to that end and extent they had right of interference and control and the right to terminate the agreement with plaintiff. Orders or suggestions from the health officers were forwarded to plaintiff. In 26 Cyc. p. 1546, adopted by this court in Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, an independent contractor is defined: “An independent contractor is one who, carrying on an independent business, contracts to do_ a piece of work according to his own methods, and without being subject to control by his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the circumstances which go to show one to be an independent contractor, while separately they may not be_ conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the.agreement to pay a fixed price for the work, the employment of assistants^ by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.” The question has been before this court many times. See Carleton v. Machine Products Co., 199 Mich. 148 (19 A. L. R. 1141); Woodhall v. Irwin, 201 Mich. 400; Odle v. Charcoal Iron Co., 217 Mich. 469; Gross v. Chemical Co., 219 Mich. 200; Gall v. Detroit Journal Co., 191 Mich. 405 (19 A. L. R. 1164); Sawtells v. Ekenburg Co., 206 Mich. 246; Stoddard v. Construction Co., 220 Mich. 643. On the facts, within the definition above, and under the cases cited, plaintiff was an independent contractor. The award is vacated. McDonald, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred.

[ -29, -24, -75, -21, -1, 63, -27, -73, 41, 6, 13, 13, 33, -25, -14, -44, -41, -2, -25, 12, 40, 40, -50, -25, -22, -5, 16, 20, -77, 50, -16, -4, -40, -5, -32, 18, 0, -6, -9, -2, 34, 0, -34, -64, 11, -11, -12, -40, 37, -39, -1, 42, -9, 42, 50, 5, 14, 16, -16, -21, 9, -6, -13, 18, 2, -29, -41, 30, 51, 16, -20, 8, 0, 16, -19, -8, 58, 11, 6, 17, 23, 54, -24, -38, -59, 31, 22, -14, 72, -18, 2, -48, 28, 74, 6, -13, -35, 46, -30, 32, 33, -27, 10, -14, 5, 2, 33, -29, 0, 49, 37, -18, 9, -5, -31, -25, 27, -11, -13, 30, 39, 14, -24, -52, -28, -16, -27, -12, -3, 13, 43, -2, -21, -53, 49, 38, 0, 21, -28, 24, 20, 30, -30, -18, 0, 16, -62, -5, 22, -19, -10, -2, 43, -13, -39, 58, -1, -26, 81, -31, 12, 27, 13, -27, -12, -38, -60, 30, 1, 28, 1, -33, 2, -48, 63, 23, 34, -51, 1, -19, -35, -40, 6, 9, 44, 2, -37, 8, 11, -22, 59, -29, -39, -2, -44, 5, 50, -5, -26, 5, 39, -46, -31, -12, -13, 43, 59, 49, -17, -14, 25, 21, -47, -67, -67, 24, -8, -28, -25, -52, -15, 11, -27, -19, 12, -36, -41, 23, 1, -10, -49, 51, 38, -19, -36, -62, 6, 10, 57, 75, 3, -15, -24, -24, 17, -44, 0, 14, -8, 54, 0, -9, 53, 20, -5, 5, -13, 14, 8, -11, 2, 30, 29, 34, 7, -44, -12, 63, -4, 67, -29, -14, 62, 11, -35, -32, -2, 20, 2, 16, -39, -19, -22, -7, -29, 3, -23, 0, -15, -10, 63, -17, 32, -20, 40, 40, 74, -27, -6, 21, 1, -2, -16, 2, 20, 41, -57, 33, -8, 2, -8, -32, -30, -47, 51, -10, -57, -1, -22, 3, -10, 21, 1, -50, 30, -31, 1, 1, 7, -15, -2, 13, 2, 24, -5, -19, 38, -35, -12, -9, 23, 6, 15, -39, -31, 13, -28, -11, 26, -12, 8, 0, -30, -1, 35, 23, 17, -5, -37, 22, 27, 26, -64, -39, -37, -31, -21, 2, 11, 11, 13, 7, 20, 7, 11, -28, -18, 19, -73, 27, -4, -20, 24, -47, 25, -31, 29, -18, -60, -25, -19, -20, -1, 25, 12, 47, 39, -21, -33, 12, -39, -3, -24, -13, 20, 13, 1, -26, 9, -36, -40, -40, -4, -6, 0, -59, 37, -64, -3, 46, 62, -40, 29, -2, 24, -59, 4, 54, -4, -25, -11, -18, 11, -15, -4, -4, -45, -24, -35, -24, -51, 41, -6, -24, -19, 20, -22, 20, 12, -23, -9, 61, -25, 83, 23, -2, 2, -24, 67, 39, 6, 17, 71, -6, 16, 29, 36, -6, -18, 51, -51, -20, 40, -3, -31, -43, -35, -14, -32, 14, 23, -8, 21, 0, -18, -30, 45, 18, 15, 22, 29, 52, -36, -31, 8, -11, 0, 27, -16, 0, -38, -17, 0, -16, 37, -30, -37, -18, 10, 19, -19, 62, 54, 42, -8, 37, -26, 56, 47, -43, 32, -38, -65, 37, 52, 14, -31, 9, 33, -17, -3, -5, 38, 29, -6, 16, 13, 13, -39, -13, 43, -16, -12, 54, 17, 9, 7, 39, -1, -23, -5, 18, 38, 7, -42, 17, 27, 0, 44, 13, -4, -9, 6, -28, -7, -47, -44, 28, 39, 33, -13, 7, 0, 9, 12, 32, -36, 14, 10, 4, -10, -13, -18, -19, -12, -3, 20, -29, 31, -3, 8, 6, -51, -4, 30, -19, -14, -1, 22, 15, 20, -22, -68, -50, -97, 9, 21, 50, 17, -6, -19, 39, -3, -54, -23, 0, -3, -22, 52, 22, 31, 46, -8, 2, -28, 52, 60, -19, -19, 39, -15, -11, -73, 20, 0, 30, -13, 41, -4, 83, 36, -62, -31, 22, -15, 1, 41, 7, -23, -21, -17, 7, 47, -16, -26, 22, 24, 11, -6, -3, 18, -5, 8, 46, 15, -15, 20, 38, 36, 35, 34, -7, 28, 29, 8, -7, 13, 9, -10, 1, 38, -34, 20, 28, -7, 27, -14, -42, -22, -33, -35, 18, -7, -47, -7, 5, 27, 31, 24, 19, -45, 18, 36, 59, -24, -2, 5, -20, 16, 30, 54, -59, -5, -3, 28, 78, 8, 40, -53, -35, 5, -80, 19, 23, 4, 14, -41, 0, -40, 13, 0, -11, -34, 17, 15, -24, -15, -34, -52, 41, 8, -50, 25, 5, -24, -21, 31, 19, -61, 33, -71, 16, -30, -14, 31, -6, -24, 8, -78, 24, -18, -17, 12, 17, -7, -27, -24, 19, 89, -59, -27, 30, 41, 24, 60, 33, 36, 8, -49, -15, 42, -4, 60, 12, -35, -44, -48, -39, -36, 6, -27, -36, 3, -14, -20, 45, -11, 1, 0, -30, 4, 0, -64, 6, 72, -7, 3, 11, -6, -43, 8, -16, -1, 0, 0, -7, -26, 5, 19, 29, -34, 57, 21, -44, 3, 3, 18, -41, 5, -35, -19, 8, -115, 36, 50, 8, -18, -3, -1, 25, -1, -44, -14, -21, 29, 44, -42, 46, -24, -26, -14, -40, 34, 19, 25, 1, 16, 0, -1, -34, 34, 6, -44, -3, -23, -41, -30, -36, 50, -7, 30, -19, -7, -42, -16, 18, -30, -29, 26, 39, -8, 51, -40, -22, 1, -11, -3, -31, 2, 62, 29, -59, -1, -5, -22, -63, 0, -40, 23, -1, 24, 7, 1, 18, -11, 35, 7, -56, -17, 32, 9, -25, -25, 0, -26, 19, -24, 23, 16, 17, -22, -27, -18, -7, -4, -23, 9, 38, -2, 45, -10, -28, 18, 49, 37, -22, 5, -32, -8, -20, -34, -36, 2, 33, -18, 19, -16, 8, -7, 10, -14, 23, 31, 8, -34, -26, 8, 1, 10, -44, 27, 51, -16, 19, 33, -34, 39, -56, 19, -49, 22, 31, -12, -29, 5, -37, -36, -11, 0, 11, 27, -33, 18, 30, 4, -23, 16, -55, -38, 26, 15, -9, 49, 2, 40, -33, 2, -41, 18, -45, 23, 21, -34, 40, 32, 23, 36, 42, -17, -40, -77, 0, 35, 12, 5, 67, -17, 17, -45, -27, 36, -14, 13, 41 ]

Per Curiam. On September 16, 1966, Mr. and Mrs. Boy Porter were held captive in their home in Detroit while two gunmen systematically searched the house and took various articles and approximately $70 in cash. Defendant Bomain Taylor was arrested on October 13, 1966, and charged as one of the participants in the armed robbery. A trial by jury in the Becorder’s Court of the City of Detroit resulted in a verdict of guilty as charged. The defendant appeals as of right. The defendant’s principal contention on appeal is that the two lineups at which the Porters identified him as one of the gunmen was “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Stovall v. Denno (1967), 388 US 293, 302 (87 S Ct 1967, 1972; 18 L Ed 2d 1199, 1206). He enlists essentially two arguments in support of this conclusion: 1. ) Although all of the members of the lineups were Negroes and two roughly matched the defendant’s physical characteristics, some of the members were unlike the defendant in appearance. 2. ) The defendant is a “darkly-complected Negro who could be prejudiced by the use of lighter-complected persons in the lineup, yet no notes on skin color were taken by either of the two officers in charge”. We find defendant’s contention to be without merit. In the first place, there is no requirement that every member of a lineup, or nearly all of the members, resemble the accused. As this Court said in People v. Lloyd (1967), 5 Mich App 717, 724: “Lineups are conducted in police stations, and the persons who participate in the lineup are taken from those who are being held in custody. It would be unusual indeed if the police had five persons with similar physical characteristics locked up in the same jail. Moreover, the purpose of a lineup is identification. If the defendant is the tallest man in the lineup, and if he believes that this impairs the validity of the identification, he should see that the jury is apprised of that fact. This is a question of the weight to be given the lineup identification, not its admissibility. It presents no basis for a new trial.” Moreover, it affirmatively appears from the record that misidentification was unlikely. The gunmen, who were not masked, were in the Porters’ full view throughout most of the robbery, that is, for nearly 30 minutes. The opportunity to observe and study the defendant’s features was optimum. Indeed, according to Mr. Porter, the defendant said, “don’t look at me so hard”. On the day following defendant’s arrest, two lineups were conducted, one for Mr. Porter, the other for Mrs. Porter. Both of the Porters positively identified the defendant independently of one another. The defendant’s second contention — that he was not proven guilty beyond a reasonable doubt — is wholly lacking in merit and requires no formal discussion. Affirmed. MOLA § 750.529 (Stat Ann 1970 Cum Supp, § 28.797).

[ 80, 17, -2, 20, -51, -38, -40, 1, -37, 25, 59, -42, 2, 21, 7, 17, -13, 37, 53, -55, 10, -32, -25, 64, -15, -30, 53, 27, -51, 41, 22, 7, 72, -27, -24, 65, 68, -14, -13, 32, 0, -1, 0, -36, -35, 8, 19, 37, 6, -37, -8, -54, 2, 60, -36, 21, -17, 6, 36, 4, -21, 13, -16, -17, 2, -31, 23, 15, -21, -23, 11, 0, -28, -6, 14, -15, -13, -35, 44, -13, 4, 2, 7, 0, 9, -9, 20, -55, -40, -16, 11, 8, -25, -42, 19, 5, 23, -21, 19, -47, -9, 4, -27, -19, 11, 15, -57, -6, -15, -1, -20, -18, 22, 0, -16, -37, -17, -14, -16, -26, -9, 12, 59, -25, 7, -63, 22, -57, 4, 13, 5, 42, 18, 28, -29, 54, 13, 15, 4, -23, -19, 21, -20, -8, 50, 17, 0, 24, 41, 14, 1, 25, -19, 33, -37, 26, -19, 1, -22, 16, -44, -29, 17, 0, 10, 18, -57, 5, 3, -2, -64, -2, 46, 33, 51, 44, -26, 27, -25, -17, -12, -5, 0, 12, -43, -24, -18, -34, -18, -43, -5, 3, -21, -2, 21, 34, -3, -59, 0, -65, 43, 7, -33, -2, -25, -25, 1, -3, 12, 31, -47, 4, 41, -26, -4, -10, 11, -60, -23, 26, -41, -46, -25, 3, 20, -22, 20, 8, 11, -20, 36, 31, 37, 2, -23, -32, 1, -48, 12, 0, 31, -55, -10, -27, -41, 14, 17, -7, 31, 53, 4, 17, -26, 6, -36, 26, 6, -16, -6, -4, -42, 1, -29, -4, 37, 91, 2, 28, -87, -21, -43, -28, -26, 23, 12, -24, -46, 59, 14, 25, -14, 37, -19, 0, 15, -61, 3, 2, 20, 34, 48, -14, -1, -27, 16, 8, 42, -10, -30, -17, 59, 41, 7, -38, -20, 24, 47, -12, -11, 1, 16, 53, -18, 31, 36, 0, -3, -7, -9, 2, -62, -26, -1, -22, 56, -21, 35, -1, 0, -43, 16, -1, -17, -25, -17, 1, 41, 23, 8, 42, -62, -7, 16, -30, 22, 21, -33, -7, -55, -60, 6, 32, -32, 1, 22, -17, -36, -22, -16, -41, 44, 0, -27, 39, -10, -3, -43, 17, 37, 19, 16, -61, -4, 29, -4, 20, 43, 21, -5, 14, 3, 0, 35, -57, 7, 0, -21, -27, 62, 28, -23, 0, 21, -26, -38, 12, -57, 48, 81, -90, -55, 14, -9, 18, -21, 7, -33, -4, -28, -60, -19, 20, 41, 44, -36, -15, 0, -27, -35, 3, 7, -20, 5, -17, 11, -1, 21, 30, -15, 4, -7, -26, -8, -48, -5, 19, -25, -79, 21, -71, -32, -46, -36, 31, 52, 35, -8, -9, -38, 55, -9, 32, 26, -29, 0, 33, 28, -15, -11, 23, 19, -18, 3, -3, -33, -5, -51, -11, -17, 5, -1, -12, -14, -13, 0, 18, -2, 6, 5, 8, 2, -4, 39, 21, -59, -39, -35, -52, 51, 5, 31, 26, 28, 15, 12, 7, -31, 7, -10, -38, -9, 28, -17, 0, 58, 19, 5, 7, -19, -8, 42, 12, -45, -22, -41, -50, -10, 14, -22, 17, -6, -13, 24, 5, 17, 46, -17, -53, -43, 14, 45, -27, 6, -2, 50, -15, -10, -32, 34, -17, -21, 29, 25, 4, 5, 16, 15, 1, 8, -66, 27, -17, 32, -17, 16, -25, -20, 8, -24, 1, -12, -2, 62, 40, 34, 1, 7, 11, 77, -48, -38, 25, -28, 66, -37, 26, 34, 12, 4, 42, 4, 74, -20, -8, -23, -3, -10, -26, 10, -15, 19, -42, 12, -23, 3, 13, -79, -19, -36, 17, 73, -19, -51, -25, 46, -30, -44, -10, -53, 3, 33, 0, -5, -21, -27, 13, -34, -16, 0, 15, 27, 13, -39, 47, -5, -35, -44, -13, 9, -29, -43, -17, 8, 39, 6, 0, 48, 12, -63, 73, -22, 17, 45, 0, 9, -20, -48, 5, 40, -57, -29, 6, -2, 20, 25, -37, -21, 11, 0, -17, 1, 84, -56, 32, -18, 14, 26, -86, 51, -12, 13, 11, 9, 5, 20, -4, 17, -20, -16, 9, -8, -18, -18, -2, 3, 50, -8, -29, 14, -31, -17, 3, 12, -32, 65, -7, 45, -8, 13, 3, -20, 18, 26, -29, -32, 0, -9, -18, -18, -9, 13, 65, 6, -32, 27, -44, -89, 14, 10, 20, -30, 6, 70, 1, 32, 4, 32, -20, 8, -20, 6, 3, 19, -36, 36, 23, -48, -6, 9, -4, -43, 2, 78, -8, -12, -35, 21, -80, 19, 65, 75, 43, 18, -4, -25, 50, 5, 53, -55, -48, 4, -32, 26, -55, -34, 16, -36, -10, 17, -26, -65, -37, 1, 15, -11, 25, -13, 0, 55, 9, 2, 57, -42, 50, 19, 43, -16, 48, -12, 10, 13, 22, -53, 4, 13, 33, 23, -37, 4, -16, 63, 78, 49, -12, -6, -15, -18, 31, -2, -12, 35, 33, -16, -1, -25, 26, -30, 15, 28, -12, 14, 3, 14, -2, -38, 53, -37, -46, 24, -25, -19, 46, 8, 54, -43, 34, -6, -5, -18, 18, 74, -5, -3, 6, 32, 45, -28, -20, 14, -7, -10, 16, -24, 28, 0, 12, 13, 2, 13, 11, -11, 24, 2, -29, -19, 31, 82, -68, 34, 61, -46, 20, 22, 45, 13, 41, -18, 74, -7, -4, 20, -28, 12, 25, 41, 33, 0, -53, 23, -19, 0, 13, -42, -4, -12, 9, -5, -3, 37, -20, 24, -12, -57, 31, 2, -20, 32, -2, -47, -3, 81, -39, -17, -4, 27, 19, -3, 1, 15, -58, 2, 26, 18, 22, 25, -70, -11, 24, 7, 40, -8, -3, -19, -52, 31, -27, 48, 5, -3, 16, -50, 11, -77, 10, -2, 70, -43, 8, 9, 24, -17, 9, -4, 29, 38, 24, -11, -32, -19, 7, -38, 50, -26, -35, 25, 55, -41, -51, -19, -8, 21, -11, -20, -78, 19, -71, -13, -19, -29, -40, -48, -17, -20, 6, 21, -55, -21, 4, -61, 26, -36, 11, -9, 6, 1, 43, -31, 12, -23, 22, -26, 71, 48, 16, 12, 6, 45, -10, 0, -22, 10, -44, -8, 30, -35, -30, 5, 26, -11, 17, 8, 19, -7, 24 ]

Per Curiam. Defendant appeals from his nonjury conviction of the statutory rape of his daughter and the ensuing sentence therefor. The three specific issues framed by defendant all relate to his contention that he was denied a fair and impartial trial. Const 1963, art 1, § 20, guarantees a defendant a right to trial by an “impartial jury”. On jury waiver, a judge “shall proceed to hear, try and determine such cause in accordance with the rules and in like manner as if such cause were being tried before a jury”. CL 1948, § 763.4 (Stat Ann 1954 Rev § 28.857). In effect, the statute places the same standard of impartiality on the judge as the constitution places on the jury. The record discloses that the trial judge interrogated witnesses prior to trial in the presence of defense counsel and the prosecuting attorney but in the absence of the defendant. The purpose of the interrogation was proper. The trial judge was seeking information on which to determine the grant or denial of defendant’s application for a continuance. At that time a jury trial was anticipated, and if the cause had been tried by a jury, we would hold no error occurred. At a subsequent hearing, again on defendant’s motion for adjournment, the trial judge stated in addressing defense counsel, “But I also didn’t realize, and maybe you didn’t know before you stepped into the picture, that your client took a lie detector test. Do you know that?. And he failed it.” Again, if this had been a jury trial, as then expected, we doubt that we could find reversible error. There after, the trial judge accepted defendant’s waiver of jury trial. We are satisfied that had a jury voir dire examination disclosed that any prospective jurror possessed the information that the trial judge possessed prior to trial, that juror would have been excused by the trial judge for cause. Similarly, we challenge the trial judge for cause as trier of the fact and excuse her. A judge, the same as a juror, does not pass the required test of impartiality once possessed of the type of information this record discloses that the trial judge possessed prior to trial.. The conviction is reversed. CL 1948, § 750.520 (Stat Ann 1954 Rev § 28.788).

[ 34, 17, -41, -7, -7, -21, -24, -14, -62, 39, -16, -13, 30, -20, 1, -32, 36, 6, 22, -76, -42, 30, -5, 87, -50, -35, 6, 54, -49, -52, 41, 7, -33, -2, 2, 1, 60, 31, -30, 7, -9, 54, -61, -17, -83, -20, -24, 19, 28, 37, 39, -14, 10, 16, 36, -20, 19, 12, 8, -9, 13, 27, -25, -37, -26, -22, -59, -18, -34, 14, -37, -23, -25, 1, 22, -7, 3, 27, 28, 52, 36, -23, 20, 20, -18, -15, 57, -15, 18, 1, 0, -1, -59, 19, -51, -3, 73, -38, 87, 10, -21, -8, 91, -18, -38, 4, -63, 15, 53, 3, 22, -50, -5, -30, -43, -20, -4, 4, -48, -71, 32, 17, 63, 33, 32, 27, 22, -62, -30, -62, -12, -17, 52, -33, 15, -35, 25, -21, 25, 10, 36, 13, 39, 10, 24, -20, -17, 0, -4, 34, -5, 41, -6, -13, 21, -30, -7, -25, -9, 14, -55, 61, -38, -5, -4, -28, 32, -17, 6, -17, 0, 25, 92, 33, 10, -70, 38, -18, 26, 19, -27, 33, 1, 16, 25, 31, -55, -27, -52, -19, -11, 4, -18, 10, 97, 26, 21, 12, 31, 0, -3, 13, -6, 3, 19, -13, 14, -40, -3, 2, -45, 39, -26, -30, 23, -48, -7, 28, 19, 42, -44, 8, 0, -52, -41, -25, -16, 3, 4, -6, 26, -37, -39, 3, 17, 14, -1, -31, 53, 43, 13, 17, 58, -2, -4, -43, 13, -8, -56, -2, 52, 9, 37, 11, -44, -20, -50, -5, -22, -16, -17, 14, -56, -3, -58, -18, 31, 50, 4, -32, -52, -27, -29, 2, 21, -4, -26, 1, -42, -26, -29, 14, 15, -5, -105, -2, -33, 38, 29, 13, 53, 9, -50, -8, 22, -9, -18, 56, -5, -50, 30, -34, 23, 14, -31, -45, 11, 19, -35, 17, -3, 22, 20, 24, 5, 52, -45, 12, 32, -15, -3, -60, -1, -35, -18, -14, 10, -78, -25, -12, -74, 22, -5, 22, 58, -5, 4, 9, 7, 39, 6, -20, -31, 9, 9, -12, -13, 44, -27, 0, 9, 14, -17, -37, -42, -52, -29, -40, 8, -29, 31, 7, 21, -3, 27, 10, 7, -14, 18, 46, -1, -53, 16, -19, 1, -52, 8, 16, -4, 26, -44, 37, 75, -59, -13, 49, 17, -3, 0, 1, 3, -35, -23, -13, -32, 36, -14, 22, 24, 17, -81, -31, -5, 7, -16, -26, -15, -53, 0, 33, -25, 73, 46, 34, 29, -51, 10, 1, 50, -11, -17, -76, 6, 15, -3, 8, -8, 16, 80, -38, -34, -20, -32, -73, 16, 50, 13, 1, 27, 7, -17, -21, -65, -10, -11, 8, 22, -9, 5, 8, -16, 24, 37, -42, -8, 30, 22, 15, -13, 25, -18, 1, -41, 9, 55, -27, -48, -18, -5, -18, 61, -20, -7, 7, -20, 39, -25, 62, 51, -15, 31, 6, -19, -6, -29, -16, 31, -14, 47, -13, -23, 2, -27, 23, -39, 17, 10, 1, 34, 37, -15, 8, -9, -11, 17, 16, 43, -26, 9, 0, 9, 30, -41, 42, -12, -15, -46, -33, -23, 31, -10, -67, -11, -9, -23, 35, -51, -5, -2, 6, 75, 68, -22, 0, 35, 49, -13, -91, -3, 32, -29, 25, 25, 4, 48, 25, 1, 28, 30, 23, 11, 31, 1, 20, -17, 2, -15, -40, 37, -52, -13, -15, 46, 22, -7, 10, -40, 3, 9, 23, 17, 6, -76, 70, -8, 28, 9, 94, -3, 2, 29, 32, -10, -47, -7, -23, 17, -18, 33, -31, -63, -29, 13, -23, -15, -76, 3, -29, 28, 17, -8, 2, -60, -11, 25, 17, 22, 55, -23, -37, 34, -1, 21, -21, -6, -43, -10, 13, -10, 48, -34, -1, -46, -45, 13, -7, -21, -16, -15, -42, -17, 13, -10, -34, 6, 39, -35, -27, -12, 21, 36, -10, 18, -40, -26, -24, 8, 20, 13, -88, 21, 11, 19, -37, 68, 12, -11, -12, 72, -22, 2, -2, -33, 51, -6, 45, 6, -3, -31, -21, 14, -4, 66, 20, -2, 4, 25, 37, -88, 20, -10, -69, -16, -9, -28, -4, -47, 12, 15, -6, 3, -12, 54, -23, 43, 4, 36, 25, -22, 11, -2, -18, -14, -14, 18, -2, 8, -31, 28, -2, -51, 53, -28, -30, 34, 6, -37, 4, 0, 17, -36, -24, 13, 18, -36, 34, 50, 6, -2, -35, 10, 24, -4, 34, -2, 37, 1, -39, 18, -47, -14, 29, 24, -45, 0, 0, -11, -7, -21, 18, 6, 34, 51, 43, -29, 63, 39, -41, -37, 15, -2, 7, -1, -58, -41, 39, 12, -7, 32, 58, -44, -37, 64, -11, -31, 20, -6, 0, 37, -12, 12, 13, -46, -38, 50, -31, 18, -20, -39, 14, 60, 9, -5, 63, 24, -12, 19, -11, -7, 19, 0, 5, -7, -36, -3, -18, 1, -9, 16, 4, 68, -28, -30, -10, -39, -14, -8, -10, 41, -17, 32, 52, -13, -65, 14, 14, 7, -60, 42, -27, 22, -57, 0, 37, 13, -47, 3, 22, -30, -15, -23, 41, 13, 19, 32, -45, -5, 11, 38, 31, 31, 28, 11, 0, 17, 0, -8, 30, -65, 23, -58, 6, -32, -46, 30, -16, -10, -22, 32, -19, 17, 0, -30, 11, -41, 19, 21, 11, -50, 67, 4, -6, 0, 9, 5, 4, -53, -42, -64, 7, 46, 32, 34, 33, -1, 12, 40, 1, -3, 0, -19, -1, 10, 29, 11, 19, 1, -21, 10, 45, -35, -20, 9, -9, 103, -15, -17, -14, 26, -25, -35, 28, -35, 21, -3, -53, -29, -81, 1, -18, -5, -16, 25, -4, 25, -1, -39, -32, 5, 46, -11, -20, -21, 9, -35, 21, -59, 50, 29, 30, -49, -9, -24, 5, 48, -16, 45, 49, -4, -51, -18, 37, 16, 37, 0, -12, 3, 20, 17, 43, 56, -17, -12, -32, -42, -11, 19, -3, 22, 5, -20, -20, 9, -6, -30, -41, 4, 62, 2, -51, 40, -59, 6, 37, -38, 43, -10, -25, 49, 51, -5, 25, 30, -25, 6, 46, 1, -32, -17, 49, 9, -36, 42, -3, 7, -10, 0, -99, 32, -21, -21, 82, 26, 24 ]

Per Curiam. Defendant appeals from the summary judgments of dismissal of its counterclaim and supplemental counterclaim against plaintiff. October 10, 1968, plaintiff filed its complaint against defendant to recover the amount of the latter’s promissory note to the former, and summons issued. At the same time, three writs of garnishment issued and were served. These writs were quashed October 23, 1968 on defendant’s motion, because the affidavits on which the writs were based were held to be fatally defective due to an insufficient statement of facts to support plaintiff’s claim of just apprehension of loss. October 23,1968, plaintiff filed new affidavits, and new writs of garnishment issued to the same garnishee defendants named in the first writs. Again defendant moved to quash, and this motion was denied December 13,1968. December 5,1968, defendant filed its counterclaim seeking damages against plaintiff for abuse of process on the basis of the issuance of the first writs of garnishment. By judgment of February 13, 1969, the trial court dismissed this counterclaim on plaintiff’s motion. By stipulation, a supplemental counterclaim for damages, based on the same theory but on the issuance of the second writs of garnishment, was filed. Again, on plaintiff’s motion on March 3, 1969, judgment entered dismissing the supplemental counterclaim. Garnishment was proper prior to judgment in this contract action. MCLA § 600.4011(1) (Stat Ann 1962 Rev § 27A.4011[1]), GCR 1963, 738. The trial court found that the affidavits for the second writs were sufficient, and defendant has not appealed this finding. The March 3, 1969 judgment dismissing defendant’s supplemental counterclaim is affirmed. The essential elements to establish an action for abuse of process are, (a) the existence of an ulterior purpose and (b) an act in the use of the process not proper in the regular prosecution of the proceeding. Spear v. Pendill (1911), 164 Mich 620; Pilette Industries, Inc., v. Alexander (1969), 17 Mich App 226. It is defendant’s contention that the purpose element must be judged from the state of mind of the garnisher, and that this is a jury question, hence summary judgment was improper. Defendant’s position in this regard is not supported by the authorities it cites, and it is contrary to Pilette, supra, at page 228: “The proper issuance of process may become tainted by its subsequent use, but a regular use of process with bad intentions is not a malicious abuse of that process. Spear v. Pendill, supra. The manner of use of the process, not the intention, is what is evaluated.” Affirmed with costs to plaintiff.

[ -32, -15, 32, 0, -6, -15, 30, -36, -20, 67, -44, -28, 11, 45, -38, 2, -27, -55, 11, -2, -23, -18, 1, -14, 10, -17, -14, -11, 34, -56, -17, 5, -33, 0, -9, -53, -16, 14, -9, 16, -19, 6, 16, 15, -20, -26, -23, -13, 11, -11, -1, -44, -18, -10, -16, -23, 11, -6, 0, -19, 8, 6, -51, -13, -53, -9, -15, -3, -1, -5, -41, 49, 27, -12, -11, -18, -28, -28, -32, -1, -4, -18, -2, 7, 14, 13, 0, 10, 27, -19, 2, 23, -50, -28, -35, 1, 26, -19, 66, 80, -23, 30, 15, 27, -9, -33, -14, -17, -54, -30, 35, -8, 1, -61, -46, -62, 38, 3, -42, -18, 4, 7, 44, 16, 23, 24, -3, -22, -24, 100, 30, -6, -2, 54, 12, -22, -6, -43, -44, -46, -15, -54, -31, -27, 4, 22, 35, -7, 11, -12, -34, 39, -63, 0, 2, -13, 11, -37, 24, -45, 2, 46, 6, -1, -3, -28, 12, -4, 39, 15, -10, -10, -12, -7, 0, 3, -30, -40, -44, 22, -5, 27, -3, 16, 27, -47, -69, -21, -3, -6, -28, 32, 7, 14, 18, -8, 47, -10, 24, -23, 18, -11, -7, -10, -9, 40, 71, -65, 12, 44, -25, -13, -54, -32, -54, -44, 51, 3, 40, 40, -71, 16, -10, 0, -19, 19, -15, -10, -11, -7, -28, -18, 31, 8, -1, -3, 67, 36, 32, 6, -17, 33, 5, -29, 33, 33, 17, 6, 1, -1, -6, 37, -5, -1, -7, -70, -63, 41, -1, -3, 42, 61, -3, -12, -37, -24, 26, 59, -44, -11, -7, 8, 24, 36, 61, -53, -34, 7, 4, 23, -9, -1, -30, -37, -56, 11, 47, -2, 12, 43, 0, 19, -15, -18, -32, 22, -13, -54, -17, 0, -50, -59, 36, -50, -25, 15, -10, -17, -52, -52, -15, 42, -42, -49, 13, 16, 7, -8, 31, -43, 22, 23, 48, -35, -36, -9, 32, -17, -7, 34, 3, 12, 17, -32, 25, -41, 14, -33, -4, 13, 19, 25, -35, -16, -46, 72, 17, 10, 29, 48, -24, 0, 43, 32, 88, -29, 30, 6, -4, 18, -21, 31, 8, -34, 45, 47, -18, -8, -38, 62, -31, 0, 11, -14, -28, -15, -19, 23, -19, 75, 4, -51, 47, 20, -4, -3, -2, -3, -6, 1, -43, -1, 19, -8, 35, -22, -48, -25, -38, 45, -40, 50, -6, -8, -21, -18, 7, -40, -11, 0, -19, 16, 0, 33, -14, -35, 11, 10, 38, -67, 62, 6, 3, -31, 15, -6, 41, -21, 11, -22, -37, 103, -1, -36, 5, 39, -16, -6, 48, -1, -7, -20, -4, 4, 26, 21, 33, -19, 29, 0, 2, -38, 4, -2, 73, -14, 52, 9, 35, 22, 45, -18, 9, 23, 6, 0, 4, 8, 9, -18, 16, -31, -54, -11, -47, -8, 13, 40, 12, -13, 27, 26, 16, -79, -7, 35, 6, -17, -3, -62, 5, 2, 37, 11, -24, -75, -62, -34, -18, 33, -3, -8, 21, -7, 35, 4, -29, -5, -10, 50, -17, 6, 53, 2, 12, 6, 68, -18, -9, 10, -18, -24, -54, -32, -37, 6, 19, 26, 28, -8, 25, 16, -1, -36, 17, 35, -40, -39, -3, 18, -4, 75, 48, 29, 17, 27, -40, -13, -3, 53, -31, -24, 52, 22, -48, 11, 11, -9, 64, -79, -7, -10, 17, 7, 56, -30, 28, -29, -28, 3, -20, -4, 25, 14, -13, 16, 31, 0, -15, -44, -8, 41, -15, -60, -17, 4, 21, 11, -19, 32, -2, -19, -17, -32, -8, 0, -46, -20, -11, 42, 7, -1, -42, -18, -15, 16, 16, 14, -7, -50, 32, -33, 1, -37, -39, -69, -5, 9, 7, 53, 11, -24, 23, 35, -6, 27, 15, -25, -32, -3, 58, -38, -1, 14, -45, 18, -41, 20, -24, -39, 11, 14, 16, 0, -20, -84, -4, 30, 29, 5, -28, 43, -1, 17, 8, -28, 38, 15, 5, -59, -12, -11, 23, -2, -14, 50, 8, 21, 21, 45, 33, -58, 24, 28, -2, -7, 9, 7, 18, -19, -21, -24, 2, 28, -2, -1, 5, -2, 30, -37, 1, 16, -21, -19, 12, -18, -9, 32, -24, 24, 5, -19, -26, 45, -32, -25, -12, 6, 48, 10, -22, -41, 24, 8, 29, 15, 30, 52, -43, -11, 14, -2, 58, 30, -21, -39, 65, -33, -31, -25, 26, 59, 1, 69, -29, 0, 21, -61, -58, 0, 13, 3, 31, -10, 8, 38, 43, 86, -18, -24, 11, 10, 34, 12, -13, 19, 26, -35, 15, 16, 8, 32, -8, -45, -26, 51, -12, -14, 0, 14, -45, 0, 50, -43, 7, 33, 22, -58, 54, -20, -3, -26, -5, 20, 2, -83, 5, -21, -40, 18, 27, -9, 15, -3, 5, -6, 8, -2, -41, 2, 2, -12, 0, -11, -13, 4, -16, -20, 2, -16, 40, -31, 5, 0, 25, 12, -41, 18, -53, -16, -6, 48, 3, 45, 22, 22, 19, -58, -4, 20, 14, -48, 3, 64, -16, -1, 25, -11, -20, -52, -3, -36, -2, 7, 25, 17, 3, 21, -8, -51, 6, -4, 30, 15, -8, 0, -22, -6, 7, 29, 38, 0, -39, 10, 57, 20, -23, 23, 12, 16, 57, 37, -44, 15, -19, 1, 37, -14, 19, -6, 33, 4, -59, 51, -11, 6, 11, -34, -66, 14, 69, 6, 44, 7, 17, 2, 64, -48, -3, -3, -45, 8, -30, 19, 5, -2, 11, -51, -2, 39, 47, 19, -16, 7, 56, -13, 71, -16, 35, -22, 30, -44, -5, -37, 13, -44, 19, 16, -9, 14, -30, -18, 11, 24, -16, -28, -18, -32, -2, 41, -36, -7, 20, -12, -7, -53, -67, 15, 22, 53, -23, -9, 83, 23, -3, 18, 14, -8, -24, -26, 46, 7, 28, 1, 30, 10, 31, -1, -2, 42, 36, -71, -20, -41, -28, -33, 48, 2, -51, 22, 15, -51, -7, -29, 6, -15, -14, 16, -26, -1, 40, 46, -3, 19, -45, -8, 9, 4, -16, 72, -38, -18, 66, -59, 38, 13, 9, 8, -44, -23, -23, -46, 14, 62, 5, 4, -57, 23, -62, 12, -6, -13, 59, 22 ]

Per Curiam. Upon motion of the defendant the court of claims dismissed plaintiff’s cause of action for lack of progress. UCR 1963, 501.3. Plaintiff has appealed arguing that this was an abuse of discretion. The record clearly supports the action of the trial judge. The argument is without merit. Corley v. Krawczak (1969), 16 Mich App 176; People v. Tolbert (1970) 23 Mich App 566; Spalding v. Spalding (1959), 355 Mich 382. Affirmed, no costs, defendants not having filed a brief.

[ -13, 39, 29, 23, 1, 4, 11, 13, -28, 17, -30, -27, -11, -13, 23, -14, 18, -48, 32, -17, -66, 20, 27, -19, -31, -46, -1, 19, 0, 9, -15, 1, -51, 40, -20, -49, -10, -20, -11, 22, 15, -69, 54, 31, -53, -11, 35, 12, -24, 40, -7, 29, -59, -30, 17, -7, 15, -23, -8, -30, -13, 14, -11, 18, -4, -2, -7, -52, -23, 0, -11, 22, 27, -29, 1, -14, -7, 17, 9, 41, 52, -8, 37, 47, -3, 4, 4, 4, -13, -4, -60, 42, -62, -20, -13, 39, -18, -8, 39, 2, 17, 20, 16, -29, -19, 18, 30, -27, -96, -60, -24, 47, -24, -26, -6, 46, 9, 17, -37, -41, 4, 31, 38, 4, -29, 31, -12, 9, -1, 29, 0, 65, -1, -40, 9, 20, 15, -11, 8, -6, -18, -6, 11, -27, -5, -28, 26, -9, -41, 0, -13, 76, -37, 54, 26, 0, -9, -28, 0, 39, 10, -13, -49, 12, 27, 39, 8, 17, 55, 6, -19, -5, 6, -15, -26, 16, 32, -2, -6, 7, 7, 16, 6, 20, -18, 33, -52, 25, -15, 5, 0, 3, -10, 5, 46, -5, 8, 44, 43, -29, 31, -14, -21, -40, -26, -22, 7, -80, 23, 23, 5, 18, 8, -61, 40, -19, 51, -25, -6, -8, -1, 21, 30, -28, 3, -42, -3, -3, -69, 21, -6, 39, -25, 15, 41, 31, 0, -53, 30, 34, -15, 38, -7, -23, -65, 24, -22, 58, -23, -10, 56, 3, -10, -24, 23, -42, 12, -13, -8, 4, -2, 73, -40, -50, -3, 10, 18, 33, -1, -13, 12, -8, -16, -43, 10, -29, -30, -26, 3, 23, -11, 22, 21, -21, -85, 26, -23, 5, 42, -9, 5, -47, -37, -24, 37, 45, 39, -16, -14, -31, -44, -21, 34, 11, 15, -23, -18, -11, -78, -14, -25, 43, -18, 9, -8, 26, -24, -12, -4, -55, -11, 14, -15, -51, 45, -54, 26, 5, 35, 18, -38, 10, 22, 2, 10, -10, -9, -21, 7, 34, 6, 19, -41, -15, -23, 0, -29, -16, 32, 39, -36, -48, 24, 3, 11, -26, -28, -17, -57, 6, 18, 23, 40, -28, 42, 76, 10, 23, -13, 65, 15, -57, 53, -44, -35, -37, 15, 23, 3, 68, -9, -84, 42, 2, 3, 10, 26, 27, -28, 12, -1, 1, 14, -8, -12, 23, -69, 49, -1, 12, 2, -30, -12, 16, -36, -21, 20, -22, -3, 36, 26, 19, 32, 73, -25, -16, 67, 0, 54, -15, 55, -4, 9, 17, -14, 15, 13, -25, 50, -68, -10, -1, 5, -6, 52, 99, -20, 14, -30, -42, -1, 27, 11, 37, -4, 26, 19, -10, -20, -27, -28, -10, 32, -6, -26, -33, 42, 6, -9, 57, 6, 2, -38, 5, -7, -3, -61, 15, 40, 8, 56, -3, -15, 0, -33, 18, -23, 28, 59, -43, -5, -6, -35, -56, -32, -10, 25, -29, 47, -40, -8, -13, 11, 24, 22, -26, -19, 11, -51, 44, -42, -17, 11, -24, 71, -32, 19, -16, 24, 66, -46, -6, 19, 26, -20, -18, 13, 23, 23, -12, -42, -6, -45, -22, 0, 4, -12, -12, 10, 20, 87, -3, 9, 9, -53, 69, -25, -45, 20, 27, 4, 58, 9, 29, 56, 3, -9, 6, 22, 36, -30, -17, 22, -25, -37, -11, -24, -9, 13, -68, 15, -34, 37, 24, -31, 8, 19, -56, 30, 62, 45, 58, 16, -41, -4, 57, 17, 16, 26, -9, 3, -6, -54, -37, -42, -13, 38, -36, -11, -16, -80, -20, 41, -43, 27, -12, -69, -19, 89, 35, 27, 2, -38, 42, 2, 55, 17, 8, -4, -37, 42, 12, 15, -46, 46, -50, -31, 43, 7, -48, -32, -30, -3, 3, -28, -28, 2, -27, -44, -5, -4, 14, -12, -47, -33, 39, -28, 3, -49, 15, -43, 30, 0, -9, -6, 4, -10, -5, -43, 16, -18, 37, 33, -48, -17, -66, -20, 13, 10, -63, 30, -10, -32, -27, 31, 28, -17, 32, 22, 7, -29, -31, 13, 15, 13, 4, 56, 18, -26, 6, 4, -35, 111, 34, 25, -6, -30, 63, -24, -16, 18, 54, -29, -26, 0, -14, -16, 36, 65, 17, 0, 8, 32, 23, 48, -22, -23, -16, 24, 14, 11, 15, -6, -31, 0, 2, -20, -24, -25, 21, 31, -5, 36, 34, -25, -5, 54, 34, 43, -71, 2, 63, 16, 40, -21, 27, 21, -33, -24, 1, 14, -11, 24, 17, -56, -10, -41, -7, 17, 26, 3, -48, 21, 16, -1, -22, 26, 1, 12, 3, 7, -20, 1, -52, -54, 17, 20, -1, 4, 22, -41, -30, -4, -45, -51, -4, -7, -42, 47, 39, -29, -30, 29, 73, -6, -25, 56, -49, -29, -4, 68, -47, -64, -38, 27, 6, 17, -17, 11, 2, -37, 13, 35, 20, -41, 28, -47, -9, 3, -12, 28, -48, -27, -31, 28, 45, -29, 39, -12, -21, -6, 24, 6, 51, 18, 16, 37, -20, 20, 11, 42, -81, 33, 60, -38, -26, 36, 42, -51, -7, -16, -16, -29, 27, 43, 31, 7, -30, -13, 18, 16, 42, -17, 0, 4, -44, -42, -61, 2, 16, 43, 30, -57, -41, -7, 48, -15, -5, 10, -38, 47, 54, -30, -16, 14, -21, -4, -44, -1, 9, -18, 7, -27, 0, 17, -37, -24, -19, -52, 39, 87, 31, 22, 6, -12, -2, -25, -45, 18, -40, -51, -4, 101, 1, 45, 13, -46, 25, -20, 4, -17, 7, 62, -31, 37, 0, -45, 6, 12, -26, 3, 5, -1, -11, -2, -20, 4, -17, -30, 23, -19, -45, -23, 12, 20, -14, 42, -56, 5, 9, -30, -31, -23, -25, -22, -35, -56, 8, 4, 43, 29, -16, -9, -10, -17, -5, 53, -4, 42, -22, 41, -15, -42, -10, -36, -17, 37, 32, 5, 68, -21, -50, -19, -22, -3, 24, -18, 27, -27, 39, -14, -94, -24, -51, -99, -36, -8, -7, 4, 13, 9, 30, -15, 8, -17, 22, -5, -31, -23, 65, -36, 53, 42, -58, 47, 15, 49, -50, -2, -14, 12, 59, 41, 11, -10, -15, -22, -61, -35, -15, -31, 47, 16, 8 ]

Per Curiam. Defendant was found guilty by a jury of breaking and entering and was sentenced to four to ten years in the state penitentiary. Defendant’s sole issue on appeal concerns MCLA § 725.16 (Stat Ann 1962 Rev § 27.3956) which requires a judicial order to empower a clerk or his deputy to sign a criminal complaint. The issue is stated thus: is reversible error committed when the trial court refuses to dismiss a criminal case at the conclusion of the people’s proof, and at the conclusion of the trial, where the original criminal complaint issued against the defendant was not signed by a municipal judge, but by a deputy clerk not having authority to do so? There is ample Michigan authority to hold that there is a waiver of the right to object to a criminal complaint if not brought before the jury is sworn. People v. Roney (1967), 7 Mich App 678; People v. Licavoli (1931), 256 Mich 229; People v. Bonneau (1948), 323 Mich 237; People v. Linscott (1968), 14 Mich App 334; People v. Curran (1916), 191 Mich 583; People v. Graves (1968), 15 Mich App 244. Affirmed. MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305).

[ -19, -15, -17, -5, 1, -3, -8, -46, -55, 70, 6, 3, 2, -21, -29, 0, -19, -5, 1, -24, -23, -24, -8, 36, -54, -32, -8, 47, 3, -2, -25, 21, 36, 17, 32, -79, 40, -3, 28, 37, 50, 13, 30, -57, -78, -15, 12, 48, 22, -11, -13, 12, -45, 2, -24, 42, -1, -34, 12, 34, 2, 64, 31, -5, -14, -33, -7, 18, -61, 8, 35, 19, -6, -50, -21, 57, -35, 1, -44, 42, -6, 8, 42, -30, 20, -16, 19, -26, -2, -43, 2, 12, -25, -8, 20, -23, 17, -16, 34, -69, -43, 29, 21, -22, 1, -35, -25, 5, -16, -39, 10, 0, -27, -31, 5, -1, 2, -5, -9, -15, 71, 33, 48, 40, 11, 31, 55, -13, 61, 10, 13, 42, -1, -34, -13, 44, 32, 22, 60, 20, 49, 14, 46, -34, -14, -51, -41, 28, 23, 19, -12, 20, -13, -23, -13, 36, -10, -19, 8, 8, 20, 32, -54, -43, 27, -25, -2, 3, 1, -43, 31, -24, 27, -10, 43, -76, -4, 0, 26, -25, -3, 27, 22, -44, 0, 3, -17, -40, -53, -10, -6, 30, -14, -32, 67, -9, -9, 74, 45, 44, -25, 8, -5, 23, -25, -17, -9, -17, -11, 61, -55, -19, -57, 18, 3, -37, 36, 3, -12, 46, -21, 14, 24, 33, -3, -22, 26, -33, 0, 30, 34, -18, 40, -22, 9, 4, 25, -5, 19, 6, -38, -14, 15, 1, 19, -33, -5, 7, -10, 7, 71, 14, -8, -59, -40, 13, 11, -23, -58, 29, -10, -17, -2, -20, -58, 35, 14, 24, -16, -39, -1, -2, -2, 6, 6, 20, -12, 17, 18, -4, -7, 12, 38, 26, -37, -19, -28, 21, 11, 0, 39, -10, -45, 19, 37, 36, -15, -11, -53, -5, 13, 14, 1, -19, -26, -29, 12, 3, -6, -5, 21, 44, -7, 37, -15, -7, -9, 7, 42, -24, -46, 4, -16, -36, -47, -7, 34, -52, -5, -26, -29, 15, -10, -8, 24, 39, 26, -24, -46, 8, 43, -10, -27, -18, 2, 31, 18, 25, -75, 7, 42, -28, 14, 3, -2, -35, -54, -51, -6, 39, -6, -24, -36, 37, 33, 3, -17, -4, 40, 78, -7, -44, -12, -27, -34, -22, 54, -53, -21, 23, 0, -16, -33, -87, -8, -20, -33, -14, -46, -1, -57, -30, 3, -56, -78, 21, -14, -13, 4, 20, -11, 2, 33, 27, -5, -16, -42, 30, 0, 43, 0, 54, -5, 14, 0, -64, 48, -26, 85, -38, -14, -5, 22, -57, -6, -3, 6, 38, 34, -7, 51, 35, 12, -50, 61, 4, -43, -35, 24, -12, -10, 26, -59, -18, 4, -5, -5, 0, -9, 17, 25, 19, -2, -42, -4, 56, 22, 34, -3, -27, -12, -51, -37, -18, 7, -32, -12, -42, 36, 42, 0, -27, -24, 53, -43, -7, -21, -18, -14, 35, 36, 53, 5, -1, -1, 7, 52, -11, -9, -27, -52, 19, -4, 58, 26, 33, -65, -33, 0, 27, -20, 57, 0, 33, 25, 10, -3, -26, 53, 30, -23, 47, 0, 25, -22, -13, 9, -50, 34, 31, -54, -5, -24, -21, -19, 31, -55, -12, 0, 45, 48, -18, 8, 11, 22, 32, -12, -36, -35, 21, 24, 8, 48, 7, 35, 33, -57, 14, 44, 7, -3, -3, -38, -39, -32, 41, -12, 36, 35, -12, -9, -5, 52, 28, 2, 16, -3, -22, 38, -9, 10, -4, -53, 0, -20, 26, 10, 3, 4, -39, 7, 49, -2, -20, 22, -5, -24, -41, 19, 3, -50, 4, 16, -67, -38, 1, -6, -27, 59, 48, 34, 18, -7, 45, 40, -38, 55, -3, -31, -51, 41, -17, -33, -5, 22, 11, -21, 11, -37, 45, -10, 11, -13, -3, -40, -54, -26, -53, -40, -15, -6, 37, -25, -31, -9, 47, -6, 38, -39, -22, -31, 41, -5, -33, 30, -19, 40, -1, 12, -15, 13, 49, -18, -12, 71, -12, -21, 2, 60, -11, -17, 10, -47, -5, -14, 60, -25, -20, -2, 17, 18, -6, -28, 7, -6, 6, 21, 5, -48, -24, 6, 4, -11, 1, 1, -70, -14, 34, -11, -13, -18, 59, 37, -13, 7, -2, 53, 72, -18, 23, 13, -23, 15, 15, -33, -4, -1, -47, 20, -26, -25, 44, -8, 14, 38, -16, -23, 7, -14, 7, -21, -62, 19, 18, -38, -27, 6, 2, 50, -1, -3, -30, 25, -14, 12, 48, -13, 21, -10, 19, -26, 27, -32, -38, -11, -37, 39, -10, 7, -13, 13, 42, -70, 29, -4, 22, -1, -50, -48, 40, -7, 16, -26, -27, -12, 54, -12, -14, 52, -2, -14, -21, 15, -15, -3, 36, -3, 6, 43, -32, 8, 17, -73, -46, 21, 23, -8, -20, -79, -16, 12, 9, 1, 32, 6, -3, 13, -20, -26, 47, -2, -26, 0, -49, -18, -23, -11, 33, 11, -16, 16, -7, -35, 15, 38, 36, -14, 20, 23, -35, -20, 9, 9, -26, -16, 10, 8, -62, -5, 0, 11, 5, 31, 22, -22, -65, 12, 43, -29, 12, 3, -39, 0, 14, 21, 21, -11, -26, 37, 42, 29, -4, -9, 1, 9, 5, -14, -42, 22, -5, 4, 31, -46, -31, -4, 8, -20, -41, -19, -62, -42, -37, 18, 6, 9, 20, 0, -10, -5, 10, 16, -8, 55, 7, 32, -48, -9, -17, -36, 24, 0, 51, -3, 35, 11, -35, 38, -40, 11, 18, 30, 16, -6, -23, 16, -5, 15, 42, 0, -13, -9, -23, -29, -4, 27, -32, -53, 36, 45, -65, -11, 44, 7, -15, 6, -20, 16, 1, -19, 25, -14, -32, 19, -43, -25, -23, 47, -42, 26, -53, -36, 34, -24, 9, -56, 49, -20, 54, -18, 12, -46, 21, 15, 11, 40, 37, 1, 2, -31, -14, -33, 40, 1, 17, -19, 34, 27, -31, 16, 71, 25, -27, 4, -8, -49, 18, 28, 26, 17, 44, 3, -70, -10, 4, 3, -56, 0, -10, -9, -36, 19, 20, -4, 4, -4, 7, -23, -45, -37, 46, 0, -11, -30, 22, -7, -10, -3, -12, -6, 55, 26, 21, 43, 13, -21, 15, 21, 20, -52, 44, 9, 67, -16, 13 ]

Per Curiam. Defendant entered a voluntary plea of guilty to breaking and entering a drug store on February 7, 1969, with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). Sentence was from 2-1/2 to 10 years. On appeal, defendant requests withdrawal of the guilty plea, contending that his answers to the court at the plea acceptance hearing were prompted by promises allegedly made to him by the sheriff and probation officer that by entering a guilty plea his sentence would be probation. There is no basis in the record for the claim advanced upon appeal that the defendant “was lured and induced” to plead guilty by “an expectation of leniency”. The following question was asked at arraignment: “Q. Has anyone told you that some kind of a special arrangement would be made, that if you entered a guilty plea you’d get a particular kind of treatment or some special consideration? “Mr. Dorner: No, sir.” In the sentence record the court asked the following questions: “Q. Is there anything that you would like to say to the court before the court disposes of your case? “A. No, but there’s one thing I’d like to ask. “Q. All right. “A. If I’m going to be sentenced to Jackson how is my wife going to take care of herself seeing how she’s going to have a baby in October.” The defendant’s participation in the commission of the crime was adequately established by direct questioning of the defendant, as required by People v. Barrows (1959), 358 Mich 267, 272; the defendant stated, “I broke through a door” and later, “I went inside and found two cash registers there and I proceeded to empty them.” Defendant’s assertion that his plea was not voluntary is made for the first time in this appeal. A reading of the transcript of the arraignment discloses a thorough and careful questioning of the defendant by the trial judge, which establishes, in so far as the record is concerned, that the defendant’s plea of guilty was voluntary and not the result of any promises made to him of probation or leniency. In the defendant’s brief he refers to an affidavit, which we fail to find in the file on appeal. The proper forum for such an issue to be determined is in the trial court by way of a motion to withdraw the plea of guilty, set aside the judgment, and for a new trial. This the defendant has not done. We therefore affirm, without prejudice to the defendant to file such a motion in the circuit court for Kalkaska County. We do not retain jurisdiction of this matter. Affirmed without prejudice.

[ 40, 12, 20, 11, -54, -18, -28, 35, -46, 30, 11, -26, -34, -3, -28, 6, -5, 31, 47, 21, 31, -7, 20, 7, -51, -9, 5, 65, 8, 60, 52, 56, 3, 1, 18, 6, 52, -47, 7, 25, -34, 21, -8, -5, -47, 12, -14, -19, 42, -30, 40, 23, 19, 9, 15, 15, -5, 0, 30, 2, -43, 12, -58, -27, -17, 8, 0, 87, -9, -36, 29, 22, 17, 6, 10, 12, -5, 64, 0, 57, 12, 5, 46, -1, -19, 17, -10, -45, -7, -68, 35, 23, 20, -24, 22, -31, -14, -3, 50, -53, -30, 7, -22, -34, 40, 5, 4, -18, -21, 20, -37, -3, 0, -35, -58, -9, -17, 0, -29, -57, -10, 22, 22, 0, 34, -19, -5, -41, -8, -14, -9, 76, -1, 5, 27, 19, 9, 13, 40, 40, -13, 41, 52, -2, 19, 9, -54, 35, 10, 23, -4, -11, -34, -17, -9, 33, -47, -15, -61, 14, 6, -8, -44, 8, -7, -35, -40, 30, 4, -25, -6, -35, 52, 18, 26, -52, 0, 6, -27, -11, -70, -2, -1, 0, -15, 6, 13, 42, -20, -11, 3, 9, -15, -16, 40, 3, -6, 61, 12, 7, 13, -24, 33, 28, 20, -2, -29, -29, -1, -21, -27, 6, -19, -26, -12, -25, 14, -3, 6, 30, -56, 13, -25, -3, -35, -1, 22, 16, -17, 23, -1, -5, 0, 63, -27, 5, 29, -16, 65, 29, -27, -3, 73, -32, -4, 6, -43, -2, -56, -7, 20, 70, 0, 20, -42, -71, 19, -36, -11, -1, 31, 29, -17, 3, -13, 8, -40, -19, -63, -38, 11, 12, -15, -23, 36, 17, -32, 33, -19, -32, 11, -39, 22, -5, -22, 0, -19, 25, -16, 13, 50, -1, -50, -16, 68, 21, -1, -12, -92, 6, 21, -32, 13, -51, 28, -5, 31, 6, -38, -8, 18, -9, 24, 12, 10, -31, 31, -19, 94, 37, -43, -9, -4, 0, -22, -73, 5, -24, 54, -17, -29, 13, -1, -43, -15, 58, -27, -38, -20, 47, 2, 38, -44, -29, 25, 20, 17, 17, -36, -19, 30, -54, 8, 7, -3, 10, -39, -23, 31, -57, 30, 2, -20, -11, 15, -16, 4, -18, 21, 57, -1, -86, -11, -38, -30, -44, 27, -50, 12, 15, -34, -57, 14, -2, 4, -35, -14, -23, -12, 34, -32, -22, -7, -65, 21, -19, 43, 9, -7, -20, 1, -38, 56, -15, -12, -8, -7, 13, -1, 0, -15, 75, 41, 66, -24, -28, 7, -12, 11, -32, 21, -5, -8, 5, -2, 37, 11, 12, -10, -11, 20, 14, 22, -21, 51, 33, -41, -35, 22, 0, -28, -10, -23, 22, 85, 12, -84, -40, 22, 12, 21, 36, 17, -25, -11, 61, 0, 20, -1, -3, 29, 18, -41, 12, 69, -64, -56, -25, 43, 19, 15, 24, 0, 27, 9, 31, 23, 26, 61, 16, 0, -20, 10, 9, -27, -26, -17, -41, 20, -11, 40, -40, -3, -19, -29, -11, -13, -14, -15, 56, -38, -10, -45, 25, 54, 12, -9, 11, 56, 4, -17, 29, 17, -24, 42, -28, 16, -5, -28, 10, -36, -56, 1, -9, 7, 38, -21, -31, -21, 5, 29, -59, -18, -75, 32, 3, -15, -52, -3, -56, 64, 27, 14, 57, 4, 23, 8, 8, 20, 1, 7, 23, -6, 6, -31, 5, -4, 1, -34, 0, -20, 9, 83, 15, -25, -5, 18, 28, 27, 34, -35, 20, -34, 22, 37, 13, 2, 2, 32, -2, 80, 60, -4, -26, 19, 18, -10, -23, -18, -12, -59, -14, 11, -33, 38, 4, -71, -9, 18, 39, 17, 21, -57, 35, 31, -5, 13, -6, 11, -1, 57, -62, -29, -36, -39, 12, 27, -35, -41, 34, 9, 10, -12, -63, 0, -51, -47, -21, -39, -26, 2, 21, 0, -26, -52, -5, -31, 18, -63, -16, 25, 55, -27, 3, 63, 11, 13, 4, -10, 11, -4, -8, 78, 18, 71, -2, -24, 35, 20, -28, -21, 17, -37, -34, 39, 61, 24, -8, 2, 48, -31, -7, -35, 19, 48, 23, 7, -8, 28, -30, -25, -45, 14, -51, 10, -48, 2, 7, 12, -1, -32, 7, 53, -12, 3, 35, 46, 64, 2, -4, 4, 32, 14, -5, -39, -10, 40, -20, -3, -2, -32, 16, -20, 17, -32, -9, -72, 20, -36, 9, -35, 22, 16, 43, 15, 3, 33, -29, 17, -38, 30, -27, 0, -15, -4, -3, -19, -4, 23, 31, -17, 44, -81, -10, -34, -9, -19, 2, -19, -6, 53, -3, 15, 43, 28, 33, 37, -39, -63, -12, -61, 55, -18, 4, -13, 77, -24, -5, 15, 18, -27, -14, 25, -30, -29, -4, 14, 9, 13, 3, 1, 34, -24, -21, -17, -3, -3, -9, 22, -32, -38, 38, -27, 31, 15, 21, 15, 21, -4, -16, 4, -28, -10, 16, 9, -8, 1, 14, 47, -12, 24, 7, -9, -30, -35, -27, -8, -62, -2, -11, 12, 10, -48, -26, -53, 17, 38, -19, 34, 3, -12, -10, 16, 32, -33, 5, 35, 30, -60, 29, 9, -6, 44, 38, -18, -15, 27, -54, -8, 23, 32, -51, -1, 2, -12, 20, 20, 33, 42, -60, -9, 0, -10, -27, 21, 32, 4, 8, 31, -73, -38, -1, 9, 17, 17, 46, -30, -36, -6, -53, -13, 14, 26, 27, 27, 5, -32, -61, -70, 49, -6, 46, -46, 36, -22, -36, 14, -43, -44, 13, 56, -1, -12, 9, 43, 13, 34, 51, -31, 31, -4, -2, 36, 5, 26, -3, -15, -3, 14, -38, 1, 22, -7, 55, 53, -15, 9, -17, -51, 19, 6, -3, 11, -42, 25, 22, 15, -10, 30, -3, -12, -33, -48, 6, -69, -3, -2, -24, -6, -5, 10, 18, -7, -20, -13, 13, 23, 12, -1, 35, -14, -6, 17, 1, -6, 17, 35, 6, -13, 21, 45, -61, 13, -29, 24, -6, 44, -29, 8, 6, 23, -60, -39, -19, -3, 23, -3, 14, -47, -63, 33, -23, 31, 46, 14, 4, -17, -51, 12, -30, -23, -35, -9, -17, -63, -45, 0, 8, -14, -1, -2, -5, 0, -62, -11, 5, 10, 14, -62, 21, -79, -21, -45, 24 ]

Holbrook, P. J. An information was filed in the circuit court for Kalamazoo County on March 24, 1969, charging- Lawrence David Minson, defendant, with having in his possession in said county, d-lysergic acid diethylamide (LSD), on the 25th day of October, 1968, contrary to MCLA § 335.106 (Stat Ann 1970 Cum Supp §18.1106). On April 7, 1969, defendant, with his counsel present, pleaded guilty to the charge and was sentenced by the court on May 19, 1969, to prison for a term of from one to four years. Defendant was credited with 14 days spent in the county jail. On July 14,1969, defendant filed his claim of appeal, and on said day, the circuit court set bail in the sum of $3,000 which was furnished, and defendant was released on bond July 16, 1969. The defendant raises four issues on this appeal: (1) Whether the trial court made an adequate inquiry into the facts which constituted the crime? (2) Whether the trial court erred in not informing defendant of the consequences of his plea? (3) Whether the defendant was informed of the nature of the offense with which he was charged? (4) Whether the facts alleged in the defendant’s affidavit require a testimonial hearing to determine their truth or falsity? I The defendant, relying on People v. Barrows (1959), 358 Mich 267, People v. Perine (1967), 7 Mich App 292, and People v. Mason (1968), 13 Mich App 277, contends that the trial court erred by not conducting an examination of the defendant respecting the facts of the crime and the defendant’s participation therein. At the arraignment held April 7, 1969, the following occurred in part: “Mr. Oergely: I will waive the reading and my client informs me that he wishes to enter a plea of guilty to this offense. “The Court: Is this correct, you want to plead guilty to this offense? “The Respondent: Yes, sir. “The Court: Did you have in your possession LSD? “The Respondent: Yes, sir. “The Court: I can’t even pronounce the name of it, d-lysergic acid — I passed chemistry, but I got a ‘C’ in it. “Mr. Qergely: Diethylamide. “The Court: Are you pleading guilty because you are guilty of this offense of possession of LSD? “The Respondent: Yes, sir. “The Court: Has anybody threatened you if you did not plead guilty? “The Respondent: No. “The Court: Anybody promise you anything to get you to plead guilty? “The Respondent: No, sir. “The Court: Are you satisfied he is pleading freely and voluntarily? “Mr. Gergely: I am satisfied that he is. “The Court: I am satisfied that his plea is freely, voluntarily, and understandingly made, without compulsion, duress, or promise of leniency. “You could be sentenced up to four years. You still want to plead guilty, do you? “The Respondent: Yes.” If there was nothing more in the record than the foregoing, it would be necessary to rule on the sufficiency of the inquiry; however, the trial judge questioned the defendant in chambers. We do not have the transcript of what took place there, but we do have the substance as stated in the record from what took place at the time of sentencing, vis.: “Mr. McCune: If the court please, before your Honor this afternoon is Larry Minson. He is here for sentencing on a charge of possession of narcotics. It is a companion case with the last case, possession of LSD. “The Court: Minson, is there anything further now that you wish to say before sentence? “Mr. Gergely: We have said everything we could in chambers. “The Court: Mr. Prosecutor? “Mr. McCune: Nothing else, your Honor. “The Court: * * * This young man graduated very high in his class in a very fine school in Cincinnati. * * * He has been using marijuana and LSD. On this occasion he was transporting approximately 1,500 capsules of LSD and I think you told me they were worth between a thousand and fifteen hundred dollars, is that right? “The Respondent: (Nodded head affirmatively). “The Court: And some twenty pounds of marijuana and what was it, fifty dollars a pound; am I right? “The Respondent: Yes, sir. “The Court: Which he was transporting to a friend, a student at Harvard, was transporting it to Boston where this friend apparently was going to sell it. The marijuana had been paid for. The LSD was to be páid for as he sold it. * * * “The Court: * * * This young man’s case is very substantially different from the young lady who was with him on this trip. She knew about the drugs that were being transported but he was the one that —and he has never claimed otherwise — he was the one who was delivering them. She was riding only to Ann Arbor. # # # “Now you said you quit using drugs after your psychiatric help, but as I told you in chambers it bothers me that after that you were transporting 1,500 capsules of LSD and twenty pounds of marijuana for somebody else to use. It bothers me that after learning your own lesson you were willing to get somebody else into the habit which you have tried to lick and probably have licked. This is a constant fight upon the part of law enforcing officers to hold this traffic down. You never can do away with it all, but we will do the best we can with holding it down.” The interview conducted by the trial judge in chambers shows that the proper inquiry was made, the crime established, and defendant’s participation therein ascertained. This issue is resolved by People v. Winegar (1968), 380 Mich 719, 731, 733: “Third, a plea of guilty should not be set aside after sentence merely because the verbatim record does not affirmatively show compliance in illis verbis with GCR 1963, 785.3(2). ■H* ^ “A convicted defendant no longer enjoys the presumption of innocence. People v. Fritch (1910), 161 Mich 111; 1 Wharton, Criminal Evidence (12th ed), § 93, p 189; 29 Am Jur 2d, Evidence, § 225, page 276. He has the burden of showing something more than technical noncompliance with a rule. Absent a showing of violation or denial of constitutional rights, he has the obligation of alleging in a motion to withdraw plea such facts as would, if true, substantiate a finding that there was noncompliance which resulted in a miscarriage of justice.” The record discloses that defendant was guilty of possession of LSD and defendant admits that such facts are true. The defendant does not, at this time, assert that they are untrue, nor in fact, that he is not guilty. We find no miscarriage of justice in relation to the first issue. II Defendant contends that he was not informed of the consequences of his plea because the court did not inform him of his constitutional rights as required by GCR 1963, 785.3, and cites People v. Dunn (1968), 380 Mich 693, and Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274). The pertinent portion of GCR 1963, 785.3 states: “.3 Arraignment and Sentencing. In every prosecution wherein the accused is charged with a felony, the trial court shall conform to the following practice : “(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken. “(2) Imposing Sentence. If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.” In the instant case, defendant was represented by retained counsel. Therefore, subsection (1) is not applicable, and the first part of subsection (2) is completely satisfied, i.e., the court informed the accused of the nature of the accusation; the Dunn case, supra, is authority for the rule that “consequence” of a plea of guilty, within the wording of the court rule, is that an accused, by so pleading, waives his right to trial by jury, or trial without a jury by the court, and that the accused subjects himself to whatever penalty is prescribed by law including possible confinement in a penal institution. As stated above, GCR. 1963, 785.3(1), requiring the defendant to be advised of his right to a trial by jury is specifically not applicable where the accused is represented by counsel. As to the requirements of subsection (2), we rule that insofar as informing defendant that he waives his right to a trial by jury or a trial without a jury by the court, they are not mandatory where a defendant is represented by counsel. People v. LaRoe (1969), 18 Mich App 262. The information concerning the possible penalty in the present case was specifically given by the trial judge to the defendant. The requirements of the balance of GrCR- 1963, 785.3(2) were fully complied with by the court. Defendant claims that the Boykin case, supra, requires the court to inform a defendant who is represented by counsel as to his right to trial by jury, the right to confront his accusers and the privilege against self-incrimination. The people assert that Boykin should be read so as to require the record in a criminal case to show that the plea was made knowingly and voluntarily. In Boykin, it is stated in part: “Before the matter came to trial, the court determined that petitioner was indigent and appointed counsel to represent him. Three days later, at his arraignment, petitioner pleaded guilty to all five indictments. So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court.” The extent of the ruling of the Court in Boykin is not too clear; however, in any event, it should be applied only to pleas taken after June 2, 1969, when it was decided. Since defendant pleaded guilty on April 7, 1969, Boykin is not applicable. Ernst v. State (1969), 43 Wis 2d 661 (170 NW2d 713). Ill The defendant contends that he was not informed of the nature of the accusation, citing McCarthy v. United States (1969), 394 US 459 (89 S Ct 1166, 22 L Ed 2d 418). Insofar as McCarthy, supra, requires that the defendant be informed of the nature of the charge, it does not appear to work any major change in Michigan law. People v. Goldfarb (1967), 6 Mich App 7. In the instant case, defendant was told that he was charged with possession of LSD. This is not a case like those of McCarthy and Goldfarb where the defendant may not have understood the nature of the specific intent needed for the crime. The ordinary person would know what is meant by the phrase “possession of LSD.” Our Courts, when construing the narcotic act, have held that the term “possession” is used in its ordinary sense and is not given esoteric meaning. People v. Harper (1962), 365 Mich 494; People v. Eaves (1966), 4 Mich App 457; and People v. Cherry (1968), 10 Mich App 420. There is no error in the procedure followed as claimed in defendant’s third issue. IY Defendant’s final contention, as set forth in an affidavit, is that he pleaded guilty because his lawyer informed him that if he pleaded guilty, he would receive probation. He further contends that his lawyer told him that the prosecutor’s office had indicated that they were recommending probation. Because of these facts, he contends that the case of People v. Bartlett (1969), 17 Mich App 205, requires reversal of his conviction. We do not agree. In Bartlett, supra, the trial court did not conduct a testimonial hearing on a motion for a new trial when defendant claimed he was promised a certain sentence but received a longer sentence. We stated that when defendant asserts facts in his affidavit which, if true, would entitle defendant to withdraw his plea of guilty, a testimonial hearing must be held to determine the truth or falsity of the assertions. In Bartlett, a motion was presented to the trial court to withdraw the plea of guilty, set aside the sentence, and grant a new trial. This motion was supported by an affidavit setting forth the alleged promises of a certain sentence. The trial court did not conduct a testimonial hearing to determine the facts, i.e., as to whether the plea was voluntary. We therein stated that the trial court should have conducted such a testimonial hearing. In the instant case, the issue is raised in this Court for the first time. The matter not having been presented to the trial court, we do not consider it on appeal. Affirmed, but without prejudice to the defendant to present such a motion within 30 days to the circuit court for Kalamazoo County. All concurred. The practice of relying upon a conference off the record should he discouraged unless the trial judge again covers the matter on the record as was done in this case.

[ 67, -15, 13, 58, -41, -8, 55, -35, -7, 34, -21, -79, -14, -7, -39, 14, -9, -1, 42, -30, -20, -16, 26, 54, 2, -36, 9, 60, 3, -56, 33, 52, 17, -61, 22, 19, 16, -33, 30, 27, 13, -11, 0, -27, -30, -1, -25, -24, 46, -18, 17, 23, 33, 36, 1, -39, 27, 2, -21, -9, -37, 2, -14, 4, -3, 13, -46, 22, -6, -81, 0, 10, 15, -34, 6, 47, 39, 39, 14, 45, 4, 26, 17, 53, -28, -52, -51, -47, 29, 14, 10, -25, -12, -70, 15, -48, -42, 14, 14, -8, -37, -31, -9, 3, -34, -5, -58, -24, -17, -3, -18, -5, 38, 2, -43, -43, -25, 3, -23, 8, -5, -10, 53, 16, 25, -35, -45, -14, 25, -26, 45, 44, 14, 12, -29, -25, 2, 6, 37, -14, -17, -4, 43, -7, 1, -14, 22, -21, 24, 42, -84, -29, -6, 61, -2, 14, 21, -45, -33, 28, 8, 4, -2, -19, 14, -70, -39, 17, 30, -72, -12, 31, 43, 67, 24, -19, 12, -13, 0, 42, -2, -22, -14, 21, 4, -17, 15, -19, -18, -5, 29, 36, -11, 20, 18, 2, -43, 16, -31, -50, 22, 1, 1, 57, 51, 17, 7, 36, 59, 3, -1, -42, 64, -8, -10, -25, -11, 33, -4, 1, -26, -37, 12, 25, -25, 12, 5, 2, -44, -11, -35, 4, 18, -15, -28, 0, 37, 1, 22, -20, 0, -28, 27, -38, 54, -1, -2, -9, -88, 24, -37, 24, -8, -55, -39, -23, 24, -23, -22, -8, -2, 5, -4, -21, -30, 27, -46, 26, -19, 7, -64, 24, -17, -6, -23, -9, -16, 51, 35, -22, 72, -42, 42, -16, 31, -16, 5, 78, -64, -11, 11, -7, -35, -45, 42, 31, 0, 38, 2, 39, 28, 20, -88, 0, -48, -19, 24, 41, -31, -29, 37, -47, 19, 11, -35, -38, 8, -24, 73, -4, -32, 40, -39, 3, 17, 5, 6, -15, 41, -9, -31, 18, -34, -35, 12, 14, -22, -14, -9, 32, -8, 12, 17, 1, 21, 59, 10, 31, -50, -60, 20, 4, 16, 13, -60, -4, -20, -73, -7, -6, -3, -26, 17, -13, 8, -23, -4, -56, 0, 12, 9, -13, 15, -21, -12, -6, 25, -20, 26, 22, -25, 21, 13, -10, -11, -2, -9, 5, 46, 3, -12, 28, 35, -44, 12, 30, -5, 36, 10, -45, 27, 3, 58, -31, 17, -20, -5, 57, 25, -11, 7, 70, 4, 25, 4, -43, 26, -9, 14, -23, 56, 6, -22, -69, 12, 27, 32, 12, 44, 17, 7, 27, 23, -19, -1, 8, -21, 9, 11, -11, 15, -41, -21, 11, 39, -34, -20, -29, 21, -5, -4, -19, 20, 9, -54, 78, 8, 12, -54, -11, -40, -37, -9, 16, 76, 0, -20, 20, 11, 4, 22, 49, -12, 16, -18, 16, -3, 61, 15, 15, 6, 6, -27, 15, 31, -27, -6, -34, -5, -21, 2, 34, -57, 37, 41, -20, -48, -15, 0, 63, -16, -2, -15, 49, 35, 10, 96, 14, 20, -21, 43, 32, -4, 18, 11, -21, 9, -27, -22, 17, -33, 42, 28, 19, -34, 2, 27, -73, -34, -8, 2, -38, -48, -47, -1, -30, -27, 3, -29, -18, 44, -1, 20, 34, -10, -14, -23, -10, -3, -25, -8, 39, -8, -18, -39, -37, 2, 73, -15, 7, 42, -10, 44, 9, -19, -3, 11, -19, 21, 80, 6, 27, -14, 16, 28, 15, -30, 57, -4, 29, 20, -3, -4, -41, -17, -3, 27, -29, 9, -41, 0, 48, -13, -36, -35, -28, -45, -52, 19, -1, 15, 24, 18, 33, 50, 40, 2, -16, 45, -19, 55, -16, -13, 0, -27, 31, -1, -46, -42, 17, -57, 3, 35, 18, -11, -34, -84, -33, -16, -6, -52, -27, -43, 3, -4, 9, -4, 15, -66, -18, 25, 26, -64, -28, -18, 17, -51, -25, -32, 1, -14, 47, -3, 2, 23, -11, -27, 28, -7, 13, 18, 36, -75, -20, -30, 22, 12, -44, 60, -13, -27, -44, -39, -28, -19, -62, -12, -6, 34, 4, -26, -1, 25, -65, 77, 40, -32, 4, 16, -29, -44, 25, 48, 0, 0, -33, -4, 0, 55, 6, 10, 36, 27, 3, -17, 41, 32, -15, -28, 6, -40, 52, -11, -5, -16, -28, 4, 13, -50, 12, -17, -11, -2, 54, 7, -6, 6, -11, 5, -94, 43, -17, 8, 7, -4, 41, 11, 14, 0, -15, 5, -15, -58, -16, -60, -18, 13, 9, 2, -49, 27, 22, 39, 6, -19, 30, 37, 11, -89, 0, -35, 27, -35, -66, -53, 44, 35, 20, 35, 36, -24, -1, -40, -25, -29, 21, -51, 13, 2, -3, 23, 7, -53, -41, 32, 20, 13, 13, 42, -27, -7, -39, 21, 37, 13, 8, 17, 46, 10, -2, 19, -39, 70, -31, -46, 32, -37, -38, 0, 70, 59, 76, 32, -62, -20, 25, -26, -61, -1, 15, 41, 13, -9, 15, -21, 5, 0, -25, 0, -20, 7, -8, 42, 46, 24, -8, 29, -48, 6, 43, 65, -11, 32, -20, -15, -6, 56, -18, 37, 11, 3, -19, -14, -10, -35, 55, 11, 3, -32, 33, 27, -15, -20, -11, 1, 27, 33, -20, -1, -28, 20, -14, 24, 70, 18, 34, -39, -19, 0, 7, -30, -54, 69, -36, 23, -64, -9, -59, 10, 21, -49, 60, -13, -1, -20, -18, 11, -5, -13, -38, 59, 14, -10, 8, 48, -34, 6, 0, -46, 14, -50, 17, 6, 15, -71, 4, -44, 47, 1, -3, -26, 22, 32, 57, -6, -18, -8, 17, -26, 15, -22, -1, -21, -84, -11, 32, 37, -13, 31, -4, 69, -17, -10, 13, 31, 48, -19, -19, 45, 60, -56, 47, 18, 39, 15, 8, -2, -4, 45, 30, -63, 7, -9, -13, -13, -4, -27, 11, 23, 32, 19, -18, -18, -16, 22, -12, 37, -20, -21, -34, -38, -19, -33, -37, -6, 37, 14, 42, -17, -9, -37, -35, -32, 13, -21, -8, -16, -68, -6, -4, 18, 15, -27, 13, 39, -48, 42, -14, -18, 14, 1, 0, 44, -58, -22, 29, -2, -8, -23, 88, -68, 18, -26, 31 ]

Stone, C. J. This is a suit in assumpsit to recover damages for an alleged breach of a contract appointing plaintiff defendant’s sales agent at Onaway, Mich. The damages claimed were for expenses incurred by plaintiff in altering his store to receive the defendant’s goods, for loss sustained in having to sell his old stock on hand to make room for the new stock, and for labor and expenses incurred in securing certain lists of names and copying the same for the defendant. The defendant and appellant is an Ohio corporation authorized to do business in Michigan. Its business consisted of selling direct to the customer, at retail, boots and shoes manufactured by it at Columbus, Ohio. It did this by establishing stores in various towns and cities, each store in charge of a local agent. A general agent, one A. W. Prindle, had charge of certain territory and the stores in it. His duties and powers, as testified to by him, will be hereinafter stated. The contracts were made on printed blanks furnished by the defendant. Some time prior to December 28, 1912, the plaintiff, who had a small store and shoe shop at Onaway, wrote to Mr. Prindle, defendant’s said agent in control of the territory in which Onaway was situated, requesting to be appointed local agent at that place. On said December 28th Mr. Prindle was at Onaway, and he, in behalf of the defendant, and the plaintiff, signed the following contract: “Articles of Agreement entered into this 28th day of December, 1912, by and between the Wear-TJ-Well Shoe Company, hereinafter described as party of the first part, and Sam Feldman, hereinafter described as party of the second part, witnesseth: “(1) Party of the first part will hereby designate and create the party of the second part as its sales agent at Onaway, State of Michigan, to sell and dispose of the goods hereinafter described, consigned to him, party of the second part, as such sales agent, and .subject to the terms hereinafter set forth. “ (2) The goods herein contemplated to be consigned to the party of the second part by party of the first part to consist of shoes and rubber goods, findings and fixtures, furnished, by party of the first part and invoiced by it, the amount of such consignment to be at all times at the option of the party of the first part. The party of the first part will also furnish said second party certain advertising matter, printed and otherwise, consisting of circulars, papers, bills and other forms of advertising which the first party may select at its option. It also will furnish to said second party certain interior and exterior decorations for use at the salesroom where said goods will be stored. As said stock is from time to time depleted ,by sales made therefrom, it is to be replenished and added to from time to time at the option of the first party in such amount and of such quality as the first party may determine. “ (3) Party of the second part is to keep said stock in good and merchantable condition and is to be responsible to the party of the first part for any loss or damage resulting to said goods, or a part thereof, from any other cause than that of accidental fire. “(4) Party of the first part is to keep said stock insured in its name and to pay the insurance payments thereon. “(5) The second party is to furnish room for said merchandise, and all transportation, operating, and maintenance expense and charges shall be borne by the party of the second part, including all taxes and assessments which may be levied thereon, either through or by virtue of State law or any municipal ordinance or regulation. “ (6) The second party further agrees to be responsible to the first party for all moneys received from the sale of said goods until the same has been deposited in a bank to be selected by said first party, and a banker’s certificate given for each separate deposit. Proceeds of such sales to be the property of the party of the first part, and the deposit of the same to be according to such method and reported to said party of the first part upon blanks and forms prepared by it. “ (7) The second party agrees at all times to follow the instructions and use the accounting systems provided by party of the first part. “(8) The party of the second part further agrees to deliver and surrender said stock of goods and each part thereof at any. time after having received fifteen days’ notice to do so from the party of the first part. Second party further agrees to execute and deliver to the first party a bond in such amount and upon such condition for the performance of this contract, upon his part to be performed as may be required by said first party. “(9) In consideration of the employment of said second party by said first party, said second party further agrees not to sell or deal in any other shoes than those obtained from the first party during the term of this contract, and in case of violation of this part of this agreement by said second party he agrees to forfeit and pay to the said first party the sum of $500 as liquidated damages therefor. The second party further agrees that in the event this contract bé terminated for any reason the second party will not engage in or be employed by or in any way connected with the business of selling shoes at either wholesale or retail, within said county of Presque Isle, State of Michigan, for the period of six months next succeeding the termination of this contract. “(10) For and in consideration of the services of said party of the second part, and agreements on his part to be observed and maintained, the first party agrees to pay to the second party a compensation as follows: _ The same to be computed upon a percentage basis, being 12 per cent, of all the sales of shoes sold at $2.98 per pair or higher, and 12 per cent on all shoes sold at $2.48 per pair or lower. The computation and payments of such compensation to be made therefor monthly, and the amount thereof to be paid by the first party to said second party, but second party has no right to deduct the amount thereof from the amount of sales, which at all times are to be deposited to the credit of the first party in full amount, as sold. “(11) The said second party further agrees to sell all goods included in this agreement for cash. Should, he extend credit to any one, he agrees, to pay cash to party of the first part out of his own funds at the time.of sale. “In witness whereof party of the first part, in its proper officers, have hereunto set its hand and seal, and the party of the second part has set his hand on the day and year first above mentioned. “The Wear-U-Well Shoe Co., “A. W. Prindle. “Sam Feldman. “Witnessed by A. W. Prindle. “The location of the above is Main street.” It was claimed by plaintiff that on the day the contract was signed he and Mr. Prindle visited a local agent of the Massachusetts Bonding & Insurance Company with a view of giving the bond required by the contract; that after some conversation with the bonding company’s agent Mr. Prindle said to plaintiff that defendant would get a bond from the same company for the plaintiff for $5 a year, and said to plaintiff: “You will get a letter from the bonding company inside of a week or a few days. When you get the letter from the bonding company, send your check for $5 and sign with a witness, and then your bond will be accepted.” In a letter dated January 8, 1913, the general agent of the bonding company sent to the plaintiff the bond to sign, and he did sign it, and sent it with his check for $5 to the Massachusetts Bonding & Insurance Company at Columbus, Ohio. The bonding company received the plaintiff’s check and cashed it, and the paid check was produced upon the trial. It was dated January 11, 1913, and on January 15, 1913, the defendant wrote to the plaintiff as follows: “We wish to acknowledge receipt of contract for opening a branch in your city. We will ship the goods as soon as we possibly can, and wish you would please notify us when they come to hand. We will then advise you the day of opening.” The defendant never shipped plaintiff any goods, and he heard nothing more about the matter until he received a letter from Mr. Prindle, dated February 24, 1913, in which he said: “I inclose you a bond to get some one who is responsible for $1,000 free from exemption to sign and return to me at Bay City so I can look it over; then we can open you up.” On March 12, 1913, Mr. Prindle went to Onaway, and while he was there called upon the plaintiff, and according to plaintiff’s testimony the following conversation occurred: Mr. Prindle said to plaintiff: “I want you to get personal bonds, and I will give you the shoes.” The plaintiff replied: “I give you one bond, and ain’t got my check back, and I couldn’t give you twice bond.” On direct examination the plaintiff testified: “Q. Did you tell him that you would not — you would give him a personal bond? “A. Yes, sir. ' “Q. If that was straightened out? “A. Yes, sir. “Q. And had the company notified you before that time your bond had been canceled? “A. No, sir.” On cross-examination the plaintiff testified: “I told Mr. Prindle if I will get my check back again I will give him a personal bond.” This was the second trial of the case. Upon the former trial Mr. Prindle had testified. He died before the trial we are dealing with, and his testimony taken upon the former trial was read by the court and the official stenographer. Upon this subject Mr. Prindle’s testimony was as follows, on direct examination: “It was after February 25th when I met Mr. Feldman in his store and asked him for a new bond. He said he wouldn’t give it to me; he has given one, and that was all he was going to give.” It is undisputed that after the conversation between Mr. Prindle and the plaintiff on that occasion, and while Mr. Prindle was at Onaway, he entered into a contract with W. H. Fish to become the defendant’s agent at Onaway, under date of March 12, 1913, to put in a stock of shoes for Mr. Fish and appointed him manager of the defendant’s company at Onaway. It is the claim of the plaintiff that he was not informed at any time that the bonding company had refused to accept his original bond until he received a letter dated March 14, 1913, from the defendant, in which the defendant said: “The Massachusetts Bonding Company for some reason refuse to accept the bond for which you made application, and we have written Mr. Prindle to call and see you and arrange for personal bond.” It will be observed that before this letter was written Mr. Prindle had given the agency to Mr. Fish. The plaintiff further testified that afterwards he received a letter from the bonding company bearing date April 2, 1913, in which the company said: “Inclosed find check for $3.90, the same being for the unearned premium on your bond in favor of the Wear-U-Well Shoe Company, the earned premium on the same from the time the bond was issued to date of cancellation being $1.10.” A material question in the case is as to the duties and powers of the defendant’s agent, Mr. Prindle. Upon that subject his testimony upon the first trial, in February, 1914, as read into the record in the instant case, was as follows: After referring to his retirement as district manager for the defendant on account of ill health in January of that year, he said: ■ “Before that I had been in their employ ever since they started business. My territory was the southern peninsula. My business with them was the contracting with people for running stores, to audit stock and see if it was all there, and to keep them in shape, and to do a general business:” On cross-examination he testified as follows: “I was with the Wear-U-Well Shoe Company ever since they were organized, and before that for ten years. They organized the company four years ago the 27th of May. I was with the company before that for ten years. The Wear-U-Well Shoe Company is a corporation with its headquarters at Columbus, Ohio. Their general business is manufacturing shoes and selling tnem at retail direct to customers. Their method of doing that was appointing agents and having agents for their distributors in the local places. Ónaway was one of them. There were 100 of these stores in the State the last I heard. There is more than that now. I had to look after 47, outside of the two south tiers of counties of Michigan. I had all the rest of the southern peninsula. My business was the managing stores, contracting with people and checking them up to see if they had the goods, and doing the general business that was to be done. I looked after all the business in Michigan in the territory I described. I had a written contract to do that work. The contract did not state exactly all the authority 1 had, but part .of it anyway. I haven’t the contract with me. It is in existence.' There is one at my house in Pinconning, and one down at the headquarters at Columbus. They have the original, and I have a copy. ■ I haven’t it with me. I made contracts around through Michigan with the distributors or local managers, and, when I sent the company the contract and bond for the stock, they sent it. “Q. Now, you made contracts with individuals with whom you could put in a stock according to the circumstances, did you not, in the different places? “A. Well, I sent out about the same kind of stock to every town. “Q. Yes; but in making the arrangements you had the authority to make arrangements to put in these stocks and handle them, didn’t you? “A. I could make a contract with whoever I wanted to. “Q. You signed the contract for the company, didn’t you? “A. I signed the contract for the company, but I couldn’t contract for anything that wasn’t on the contract. “Q. What is that? “A. I couldn’t obligate them to anything only what was on the contract. “Q. If it became necessary to arrange, make advance arrangements to put in a stock, you had the authority to do that, didn’t you ? “A. Not unless they would accept it. “Q. What is that? “A. Not unless they would accept it, if it was outside the contract. “Q. In making the contract, and afterwards, you had authority to make the arrangements, didn’t you, in order to get the stock in? “A. Give me that over again. (Last question read by stenographer.) “A. I had authority to make all the arrangements the contract would call for. “Q. Yes; you had authority to may any arrangements to get in the stock and get a place for the stock? “A. No; I didn’t have all that authority, because, if I had to put a stock out to get a stock in, I wouldn’t had no authority to have done that. “Q. No; I didn’t mean that at all. In many places it was necessary for you to make arrangements to clear out the store and get ready for it? “A. That was the local man’s business to do that. “Q. You were the only one who had any authority to make any change at all, wasn’t you, in Michigan? “A. I had the authority to put in the stocks. The local man had to make the arrangements for the stock. “Q. You made no preliminary arrangements you say? “A. No, sir; I had nothing to do with making arrangements for putting in a stock; that was the local man’s business. If he wanted my stock and made arrangements for it, why, he got the stock; if he didn’t, why, he didn’t get it.” Upon the trial, against the objection and exception of defendant’s counsel, the plaintiff testified that in his arrangement with Mr. Prindle he was told that he must change his storeroom in the front by taking out the window and putting in plate glass, and by taking out the partition and papering the store and painting it. He further testified: “Then I says to Mr. Prindle, I couldn’t afford to put in that expense in the store; I wouldn’t sign the contract; and he said: ‘When we will send you the shoes you give us the first Saturday night commission, and we will pay all the expenses what it will cost.’ ” He further testified that in his arrangement with Mr. Prindle the latter told him that he must sell out the rubbers and shoes and stock on hand before the Wear-U-Well Company’s stock came on; and it was agreed that he was to close out and get the stock he had in there out before the shoes came, which would be in about two weeks. It is the further claim of the plaintiff, and testified to by him, that following the' agreement and understanding that the plaintiff had with defendant’s manager in reference to fixing over the store and the selling out of the stock, and the procuring of the list of names for the defendant, he also had to get ready to take in the stock of the defendant; that he sent for the plate glass, took out the partition, papered the store, moved his shoeshop into the back room, and got the store and everything ready in the manner he was directed to do; that the repairs necessitated the expenditure of $75; that in the sale of the stock which he had on hand, and which he was required to dispose of, as under the contract he could sell no other goods of the character furnished by the defendant during the time of the contract, he was obliged to sell at a sacrifice, and he lost on the stock $300 by having to close it out in so short a time. The case was submitted to the jury in a very full charge, in which the court called attention: First, to the question of the conflict between the testimony of the plaintiff and Mr. Prindle relative to the bond; and, second, upon the subject of damages. The trial resulted in a verdict and judgment for the plaintiff in the sum of $437.85. It is claimed by the defendant, and it seems probable from the evidence in the case, and from the charge of the court, that there were embraced in the verdict the loss on the old stock sold, $300; repairs to building, $75; for names obtained, $42 — making a total of $417' interest on this sum for one year at 5 per cent., as directed by the court in case a verdict was found for the plaintiff, $20.85 — making the total of the verdict. There was a motion for a new trial, which was denied, and exception duly taken, and the case has been brought here by the defendant for review. The numerous assignments of error of the defendant are discussed by its counsel under four heads: (1) That the defendant was not in fault in canceling the contract and appointing another agent. (2) Defendant was not chargeable with any arrangement that its agent, Mr. Prindle, ’ might make with the plaintiff that was not embodied in the written contract submitted tó, and approved by it. (3) If defendant were in fault in canceling the contract, it was not such fault as to subject it to damages. (4) If the defendant’s action canceling the contract subjects it to damages, what should be the measure of those damages? * 1. Whether the defendant was in fault in canceling the contract and appointing another agent depends upon whether it wrongfully canceled the contract, and whether the jury believed the testimony of the plaintiff or that of the defendant’s agent relating to the proposed new bond. That question was fairly and fully submitted to the jury by the trial court in a very elaborate charge. We think it presented purely a question of fact, and, the jury having found in favor of the plaintiff, we see no reason for disturbing the verdict or judgment upon that ground. 2. We have set forth the testimony of Mr. Prindle covering the questions of his duty and authority as general agent for the defendant. We might dispose of this branch of the case by saying that such testimony presented a question of fact for the jury. Whatever may be said of the authority of Mr. Prindle to^ go outside the contract in matters not covered by that instrument, it is very apparent that, if the defendant wrongfully canceled the contract and deprived the plaintiff of the benefit of it, the defendant must have known by its acquaintance with the nature of the business to be engaged in that the plaintiff would necessarily suffer considerable damage as a natural result of that cancellation. Certain damages would naturally spring from a breach of the contract. For instance, the defendant must have known that, if the plaintiff was proceeding in accordance with the terms of the contract, he was making the necessary arrangements to receive the defendant’s goods, to make room for them in his store, and to place the same on sale under advantageous conditions, and, if deprived of that right, that damages would naturally follow. 3. The third and fourth propositions of the defendant may well be considered together. What we have already said upon the subject of damages applies here. The damages should be such as would reasonably compensate the plaintiff for the injury which he had suffered. “In cases of breach of" contract the damages ‘should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.’ ” Hopkins v. Sanford, 38 Mich. 611, 613. See, also, Tracy v. Butters, 40 Mich. 406, citing Allison v. Chandler, 11 Mich. 542; Drysdall v. Smith, 44 Mich. 119 (6 N. W. 211) ; Murdock v. Roe, 186 Mich. 233 (152 N. W. 969). We have examined the charge with great care upon this branch of the case, and are of opinion that the question was properly submitted, and that the dam ages recovered were neither unreasonable nor excessive. After a careful examination of the entire case, we cannot say that any of the alleged errors have resulted in a miscarriage of justice. The judgment of the court below is therefore affirmed. ' ' Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

[ -35, 20, -9, 2, -41, 15, 12, 9, 23, 6, 5, 48, 11, 35, -9, -8, 9, 36, 21, 20, 33, -58, 8, -44, -8, -39, -34, -83, -6, -42, -58, 21, 9, -35, -65, 72, 75, -16, -3, -29, 26, -2, 39, -2, -23, 1, 39, -52, 55, -45, 23, -3, -20, 17, -16, -40, 19, 5, 45, -25, -6, -11, 55, -37, 5, -66, 20, 42, 71, 37, -4, 0, 35, -2, 16, 4, -50, 1, -68, -20, 7, -30, 67, -2, -53, 50, -20, 49, -10, -14, -34, 39, 9, 21, 15, 19, -2, 4, -18, 20, -2, 6, -10, 26, -8, 6, 6, -71, -34, 40, 30, -7, 9, -12, -17, -42, 27, -38, 37, -19, 49, 16, -8, 32, 16, -8, -15, -26, 0, 3, 28, 33, -15, 72, 20, 25, -2, -17, 17, 21, 32, 21, -39, 3, -5, 36, -30, 16, -95, -53, -31, -41, 6, 46, 2, 34, 66, 24, 72, -77, 56, -29, 36, -8, -51, -18, -56, 3, -52, 47, 2, -5, -10, -57, -46, 35, 19, 15, -3, -6, 0, -20, -12, -34, -4, -37, 9, -9, 8, 35, 38, -25, -47, -19, -39, 0, -21, 15, -13, -35, 7, -40, -14, -27, 21, 21, 6, 36, -26, -16, -18, 23, 13, -69, -37, 7, 4, -12, 8, -32, 10, -23, 0, 46, -24, -49, 39, -28, -23, -15, -41, -14, 5, 13, 8, 12, 33, -26, 34, 34, -8, -38, -43, 26, -15, -30, -61, 20, -9, 41, 4, 2, 0, 9, -24, -12, -3, 18, -20, 5, -56, 62, -31, 16, -16, -13, 7, -20, -22, 26, -39, -15, 75, 3, -9, -31, -27, 1, 6, -2, -15, -53, -7, -32, -13, 53, 39, 6, -36, -5, -19, 30, 38, -40, 55, 30, 14, -26, -28, 44, -66, 23, 13, -22, -22, 27, -11, -2, 18, -2, -25, -28, -6, -30, -9, 47, 21, 35, 34, -40, -29, 44, -7, 74, 8, -63, 9, -25, -1, -58, 23, -15, 37, -39, -51, -26, 28, -24, 2, 20, 41, 47, 57, -8, -5, 47, 2, -65, 23, 34, -16, -62, 11, 8, 17, 45, -3, -4, -31, 15, 53, -1, -16, -36, -24, 50, -26, 6, 9, 17, -29, 19, -14, 6, -10, -69, -20, -24, -27, 78, 24, 2, -18, -7, 38, -29, -5, -3, -14, -12, -60, 17, 50, 36, -37, 0, 4, -13, -18, -6, 20, 29, -22, -16, -28, 12, 16, -5, -3, -3, 40, -61, -33, 6, -8, 9, 55, -5, -5, 8, 13, -13, -43, -13, 64, -40, 10, 32, -17, 5, 2, 17, 26, -23, 5, 10, -70, 26, -2, 11, -57, 33, -21, 16, 26, 13, -44, 82, 40, -7, 15, 26, 30, 44, -7, 5, 22, -7, 38, -10, 42, -54, 8, -8, -26, 20, 36, -43, -24, 38, -28, 16, 15, -5, -15, -30, -18, -30, 1, 9, -16, -1, 13, 21, -37, -24, 10, 37, -10, 7, -6, 25, 20, 11, 4, 23, -64, 2, 43, 23, -30, -28, -24, 10, -8, 23, 1, -33, 14, 50, -29, -17, 10, 14, 64, 34, 1, 19, -60, -4, -2, 21, -30, 18, 24, 20, 22, 20, 21, 22, -15, -35, 23, 5, -19, -5, 47, -13, 21, -31, -6, 24, 13, 17, -10, 1, -3, 2, 39, -17, 23, -12, 12, -50, 2, 35, 4, -15, 45, 6, -20, 21, -1, -19, 43, 4, -1, -27, 15, 11, -70, 0, 13, 1, 19, 29, 7, -20, -14, -37, -11, -11, -45, -72, -22, 31, 20, 12, 8, 24, -4, -14, -23, -41, 1, 29, 16, -20, 42, -9, -6, -36, -49, -19, -27, -44, -2, 31, 35, 14, 7, -54, -9, -59, 10, 13, 5, -3, 14, 11, -18, -2, 19, 40, 39, 55, -4, 2, -58, 9, 37, -12, 2, 28, 14, 36, 72, 14, -56, -29, -4, -19, 8, 7, 6, -22, -29, -15, 42, 2, -13, -3, 74, 5, -10, 11, 14, -13, -7, -24, -18, -5, -43, -4, 55, 3, -8, -21, 9, -13, -6, 32, -4, -26, -15, -3, 26, 20, -2, 13, 29, 17, 32, 8, -11, -4, 11, -19, -9, -28, -3, 15, -54, -49, -5, 22, 25, 4, 32, -70, -61, 17, 3, 62, -7, 29, -26, 18, 13, 53, 37, -49, -14, 35, 35, 87, 6, 36, -49, 39, -6, -27, 25, -23, 25, 10, 7, 7, 0, -5, 21, -19, -11, -19, -30, 16, -16, -43, -55, -13, 1, -37, -1, 19, 18, -9, 34, 10, 23, -18, -12, -8, 29, 12, 41, -22, -32, -23, -92, -2, -26, 18, -5, -43, -10, 45, 48, -54, 6, -37, -12, -20, -50, 13, -21, -36, 52, 33, 6, -50, 30, 0, 27, 44, -11, 16, 19, -6, 35, 16, -8, -56, -56, -18, -44, -13, 26, 29, 1, -31, -22, 12, 27, 66, 4, -13, -17, -15, 51, -7, -35, -70, -3, -53, 20, 16, -28, 28, -22, 35, 1, -33, -28, 23, -19, -11, -16, -15, -23, -7, 69, 14, -17, -4, -34, 52, 36, -16, -5, 9, 30, 21, -24, -21, 42, 24, -29, 8, -10, -38, -17, -8, -22, 0, 4, 0, -1, -8, 23, 28, 16, 3, -77, -25, -6, -25, -46, -26, 17, 49, 15, 60, -3, -16, 37, 24, -18, -14, -1, -13, -22, 26, 45, -8, -4, 26, 35, 2, 35, 55, 17, -19, -43, 39, 13, -33, -6, 1, -10, 7, 27, -6, 38, 18, -48, 44, 9, 5, -19, -10, 23, -30, -35, 7, -14, 39, -13, 33, 16, 22, -21, -35, -29, -55, -24, 9, 14, 24, 40, 32, -20, -23, 19, 11, 23, -17, 23, -62, -44, 41, -13, 11, -10, -63, -1, -31, -22, -6, -11, -1, 0, 31, -1, 42, -54, 6, -7, -26, -12, -24, 44, 39, 16, -10, 9, 24, 36, -32, 7, -19, -6, -17, -8, 4, 0, -24, -12, 9, 47, 27, -7, -20, -50, 62, 32, 23, 4, 14, -31, -13, 5, 35, -20, 5, 1, -31, -3, 17, 0, -39, -14, -17, -31, -20, -60, 10, 13, -18, -11, 9, -31, 2, 34, -12, -47, 46, -8, 49, -24, -53, 33, -45, -16, 34 ]

Per Curiam. Defendant was convicted after jury trial of the crime of larceny in a building in violation of MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). He was sentenced by the court to a term of from three to four years in prison. On appeal defendant raises four issues: 1. Whether a criminal defendant is deprived of a fair trial and/or the effective assistance of counsel when his court-appointed counsel does not call the defendant to testify in his own behalf and does not present any other witnesses to testify in defendant’s behalf. 2. Whether the prosecutor in a criminal case must in his opening statement recite a fact situation which would allow the jury to find the defendant guilty of the crime charged and, if so, whether the trial judge committed reversible error in denying defendant’s motion to dismiss on this ground. 3. Whether defendant waived his exceptions to jury instructions for appeal purposes when, subsequent to his exceptions and after additional explication by the trial judge to the jury, defendant indicates he has no further objection. 4. Whether defendant was deprived of a fair trial by the failure of the prosecutor to actually call two witnesses indorsed on the information to the stand even though these witnesses were made available in court for defendant counsel to cross-examine and by tbe failure to locate and indorse certain alleged res gestae witnesses unknown to tbe prosecutor before trial. Defendant on appeal argues that he was deprived of a fair trial because his court-appointed counsel did not effectively assist him in that the attorney failed to call either the defendant or other witnesses in his behalf. Defendant asserts that the failure of his trial counsel to present a defense prejudiced his due process rights to a fair trial. No authority is cited for this proposition. A review of Federal and state cases seems to indicate that for the defendant to prevail on this argument, courts require a very strong showing of the incompetency of trial counsel. In the present case, the “tactics” of defendant’s counsel might be considered good. He successfully fought introduction in evidence of appellant’s confession, made motion to dismiss, and decided not to put defendant on the stand, in all probability because of defendant’s previous record, which included a 1962 disorderly conduct conviction arising out of a larceny in a building and a 1964 conviction for unarmed robbery. With regard to the failure to call witnesses, one court has said, “the failure to produce and put on the stand material witnesses is merely an error of judgment which does not constitute lack of effective representation of counsel.” Hoffler v. Peyton (1966), 207 Va 302, 311 (149 SE2d 893, 899). As the people noted in their brief, recent Michigan cases correlate with this Federal trend. In a case in which the convicted defendant asserted as incompetent his counsel’s decision not to offer an alibi defense, this Court said: “No strategic position taken nor decision made during the pre-trial and trial stages can be made the basis for a claim of denial of counsel due to incompetence solely because the strategy was not successful.” People v. Kaczor (1968), 14 Mich App 724, 726. The decision of appellant’s counsel not to call the defendant nor offer any defense would appear to be such a “strategic position” that this Court after Kacsor is reluctant to brand as “incompetent”. Unsuccessful strategy cannot serve as a basis for a claim of denial of counsel due to incompetency. People v. Kaczor, supra, and People v. Gorka (1969), 381 Mich 515. Defendant charges error in the trial court’s denial of motion to dismiss for failure of the prosecutor’s opening statement to recite a fact situation which would allow the jury to find the defendant guilty of the crime charged, as required by GrCR 1963, 507.1. At trial defendant moved to dismiss after the prosecutor’s opening statement objecting to the fact that the prosecutor had “failed to recite a fact situation which would allow the jury to find the defendant guilty of the crime of larceny from a building.” The court denied the requested relief, because the combined voir dire and opening statement had informed the jury of the charge and the elements to be proved. Criminal cases indicate that the demands on the prosecutor in his opening statement are not too rigorous. In People v. Fowler (1895), 104 Mich 449, 452, the Supreme Court said that “the prosecuting officer’s duty is to explain to the jury the nature and elements of the issue that they are to try.” Even though the prosecutor had made a remark in his statement that was not later proved, the court did not think that was sufficiently prejudicial to compel reversal. In People v. Koharski (1913), 177 Mich 194, the prosecutor omitted completely the opening statement to the jury. When defendant requested a ruling that a statement should be made, the trial court refused. When this was assigned as error, the Supreme Court said: “We are of the opinion that the rule [Circuit Court Rule 24, now GCR 1963, 507.1] is directory, and that it was promulgated for the purpose of having the plaintiff’s case outlined in advance so that the jury could better see the force and bearing of the evidence as it came in, and while we think it is a proper rule to enforce, we are not prepared to say that the refusal to enforce it is reversible error, where its omission is not shown to have been prejudicial to respondent’s case.” 177 Mich at p 196. In People v. Clayton (1926), 236 Mich 692, when again faced with a claim of prejudice at the prosecutor’s failure to make an opening statement, the Supreme Court said, “The jury was doubtless fully informed as to the charge against defendant when examined on their voir dire.” 236 Mich at p 694. The trial court in the present case also thought the voir dire was sufficient to inform the jury. Citing Koharski, the Court held the prosecutor’s failure was not reversible error where no prejudice to defendant’s case was shown. Neither the record nor defendant’s brief show any prejudice to the defendant. In addition, the Court in Koharski thought that even if the omission was prejudicial it was later remedied, because: “[I]n view of the fact that the first witness upon the stand * * * told a connected story of the whole controversy, we think the jury must have been early advised as to what the claims of the prosecution were.” 177 Mich at pp 196, 197. In the instant case, similarly, the first witness, Mrs. Yeldman, told the jury essentially what the prosecution was trying to prove. From the Supreme Court’s rulings that GCR 507.1 does not require a full statement by the prosecutor, it appears the trial court committed no reversible error in denying appellant’s motion to dismiss. We find no error by the trial court under People v. Koharski, supra and People v. Clayton, supra. Defendant charges error in the trial court’s instructions to the jury. Defendant’s counsel failed to preserve by objection error that might have been committed. People v. Van Driesche (1908), 154 Mich 158, People v. Mallory (1966), 2 Mich App 359, and People v. Dexter (1967), 6 Mich App 247. Defendant argues that the prosecutor committed prejudicial error in failing to indorse two res gestae witnesses whose existence became known to him at trial and in failing to call two indorsed witnesses who were in court available to defendant’s counsel. Since defendant’s counsel did not object at trial to the failure of the prosecutor to locate and produce the claimed res gestae witnesses, he cannot raise this point for the first time on appeal. People v. Rimson (1966), 3 Mich App 713; People v. Brandon (1969), 16 Mich App 601. For the ordinary witness who is indorsed, the prosecutor’s only obligation is to produce him in court. People v. Kern (1967), 6 Mich App 406. The record is clear that the prosecutor fulfilled this requirement. Affirmed. Many of the Federal circuits have spoken on this subject. The Fifth Circuit reiterated its position recently. “This court stated in Kennedy v. United States (CA5, 1958), 259 F2d 883: 'Ordinarily, unless a convicted prisoner or habeas corpus * * * alleges and proves misconduct of his counsel amounting to a breach of his legal duty faithfully to represent his client’s interests, the defendant in a criminal case is bound by the acts of his counsel’ ”. Cade v. Balkcom (CA5, 1966), 361 F2d 212, 213. No such showing of misconduct has been made by the appellant here, nor is misconduct apparent from the record. Although Cade involved counsel chosen by the defendant, not court-appointed counsel, it is still applicable since the appellant initially retained his counselor, Gordon A. Doherty (see notice of appearance, November 13, 1968 and arraignment transcript, November 15, 1968). It was not until January 23, 1969, that Mr. Doherty became court-appointed counsel. The Third Circuit has not felt that the “eourt-appointed” aspect of a defendant’s counsel was significant. Their conclusion is that “the tactics to be employed * * * are primarily those for the exercise of counsel’s discretion.” Gawartka v. United States (CA3, 1964), 327 F2d 129, 131. Appellee cites two additional Federal cases following this view. In United States, ex rel. Bloeth, v. Denno (CA2, 1963); 313 F2d 364, the Second Circuit stated that: “Poor tactics of experienced counsel, however, even with disastrous result, may hardly be considered lack of due process.” 313 F2d at 374, rev’d on other grounds. See, also, United States, ex rel. Hamby, v. Basen (CA7, 1944), 178 F2d 379. Appellant has called into question the language of GCR 1963, 507.1, -which reads, in part: “Opening Statements. Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of his case and the facts he intends to prove.”

[ 18, 8, -25, -30, -20, -35, -38, -17, -66, 37, 31, -8, 20, -43, 12, -33, -7, 3, 35, -42, -23, -26, 20, 32, 28, -21, 12, 48, -10, 15, 24, 11, -14, 15, -29, 4, 24, -2, 26, 41, 23, 9, 13, -18, -84, 8, -21, -5, 56, 0, 26, 31, -6, 36, 21, -17, 8, 26, 47, -16, 49, 42, -66, -37, 10, -24, -20, -23, -30, -12, -71, -29, 28, -4, -1, -42, -15, -15, 8, 66, -9, -16, 50, -3, 48, -18, 25, -43, -1, -26, -42, 39, -24, 7, -32, -29, 69, -9, 62, -17, -6, -17, -14, -32, -2, -33, -56, -9, 0, 0, 25, 0, 31, 8, -44, -38, -18, -5, -37, 17, 19, -6, 29, 19, 38, 1, 21, -20, -2, -25, -24, 68, 31, -43, -11, 11, -19, 26, 55, 24, -7, -4, 7, 11, 62, -30, -48, 38, -6, 61, -5, 45, -67, 13, 24, 9, -42, -40, 0, 2, 7, 46, -65, -56, 41, 8, -12, -36, 16, -6, 23, 8, 38, 42, 15, -70, 8, -19, -12, -18, -27, 11, -4, 25, 8, 3, -22, 16, -77, -47, 2, 51, -28, -13, 63, 23, 7, 29, 47, 5, -32, 14, -10, -31, 26, 6, 5, -21, 35, -28, -38, 25, -37, -45, 0, -29, 13, -13, 26, 21, -61, -8, -21, -68, -28, -12, -9, 30, -2, 24, 21, -13, -6, -11, -17, 23, 20, -14, 46, 15, 3, -3, 55, -30, 4, 11, -2, 35, -30, -53, 5, -18, 5, -2, -39, -29, -34, -18, -52, -23, 21, 54, -20, -31, -25, 21, 5, 15, -42, -7, -29, -7, -15, 50, 6, -4, -71, 48, -15, -4, 28, 9, 2, 3, -46, -20, 11, 24, 42, 0, 7, 28, -44, 9, 40, 17, -11, 16, -39, -16, -1, -20, -47, -18, 9, -18, 18, -24, -40, -4, 28, 37, 36, -2, 8, 34, -31, -4, 13, -43, 4, -31, 7, -71, 35, -14, 31, -26, 2, -1, -5, -6, -17, -24, 26, 33, 36, 3, 5, 44, 13, -42, -9, -41, 35, 2, -37, 25, -15, -4, 54, -3, -7, -5, 34, -35, -10, -32, -10, -5, 67, -20, 18, -13, 39, 26, -7, 35, -7, 46, 8, -73, -26, -35, -56, -27, 35, 0, -25, 24, -3, -34, 59, -47, -14, -15, 4, -7, -16, 75, -17, 20, -3, -66, 0, 41, -33, 9, 32, 22, -41, -12, 15, 16, -57, -30, -43, -4, -19, 26, -47, 75, 51, 112, -17, -45, 25, -7, 38, -8, -1, -36, 55, 32, 4, 14, -27, 13, -6, -63, -9, 15, -6, -43, 46, 36, -38, 1, 16, 9, -25, -39, -61, -21, 49, -9, 9, -69, 20, 29, -40, 60, 0, -3, 45, -3, 24, 8, 24, -18, 30, -10, -77, 14, 48, -52, -36, -33, 18, 0, 41, -2, 51, 39, -69, 36, -28, 51, -6, 18, 39, 11, 17, -13, -27, -7, -4, -15, -35, -66, 2, 37, 2, -40, -36, 12, 35, 2, 9, 8, 0, 4, 6, -21, 15, 3, 59, -21, 28, 7, -34, 33, 14, 6, -8, -31, -9, 7, -23, 1, 24, -52, -20, -19, -26, 9, -54, 31, -1, -18, 66, 21, -46, 6, 50, 55, -15, -18, -22, 12, -20, 59, -1, 7, 19, -3, 11, 13, 35, 45, 48, 17, 22, -9, -28, -29, -31, -4, 61, -47, 0, -7, 45, 44, -9, -13, -12, 13, 27, 11, -9, 25, -21, 32, -25, 22, 0, 45, 52, -24, -18, 10, -30, -76, -19, 26, 5, 16, 23, 10, -69, 28, -4, -38, -44, -39, -61, -51, 39, 46, 18, -19, -39, 0, 10, -32, 47, 41, 11, -19, 77, -13, -23, -18, -13, -36, -16, 33, -43, 52, 12, 36, -18, 1, -22, -37, -45, -6, -37, -24, -4, 8, -12, -12, -39, -1, -10, -12, -23, 20, -23, 19, 2, -52, 12, -50, 26, 1, 8, -71, -3, 32, 28, -42, 30, -42, -12, 27, 39, -22, 17, -6, -45, 8, 44, 25, 5, -4, 3, -3, -13, -4, 19, 76, -24, 32, -17, 9, -44, -21, -1, -43, 8, -14, -39, -6, -42, -7, 52, 9, 0, 19, 60, 17, 11, -5, 62, 7, -39, -15, -6, -30, 7, 4, 13, -5, 30, -41, 10, -43, -18, 34, 14, 11, 45, -28, -84, -10, -39, 64, 28, -11, 29, 27, -46, 3, 70, -7, 57, -25, -1, 25, 3, 14, -14, 34, -37, -60, -23, 15, -21, 38, 43, -65, -28, 37, 41, -48, 14, -19, 39, 45, 20, 31, -27, 25, 37, -14, -38, -29, -17, 9, -5, -45, -33, 35, 20, -9, 37, -13, -47, -41, 62, -17, -16, 6, -34, -14, 39, -4, 28, 39, -38, -27, 27, -7, -29, 29, -44, 23, 36, -6, -52, 51, -1, -48, -30, -15, -6, -9, 18, 30, 57, 6, 0, -19, -12, 47, 38, -14, 21, -16, -22, 37, 12, 14, -4, -5, 13, 1, -31, 32, 1, -34, -20, 23, 33, -32, -10, 27, -15, -55, 38, 36, -5, -23, 17, 65, -52, -27, 5, 2, -15, 48, 55, -19, -13, -30, -1, 29, 48, 52, -11, -31, -17, -15, -5, 25, 3, -18, -26, 76, 5, -24, 18, 39, -32, -20, 46, -29, 18, 1, 44, -11, -13, 38, -15, 48, -17, 18, 3, -3, -24, 5, 6, -29, -29, -22, -39, 17, 14, 32, -16, -11, -13, -18, 34, -21, 6, -18, -16, -57, -11, -2, 50, -22, -4, 0, -44, -23, 14, 28, -33, 10, 59, -18, -31, 16, 39, 26, -44, 72, -8, 11, -9, -32, -2, -42, 11, -4, -1, -1, 8, -29, 18, -8, 0, -46, -25, 10, -34, -2, -25, 23, -32, 18, -75, 22, 18, 30, -59, -13, -41, -14, 30, 13, 18, 9, -4, 10, -53, -38, -27, -12, 42, 20, 4, -36, -45, 37, 50, -61, 7, -30, 11, -11, -1, -12, -23, 7, -39, -18, 22, -7, -6, 7, -1, 29, 10, -26, 38, -10, 7, 26, -23, 67, -18, -64, 5, 38, -11, 28, 35, 13, 31, 45, 27, -14, -38, 2, 27, -55, 78, -32, -7, 6, 2, 7, 3, -16, -21, 59, -31, 44 ]

Per Curiam. This is an action to determine the ownership of a house and lot in the City of Muskegon Heights. On October 11, 1957, the defendant purchased the property on land contract from Paul and Mary Heistand for $8,500, with $500 down and the balance payable with interest at 6% per year in monthly payments of $80 or more including interest. On November 16, 1957, the defendant executed an assignment of his interest in the land contract to the plaintiff. Plaintiff’s complaint alleged that, by virtue of the assignment, he became the owner of the land contract purchaser’s interest and asked that the defendant be required to convey his record title interest to the plaintiff, the true owner of the property. The trial judge found that the plaintiff failed to sustain his burden of proof. The plaintiff testified that in connection with the execution and delivery of the land contract assignment he and the defendant orally agreed that the plaintiff would purchase and the defendant would sell the house for $8,500 payable $85 a month. Although the land contract between the Heistands and the defendant was formally assigned to the plaintiff, the plaintiff said that he was obligated to make his payments to the defendant and the defendant would make the payments to the Heistands. The plaintiff claimed that he made the monthly $85 payments to the defendant, but he was unable to produce a receipt, cancelled check or other written evidence of payment. The defendant made the required monthly land contract payments to the Heistands until September 25, 1964, when he refinanced the property, obtaining a mortgage from a savings and loan association and a deed from the Heistands subject to the new mortgage. The defendant testified that after purchasing the property, the plaintiff, with whom he was acquainted, suggested that he be allowed to live in the house and rent part of it to others and manage the property so that there would be sufficient income to pay the land contract payments to the Heistands. At the time of the assignment of the land contract to the plaintiff, the plaintiff took possession of the property and he or his tenants lived in the house until 1965. The defendant conceded that it had been agreed that if the plaintiff made the payments the property would become the plaintiff’s, but that, in executing the land contract assignment, the defendant intended only to confer on the plaintiff the right to manage the property. (There was no objection to this testimony either on the ground that it violated the parol evidence rule or the statute of frauds; accordingly, we do not reach the contention of the plaintiff in that regard argued on appeal.) The testimony of the real estate man who prepared the land contract assignment tended to corroborate the defendant’s testimony. He said that the defendant told him that the plaintiff was going to “handle” a house for the defendant and that he, the defendant, wanted “a paper collected.” The plaintiff testified that, in addition to the land contract assignment, the defendant delivered to him a copy of the land contract between the Heistands and the defendant; and that he mailed a copy of the assignment to the Heistands, retaining a duplicate copy of the assignment for himself and the duplicate copy of the land contract. The defendant denied that his copy of the land contract was ever delivered to the plaintiff and the Heistands denied that they ever received a copy of the assignment from the plaintiff. Both the plaintiff and the defendant made improvements on the house from time to time, but the plaintiff claimed he paid or obligated himself to pay the defendant for the improvements made hy the defendant. The plaintiff said that the rental income from the house was inadequate to cover the $85 a month payments which he was required to make to the defendant, that nevertheless he made the required monthly payments, but, as previously mentioned, he was unable to produce any evidence, in addition to his own testimony, that he had made such payments. The defendant denied ever having received any money whatsoever from the plaintiff. It appears that the plaintiff’s occupancy of the house was intermittent. Less than a year after the execution and delivery of the assignment the plaintiff moved to Chicago where he obtained employment, returning monthly or more frequently on weekends to Muskegon. He testified that a year after he left for Chicago he returned the land contract to the defendant to facilitate the making of payments. The plaintiff, nevertheless, continued to exercise a right of occupancy and collected rents from tenants until 1965. Throughout this period the fire and extended coverage insurance policies on the property showed the interest of both the plaintiff and the defendant either (i) without description or (ii) as land contract purchasers or (iii) as second land contract purchasers. When the defendant refinanced, the original land contract price of $8,500 had been reduced to $4,-108.42. The new mortgage was for $5,600 and, thus, there was a differential of almost $1,500. At the close of defendant’s case, an officer of the savings and loan association which provided the new mortgage financing testified that pursuant to the defendant’s instructions a check for $665 was sent hy the savings and loan association to the plaintiff; the record is silent as to the reason the defendant paid the plaintiff this money. There is no evidence that, either at the time of trial or at the time of conveyance by the Heistands to the defendant, the property was worth more than the $8,500. that the defendant paid the Heistands and the plaintiff promised to pay the defendant. If this is so, after all the payments on the land contract, the equity before the refinancing was $4,400 and after the refinancing was $2,900. The plaintiff does not claim that he made any payments on the new mortgage. In July 1965 the plaintiff wrote the defendant saying that the defendant could peddle the house for $1,600 and suggested that he do so: “So you can forget my asking about the car, take the house, run it like you want to. Please give me time to get all of my things out”. In a later letter the plaintiff advised the defendant regarding certain unpaid bills in respect to the house-and gave some advice with regard to its maintenance, said that he was not in a position to pay the defendant some $500 or $600 owing for work done by the defendant on the house, and that he was writing the then tenant asking her to move and “you can take over”. On this somewhat unusual record, we are inclined to agree with the trial judge’s appraisal that while the plaintiff and the defendant “had some arrangement between them” the plaintiff failed to sustain his burden of proving that he is entitled to have the deed from the Heistands to the defendant set aside or that the defendant should be required to convey the property to the plaintiff. The resolution of the issue presented depends upon one’s appraisal of the credibility of the witnesses. We find nothing in the record which would justify our concluding that the trial judge incorrectly re solved the credibility question. With that decided, we cannot say we are left with the definite and firm conviction that a fact finding mistake was committed by the trial judge or that he clearly erred in refusing to grant the plaintiff the relief requested. Affirmed. Costs to defendant.

[ 4, 36, -30, -17, -10, -3, 23, 57, 29, -1, 13, -17, 35, 31, 27, -3, -24, 12, -7, -27, -51, -45, -47, 23, 2, 2, 28, -25, -7, 39, 44, 15, -25, 8, -8, -15, 19, 8, 14, 0, 33, 3, -8, 18, -12, -28, -25, -29, 9, -2, 27, 12, 49, 20, -44, -19, -42, -9, -44, 11, -17, -44, -32, 8, 31, 1, 34, 12, 48, -24, -25, 4, 11, 9, 25, 12, -53, 22, -13, -31, 19, -45, 40, 14, -12, 30, 27, 5, -37, 1, -26, -16, 11, 56, -12, -3, 48, 39, 35, 10, -26, 7, 6, 52, 21, -5, -61, -30, -44, -15, 17, 8, 38, -16, -7, 3, -20, 24, 36, 2, 18, -1, 22, -47, -16, 24, -73, -19, -33, -14, 11, 27, -39, 25, -36, -7, 6, -31, 21, -40, 6, -33, -28, -52, -3, -26, -8, -45, 8, -65, -40, -28, 55, 52, 10, -42, 3, -16, 15, -55, 41, -47, -4, -44, -2, -5, -17, 45, 11, 12, 31, 2, -4, -94, 28, -8, 40, 16, -29, -22, 10, 27, -4, -20, 4, -31, -38, -30, 0, -34, -13, -21, -16, 8, -2, 33, -38, 42, -51, 3, 10, -23, 23, -21, 9, -30, 19, -24, -31, 7, -14, -12, -4, -39, -34, 30, 22, -11, 2, -4, 25, -25, -42, 11, -26, -9, 64, -36, 42, 19, -14, -3, 25, 28, -35, -1, 14, 16, -5, -8, 27, 28, -22, 7, -6, 12, -8, -11, 4, 4, -34, -14, -67, 30, -11, -1, -31, 21, 3, -25, 12, 32, -30, 50, -15, -18, -7, 6, 9, 13, -17, 8, -4, 47, -68, -3, -56, -15, 1, 18, 44, -15, 6, 15, -33, 36, 61, 44, -24, -6, 19, -39, 0, -25, 62, -2, -19, -36, 14, 0, -51, -42, 21, 18, -4, -37, 13, 25, 6, -2, 40, -18, 22, 0, -14, 26, 0, -24, 8, -35, 28, -19, -21, 33, 47, -7, 45, -70, -28, 37, 1, -10, 1, 28, 20, -18, 42, -14, -9, -8, 28, 27, 5, 18, 51, 23, -28, 0, -20, -11, -28, -18, -50, 27, -21, -26, 36, 1, 8, 32, 9, 32, 26, -26, -24, 13, -9, -23, -28, 7, 25, 54, -26, 6, -31, -31, -33, 22, -61, 66, 41, -19, 20, 43, 18, -24, -44, -6, -5, 0, -71, -18, 10, 8, 15, -50, -27, 19, -56, -37, 31, 21, 1, 31, -38, 6, 50, 3, -7, 39, -40, -42, 20, -36, 30, 9, 32, 28, 43, 45, 21, 22, 6, 7, -3, 0, -23, 14, -17, 39, -39, 23, 35, -43, 62, 10, -46, -12, 3, 55, -27, 37, 17, 11, 19, 0, -31, -46, -14, 0, 27, 12, 2, 11, -18, 5, 77, -22, 27, -3, 41, -19, 22, -9, 31, -14, -31, 1, 9, 15, -11, 29, 21, -7, -30, -17, -18, -10, 0, 17, -6, -11, -22, -26, -23, -14, -37, -10, -39, 40, 14, -24, 35, 58, 43, -20, -13, 4, 14, 24, 23, 33, 38, 76, -9, 0, -17, -42, -22, 5, -20, -21, 4, 39, 5, 50, 56, -38, 42, 4, -3, 23, -10, -22, 47, 7, 36, 40, -28, -11, -22, -23, -11, -12, -27, -25, 4, 20, -4, -12, -13, 63, 7, 21, 11, -1, -9, -6, -5, 22, -20, -61, 20, 22, -34, -40, 41, -40, -6, 5, -3, 22, 22, -17, 67, -19, -15, -43, -22, 51, -53, -60, -28, 3, 15, -40, -34, -21, -7, 50, -62, 17, -2, -14, 10, 43, 49, 20, 4, 14, 15, 2, 5, -58, -5, -43, -2, 11, 12, -13, -10, 20, -70, -19, -17, -19, -6, 8, -11, -27, -5, 13, 34, 19, 8, 9, 6, -18, 0, 15, 52, 46, 17, -22, 12, 14, -34, 4, -38, 41, 52, -27, 14, -20, 37, -39, 25, 13, 11, -65, -17, 4, -30, 22, 2, -15, -20, -21, 0, -45, -66, 54, -1, -6, 22, -16, 4, -3, 41, -4, 63, -46, -48, -5, 1, -14, 18, -41, -14, 20, -11, 14, 26, -20, 0, 17, 1, 39, 62, -67, 6, 4, 13, 29, 11, -14, 5, -36, 2, 7, 10, -19, -46, -14, 25, -15, -1, -14, 13, 34, 22, 20, 14, -30, -29, 70, -3, 18, -2, -23, 8, -17, -45, 1, -5, 35, 1, -13, -5, 12, -4, -5, 3, -89, 18, 3, 50, 28, 2, 15, 0, 16, 16, -6, -19, -25, 6, 30, -19, -51, -11, -31, -37, -14, -7, -35, 32, 16, -16, 6, -32, 3, 29, 30, -15, 0, -35, 29, -16, -1, -15, 42, -6, 23, 16, 4, -17, -53, 4, -15, -15, -22, 1, -16, 3, -13, 20, 6, 30, -33, 18, 3, 23, -50, 1, -23, 18, -12, 34, 65, -20, -31, 1, -9, -39, -8, 52, -5, 13, -60, -18, 26, 27, -20, 19, 67, -55, 19, 0, 9, -4, -41, -35, -5, 9, 63, 8, 48, 19, -1, -2, 44, 2, 10, -36, 13, 5, -28, -59, 27, 36, -43, -23, 8, -4, -19, -3, 33, -39, 5, -1, -43, -69, -11, 19, 19, -14, 20, -1, -24, -38, -17, 57, -11, -27, 14, 5, 23, 15, -36, 22, -15, -36, 40, 18, -27, -41, 8, 25, 24, 55, -5, -17, 0, 54, -24, 5, -10, 11, 7, -8, 59, -28, -19, -27, 20, 26, -1, -31, 44, 6, 18, -43, -9, -29, -11, -4, -37, -28, 33, 18, 30, -4, 0, -16, 11, -10, -13, 6, -7, 5, -25, 4, -22, -18, -21, -2, -39, 59, 14, 12, 20, -87, -25, 0, -55, -12, 27, -31, 30, 15, 26, -5, 13, 38, -3, 72, -21, 18, -24, -7, -10, 16, 16, -54, -6, -4, -39, 35, 24, -63, 64, 2, 43, -21, -16, -20, -25, -23, -14, -9, 15, 24, -48, 72, -24, 21, 13, -1, -3, 25, -34, -44, -20, -21, -22, 36, 41, 0, -27, -10, -41, -24, 0, 2, 6, 24, -8, -23, -75, 8, 12, 41, 11, 16, -24, 52, 11, 40, 4, 7, 29, -3, -35, -5, -27, 52, -1, 2, -9, -4, 3, 90, -15, -4, 20, 0, -10, -13, 0, 24, -5, -24, 36 ]

Quinn, J. Plaintiff’s action was for breach of contract by defendants. The trial court granted defendants’ motion for summary judgment of dismissal, finding that the complaint failed to state a claim upon which relief could be granted. The basis for this finding was that the contract involved was an artist’s management contract, and plaintiff, the manager, was not licensed as required by MCLA § 408.603 (Stat Ann 1968 Bev §17.393); hence, the contract was unenforceable. The controlling issue is whether plaintiff is subject to the statute. The pertinent language of the statute reads: “No person shall open, operate or maintain an employment agency in the state of Michigan without first procuring a license from the state superintendent of private employment bureaus.” Another section of the statute, MCLA § 408.615 (Stat Ann 1968 Bev § 17.405), classifies the licenses to he granted. Section 408.615 (d) provides: “A class 4 license shall entitle the holder to engage in the business or profession of serving as manager, business advisor or rendering technical service to an entertainer. An artist’s manager shall he licensed under a class 4 license regardless of where such business is conducted.” MCLA §408.616 (Stat Ann 1968 Bev § 17.406) specifies the rules applicable to each classification of license. Section 408.616(a) specifies the rules applicable to an artist’s manager license. MCLA § 408.621 (Stat Ann 1968 Bev § 17.411) makes violation of the act a felony. Plaintiff concedes that the contract involved is for artist’s management. This concession and the foregoing statutory provisions mandate a holding that plaintiff was subject to the act and was required to he licensed. The contract involved was void regardless of the fact that there is no statutory language declaring it to he so. As was said in Cashin v. Pliter (1912), 168 Mich 386, 389: “The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void.” (Citing authorities.) We decline comment on plaintiff’s final claim that the statute must he strictly construed because it is penal in nature. The penal provision is not here involved. Affirmed with costs to defendants. All concurred.

[ 6, -41, -44, -10, 47, -7, 28, -41, -40, 69, -17, 15, 46, -17, 22, 21, 18, 55, -22, 3, 22, -19, -16, 20, -52, -3, 55, -8, -17, 7, -48, -21, -5, 15, -53, -11, 28, -33, 16, 0, 25, 11, 14, -59, 9, -32, 50, 4, 56, -14, -15, 8, -31, 29, 29, -44, -18, -2, -26, 20, -49, 28, 28, -29, -4, -77, 11, -9, 19, -10, 5, 90, -54, 24, -56, -11, -28, -28, 50, 20, 4, -43, 31, 30, 38, 50, -16, 10, -1, -8, -11, 54, -27, 16, -18, 23, -2, -26, 7, -54, 1, 34, 14, 5, -9, -19, -28, 25, -16, 23, 5, -47, -12, -61, 25, -19, 43, -7, -1, -27, 19, 4, 8, -24, 12, -20, 0, 27, 6, 43, 50, 51, -11, -28, 15, 52, -25, 60, 51, 10, 18, -30, -11, -17, -16, -22, 8, -22, -29, -49, -29, 1, 21, 39, -13, -19, 0, 15, 50, 22, 27, 6, -24, 21, 24, -43, -15, 6, 45, -14, -13, -14, 10, -22, 22, -2, 42, -15, 0, -44, -18, 21, -23, -37, 55, -38, 1, -62, -31, -39, -4, -60, -11, 29, -4, 6, 2, 35, 22, -49, -2, -21, -23, 19, 27, 48, 0, 6, -34, 29, -26, -41, -17, -44, -48, -21, 43, 7, -29, -7, -21, -49, -3, 39, -38, -100, 15, -41, -62, 1, -11, 11, 89, 21, -43, -17, -7, -31, 55, 2, -53, 3, -41, 3, 17, -23, -13, -40, 29, -12, 15, -18, 43, 32, -35, 1, -25, 31, -66, -9, -49, 33, -31, 41, -31, -23, -41, 36, -44, 2, -42, 4, 36, 23, 19, -50, -19, 63, 15, -33, -22, 25, -23, -61, -8, 32, -18, -7, -15, 17, 26, -28, -21, 10, 11, 33, 23, 10, 0, 20, 3, 10, 35, 49, -16, -24, -39, 24, -4, -43, -52, 19, -17, -12, 12, -20, 16, -53, 13, -14, 59, 0, 38, 1, -55, -77, 68, -19, -4, -31, 75, -35, -3, -26, 0, 7, 48, -7, -4, 37, 23, -11, -11, -54, -33, 22, 18, -7, 0, -10, 14, -32, -62, -1, 49, 14, 31, 0, -45, 9, -19, -15, -41, -84, 24, 30, -20, 33, 33, 41, -52, 23, -30, 26, -69, -5, 34, -17, -69, 31, -22, -36, 10, 28, 36, -43, -5, -58, 39, -19, -22, -27, -17, 33, 9, 7, 10, 37, -25, 30, 2, 18, -7, -37, -14, 13, 39, -41, -27, 30, -64, 19, 41, 37, -29, 61, 67, -59, -6, 2, -2, -53, -2, 0, -21, -33, -59, 49, -11, 5, 7, 48, 25, -52, 5, 18, -29, -16, -27, 32, 10, 1, -92, 9, 24, -7, -13, -13, -12, -38, 15, 18, -20, 75, -5, 34, -32, 64, -10, 28, -9, -16, 13, -17, -1, -48, 5, 20, -6, 48, -44, 23, -31, 28, -8, -3, -17, 10, -8, 56, -3, 77, 58, -17, -9, -15, 30, -20, -8, -40, 25, -18, 13, 91, -33, -30, 10, 49, 11, 17, 16, -26, 26, 37, 25, 11, -18, -37, 15, -18, -31, 41, 25, 28, 33, -16, -31, 24, -1, -18, -2, -10, -38, 20, -18, -5, -69, 11, 29, 19, 28, 37, 32, 21, 10, -19, 16, -6, -10, 13, 51, 27, -53, 49, 53, 42, 13, -15, 16, -23, -18, -34, 44, -61, -2, 0, 21, 11, 61, 49, -36, 23, 19, 29, 29, -2, -22, -10, 52, 44, 14, 12, 26, 17, 2, -25, 50, -25, 14, -68, -7, -11, 39, -1, -10, -12, 5, -17, 55, -33, -14, -56, 2, -42, 19, 8, 9, -45, 56, 87, -22, -9, -64, -20, -26, -43, 28, -24, 19, 8, -15, -7, 9, -65, 10, -4, 31, -31, 8, 54, 37, 39, 39, -37, 5, 33, 35, -30, 4, -1, 24, -41, 16, -25, 21, 27, -12, 36, -28, -53, -24, 21, -20, 17, 20, -12, 17, 14, 16, -26, -11, 17, -10, -6, 20, -21, -31, -32, 29, -26, 3, -16, -36, 56, 35, -6, 24, 0, -6, 5, 32, 50, 46, 6, 44, 19, -19, 19, -6, 13, 0, -28, 46, 0, -5, 14, 1, -27, -14, -20, -19, 47, 28, -85, -8, -10, 10, 58, -1, -53, -9, 36, -51, 17, 6, 17, -29, -22, 2, 75, 14, -11, 14, 30, 25, 52, -21, 42, -53, -11, -40, -28, -4, -43, -24, 18, 43, -3, 23, -32, 18, 23, 24, 2, 0, 24, -2, 3, -91, 43, 91, 1, -13, -6, -67, -24, -5, -5, 15, 13, -33, 22, -25, 33, -35, 6, 14, 8, -35, 62, -33, 63, -27, 34, 49, 18, -47, -21, 4, -14, -12, 9, 1, -8, -8, 7, 57, 0, -50, -40, 91, 11, 27, 4, -21, 15, 15, -55, -25, 7, 45, 19, 15, 18, -8, 9, 40, 11, -26, -53, -18, -15, -16, 36, -28, -21, -26, -40, 53, -43, 1, -14, 16, 6, 5, 1, -39, 13, -28, -44, -1, -3, -26, 1, -4, -48, 22, -33, -11, -23, 37, 6, -13, 21, -22, 31, 1, -31, -9, 6, -3, -25, -3, 66, 14, 24, -71, -6, -12, -79, 3, 0, -5, -3, -44, 2, -30, -32, 71, -16, -3, 54, -35, -38, -2, 3, -43, -22, 53, -53, -33, -8, 28, -10, 34, 0, -44, 8, -29, 18, 31, 6, -36, -36, 5, -1, 12, -27, -11, 48, 78, 5, -6, 20, -23, 1, 6, 4, 29, -41, 30, -3, 10, 19, 0, -1, 34, -12, -17, -8, -11, 24, 16, -1, -7, 36, -16, 24, 20, -46, 5, -20, -2, -23, 28, -5, -16, 24, 0, 11, -31, -18, 55, 3, -23, -39, 17, 10, -70, -9, -43, -5, 37, -28, -28, 24, -48, -9, 0, -5, -54, 75, 11, -34, -59, 32, 5, 21, -26, -67, 16, 41, -9, -5, -4, 15, 75, -43, 8, -12, 15, -6, -23, 30, -1, -16, -13, 25, 21, -22, -23, -47, -25, 30, 36, -16, 17, -37, -30, -69, 9, -15, 33, 21, -11, -48, 0, -6, 11, -39, 55, 47, -101, -28, 7, 25, 29, -23, 29, -24, 13, 50, 48, 5, -56, 53, -28, 34, -54, 14, -10, 42, -43, 17 ]

T. M. Burns, P. J. On August 25,1967, defendant called the Detroit police. He told them that he had shot and killed a Mr. Bennie McCormick by mistake. The defendant stated that while he was visiting at the flat of a Mr. Edward Prince, he heard footsteps on the back stairs. The defendant said that he thought a burglar might be trying* to break in, as the flat was on the second floor and since it was about 5 a.m. He further stated that with that in mind, he mistakenly shot and killed his friend, Bennie McCormick, as he opened the apartment door. Defendant was taken to police headquarters. After being advised as to his rights, he made a statement. Preliminary examination was held on September 5,1967, and defendant was bound over to Recorder’s Court for trial on a charge of murder in the second degree. MCLA § 750.317 (Stat Ann 1954 Rev § 28-.549). Defendant was found guilty by a jury on April 15,1968, and was sentenced to serve from 8 to 20 years in prison. On appeal, defendant seeks to raise five issues for our consideration. Did the lower court fail to properly supervise the procedure whereby a written statement was taken into the jury room? Defendant’s signed and sworn affidavit states that the jury foreman came out of the jury trial room and requested a written copy of defendant’s oral admissions. The court granted the request and the prosecutor handed the foreman a written statement. This statement was not read by either the judge or defense counsel. The defendant asserts that there is no assurance that the paper given the foreman was his statement about the shooting which had been admitted into evidence. He says it could have been a written copy of his oral admission relating to the use of narcotics which was present in the court room but had not been admitted into evidence because of its prejudicial nature. Therefore, defendant contends he was denied the right to be confronted by his accusers and due process of law. There is nothing in the trial transcript to substantiate defendant’s contention that the unadmitted admission concerning the use of narcotics was given to the jury. Defendant by his affidavit only says that the admission concerning narcotics might have been the document sent'into the jury, not that it was the document. It is within the discretion of the trial court in a criminal case to permit papers and documents to be taken to the jury room for consideration of the jury. People v. De Frenn (1929), 247 Mich 698; People v. La Londe (1917), 197 Mich 76. However, it would have been error to permit a jury to take with them, during deliberation, matter which was not admitted into evidence. People v. Krueger (1968), 99 Ill App 2d 431 (241 NE2d 707). This claim, however, was advanced for the first time on appeal. It has not been the subject of a motion for new trial, and the defendant never sought an evidentiary hearing on this issue. Therefore, since there is nothing in the record to support defendant’s speculations as to the possibility that the document which was given the jury was anything other than what the judge directed to be given to it, there is nothing before us to review for possible error. Was the introduction of narcotics testimony, in the course of the trial proceedings, prejudicial to the defendantf The defendant contends that the introduction of evidence concerning the use of narcotics by the prosecutor was so prejudicial that it denied him a fair and impartial trial. The trial judge ruled that the portions of defendant’s statement relating to narcotics was not to be read into evidence. However, the prosecution did ask questions about narcotics and thereby, according to defendant, denied him a fair trial. Defense counsel’s objection was sustained, however, when Mr. Prince was asked if-he knew whether defendant used narcotics. Counsel did not object when the same question was asked as to other parties involved. It is the duty of the defense to make timely objections so that the questions may be preserved for appeal. People v. Dodson (1967), 9 Mich App 123. Since timely objection to this line of questioning was not made, the question is not properly before us. Did the lower court err when it failed to rule on the defendant’s motion for a mistrial? The defendant argues that the trial judge was under a duty to rule on his motion for a mistrial when allegedly prejudicial testimony concerning narcotics was introduced into the jury trial proceedings. The defendant further urges that the effect of the failure to rule on a motion has been held to be equivalent to an adverse ruling and was therefore, renewable on appeal. People v. Sartori (1912), 168 Mich 308. We are unpersuaded by the people’s argument that the defendant did not put his objection to the testimony in the form of a motion. However, a review of the situation in context convinces us that the trial judge did not abuse his discretion in denying a mistrial under the circumstance that the question put to Prince regarding Benberry’s use of narcotics was answered in the negative by Prince. The sequence was: “Q. Do you know whether Lawrence Benberry used narcotics'? “Mr. Long [defendant’s counsel]: All right, now, I’m going to object to that. “A. No, sir. “The Court: The objection is sustained. “Mr. Long: I think it ought to be declared a mistrial. That’s the most prejudicial thing I have ever heard. “The Court: Well, there’s been no answer to it. The jury will disregard the question. There is no evidence here that Mr. Benberry is involved in narcotics. The jury should disregard it.” If the answer had been, “Yes, Benberry was a narcotics user”, a different question might be presented. Under this circumstance presented to us here, the trial judge did not err in failing to declare a mistrial. Did the lower court err when it failed to properly instruct the jury on the issue of the duty to retreat while in the dwelling of anotherf The defendant asserts that the lower court erred by failing to instruct the jury on the issue of the duty to retreat or not to retreat while in the dwelling house of another, which was critical to his con tention that he acted in self-defense. He argues that since he was dwelling in the kitchen of the flat for the night, he was under no duty to retreat. Having reviewed the instructions given, we consider that the court adequately instructed the jury in respect to the crime involved, including instructions on justifiable and excusable killing, self-defense and retreat. At the time, defense counsel stated that he was satisfied with the instructions that were given. Since he failed to object or request further instructions, defendant cannot object for the first time on appeal in the absence of plain error. See People v. Guillett (1955), 342 Mich 1, 7, 8; People v. Liggett (1967), 378 Mich 706, 714; People v. Oberstaedt (1964), 372 Mich 521, 526; see also 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 566. Did the lower court properly deny the defendant’s motion for a directed verdict, in the course of the trial proceedings? The defendant asserts that his motion for a directed verdict was improperly denied because the prosecution failed to sustain its burden of proof. The prosecution, according to the defendant, failed to introduce any evidence concerning malice aforethought which is an essential element of second-degree murder. People v. Potter (1858), 5 Mich 1. A review of the facts show that there was sufficient evidence before the court to submit the issues of fact to the jury. Materially, the fact of the crime had been established and the fact that defendant had killed McCormick was not in dispute. The disputed issue was the nature of the crime or whether it was excused or justified. The trial magistrate was duty-bound to submit the issue to the jury under the circumstances, and a refusal to do so would have re- suited in usurping the function of the jury. People v. Hancock (1950), 326 Mich 471. It has long been the rule in Michigan that: “The sufficiency of the evidence is exclusively for the jury. It is only where there is no evidence, upon a material point, that the court can take the case from the jury.” People v. Eaton (1886), 59 Mich 559; People v. Abernathy (1931), 253 Mich 583. A review of the facts shows sufficient evidence, if believed, to find defendant guilty beyond a reasonable doubt. The presence of malice requires an intent to cause the harm that results or some harm of the same general nature, or an act done in wanton or willful disregard of the plain and strong likelihood that some such harm will result. People v. Hansen (1962), 368 Mich 344. It also requires the absence of justification, excuse, or recognized mitigation. Such matters are questions of fact for the jury to determine. Finding no reversible error, we affirm. Affirmed. All concurred.

[ 1, -46, 21, -14, -6, -31, -26, -22, -41, 32, 22, 34, 20, -7, 5, 34, -6, -16, 42, -56, -12, -61, -42, 60, -8, -37, -9, 37, -30, -10, 15, 35, 22, -40, 11, -34, 9, 6, 13, 58, -15, 14, 49, -28, -37, 0, -29, 4, 9, -24, 25, -17, 15, 36, -53, -22, 7, 17, 9, 14, 7, -7, -89, -15, 9, -36, 1, 25, 26, -9, -14, -54, 3, -7, -17, -3, -20, 13, -18, 6, -8, 5, 52, -43, -22, -66, 15, -69, 30, -28, 47, -16, 7, 24, 9, -14, 2, -13, 19, -2, -23, 24, 10, -2, -10, -17, -39, -40, 34, 3, -10, 32, 19, 16, -27, -55, -12, 2, -65, 28, 1, -19, 39, -62, -2, 3, 7, 9, 35, -29, 12, 45, 38, -10, -9, 10, 16, 8, 13, 22, -16, 20, 15, -5, 87, 7, -31, 37, 11, 49, -24, 16, -8, 26, 15, -6, 24, -40, -37, 15, 12, -30, 30, -30, 2, 7, -59, -37, -11, -39, -10, 1, 47, -6, 45, -18, 10, -15, -33, -36, -13, 2, 11, -27, 19, 17, -21, -29, -28, -19, 19, 22, -37, -18, 17, -14, 12, 14, 30, 16, 37, -29, 24, -2, 5, 12, -38, 19, 57, -7, 9, 4, -10, -36, 5, -47, 21, 0, 3, 12, -78, -57, 9, -38, -3, 21, -29, -5, -34, -1, 30, 2, -61, 31, -17, -37, 10, -31, 19, -4, -28, -9, 14, 11, 47, 28, -6, 12, -3, -28, -17, 11, 27, -4, -28, -10, 0, -42, -16, 2, -11, 13, -22, 35, -9, 42, -33, -3, -43, 17, -17, 14, -15, 56, 8, -22, -6, 9, -23, -31, 33, -3, -19, 8, -29, -2, -4, 3, -50, 34, 13, 10, -44, -18, 44, -11, 35, -24, -26, 0, 27, 20, -21, -62, 2, -50, 35, 12, -37, 3, 85, 15, 31, 29, 40, -20, 50, -2, 12, -43, -12, -18, -13, -20, 14, -27, 40, -26, 2, -29, 3, 9, 13, 29, -3, -7, -38, -17, 2, -1, 27, -26, -25, -21, 8, 32, -7, -17, -104, -21, 58, -8, 15, -50, -31, -11, -29, 10, 21, -42, 35, -14, -56, 29, 21, -21, 12, -56, 46, 44, -8, -28, -38, 2, -18, -13, 57, -11, 2, 53, -64, -9, 9, 24, 11, 27, -17, -54, 57, 18, -42, 42, -35, -31, 38, -18, -6, 27, 13, -24, -2, -8, 46, -13, -29, -37, -45, 51, 0, -3, -19, 36, 32, 14, -29, 2, 12, -14, 17, -21, -1, -15, 40, -15, -6, -25, 14, 79, 14, -36, 33, 20, 25, -8, -28, 19, -54, 0, 37, 18, -57, -44, -40, 7, 12, 0, -44, 3, 25, 29, -1, -19, 0, -2, -17, 50, -10, 29, 28, -6, -35, -62, -52, 12, 4, -24, -53, -44, -12, 22, 22, 3, -27, 45, -58, -17, -4, -12, 19, -7, 60, 30, 28, 0, -36, -31, 15, -70, 29, -15, 7, 29, 19, 11, -52, 93, -8, -4, -19, 2, -40, -9, -31, 16, 29, 18, 8, -9, 0, 25, -11, 35, -33, 3, 18, -14, -14, -17, -21, -22, -3, 11, -19, 1, -58, -39, 13, -47, -58, -28, 74, 9, 11, -52, 45, 23, -69, 22, 17, -7, 43, 16, 41, 49, -47, -26, -13, -15, -2, 16, -7, -6, -4, -34, -2, -3, 0, -1, -32, 7, 0, 21, 78, 50, -9, -28, -14, 25, 45, -10, -10, 3, -28, 7, -1, -1, 15, 54, 5, 25, 25, 38, 19, 51, -22, -26, 39, -9, -16, 6, -63, 58, -27, -28, -35, -37, -61, -39, 2, 1, 43, -7, -16, 32, 8, -3, 16, -32, 41, -38, 30, -53, -39, -32, -22, 5, -19, -13, -38, 57, 6, 22, -6, -14, -25, -31, -51, -18, 23, 0, -8, -26, 15, 13, 20, -6, 16, -3, -27, -45, 11, 27, 7, -9, 34, -1, -38, -11, 35, -49, -11, -1, 37, -43, 10, -56, -23, 46, 47, 4, 19, 67, -63, -15, 17, 12, 40, -75, 21, 27, 13, 21, 0, -2, -33, 30, -29, 9, 62, 0, -24, -31, 29, -17, 68, -11, -31, 26, 2, -2, -35, 45, 56, 4, 55, 0, 16, 70, -31, -40, 19, -46, -6, 21, 0, -6, 75, -3, 7, -11, 2, 17, 16, 25, -2, -17, -90, -13, 19, 51, -42, -39, 19, 0, -21, 8, 7, 17, 17, -35, 56, -79, -8, 15, 39, 33, -44, -3, 15, 68, -17, 16, -40, -19, -22, -41, -1, -6, 16, 10, 23, 27, 24, 32, -10, 77, 41, -24, -31, -13, -5, 13, 20, -49, -36, 35, 20, 45, 65, 26, -52, -42, -12, -18, -33, 63, -64, 1, 0, -14, 41, 42, -39, -50, 9, 3, -43, -27, -11, 7, -30, -8, -36, 46, 23, 4, 57, 21, 6, 52, 32, 4, 29, -14, 14, -47, 6, 6, 19, 23, 23, 39, -25, -7, -38, 12, -8, -42, 41, 0, 8, 23, -5, -16, 0, 49, -36, -18, -19, -8, -26, 29, 63, 38, -24, -14, -2, 5, -21, 35, 1, -9, -16, 25, -13, -3, -17, 6, 36, -8, 9, -13, -7, -28, -74, -18, 30, 32, 41, -19, 15, 30, -22, -57, 5, 51, -11, 5, -1, 7, -12, -8, 33, 4, -9, 65, -25, 35, -12, 6, 0, -41, 40, -19, 65, -35, -3, -73, -11, 14, -5, 68, -5, 6, 22, -37, 42, 38, 15, -38, -3, -35, 3, 42, 48, -34, 49, -17, 20, 0, 6, -33, 0, 13, 6, -14, -52, 17, 29, -3, -30, 21, 22, -13, 0, -30, 13, 18, -14, 20, -11, -23, 40, -92, 8, 4, 26, -84, 5, -2, -13, -4, 4, 15, 7, 16, -42, -39, -29, 32, -22, -13, -9, 22, 5, 17, -14, 19, -26, 10, -10, 31, -46, 25, 54, 12, 20, -19, 5, 0, 39, 20, -33, -10, 18, -24, 14, 46, -17, -19, -14, -38, 0, 1, 32, 2, 6, 4, 14, -6, -10, -3, -33, 69, -11, 4, 36, -8, -37, -22, 14, 30, -20, 8, 31, -17, 31, 27, 7, 3, 15, 10, 3, -26, -1, 54, -12, -4, -32, 22, -14, 21, -14, 13 ]

Roberts, J. This is an original action in this Court in which petitioner seeks a writ of mandamus ordering George A. Kropp, the warden of the State Prison of Southern Michigan, to restore to him the “good time” which he had accumulated as credit on a sentence he is now serving. MCLA § 600.4401 (Stat Ann 1970 Cum Supp § 27A.4401); GCR 1963, 714(1). In 1958, Irving Heyman was convicted in Detroit Recorder’s Court of armed robbery and was sentenced to serve not less than 15 nor more than 30 years under the jurisdiction of the State Department of Corrections. The petitioner was transferred to the State Prison for Southern Michigan (Jackson) to serve his sentence. On or about December 2,1961, the guards assigned to the “north yard” of the prison investigated a commotion and personally observed the petitioner running after another inmate (one Springette) with a knife in his hand. Springette informed the officers that petitioner had just stabbed him. On January 31, 1962, the incident was brought to the attention of the prison disciplinary hoard and petitioner was ordered held in segregated status pending further investigation. The prison disciplinary hoard reconsidered this matter on February 28, 1962, and again continued it. On March 28, 1962, the disciplinary board recontinued this matter pending the outcome of criminal proceedings instituted against petitioner in the circuit court for the county of Jackson. On April 5, 1962, petitioner was convicted of assault with intent to do great bodily harm less than murder. On April 9, 1962, the warden of Jackson determined that petitioner had committed a breach of discipline and ordered that petitioner forfeit his accumulated statutory “good time” allowance of 9 months and 24 days. On June 24, 1969, petitioner asked the warden to review the matter. On June 27, 1969, petitioner was informed that consideration of his request would “have to be made a little later.” For reasons not here relevant petitioner’s April 5, 1962, assault conviction was set aside in April 1969 by the United States District Court. Petitioner presents a twofold attack on the legality of the forfeiture of his accumulated “good time”: (1) He contends that since his assault conviction was subsequently set aside by the United States District Court, he may not be penalized for his actions by forfeiture of his statutory good time, and (2) since recognized prison rules were not followed in his case, the loss of his statutory good time is null and void. The Attorney General essentially counters that the warden’s actions lie well within his recognized discretion and, under the facts presented here, are not (or should not be) reviewable by the judiciary since the warden is an officer of the executive branch of government. We reject petitioner’s first contention. Nothing appears on this record to indicate that the setting aside of defendant’s April 5, 1962 conviction by the Federal district court occurred because defendant did not stab Springette. The record does indicate that that stabbing occurred. This is sufficient to sustain disciplinary action in the form of forfeiture of good time. CLS 1961, § 800.33 (Stat Ann 1954 Rev §28.1403). With respect to petitioner’s second contention, § 800.33 does not provide for particular notice or procedure before the warden may exercise the authority therein granted to him. Absent such a statutory requirement and on the reasoning of Lane v. Department of Corrections, Parole Board (1970), 383 Mich 50, petitioner was not entitled to what he here asserts was his right. The issuance of a writ of mandamus is dependent on a showing that petitioner has a clear legal right to performance of a specific duty by the defendant and that defendant has a clear legal duty to act. Mardiros v. Secretary of State (1968), 11 Mich App 541. Neither element is established on this record. Writ denied. All concurred.

[ 81, 43, 6, 70, -77, -23, -22, -35, -45, 12, -42, -13, -16, -46, 23, 28, 3, 27, -30, 29, 30, -39, -8, 11, 45, 20, 8, 28, -36, 2, 17, -27, 38, -48, -22, -26, 23, -46, 81, 62, -30, -4, -3, 30, -39, -7, -17, 40, 53, -35, -23, 28, 28, 43, 8, 16, -6, -38, 32, 6, -4, 2, -20, -32, -3, 20, 22, -6, -35, -53, 52, 16, 20, -31, 8, 38, 68, 1, 35, -17, -17, 13, -17, -32, -21, 7, 3, 0, 61, -20, -11, 7, -48, -30, 8, 9, -37, -4, 26, -55, -76, -42, -97, -26, 19, -23, 0, -31, -22, 49, 26, 24, 45, 3, -31, -36, -7, 12, 8, 8, 25, -7, 20, 51, 9, -18, -16, 6, 25, 18, 1, 19, 43, -20, -28, 18, -8, 20, 21, -29, -57, 1, 24, 34, 65, -27, 11, 39, 90, 3, -19, 0, -41, 54, 33, 7, -27, 20, -42, 23, -18, 30, -3, 4, 23, -32, 6, 1, 15, 14, -21, 19, 33, 5, 10, 0, -17, 34, 20, 29, -51, 45, -13, 11, -18, -39, -2, -52, -38, -32, 12, 1, 2, 4, 70, -9, 47, 6, 0, 10, -15, 22, 58, 30, 34, -25, 63, -8, -1, 40, -20, -21, 31, 7, -104, -11, 5, 34, 24, 41, -50, -52, -25, -38, 69, -22, 36, 12, 3, -33, 19, -45, 56, -9, 0, 14, 26, 36, -11, 26, -11, -35, -24, -13, 26, 0, 9, -4, 9, 3, -18, -22, -26, 4, -75, -34, 9, -14, -22, -11, -30, 29, -4, -19, -52, 60, -53, 4, -11, -3, 0, 38, -6, -9, -19, -8, -32, 43, 16, -34, 52, -13, -9, 41, 12, -67, -1, -3, 2, -10, 6, 8, -1, 2, 20, -8, -17, -9, 21, 45, -13, 21, 0, -35, -6, -14, 15, -46, 41, -7, 58, 40, -28, -22, -42, -19, 16, 50, 16, 18, -35, 7, -13, -21, 4, -51, 42, 3, 7, -5, 72, -24, -48, -3, -23, 10, 4, -6, 47, 36, 30, -13, 47, -18, -30, 34, -2, 19, -31, -28, -3, 56, 35, 11, -17, -6, -38, -24, -1, 16, 17, -31, 14, -19, 27, -14, -44, -21, 16, 7, 40, -26, -16, -19, -17, 93, 56, -32, -14, -5, 34, -16, 16, -30, 10, -65, -44, -43, 11, -6, -68, 17, -53, -89, -19, -8, 19, 4, 44, -29, -10, -22, 10, 13, 28, -47, -59, 50, 2, 8, -4, 10, 43, 66, 20, 11, -15, -13, 42, -108, 32, 26, 41, -26, 0, -16, -6, -1, -23, 12, -2, -1, -8, 25, -26, 3, -60, -52, 15, -28, -1, -32, -4, 13, 6, 17, -24, -69, 25, -2, 17, 14, -44, 3, -43, 27, -10, 25, -13, -14, -20, -36, -19, 51, 39, 5, -71, -17, 36, 21, 3, 14, 16, 34, -50, -43, 6, 32, 20, -15, 13, -16, -20, 3, -22, -10, 0, -17, -19, -12, 0, -1, -20, 12, 3, 38, -74, 17, 24, 26, -46, -32, 8, 25, 41, 16, 71, -55, 26, 42, -52, -3, -25, 68, 43, -53, -15, -46, -12, 15, -26, -23, 18, -3, -40, -5, -1, -32, -85, -14, 48, -36, -6, 5, 8, -24, -44, -50, -39, -39, 36, -7, 21, 43, 5, -18, -15, -41, -16, 12, -26, 35, -20, -22, 14, -27, 5, 6, -8, -10, -24, -16, 18, 34, -16, 11, -25, 30, -5, -12, 3, 15, 0, -6, -19, 27, 49, -15, -6, 5, 29, 48, -49, 4, -24, -10, -5, 23, 19, -4, -26, -8, -7, -14, -4, 42, 0, -16, 29, 18, 11, -2, 2, 20, 52, -10, 6, -4, 16, -52, -3, 0, -13, -4, -89, 28, -25, 0, -40, 70, 5, -28, 36, -13, -56, -8, -4, -29, 5, -27, -30, 11, 11, -33, 2, -6, -29, 37, -10, -4, -21, 12, 16, -32, 14, -1, -6, 31, 17, 18, 2, 9, -28, 3, -37, -7, -7, 35, -4, -23, -3, 30, -60, 11, 13, -12, 13, -11, 12, -42, 31, 7, 22, -17, 0, 2, -60, -12, 41, -35, -79, -15, -11, 27, 16, 4, 16, -15, -28, 39, -26, 50, 44, 46, 41, 7, 54, 23, -46, 78, -11, 20, 16, 28, -29, -34, 4, -49, 38, -36, -54, 23, -24, 18, 21, 10, 1, -33, -10, -4, -27, -27, -32, 54, 19, 6, -7, -45, 26, -13, 8, -34, -18, -42, 14, 10, -46, -3, -37, 1, 0, 5, -60, -6, -8, -11, 6, 9, 0, 43, 29, 12, -27, 35, -41, 33, 32, -11, -34, 10, 3, 28, -35, 24, -46, 1, -39, -61, 74, -1, 7, -14, -21, 5, 34, 32, -49, 29, 37, -14, -46, 60, -44, -12, -28, -43, -19, -32, 21, -15, -30, -3, -15, 3, -22, 25, 61, -26, 0, -28, 8, 20, 25, 1, -13, -37, 14, 2, -35, 12, -13, 98, -21, 38, -44, 26, -49, 15, 28, 31, 25, -38, -15, -7, 13, 34, -6, -20, -9, 38, 10, 14, 32, 32, 0, -1, -35, 6, -4, -23, 59, -53, 21, -8, -31, 12, -3, 1, 30, 46, 7, -6, -71, 22, -27, 6, 15, -18, 22, -57, -17, 15, -15, 1, 7, 36, -32, -38, 16, 20, -1, 8, 48, 24, -64, 31, 25, -22, 2, -30, -30, -13, 47, 28, 7, -6, -46, -14, -25, 14, -3, 16, -60, -5, -21, 17, 20, 13, 17, -19, -9, 27, -50, -14, 8, 23, 18, -4, 3, 8, 1, 28, -42, 2, -6, -55, -35, 29, 5, -9, -19, 26, 60, 3, -20, 14, -2, 10, -20, 39, -34, -34, -5, -71, -6, 9, 71, -77, 82, 33, 18, -33, -30, 51, -12, 75, -36, -19, -5, 6, -10, 1, 18, 9, -7, 12, 42, 1, 21, -16, 10, -22, 16, -22, 28, 43, 27, -32, -33, -5, -6, -36, -43, 10, 20, 4, -3, 42, 20, -2, 36, -5, -34, -3, 11, 20, 41, 30, -62, 40, 43, 32, -13, 15, 24, 30, 58, -25, -4, 40, 36, -7, 13, -14, 33, 14, 14, -9, -39, -7, -5, -35, 32, -27, 17, 42, -18, 27, 0, 18, -43, 8, -14, 54 ]

Bronson, J. Plaintiffs and defendant Knorr are the respective owners of adjoining lots located in Rochester, Michigan. The gist of plaintiffs’ complaint is that they had constructed upon their lot, in addition to a permanent building, a retention wall which ran along the north boundary of the plaintiffs’ property and immediately adjacent to the defendant’s property; that defendant had a building constructed and an asphalt parking lot installed upon his property; that in so building these structures the defendant, without making any provisions for the protection of plaintiffs’ building, undertook to fill his property which resulted in elevating the level of defendant’s property as well as depositing the filling material against the plaintiffs’ wall; that by reason of the pressure so resulting as well as the vibrations from large equipment utilized by the defendant in the construction of the building and parking lot, the plaintiffs’ building has been damaged. Defendant denies that he changed the relative elevation of the property in connection with the construction of his building, and that in fact, the relative elevation of the two parcels was substantially the same after the construction of his building as before plaintiffs began construction of their building. Defendant further alleges that the damages to the plaintiffs’ building resulted from the construction of plaintiffs’ building without sufficient precautions to stand the stress of the earth against it. Both parties introduced evidence (by way of personal testimony and the use of expert witnesses) to support their respective contentions. Following a full trial on the merits, the trial court, sitting without a jury, found as follows: “There is just absolutely no question in the court’s mind that the defendant is responsible for the damage to the building by a combination of circumstances; the additional fill, plus the pounding and compacting of the soil at the time of the parking lot construction. “Defendant maintains that the plaintiff in part was responsible for this, that this building wasn’t properly constructed, and that he had removed the retaining wall that was there 40 years. It is claimed that this is the cause of damage, that plaintiff, in fact, put himself in this position. But the court just doesn’t buy that claim. The court has to maintain the legal position that plaintiff is entitled on construction of his - building to use and support of his property as it existed at that time. And the defendant, if he is going to change his property in any way, is responsible and has a legal duty for the lateral support of the adjoining property owners. Therefore, the court does find that the defendant is liable for the damage to plaintiff’s property.” The court then proceeded to award the plaintiffs a judgment of $6,000, an amount somewhat less than that which would be required completely to restore the plaintiffs’ property to its original condition, because in the court’s own wording, “the equities * # * [do not] require complete return to the pre-existing circumstances”. It is recognized law that a party has a legal duty to adjacent property owners; changing the level of one’s property which causes damage by pressure from soil fill against a building or adjacent property results in liability. See Abrey v. City of Detroit (1901), 127 Mich 374. See, generally, 2 CJS, Adjoining Landowners, § 33, p 29; Anno: “Liability of adjoining landowner for using neighbor’s wall to support fill”, 10 ALR, 1321. The following quotation from Miller v. McClelland (Iowa, 1919), 173 NW 910, is particularly applicable to the instant case: “Assuming that plaintiff’s wall is wholly on her own premises — and we think it must be so treated for the purpose of this case — defendant had no right to use it as an artificial support for a fill made upon his own premises above the natural surface of his lot. That he did so use it is shown by the evidence of several witnesses. “Defendant was doubtless entitled to build up a foundation for his proposed building to such height as pleased him, but in the absence of a party wall such foundation should be laid and built upon and supported by his own premises. If he in fact supported his foundation or fill above the natural surface by pressure against plaintiff’s building, it was not a mere temporary or passing trespass, which a court of equity would decline to consider, but was a permanent encroachment upon plaintiff’s property, long acquiescence in which might perhaps give rise in time to a presumptive right in defendant constituting a permanent burden upon plaintiff’s property.” Likewise, liability can result from pounding, compacting soil, vibrations, etc. See Anno: “Vibrations — Property Damage — Liability”, 79 ALR2d 966; 2 CJS, Adjoining Landowners, § 45c, p 39. See, also, Grzelka v. Chevrolet Motor Car Co. (1938), 286 Mich 141. Having thus determined that the trial court properly applied existing law, we now turn to the court’s finding of fact. This Court gives considerable weight to the fact findings of the trial judge, sitting without a jury, because of his advantageous position which enables the judge to observe the testifying witnesses and their demeanor. This Court will not reverse the trial court’s finding unless we determine it to be “clearly erroneous”. GCR 1963, 517.1; State Bank of Sandusky v. Boddy (1969), 17 Mich App 466; Tann v. Allied Van Lines, Inc. (1966), 5 Mich App 309. A careful review of the record discloses sufficient evidence to support the trial court’s determination. One remaining issue merits consideration on this appeal. Under Count II of plaintiffs’ complaint, plaintiffs sought a judgment establishing an easement and a right of prescription to use defendant’s alley which adjoined the property. Plaintiffs further sought to enjoin defendant from blocking or interfering with plaintiffs’ use of the alley. The defendant claimed record title to the alley and denied that plaintiffs were entitled to an easement or right of prescription to use defendant’s land for driveway purposes. The trial judge found, in effect, that an implied common-law dedication of the alley was made, and thus declared the parcel of land a public alley for the following reasons: “As to Count II, there is just no question in the court’s mind, as a result of the substantial testimony by five or six witnesses regarding the 16-foot strip of land on plaintiffs’ exhibit 2, that at this time and place the land is presently a public alley. The court bases its decision upon the following: First, the admission by the village or city of Rochester that the land is not on the tax rolls and that it has maintained the strip in the past, also the testimony of various witnesses that the city had maintained it by snow removal and grading and that the land had been used not only by the abutting property owners but by the general public, at least to go to the A & P grocery store from a period of 1949 to 1962. The property was barricaded in 1962 by the defendant and, obviously, if nothing had been done for another eight years, it probably would be necessary for the court to declare at that time that it was not a public alley. The overall circumstances, also including a sign, I believe, calling it Albertson Court some years ago, indicate that, at least until 1962, the 16-foot strip of land was used not only by the abutting property owners but by the general public to a certain degree. There is no strong testimony as to great throngs of the public using the alley, but it is uncontradicted that the public did use the alley. The court will declare that the 16-foot strip of land in question is and shall be a public alley.” In Bain v. Fry (1958), 352 Mich 299, 305, the elements necessary for a common-law dedication were stated in the following manner: “In order to have a common-law dedication there must be: (1) an intent by the owners of the property to offer it to the public for use; (2) there must be acceptance of this offer by the public officials in maintenance of the alley, street or.highway-by the public officials; (3) there must be a use by the public generally.” With respect to determining’ the intention of the owners to offer the property to the public for use, the Michigan Supreme Court in Hawkins v. Dillman (1934), 268 Mich 483, 491, quoting from Vance v. Village of Pewamo (1910), 161 Mich 528, 535, stated: “ ‘The facts and circumstances relied upon to prove the existence of an intent on the part of the dedicator must be of a positive and unequivocal character. Since, by a dedication, valuable rights in lands pass from the owner, no presumption of an intent to dedicate arises, unless it is clearly ancl expressly shown by his acts and declarations, or by a line of conduct the only reasonable explanation of which is that a dedication was intended.’ ” (Emphasis added.) A careful review of the record supports the trial court’s conclusion that the acts and conduct of the defendant, as well as previous owners of the property, could only reasonably be construed as an intention to make a dedication of the parcel of property in question. See, generally, Chapman v. City of Sault Ste. Marie (1906), 146 Mich 23. For the foregoing reasons, the decision of the trial court should be, and is, affirmed. All concurred.

[ -19, 59, 3, -47, 16, 4, 19, 37, 8, 15, 36, 7, 29, -34, 20, -18, -22, -1, -21, -24, -68, -21, 23, 2, -13, -23, 4, -14, 17, 34, -4, -15, -51, 9, -22, 28, 28, -8, -3, 26, 61, -18, -3, -94, 32, 19, 20, -13, 30, 28, 36, 50, 6, -46, -44, -31, -7, 51, 18, -18, -34, 11, 3, 7, 78, 25, 8, -15, 13, -5, -55, 42, 40, -48, -2, 5, -36, 36, -20, -24, 34, 12, 55, 18, -34, 6, -29, -7, -28, -13, -46, -11, -18, 69, -27, 23, -3, 8, -3, -9, 23, 32, -16, -28, -41, 15, -26, -68, 20, -16, 1, 31, 40, 26, -46, 20, 8, 2, -35, -27, 12, -2, -46, -5, -19, 14, -8, -45, -11, -33, 15, -24, -20, 15, -41, -10, -8, 3, -7, 22, 7, 3, 16, -20, -44, 26, 3, -10, -25, -29, -18, -33, -9, 13, 2, -5, -11, -38, 28, -30, 53, 3, 1, -11, -7, -10, -23, 14, 18, -6, 88, -3, 33, -51, 12, -22, 5, 6, -39, -24, 36, -6, 59, 20, -40, -16, -40, -8, -34, 13, 16, -19, -13, 33, -10, 45, -40, 35, 9, -33, -14, -1, 0, -46, -13, 17, 9, -34, 12, 29, 23, 30, -22, -57, 30, -47, 30, -25, -1, -11, -5, -94, 9, 23, -5, -8, -23, -18, -25, -24, 3, -71, 43, 35, -9, -32, 92, 10, 27, 4, 48, 43, -55, 30, 14, 0, -52, 16, 17, 6, 1, -26, -34, 0, -11, -18, -8, 36, -38, -16, 25, -5, -30, -20, 45, 7, -65, 25, -45, 9, -38, 60, -17, 0, -55, -66, -60, 13, 1, 13, 31, 8, 38, -14, 24, 34, 22, 36, -34, -18, 20, -20, 4, -22, 1, 30, 21, 8, 27, -12, -15, 3, -17, 4, 54, 7, 9, 56, 13, 28, 5, 21, 42, 10, -6, 30, 20, 8, 48, -60, 43, 11, 0, -18, 17, 20, 38, -32, -18, -22, -18, 24, 2, 18, 21, -39, 20, -65, -66, -8, 38, 23, 32, -7, 29, -3, -16, -17, 6, 26, 2, -1, -39, 6, -20, -23, 8, -11, -21, 52, 64, 12, 35, -26, -40, -41, -45, -26, 3, 34, -30, -1, -19, 57, 34, -59, 11, 28, -14, 47, 9, -16, 40, -3, 41, -5, -44, -31, -36, 8, -28, -33, 44, 7, -33, -18, -29, 3, -5, -15, 15, 7, -7, 13, -34, 18, 20, -13, -3, 22, 11, -52, -15, -13, -25, 3, 57, 6, 31, 30, 24, 8, 11, -12, 1, -45, 32, -7, -61, 16, -25, 16, -10, 19, 32, 2, -44, -19, -46, 25, -77, 18, -37, -20, -27, 34, -11, 29, 72, -7, -5, 71, -36, -24, 11, 23, 36, -19, 60, -3, 37, -43, -35, -28, 20, -13, -30, -33, -3, 21, 3, 55, -2, 53, 17, 24, 2, 11, -17, 5, 38, 11, 20, -20, -14, -19, 15, 42, -47, 41, -13, 50, -15, -32, -7, 7, -29, 32, -21, -36, -10, 40, -1, 18, 60, -14, -7, -53, -18, 60, -58, -13, 2, 47, 1, 21, 17, -31, -4, -11, -5, -3, -31, -53, 29, 39, 12, 62, -7, 12, 19, -58, -2, 21, -30, -11, 7, 2, -1, -11, -1, 44, 57, 28, -2, 6, 29, 32, 0, -12, 30, 4, 0, 54, -36, -44, -4, -36, 5, -8, 10, 42, 13, 7, 34, 1, -8, -51, 22, 4, -42, -10, 35, -46, -29, 15, -44, -1, -25, 3, -60, -14, -36, -31, -22, 42, 53, 13, 59, 27, -19, -12, 4, -34, 19, -25, -18, -13, 34, -24, 26, -29, -29, -20, 39, 0, -11, -7, 4, 2, 29, 11, -26, 43, 29, 40, 13, -44, 64, 13, 27, -42, 7, 25, -23, -32, 0, -2, -77, -4, -70, 14, -26, 16, 41, -47, 31, -34, -29, -3, 13, 37, -40, 34, -18, -27, 0, 19, -49, -4, -44, 51, 68, -19, 31, -49, -19, -30, -7, -49, 16, -27, -14, -21, -39, -6, 50, -9, 4, -6, -14, 19, -22, 58, 2, -2, 0, 45, 0, 21, 32, -17, 25, 16, 47, -11, 9, -1, 39, 16, 0, -35, 20, -7, 32, 21, -23, -14, -6, 1, -12, 5, 54, -9, 0, 31, 14, -48, 0, 4, 34, 33, 20, -16, 5, 18, -4, -53, -65, 54, 40, -40, 3, -38, 11, -27, 7, -4, -32, 17, -5, 15, -10, -8, -51, 25, 43, -19, -20, -35, 39, -45, 3, -35, -18, -25, 76, 21, -7, 9, -43, -24, 2, 7, 15, -19, -22, -12, -28, 33, 30, -8, -34, -43, -48, -87, 27, -39, -22, -65, -41, 14, 18, -2, 34, 38, 10, -42, 57, -10, 7, -12, 31, -18, -22, 32, 23, -30, 14, 50, -4, 18, -9, -6, -29, -18, -29, 38, -14, -14, 1, 16, -2, 46, 14, -7, -53, 33, -7, 56, 32, -37, -30, -28, -10, 20, 1, 58, 4, 1, -57, 28, -39, -34, 8, 4, 4, -56, 13, 11, 84, -43, -33, 22, 0, 3, -20, 43, -32, 12, 1, 21, -22, 22, 39, -13, -17, -6, -15, 27, -48, 0, 27, 0, 7, 1, -20, 16, -50, 34, 80, 0, -40, 29, 26, -5, -21, 10, -3, 34, 39, 26, -9, 44, 33, 1, -33, -61, 4, 0, 3, 56, 36, 8, -34, -43, 68, 2, -26, 78, 27, 41, -3, -23, -33, -13, 0, 0, 3, -24, -34, 30, 0, 28, -10, -2, -11, 0, -24, -68, -37, -39, -38, -19, -42, 29, -24, -14, 10, 49, 0, 39, -18, -60, -61, 16, -29, 19, -22, 61, -31, -28, -56, 9, 36, 12, -2, -35, -54, -39, 1, -53, -12, 44, -24, -33, 3, -12, 14, -5, 8, 47, -25, 6, 28, -68, -24, -1, -24, -16, 25, 11, -17, -60, 53, -26, 22, 20, -14, 3, -14, -21, -7, -14, 34, -7, -15, 31, -36, -9, -23, -13, 15, -4, -25, -22, 0, 16, -10, 1, -1, 29, -2, 39, -43, 12, 7, 19, 10, 2, 0, -19, 7, 32, 7, 11, 39, 18, 58, -29, -29, 54, 40, -25, 8, 71, -21, -4, 25, -34, 38, -8, -3, 25 ]

T. M. Burns, P. J. Defendant was charged, along with others, with the crime of armed robbery (MCLA § 750.529 [Stat Ann 1970 Cum Supp § 28-.797]). He was arraigned along with the others on August 31, 1967, at which time the information was read to him in presence of counsel. On October 24, 1967, defendant represented by his appointed counsel, appeared in. Recorder’s Court before Judge George W. Crockett, Jr., along with codefendant Ronald Dent. Both defendants tendered pleas of guilty to the lesser-included offense of assault with intent to commit robbery armed (MCLA § 750.89 [Stat Ann 1962 Rev § 28.284]). Following an examination of codefendant Dent and acceptance of his guilty plea, the court examined defendant Wade. The testimony of the hearing at which defendant pled guilty is as follows: “Mr. Gold: I have had several discussions with Mr. Wade and his mother. He wishes to withdraw his original plea of not guilty and offer a plea of guilty — withdraw his plea of not guilty to the original charge of robbery armed, and offer a plea of guilty to the lesser and included offense of assault with intent to conimit robbery armed.” “The Court: Mr. Wade, you understand if I accept this plea you could be given a sentence up to life imprisonment! “Defendant Wade: Yes. “The Court: Has anyone made any threats or promises to get you to plead guilty! “Defendant Wade: No. “The Court: Why do you want to plead guilty! “Defendant Wade: Because I am guilty. “The Court: What did you do! “Defendant Wade: Robbed a bar. “The Court: Tell me about it. “Defendant Wade: We was over my friend’s house and he suggested that we go get some money. So we was riding around, and— “The Court (Interposing): So you did what! “Defendant Wade: We was riding around. And we came past this bar on Twelfth and Lafayette and he suggested, you know, that we go in and rob it. So we all walked in and I walked up to the bar and said it was a hold-up. And I went over the bar and it was a drawer and I took some money out of the drawer. “The Court: That was here in Detroit! “Defendant Wade: Yes. “The Court: Were any people in the bar! “Defendant Wade: Sir! “The Court: Were there any people in the bar! “Defendant Wade: Yes. “The Court: What did you people do? “Defendant Wade: One of the guys who — one of the guys threw something and — at one of my friends that was in the bar with me. “The Court: The court will accept the plea.” On December 11, 1967, Wade and Dent, with their respective counsel, appeared for their sentencing. The court pronounced sentence of 15 to 25 years imprisonment for Wade, and also Dent. A motion to withdraw the plea and for new trial was denied by the trial court on December 27, 1967. The appeal to this Court is of right. There are two issues with which we must concern ourselves. 1: Was defendant informed of the consequences of his plea as required by GCR 1963, 785.3? 2: Did the examination of defendant at the time of his plea establish the crime to which he pleaded guilty? Defendant asserts on appeal that the court failed to advise the defendant that by entering his guilty plea, he was waiving his right to jury trial or court trial as required by GCR 1963, 785.3, and such failure is reversible error. We consider that the colloquy between the court and defendant was sufficiently extensive to inform the defendant of the consequences of his plea. “The Court: Mr. Wade, you understand if I accept this plea, you could be given a sentence up to life imprisonment? “Defendant Wade: Yes.” The question of voluntariness was brought in too, with distinct adequacy. The defendant was asked precisely what he did, and he told the court about himself and his friends wanting money and going to the bar, and stating that “it was a hold-up”. The defendant further stated that he (Wade) took money out of a drawer in the bar. The procedure regarding acceptance of guilty pleas has been set forth in G-CR 1963, 785.3 and MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). The requirements have been interpreted by the Supreme Court and Court of Appeals to include an examination of the defendant to establish the crime and defendant’s participation therein whether or not defendant is represented by counsel. The failure to make such an examination constitutes grounds for setting aside the plea of guilty. People v. Barrows (1959), 358 Mich 267; People v. Carlisle (1969), 19 Mich App 680, 684; People v. Johnson (1966), 2 Mich App 182; People v. Perine (1967), 7 Mich App 292; and People v. Mason (1968), 13 Mich App 277. But see People v. Donald T. Moore (1970), 21 Mich App 150. Also, where the defendant’s responses during such an examination give reason to doubt the truth of the plea, the court may not accept said plea. People v. Richard E. Johnson (1967), 8 Mich App 204; People v. Stewart (1968), 10 Mich App 553; People v. Mason (1968), 13 Mich App 277. The first issue raised by defendant on appeal is in essence the prejudicial effect, if any, of the failure of the trial court judge to inform defendant of his right to a jury trial when defendant was represented by counsel. Although People v. Totty (1968), 10 Mich App 462, held otherwise, another panel of this Court held, in People v. La Roe (1969), 18 Mich App 262, that GCR 1963, 785.3(1), which (in part) requires the court to advise defendant “he is entitled to a trial by jury”, has no application where the defendant was represented by counsel. The opinion by Judge Quinn, in which Chief Judge Lesinski and Judge Danhoe concurred, in effect, accepted the same interpretation as held by Judge Robert B. Burns who dissented in People v. Totty, supra, p 467. Since there has been no Michigan Supreme Court decision on this exact point to this interpretation of GrCR 1963, 785.3(1), we are free to adopt either Totty or La Roe. Although we would prefer to have the defendant over-advised as to his rights rather than unadvised, we do not consider the likelihood of prejudice to the defendant very-great under the circumstances present here as to issue one. Therefore, we adopt the holding in the La Roe case for our own here. With respect to the second issue raised, defendant argues that the examination did not establish the crime to which defendant pleaded guilty. It is defendant’s position that there was a failure to establish that he was armed or that he was aware that his companions were armed; and therefore, defendant concludes the court improperly accepted his plea to the crime of assault with intent to commit robbery armed. While the court is required, whether defendant is represented by counsel or not, to conduct an examination into the truth of the plea, the form and manner of such examination lies within the discretion of the judge; and it is to be exercised in the manner best suited to the parties and the offense. People v. Barrows, supra; People v. Bumpus (1959), 355 Mich 374; People v. Schwartz (1967), 6 Mich App 581; and People v. Gill (1967), 8 Mich App 89. During this examination of one seeking to enter a plea of guilty, the prosecution is under no obligation to prove anything. People v. Paul (1968), 13 Mich App 175. Indeed, the judge need only satisfy himself that the plea was made freely and understandingly with knowledge of its consequences and without undue influence or promise of leniency. We find no abuse of discretion here. Furthermore, when one seeks to set aside a plea of guilty, he: “has the burden of showing more than technical noncomplianee with a rule. Absent a showing of violation or denial of constitutional rights, he has the obligation of alleging * * * such facts as would, if true, substantiate a finding that there was noncompliance which resulted in a miscarriage of justice.” People v. Winegar (1968), 380 Mich 719, 733. See also People v. Dunn (1968), 380 Mich 693, 701, wherein the Court stated: “In conclusion, we cite again the court rule and statute cited in People v. Winegar (1968) 380 Mich 719; GrCR 1963, 529.1; and CL 1948, §769.26 (Stat Ann 1954 Rev § 28.1096). The import of both the rule and the statute is that on review courts should be concerned with substance, not with form; that the fundamental inquiry is whether there has been a miscarriage of justice.” (Emphasis added.) Defendant does not contend that he was unarmed or was unaware of anyone else being armed during the robbery; indeed, defendant does not even allege he was innocent of the criminal charge for which he was convicted. Rather, defendant merely asserts that the record fails to disclose the presence of weapons. Such an assertion of technical noncompliance without any assertion of being unarmed or of being unaware of anyone else being armed does not establish a showing of miscarriage of justice as is required under the cases handed down by our Supreme Court. See People v. Stearns (1968), 380 Mich 704; People v. Dunn, supra; People v. Winegar, supra. In addition, there is no showing defendant was unaware of the nature of the crime to which he tendered a plea of guilty. He had been charged with robbery armed, and after consultation with his counsel and his parents, he tendered a guilty plea to assault with the intent to commit robbery armed, a lesser-included offense. See People v. Cherry (1968), 10 Mich App 420. Aside from the assertions of an unclear record, there is no protestation of innocence. Therefore, the cases of Bunn, Winegar, and Stearns would appear to establish no abuse in discretion on the part of the trial judge in accepting the plea and in denying defendant’s later motion to withdraw the guilty plea under Michigan precedents. The counsel for defendant on appeal, however, urges this Court to disregard these cases from our State Supreme Court, and rely instead upon Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274), which he says requires a reversal here. A careful reading of Boykin v. Alabama, supra, and its corollary case with regard to federal courts, McCarthy v. United States (1969), 394 US 459 (89 S Ct 1166, 22 L Ed 2d 418), does not convince us that a reversal is required in this case based upon Boykin. In McCarthy, supra, the Supreme Court held that failure to comply fully with the guilty plea inquiry requirements of Rule 11 of Federal Rules of Criminal Procedure requires reversal and a second opportunity for defendant to enter a plea. Federal Rule 11, as amended in 1966, requires the court to address the defendant personally and determine “that the plea is made voluntarily with understanding of the nature of the charge and the consequence of the plea;” and requires that the court must be satisfied “there is a factual basis for the plea.” See Advisory Committee Note to the 1966 amendment to Rule 11 in 1 Wright, Federal Practice and Procedure: Criminal, § 174, p 377 (note 75). Although the Supreme Court was careful to limit its decision in McCarthy to the construction of Federal Rule 11, the Court in Boykin, supra, (Harlan and Black dissenting), set aside a state conviction based upon a guilty plea, stating on p 242: “It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” In reference to the question of whether a guilty plea is knowingly and voluntarily made, the Court also said on p 243 that, “(t)he question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards”, (citation omitted) and that: “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one’s accusers. We cannot presume a waiver of these three important federal rights from a silent record.” (Citations omitted.) The Court refused in Boykin to presume waiver of federal rights on a silent record. The Court then, in footnote 5 on p 243, which cites the case of McCarthy v. United States, supra, quotes at length from McCarthy ending with, “it cannot he truly voluntary unless the defendant possesses an understanding of the law in relation to the facts”. The Court also said on pp 243, 244: “What is at stake for an accsued facing death or imprisonment demands utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v. Louisiana [1961], 368 US 157, 173 [82 S Ct 248, 257; 7 L Ed 2d 207, 219]; Specht v. Patterson [1967,] 386 US 605, 610 [87 S Ct 1209, 1212; 18 L Ed 2d 326, 330]), and forestalls the spinoff of collateral proceedings that seek to probe murky memories.” We note that although the majority in Boykin does not literally impose McCarthy and FR Crim P, 11, on the states, the effect of their decision appears to be to impose it in substance as the dissenting opinion points out. Boykin v. Alabama, supra, pp 244, 245. Even if Federal Rule 11 is not imposed upon the states by Boykin, it is clear that some standards are. From footnote 7 on p 244 of the majority opinion, it appears that Dunn, Stearns and Winegar, supra, are in serious question if they are interpreted to do away with what has been called in Michigan the Barrows requirement. See People v. Moore, supra; People v. Carlisle, supra (V. J. Brennan, J., dissenting), p 685. For as Justice Black says in his concurring opinion in People v. Taylor (1970), 383 Mich 338, 368 speaking for himself and Justice Dethmers: “There can be no doubt that Boykin has imposed upon State court trial judges additional duties as those judges go about the task of arraignment and sentencing, certainly in all cases of prosecution for felony.” Yet, as far as this case is concerned, even if Boykin has the effect which we believe it does, it does not necessarily mean that this case must be reversed, for we find that Boykin does not apply retroactively. People v. Taylor, supra (concurring opinion, Black, J.) and cases cited therein. See additionally, United States, ex rel. Wiggins, v. Pennsylvania (ED Pa, 1969), 302 F Supp 845, 846; Quillien v. Leeke (D SC, 1969), 303 F Supp 698, 711. These well-reasoned opinions rely on the decision of the United States Supreme Court that McCarthy should not be applied retroactively. Halliday v. United States (1969), 394 US 831, (89 S Ct 1498, 23 L Ed 2d 16). Since the plea questioned in this appeal was taken in December of 1967, the Boykin decision, no matter how it may affect pleas taken subsequent to it, does not void the plea taken in conformity to the less stringent requirements of our state decisions. Affirmed. Bronson, J., concurred. Holbrook, J., concurred in the result.

[ 30, 37, -4, 31, -11, -14, -28, -28, -13, 0, 28, -9, 27, -25, 10, 20, 2, 11, 8, -44, -26, -46, 16, 61, -20, -33, 7, 6, -15, 40, 14, 14, 24, -57, -4, -24, 2, -23, 1, 26, -20, 46, 20, 7, -4, 24, 7, -12, 54, -14, 0, -22, 39, 23, -19, 13, -6, -10, 41, -40, 37, 6, -51, -9, -10, -17, -10, 6, 21, 32, 12, -47, 30, -15, -28, 22, -8, 34, -6, -37, 2, 38, 44, 32, 14, -27, 21, 6, -8, -40, 12, 64, 10, 2, 34, -48, -4, 13, 18, -40, -73, -35, -38, -28, 8, 22, -38, -65, -17, 44, 7, 35, 57, -11, -10, -60, -41, -7, -19, 0, -11, 17, 8, 12, -16, 6, -4, 28, 29, 24, -7, 60, -14, 14, 15, -16, -5, 30, 8, 35, 4, 28, 19, 21, 32, 24, -2, 29, 23, 55, -53, -3, -4, -7, 8, 30, 6, -23, -30, -14, 8, -55, 41, 13, 1, -4, -28, -28, -31, -49, 31, -20, 28, 14, 38, -17, 14, -9, -18, 27, -12, 0, -16, -9, 4, -13, 19, -14, -34, 47, 28, 1, -34, -9, 21, -33, 3, -38, -14, 16, -17, -46, -18, -34, -9, -32, -1, -9, 39, -6, -14, 27, 25, -17, 0, 13, -10, 14, -5, -30, -70, -17, -2, 32, -21, -15, 20, 7, -32, -3, 10, 14, -28, 27, 38, 52, 11, -32, 39, 55, -11, -56, 3, 20, 12, 1, 0, 26, 0, 7, -25, 19, -21, 7, -37, 23, 24, -22, -33, 48, -39, 18, -9, -20, -6, 30, -80, -54, -34, -28, -12, -68, -8, -7, 48, -6, -55, 39, -30, -9, 1, 20, -36, 33, 6, -24, -26, 4, 27, -11, 3, -4, 4, -7, 65, 3, 27, -51, -36, 20, 23, -1, -13, -49, 42, -3, 70, -57, -67, 9, 78, -1, 35, 24, 44, -61, 47, 38, 28, -43, -4, 13, -37, 4, -14, -45, 44, 47, -7, -7, -7, -7, -10, 6, -54, 28, 4, 13, 27, 15, -49, -14, 6, -5, 34, 32, -7, 9, -58, -12, -13, -24, 37, -13, -7, -32, -27, -35, 50, -13, 53, -21, 13, 3, 28, -3, -3, -35, 58, 34, -4, -29, -46, -17, -9, -13, 80, 13, -22, -6, -42, -59, 58, 25, 25, -34, 12, -79, -30, 47, -57, 36, -4, -69, 34, -23, -23, -1, 5, -18, -40, -5, 82, -44, -15, -27, -26, -34, -22, -78, -15, 5, 54, 48, 1, -23, 21, -3, 12, 2, -10, 11, 28, -23, 34, -10, -2, 16, 3, 8, 60, 52, 21, -18, 0, 3, -23, 3, 7, -19, -23, -35, 17, 32, 50, -49, -32, -71, 9, 28, 35, 7, 21, -25, -62, 31, -2, 46, 26, 3, 23, 6, -30, -41, 21, -51, -67, -17, 38, 10, 18, 17, -19, 4, -69, -45, 34, -19, 26, -4, 25, 39, -21, 44, -29, -43, -59, -60, 16, -6, -1, 3, -19, -5, 15, 61, -61, 5, -45, 16, -49, -20, -41, -10, 50, 41, 12, 2, 28, 44, -2, -8, -46, 7, 54, -23, 18, -8, -58, 37, 50, -18, -3, -11, 6, -36, -19, -13, -42, 5, 6, -63, -10, -78, -1, 45, 0, 7, -18, -6, 24, -10, 19, -4, -16, -19, 23, 9, 10, -11, -20, 23, 54, -32, -33, 17, -50, -14, -18, 6, -11, 11, 79, 3, -41, 24, -14, -38, 44, -30, -36, 32, 26, 13, -9, 42, -27, 2, -17, 91, 56, 56, -67, 39, -23, 46, 54, -5, -38, 23, -29, 42, 10, 18, 19, -10, -32, -36, -31, 0, 86, -54, 14, 22, 36, -11, -36, -14, 35, -14, 50, -26, -23, -25, -1, -18, -8, -3, -40, 60, -5, -39, -4, -10, 21, -74, -38, -32, -13, -27, 13, -17, 7, 62, 13, -34, -42, 37, -26, -15, 6, 96, 24, 1, 34, 14, -58, -22, 2, -46, -20, 1, 0, -9, 31, -63, 5, 36, -13, -6, 55, 48, -64, 14, -21, -13, -13, 19, 38, 5, -17, -49, 30, -5, 26, 14, -39, 13, 50, -13, 18, -18, 11, -36, 23, -15, 29, 7, -26, 38, -24, -7, 17, -17, 46, 6, 56, 35, -30, -2, 16, -81, -31, -29, 18, -28, 23, -14, 27, 10, -3, -3, 4, -13, 12, -28, -41, -17, -18, 52, -41, -10, -18, 22, -10, 28, 55, 2, 21, -28, 40, 22, 3, -15, 55, 64, -107, 18, -13, 7, -49, 4, -22, -22, -60, -45, -7, 8, 57, -11, 11, 10, 47, 12, -3, 23, 6, -3, -42, -17, -61, 20, 26, -52, -37, 36, 26, 24, 11, -17, -22, -47, -22, 4, -58, 11, 3, -5, 34, -3, 35, 41, -50, 6, 39, -24, -4, -26, 27, -2, -10, -42, -22, 11, -29, -8, 4, 52, 13, -10, -22, -16, 50, 16, 34, -6, 36, -6, 9, -8, 0, 3, 0, 15, -18, 40, -10, -45, -7, -16, -1, -23, -19, -13, -32, 64, 15, -32, -49, -44, -4, 3, 65, 76, -27, -34, 36, 0, -4, 24, 32, 22, 3, 5, -12, -7, 47, 8, -25, -29, 40, -34, -9, -25, -38, 2, 8, 15, 21, -59, -18, -11, -32, -27, 7, 45, 45, 18, 8, 25, -1, 61, 9, 6, 42, 47, 7, 26, -3, -41, -8, -40, 55, 45, -8, -4, 0, -70, -24, 41, -16, 40, -28, 8, -24, -67, -17, -1, 30, -47, 34, -8, -27, 18, 27, -4, 19, -8, -2, 19, -15, 41, 6, 3, 0, -30, -29, 36, -19, 34, -12, 23, 29, 44, 47, -38, 0, 24, 3, 37, -3, 52, -15, -92, -41, 3, 62, -69, -14, 16, -70, 17, -39, 30, -9, 14, 2, -36, -35, 36, -25, 8, -38, 44, 13, 4, -9, 55, -7, -10, -18, 39, -29, -19, 31, 17, 77, -49, -11, 0, 2, -17, -44, 4, 56, -39, 1, -41, 4, -23, -18, -18, -61, -12, 70, 7, 7, 49, 15, 15, 21, -29, -4, 71, -4, 3, 19, 16, -60, -5, -56, 23, 2, 3, -3, -3, 8, 19, 57, -28, 20, 2, -20, -8, -62, 11, -14, -2, -24, -6, -33, -13, -26, 50 ]

Quinn, J. Following the order of remand in Chrysler Corporation v. Losada (1965), 376 Mich 209, plaintiff’s claim for unemployment compensation was allowed by the referee; the appeal board reversed the referee and the circuit court affirmed the appeal board. We review to determine whether the appeal board’s decision was authorized by law and was supported by competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28, Williams v. Lakeland Convalescent Center, Inc. (1966), 4 Mich App 477. The decision of the appeal board was authorized by law if plaintiff was disqualified for benefits under CLS 1961, §421.29(1)(a)(5) (Stat Ann 1960 Rev § 17.531 [1] [a] [5]). The determination of disqualification requires the application of the statute to the facts involved. The pertinent language of the statute is : “An individual shall be disqualified for benefits for the duration of his unemployment in all cases where the individual has failed without good cause to accept suitable work when offered him * * * .” Section 421.29(1) (a), supra, defines suitable work as “An offer of employment in the individual’s customary occupation, under the conditions of employment and remuneration substantially equivalent to those under which the individual has been customarily employed in such occupation, shall be deemed suitable work. In determining whether or not any work is suitable for an individual, the commission shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.” Plaintiff was employed by defendant November 29, 1954 as an assembler in the trim department of the assembly division. His employment by defendant continued until April 13, 1960, when he was laid off because of lack of work. During his employment, plaintiff worked at various nonskilled jobs in the trim department of the Dodge main plant assembly division, and his employment had been reclassified several times. April 13,1960, plaintiff was classified as a cutter in the trim department with a base pay of $2.52 per hour. April 15, 1960, defendant offered plaintiff his choice of two jobs, namely: medium press operator at a base pay of $2.32 per hour or as a spot welder at a base pay of $2.37 per hour. (Plaintiff had worked as a welder before his employment with defendant.) Employment was available on these jobs on either the first or second shifts, and the second shift received a five percent pay premium. Both jobs were in tbe same plant where plaintiff had been working and both were nonskilled work. Plaintiff’s seniority rights and his rights to all fringe benefits would have been transferred with him had he accepted either job. Plaintiff would not have been recalled to his former job from the new job so long as there was work on the latter. If plaintiff had been laid off from one of the new jobs, he could have been recalled to the trim division or to the stamping division (location of new jobs) for available work. Plaintiff refused to accept either job. The referee found that plaintiff had been offered “suitable work,” but that he refused it with “good cause” because he was not given a reasonable time to find other work. The appeal board reversed on the theory that “length of unemployment” related to “suitability of work” rather than to “good cause”, and the appeal board held that plaintiff was disqualified for refusing “suitable work” without “good cause”. Plaintiff concedes that the “length of unemployment” factor properly relates to “suitability of work” rather than to “good cause”. Plaintiff argues, however, that by misapplying the “length of unemployment” factor to “good cause” rather than to suitability of work”, the referee failed to consider “length of unemployment” in determining “suitability”, hence his finding of “suitability” was erroneous and it remained erroneous when the appeal board adopted such finding. We accept the logic of this reasoning, but not the conclusion it reaches. Applying the statutory criteria for determining “suitability of work” to the record before us, we find ample, competent, material and substantial evidence to support the finding that the work offered to plaintiff was suitable. The pay differential between the former job and offered jobs is not sufficient to alter this finding. Heater v. Corsi (1946), 270 App Div 311 (59 NYS2d 793), Pennington v. Dudley (1967), 10 Ohio St 2d 90 (226 NE2d 738). As plaintiff testified before the referee, his basic reason for refusing to accept the offered employment was that it would take him out of trim and prevent him from returning to trim. Acceptance of this personal reason as “good cause” is precluded by the policy of the employment security act, CL 1948, § 421.2 (Stat Ann 1968 Rev § 17.502), namely: “For the benefit of persons unemployed through no fault of their own.” Affirmed with costs to defendant. All concurred.

[ 2, 17, -1, 5, 31, 39, 3, -42, -15, 26, -2, -3, 13, -37, 45, 2, -3, 16, -38, -16, 8, 34, -12, 15, -7, -66, 44, -33, -15, 11, -19, -14, 0, -17, -34, -28, 6, -35, 29, 32, 17, 14, -29, -2, -29, -31, -13, -24, 45, -41, -5, 20, -15, 8, 32, 44, 27, 23, -19, 34, -24, 6, 42, 15, 46, 8, -18, 15, 23, 10, -36, 9, -15, -12, -19, -47, 18, 48, 3, 1, 28, -29, 37, -5, -29, 77, 34, 38, 3, -56, -43, 22, 21, -31, -33, -12, -9, 30, 33, -3, -56, 3, 43, 1, 11, -8, -7, -10, -45, 2, 33, -1, 1, 7, -58, 22, 41, 26, 29, 11, 1, -11, -19, 22, 20, -45, -13, -18, -59, 10, 0, 54, 17, 5, -14, 22, 66, -10, -76, 26, 7, 34, -25, -17, -38, -7, 21, 14, -3, 0, -13, 34, 6, 5, -23, 7, 27, -18, 81, -3, -14, -3, 11, 29, 7, -4, -19, 25, 41, -7, 9, -17, 26, 20, 12, 39, 48, -8, -31, 37, -54, 12, -30, 60, -8, 4, 1, -10, 27, 27, 49, 24, 23, 19, 14, -31, 51, 21, -24, 15, -19, -30, 10, -27, 18, 42, -16, -35, 4, 22, -10, -10, 0, -19, -5, 18, -2, 2, 35, 7, -6, 14, -15, -1, -18, -6, -29, 40, 7, 30, -45, 10, 73, -17, -13, -34, 6, -28, 68, 5, 25, 9, 23, 35, -46, -44, -6, -21, 69, 17, 19, 59, 20, 3, -17, -48, -4, 8, -44, -22, 43, 48, -6, 31, -18, 23, -52, 56, 3, -4, -13, -43, 34, 20, 8, -20, -5, -18, 75, -71, -41, 34, -42, -34, -92, 3, -10, -40, -1, 3, 50, -3, -3, 28, -7, -40, 34, 52, 1, 27, 5, -45, -38, -20, 20, 12, -47, -15, -35, 17, -8, -45, 30, -8, 61, -41, -36, -24, -8, -5, 3, 30, 24, -44, -14, 4, 0, -7, -28, -63, 1, -40, -22, 33, 22, 25, 23, 34, 49, 15, 10, -22, -5, -27, 32, 1, 0, -10, 102, -21, 6, 39, -9, -23, 30, 26, 64, -31, -56, 28, 15, -8, 1, 12, 1, 10, -17, 6, 39, -7, 38, -33, 45, -60, 8, -9, -1, -6, -18, 5, -5, 33, 36, -61, -29, -17, 52, 9, -43, -2, -38, -17, -25, -10, -49, 33, 12, -3, -7, 2, -34, 24, -14, -11, 5, -48, -3, -70, -32, 5, -63, 8, 16, 21, -18, -29, 57, -5, -61, -5, -4, -30, 13, -3, 20, -11, -15, 32, -3, -10, -1, -62, 10, -22, -64, 57, 6, -58, -37, 6, -23, -20, -50, -2, 4, 19, -14, -43, -8, 0, 37, -39, -5, 16, 0, -36, 11, 20, -32, -16, -13, -11, 36, 17, 29, -11, -26, 15, 23, -21, -4, 3, 27, 19, 8, 0, 1, -12, 21, -42, 16, 28, 35, -17, 11, -16, -18, -20, -37, -7, 19, -25, -66, -28, -24, -39, 6, 20, -12, -7, -55, 16, 94, -77, 24, -70, 2, -94, 20, -5, 3, -12, 29, 61, -7, -12, -58, 54, 1, -12, -22, -23, -8, -13, 8, -33, -71, -6, 9, -54, 38, 15, 111, 7, 12, 32, -34, -26, -75, -60, -37, 18, 22, 32, -42, -7, 22, 24, 44, 16, 1, 0, -2, -53, -4, -21, 17, 29, 15, 19, 4, 33, 12, 71, -9, -4, -5, 12, 47, 13, 14, -20, 30, 11, 4, 33, 3, 6, -16, 0, -2, 42, 6, -10, 4, -55, 6, 4, 24, -60, -23, -15, -12, -2, 31, -48, -15, 13, -23, 28, 11, 43, -37, 22, -22, -13, -25, 78, 9, 32, -17, 13, -9, -20, -34, -41, 23, 36, 24, 44, 10, 73, -39, -12, -70, 3, 36, 7, 7, -8, 5, 36, -44, -50, -30, -26, 10, 13, 1, -14, 29, 30, 41, -2, -14, -35, 6, 13, -19, -15, -14, 25, -8, -44, 0, -15, 16, -28, -64, -20, -17, -32, 5, 6, 4, -3, -12, -12, 3, -42, -6, -1, 48, 61, 72, 20, -53, 15, -26, 37, -9, -52, 2, 15, -21, -5, 9, -15, 39, -31, -23, 80, -9, 10, 19, 21, 0, 0, -19, -41, -17, 13, 42, 16, 33, 5, 3, -10, 59, 40, 40, -12, -1, 6, 35, 23, -11, -54, -50, -26, -20, 21, -6, 5, 7, 75, 32, -36, -29, -11, 10, 17, -5, -15, -29, -50, 8, -25, -37, 22, 31, -17, 40, -2, -65, 34, 0, -16, 10, 2, -48, -22, 5, -20, -3, 30, 12, -6, -67, -9, -47, -47, 5, 56, -29, 20, -7, 11, 45, -13, -40, 19, 59, -53, 1, 16, 24, -15, -17, -21, -14, -40, 20, 28, -33, -79, -58, -37, -16, -19, -25, -1, 2, 15, 0, -7, 75, -26, -11, -26, -38, -9, -56, 41, 52, -18, 2, 8, 35, -57, 53, -14, -32, 7, -1, -13, 39, 6, -43, -26, 6, 31, -19, -47, 1, -13, 9, -4, 34, -1, -9, 9, 20, 73, -12, 21, 71, -1, 36, -18, -2, -30, -9, 11, -4, 3, -35, 58, 14, 9, -19, -25, -16, 37, 29, 1, -3, 0, -13, -52, 34, -10, -9, 50, -32, 66, -80, 10, 64, -10, -7, -31, 3, -20, -77, 15, -11, -8, 3, 2, 52, -78, 49, 0, 12, -31, 0, -34, 10, 46, 58, 30, -1, -27, -8, -11, -14, 16, -14, -39, 9, 20, 5, 23, 53, 10, -16, -12, -44, 18, -30, 12, 41, -8, 35, 8, -14, 22, 54, -4, -12, 7, 9, 7, 1, -28, 15, -1, -9, 5, -3, 12, -13, 6, 23, -2, -40, -6, -6, -28, -21, -7, -42, 9, -54, -70, -48, 22, 21, -21, -14, 53, 16, 13, 73, -36, -40, 53, -7, 23, -20, 47, -1, 54, 57, 9, 15, -41, -25, 6, 50, -36, 24, -20, 26, 22, 16, 19, -21, -10, -30, -17, -27, 22, 16, -54, -2, -26, -18, -2, -26, -4, 48, 23, -37, -3, -40, 16, 35, -25, 38, 2, -9, 0, 34, 9, -13, 4, -47, -7, 22, 23, -12, 47, -9, 36, -10, -37, -48, -17, -1, -10, -35, -21 ]

Van Domelen, J. The Hillsdale Community Schools Principals’ and Supervisory Association (PSA) petitioned the Michigan Labor Mediation Board (MLMB) for an election of a unit of employees of the Hillsdale Community Schools. The unit contained the following personnel: “High, school, junior high, and elementary school principals, curriculum coordinator, reading coordinator, ESEA coordinator, head librarian, and physical education director; excluding: teachers, superintendent, assistant superintendent, business manager and all non-certified employees.” The school district opposed the petition and the Labor Mediation Board (LMB) ruled that PSA was a proper unit. The district appealed this decision before the representation election was held. The PSA lost the election, but we granted leave to appeal as this is an important case with continuing application. The plaintiff is a public employer within the meaning of PA 1947, No 336 as amended by PA 1965, No 379 (PERA), MCLA § 423.201 et seq. (Stat Ann 1968 Rev § 17.455[1] et seq.) The personnel composing the PSA membership are public employees within the provisions of § 2 PERA, MCLA § 423-.202 (Stat Ann 1968 Rev § 17.455 [2]). The LMB found that they are all supervisory personnel, but are not “employees who formulate, determine, and effectuate management policies.” We are bound by this determination as it is supported by competent, material, and substantial evidence. Villella v. Employment Security Commission (1969), 16 Mich App 187; Williams v. Lakeland Convalescent Center (1966), 4 Mich App 477. PSA is a labor organization within the meaning of §§ 9 and 12 PERA, MCLA §§423.209, 212 (Stat Ann 1968 Rev §§ 17.455[2], [9]). The main issue raised in this appeal is whether under the provisions of PERA, supervisory personnel who are public employees constitute a proper collective bargaining unit and are entitled to be represented by representatives of their own choosing. The preamble to the PERA shows one of its purposes is “to declare and protect the rights and privileges of public employees”. This policy has been effectuated by permitting public employees to engage in collective bargaining. MCLA § 423.209 (Stat Ann 1968 Rev § 17.455 [9]) provides: “It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.” The legislature designated the MLMB as the agency to determine the appropriate bargaining units, MCLA § 423.213 (Stat Ann 1968 Rev § 17.455 [13]). The determination of the bargaining unit is based upon criteria set forth in PA 1939, No 176, § 9e as last amended by PA 1965, No 282, MCLA § 423.9e (Stat Ann 1968 Rev § 17.454[10.4]). This section is a part of the Michigan Labor Mediation Act (MLMA), MCLA § 423.1 et seq. (Stat Ann 1968 Rev § 14.454[1] et seq.) and states: “Sec. 9e. The board, after consultation with the parties, shall determine such a bargaining unit as will best secure to the employees their right of collective bargaining. The unit shall be either the employees of 1 employer in 1 plant or business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units: Provided, however, that if the group of employees involved in the dispute has been recognized by the employer or identified by certification, contract or past practice, as a unit for collective bargaining, the board may adopt such unit.” Plaintiff and defendants disagree as to the correct interpretation of § 9e. An examination of that section’s structure shows that there are four choices of bargaining units; (1) a unit consisting of all of the employees employed in one plant or business enterprise within the state, (2) a craft unit, (3) a plant unit, and (4) a subdivision of any of the foregoing-units. The language in § 9e * * not holding executive or supervisory positions, # # *” is a modification of only the first type of unit listed. It does not modify the remaining- units defined, nor is it in itself a prohibition against executive or supervisory employees constituting a bargaining unit. In its decision in Saginaw County Road Commission, MLMB Case No R 66 E-204, 1967 Labor Opinions, pp 196, 201, the LMB held supervisory personnel to be covered by the terms of PERA: “The words ‘public employee’ are to identify the employees other than private and does not define public employee so as to exclude supervisory personnel.” We have reached a similar conclusion in School District of the City of Dearborn v. Labor Mediation Board (1970), 22 Mich App 222. In City of Dearborn, supra, we held that engineers and assistant engineers employed by the school district, even though supervisory personnel, were nonetheless entitled by PERA to organize for collective bargaining purposes. Plaintiff further argues that it is against public policy to allow public employees who are supervisors, such as those involved in the instant action, to organize. As we stated in City of Escanaba v. Labor Mediation Board (1969), 19 Mich App 273, the legislature by the enactment of PERA has determined what the public policy of this state will be in regard to allowing public employees to organize. PEBA was passed pursuant to Const 1963, art 4, § 48, which directly authorizes the legislature to “enact laws providing for the resolution of disputes concerning public employees”. If appellant is in disagreement with the current public policy of this state, its remedy lies with the legislature and not with the courts. We have considered appellant’s claim that the interests and goals of the principals and the rest of the membership of PSA are too unrelated to warrant their inclusion in a single unit. We find, as we did in City of Dearborn, supra, that sufficient community of interest does in fact exist. Uyeda v. Brooks (CA6, 1966), 365 F2d 326. Appellant urges as a fourth ground for reversal that the affiliation of the PSA with the MEA precludes it from being recognized as a collective bargaining agent. Such a determination not being necessary to the decision in this case, we decline to make it. The decision and order of the Labor Mediation Board is affirmed. No costs are allowed, a public question being involved. All concurred.

[ 57, -51, -41, 9, 36, 47, -2, -21, -49, 24, -48, 0, 22, 51, -10, -10, 45, 82, -23, 1, 24, -1, 41, -9, -7, 10, 46, 7, -43, 13, -63, 2, -10, -51, -68, -25, 27, 41, 14, -43, 39, 6, -22, -38, -24, 35, 9, 36, 35, 9, -15, 73, -27, 14, 27, 29, 40, -9, -2, 2, -59, 54, 22, -17, 41, -54, -7, 30, 11, -84, -29, 39, 1, -36, 33, 33, -18, 8, 21, 45, 30, 11, 24, -63, 1, 36, -18, 55, -18, 36, 30, 47, -48, 26, 22, 15, 29, 6, 45, -30, 5, 28, -12, 1, -75, -7, 25, 23, 17, 36, -2, 38, -1, -16, 24, 18, 6, 11, 81, 26, 64, -18, -27, 44, -17, 13, 7, 56, -51, -5, -15, 49, 11, -16, 37, 36, 10, 8, 91, 17, -47, 65, 33, -53, -19, -29, -40, -18, 8, -55, 36, 13, 25, 7, -51, -20, 63, -24, 9, 16, -42, -32, -66, -20, 15, -38, -10, -22, -12, -9, 5, 7, 15, -43, -48, -43, -74, 16, -12, -14, -16, -73, -5, 2, -59, -34, -18, -29, -16, -40, 9, -33, 6, -33, 28, -24, -10, 56, -17, 6, 32, 14, -30, 16, 24, -2, -25, -61, -37, 15, 20, -13, 7, -48, -27, 3, 4, 16, 10, -48, 22, -8, -11, 7, -10, -61, -2, -31, 7, -18, 30, 48, 43, -8, 36, 29, -38, 2, 96, -4, -2, -42, -44, 37, 5, -52, -43, -1, 10, 51, -45, 4, 67, -21, -35, -12, -31, 9, -52, 4, 9, 8, -11, 6, -33, 43, 37, 43, -37, 10, -34, 43, 25, -38, -37, -27, 0, -49, 15, -8, -28, 17, -7, -28, -17, 1, -29, -57, -6, -23, -29, 8, -4, 12, 33, -14, 69, -10, 19, 11, -34, 58, 3, -13, -44, 27, -42, -12, 6, -8, 19, -21, 9, 6, 18, -34, -50, -18, -13, -46, -40, -6, 3, 11, 5, -48, -16, 46, 20, -26, 37, -32, -9, 22, 32, 22, 19, 43, 18, -39, 25, 37, 91, 7, -52, -62, -15, 3, -3, -43, 71, -35, 16, 15, 21, 22, 30, 13, -44, -11, -8, 53, -55, -2, -39, 13, 22, 46, 21, 0, 39, -5, 14, 0, -43, -7, 19, 58, 3, 29, -49, 27, 1, -41, 23, -35, -8, 50, 13, -24, -18, -39, -55, 46, -32, 29, 58, 47, 0, 10, 68, 0, 24, 19, 22, 4, -20, -54, -31, 78, -3, 41, -46, -3, -37, -35, 28, -51, 72, 14, 25, 0, -20, 28, -1, 4, -32, 42, 13, 79, -72, -46, -2, -55, -21, -48, -26, -52, -43, -32, 21, -4, 22, -44, -36, -31, -16, 16, -12, -1, -49, 11, -53, 27, 6, -10, -48, -14, 38, 24, -35, -44, -21, -9, 40, -15, -22, 44, 33, 15, -68, -30, -5, -1, 7, -51, -32, 1, 50, -3, 79, 3, -4, -45, -62, 28, 18, 9, -21, -14, 28, 5, 5, -6, 55, 0, 109, 11, 5, 19, 21, 53, 26, -4, -14, -3, -40, 3, 14, -66, -28, -13, 15, 85, 3, 27, -46, 10, 12, 5, -6, -14, -36, -37, 16, 8, -18, -31, -29, -5, 2, 6, 78, 31, 13, 16, 7, 30, 2, -29, 33, 18, -67, 45, 13, 24, -10, -36, 88, -29, 86, -40, -28, -46, 14, -47, -2, 27, 41, -15, -33, 4, 87, 40, -3, 28, -42, 35, 51, 14, 23, 28, -23, -14, 3, 37, 84, 1, -2, 15, 9, -1, -5, -10, -7, -53, 48, -36, 26, -23, -32, -71, -33, -2, -5, -7, -31, 46, 8, 17, 42, -3, -44, -46, -18, -19, 12, 21, -18, -42, -2, -63, 5, -45, -15, -32, 0, 39, 65, -10, 13, 38, 20, -36, -37, 45, 75, -1, 46, 12, -5, -34, -18, -46, 5, 0, -49, 45, 3, 9, 0, -40, 33, -24, -20, -26, -5, 28, 2, -6, -23, 35, 56, -16, -34, 9, -32, 16, -10, -26, 15, 0, -24, 31, -20, 31, 30, 7, 14, -36, -20, 28, 41, 6, 48, -22, 52, 20, -48, -16, -24, -28, -50, 12, 41, 6, 36, 53, -60, -55, 42, 49, -6, -45, 35, -75, 1, -26, -40, -26, -20, 34, -27, 8, -41, 18, -39, -16, 11, -2, 10, -61, -34, 14, 14, 2, 8, 17, 13, 33, -34, -10, -35, 19, 59, 67, 49, -45, -5, -15, -21, -10, 21, 5, 19, -3, 39, 76, -39, -21, 16, -13, -26, -35, 11, 32, -46, -46, -9, 45, -30, -69, -15, 7, -14, -21, -2, -17, -13, 44, -49, 0, -55, 65, 61, 2, -32, 26, 4, -44, 62, 19, -35, 2, 29, -17, 6, -36, -71, -15, 10, 35, -3, -12, -43, -26, -1, -34, -82, 4, -33, -1, 11, -8, 21, 48, 49, -47, 15, -58, -22, 18, 0, 17, -13, 14, -27, 29, 6, 14, 1, -21, -18, 15, 6, 72, -24, 56, -48, -22, 14, -2, -15, 18, 5, -29, 30, 29, -41, 18, -11, 74, -6, -4, -47, -33, -36, 9, 18, 28, 18, -44, -47, -24, 6, 25, -46, 47, 30, -61, 9, 8, -40, 37, 66, 10, 11, -13, 30, 0, 55, 64, -33, 16, -37, 44, -47, -10, 11, 37, -23, -38, 42, 59, 32, -3, -58, -2, -16, -19, -31, -15, 26, -90, 75, 62, 20, -22, -2, 18, -31, 29, -38, 4, -8, -20, 25, -8, -43, 2, 6, 22, -25, -47, -11, 39, 19, -40, -60, 23, -34, 43, 7, -65, -17, 45, -11, 37, 40, 24, -24, -10, 17, -59, 0, 18, -29, 28, -21, 23, 11, -32, 48, -43, 52, 43, 70, -15, -17, 12, -27, -7, -57, -65, 24, 12, -1, 56, -61, -7, -15, -38, 56, -25, -13, -20, -9, 52, 4, 0, 2, -31, 48, 42, 0, -81, -49, -21, -12, -29, 36, -3, 19, -27, 14, -22, -56, -22, 30, 56, -47, -28, -3, 38, -35, -12, 3, 22, -56, -12, 23, -25, 56, -30, -22, -28, -52, -11, 48, -14, 34, 88, -15, 6, 10, -5, -6, -59, 40, 86, 48, -13, 69, -6, 54, -20, -10, -16, -45, -7, 10, -19, -18, -6 ]

Davidson, J. Plaintiff submitted a suggestion under defendant’s Employee Suggestion Plan, proposing the use of “Plastic or the type builders use, Paper or what is suitable and less costly” in packing brakeshoes instead of the heavy cardboard then in use. The suggestion was turned down. A fellow employee subsequently suggested using “lighter weight cardboard.” This was adopted and an award made to him under the plan. Plaintiff instituted suit, asking for a similar award to him on the basis that his suggestion was the same and had priority under the plan. Defendant alleged that the suggestions were substantially different and that plaintiff’s suggestion was not used. The trial court properly determined that in order to allow plaintiff to recover, it was required to find that the defendant’s Award Committee did not make its decision within the framework of the rules of the plan or that the decision was based upon gross or palpable mistake. Carlini v. United States Rubber Company (1967), 8 Mich App 501. This was the trial court’s conclusion. Defendant asserts that the trial court’s findings were clearly erroneous. GCR 1963, 517.1; Weeks v. Conservation Department (1968), 9 Mich App 429; Shaw v. Wiepartz (1965), 1 Mich App 271. In Hughson v. O’Reilly (1967), 7 Mich App 324, 326, we adopted the following definition of this term: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co. (1948), 333 US 364, 395 (68 S Ct 525, 542, 92 L Ed 746, 766).” It is not disputed that the two suggestions related to the same problem. The plan, however, requires that the suggestion not only define the problem, but also propose a solution. The testimony and exhibits reveal that the solution proposed by plaintiff was not the same as that proposed by the fellow employee. In fact the plaintiff did not propose a definite solution but in reality only called attention to the problem and then alluded in general terms to various classes of material which might be used to form a solution. The suggestion of the fellow employee to whom the award was given was adopted, namely, lighter weight cardboard. As a result, plaintiff’s suggestion did not meet the requirements of the plan, and the decision of the defendant’s Award Committee in denying recovery was within the framework of the rules and not based upon gross or palpable mistake. Thus, upon a review of the entire record, we are convinced that the findings of the trial court are not supported therein. Reversed and remanded for entry of judgment for the defendant with costs. All concurred.

[ -1, -39, 29, -20, -50, -25, 1, 39, -50, 84, 24, 3, 51, 51, -48, -36, -6, -17, -57, 5, 12, 30, 10, 13, -14, 26, -39, -6, 52, 21, -4, 0, -6, -31, -18, -30, 4, 20, -36, -5, 59, -13, 46, -26, -39, 3, 52, -7, 16, -34, 82, 4, 15, -48, 40, 16, 19, 10, 3, -16, -24, 17, 32, 4, 42, -9, 6, 3, -8, 18, -35, 22, -20, -38, 7, -48, 25, 11, -48, -6, -7, 14, 22, 6, -5, -1, 31, -5, 56, 29, -7, -13, -17, -10, 6, -8, 9, -3, -8, -2, -30, 6, 17, -39, -52, 13, -6, -9, 14, 30, 16, 7, -15, -28, -25, -30, 43, 49, -27, -41, 36, 10, -37, 7, -57, 8, 71, -47, 17, 20, 50, 27, -11, 7, 41, 10, 4, 11, -43, 34, -51, 53, 6, -12, -72, 34, 4, -17, -62, -20, 48, -51, -67, -29, 4, -2, 1, -47, 83, -48, -20, 61, -8, 43, -21, -22, -23, 47, -7, -10, 10, 6, 14, 6, 35, 82, 31, 1, -17, -9, -14, -36, 28, -2, -48, 30, -15, 38, -1, 0, 46, -28, -49, 34, -16, 11, -15, 56, 34, -31, 3, -33, -37, -8, -4, 8, -94, -46, 15, -15, -22, 64, -50, -15, -2, 3, 8, -58, -7, 9, -14, -17, -19, -10, -30, -20, 12, 9, -25, 20, -55, 43, 1, -14, 40, -40, 4, -24, 16, -7, 55, -62, -45, -15, -31, -30, -18, 30, -13, -8, -6, 13, -14, 11, -24, -23, -43, 27, 13, 18, -43, 3, -22, 24, -21, 20, -26, 12, -55, 61, -6, -37, -44, 31, 9, 14, -30, 0, 17, -22, -15, 24, -1, -42, -31, 60, -40, -14, 5, 27, 59, 6, 37, 10, 67, 23, 64, 6, -26, -52, -5, 15, 32, -49, 31, 48, -30, 32, 13, -2, -9, -4, 9, 3, -26, -1, -28, 0, 46, -41, -38, 39, 41, -13, 0, -69, -5, -37, 33, -6, -19, 16, 1, 38, 6, -15, 15, -15, -9, 17, -26, 7, -9, -16, -35, -8, -7, -30, -51, -28, 33, 12, 5, -9, 55, -12, 21, -27, -18, 2, 36, 15, 3, -33, 23, -31, 6, -30, -15, 48, -30, -54, -7, -24, -4, -47, 24, 57, -3, 34, -39, 59, 17, -70, -22, 7, -38, 10, -8, 16, -60, -17, 21, 17, 7, 20, -11, 41, 24, 34, 5, -22, -17, -18, -33, 12, -34, -102, -37, -16, -6, -28, -16, 1, -20, -56, 61, -32, 4, -26, 39, -8, 19, -45, 5, -44, -5, -33, 23, -29, -40, 23, -13, -57, -2, 18, -35, 2, 0, -40, -48, 23, -42, 47, 16, 21, -6, 51, 14, -4, -4, 9, -27, 8, 36, 25, 27, -37, 33, -6, 12, -16, -31, 21, 39, 10, -37, -41, 9, 9, -11, -24, 79, 9, 31, 19, -26, 7, -10, -10, 9, 58, 13, -7, 26, 5, 4, -13, -26, 15, -11, -3, -52, -71, -78, 12, -12, 11, 5, 5, -50, 40, 34, -19, 28, -3, 9, -7, 15, 53, -30, 15, 20, 28, 6, 59, 21, -21, -32, 64, -58, -1, -72, 28, -6, -4, -35, -7, -6, 0, 96, -8, 34, -22, 46, 42, -12, -50, 3, -12, -22, 5, 9, -7, 0, 17, -38, 43, -15, -6, -4, 38, 8, 40, 21, -2, -7, 26, -9, -3, 8, 33, -16, 4, 38, 8, -3, -52, 118, 19, 11, -48, -71, 78, -46, 46, -20, 38, -25, -17, 0, 21, -6, -23, -9, -28, 14, 18, -8, 20, 2, -58, 13, -29, 22, 13, 26, -40, 24, -4, 35, 23, -53, -7, 3, -39, -4, -7, 19, -34, 4, -50, -9, -16, -37, 1, -19, 19, 40, -11, -22, 30, 20, 45, -5, -24, 46, 29, 16, -6, 33, -46, 44, 7, 14, 51, -10, 72, -17, -13, 11, 16, 23, 3, 4, -44, -41, 57, -3, -21, 40, 40, 15, -36, -6, 12, -46, 69, -38, -10, -33, 14, 3, -34, -5, 65, -32, -21, 3, -32, 2, 4, -16, 11, 9, 19, 64, -20, 0, -20, 14, 31, 13, -37, 4, 16, 15, 16, 17, -19, 11, -21, 29, -4, 0, 31, 40, -28, 39, -39, -22, -55, -7, 31, -2, -25, -46, 1, -19, 8, -16, 38, -2, -15, 3, 36, -8, -3, -42, -43, -5, -19, 46, 33, -23, 15, 49, -3, 22, -69, -40, 30, -12, 37, 2, 45, 28, -33, 14, -2, 12, -25, -38, -41, -15, 14, 57, 0, 3, 22, 5, -32, 10, -21, -2, 31, 15, -16, 2, -3, 28, -23, -39, -12, -23, 21, 47, 9, 45, 9, -38, -25, 21, 15, -47, 68, 12, -33, 14, 44, -24, 0, 13, 26, -44, -54, -3, -5, -20, 1, -15, 13, -67, 34, 15, 1, -42, 2, -30, -29, -35, -55, 34, 32, -60, -7, 3, 49, 10, -43, -21, 19, -21, -7, 57, -2, -27, 26, -20, 10, 51, 44, -77, -9, 18, -30, -3, -18, -2, 3, 33, -13, -54, 27, -30, 42, -2, 22, 60, -11, 38, -29, -14, 33, 32, -68, -74, 29, 15, 6, 5, -29, -33, -29, 37, -17, 25, -9, 25, 19, -10, 19, -29, -3, -13, 8, -35, -58, 22, -40, 7, 21, -16, -46, 27, 44, -105, -13, 17, 24, 25, -22, 1, 8, -13, -58, -38, 19, 7, 46, 4, 10, 10, 35, 34, -57, 15, 7, 21, 11, 32, 29, -4, 26, 3, 2, -21, 15, -44, 20, 8, -28, 57, 62, 13, 0, 3, 30, 21, 53, 17, 0, 2, -20, 6, 6, 3, 57, -10, 72, -13, 17, 40, 13, -2, -12, -76, -52, -19, 12, -20, -19, 5, 11, -15, -96, 5, 15, 5, 0, 13, 26, -6, 23, -11, -47, -29, -2, -18, 2, -26, 15, 4, 45, 27, 57, -5, -19, -58, -8, 33, -24, 33, -20, 2, 2, 30, -25, -35, 26, 25, -20, 19, -31, -13, -26, 1, 10, 0, 47, -18, -19, 28, 6, -37, -26, 13, -29, -21, -21, 8, 21, 4, 16, -38, -11, 25, 15, -22, 3, -9, 0, 19, 55, 4, -7, -46, -15, -81, -51, 51, 34, 30, 42 ]

T. M. Burns, P. J. In this canse, the people have not filed a brief in opposition to the defendants’ briefs. We, therefore, will consider the case in the light of facts as stated by the defendants in their briefs, which are substantially the same. “On September 7, 1969, defendant Lloyd George Primeau, with his brother Archibald P. Primeau, broke and entered Bud’s Bar in St. Clair County, Michigan. Unfortunately for these two men they were rather careless in that they left their automobile across the street from the tavern and kicked in the tavern window within a short eye distance of two fishermen, who casually observed the whole thing. Two patrol cars from the Algonac and New Baltimore police departments sped to the scene and again our defendants displayed a remarkable lack of quick wittedness in calmly remaining inside the tavern awaiting arrest. Defendants admittedly and obviously had been engaged in considerable drinking prior to these activities. “The very next day, September 8, 1969, both defendants were rapidly processed through the 72nd Judicial District Court, St. Clair county and were then taken upstairs to the St. Clair county circuit court for arraignment on a charge of breaking and entering with intent to commit a felony or larceny. (M.S.A. 28.305). Neither defendant was represented by counsel. Following the obligingly cooperative plea of guilty by defendant Lloyd George Primeau to this ten year felony, the following colloquy transpired: “The Court: You are Lloyd George Primeau, is that right? “Lloyd G. Primeau: Right. “The Court: I wish to advise you you are entitled to a trial by jury or a trial before the court without a jury, if you prefer. You are entitled to have a lawyer to defend you. In case you are not financially able to hire a lawyer, the court will appoint one for you at public expense. In case of a trial, your guilt must be proved beyond a reasonable doubt. “Do you wish an attorney to defend you? “Lloyd G. Primeau: No, sir. “The Court: Do you wish to plead to the charge? “Lloyd G. Primeau: Yes, sir. “The Court: Were any threats or duress or anything of that nature used to cause you to plead? “Lloyd G. Primeau: No, sir. “The Court: Was there any promise of leniency or any other promise? “Lloyd G. Primeau: No, sir. “The Court: Will your plea be voluntarily made? “Lloyd G. Primeau: Yes, sir. “The Court: What is your plea? “Lloyd G. Primeau: Guilty. “The Court: Tell me what happened. “Lloyd G. Primeau: We come over here— “The Court: Whereabouts did you come from? “Lloyd G. Primeau: Chatham, Ontario. Really, there was no need for this because I have my own business and why I ever tried something like this, I don’t know. “The Court: Where had you been before you came to Bud’s Bar? “Lloyd G. Primeau: Robert’s Landing. “The Court: What is at Robert’s Landing? “Lloyd G. Primeau: There is a bar there. “The Court: You left that bar and went to Bud’s? “Lloyd G. Primeau: Yes. “The Court: What happened after you left Robert’s Landing? “Lloyd G. Primeau: We went for a drive and this happened. “The Court: Tell me what happened. “Lloyd G. Primeau: We just had too much to drink. There was no need for that. I have money in the bank and in my shop. I don’t even know what possessed me to do it. “The Court: What did you do? “Lloyd G. Primeau: We broke into this restaurant and bar. “The Court: How did you get in? “Lloyd G. Primeau: Through the window. “The Court: What did you do after you got in there? “Lloyd G. Primeau: Actually, nothing. “The Court: How come you went out after you got in? “Lloyd G. Primeau: How come we went out? “The Court: Yes. “Lloyd G. Primeau: The police come there. “The Court: They came while you were in the bar, is that it? “Lloyd G. Primeau: That’s right. “The Court: And they took you out of the bar? “Lloyd G. Primeau: That’s right. “The Court: What were you doing when they got there ? “Lloyd G. Primeau: What were we doing? “The Court: Yes. “Lloyd G. Primeau: Actually, we had nothing in our hands even. “The Court: How long had you been in there? “Lloyd G. Primeau: I don’t know. I really don’t know. It could have been 15 minutes. It could have been 20 minutes. I don’t know. “The Court: You don’t remember what you did while you were in there? “Lloyd G. Primeau: No, I don’t. “The Court: Did you get anything to drink while you were in there? “Lloyd G. Primeau: I might have taken a drink, but I have my doubts if I did. “The Court: Who drove the car? “Lloyd G. Primeau: I did. “The Court: I will accept your pleas of guilty. “Despite the overwhelmingly clear lack of the intent expressly required by the statute, the guilty plea was accepted. On October 9, 1969, defendant Lloyd George Primean was sentenced to serve from three to ten years at Jackson Prison. “Claim of appeal was filed December 1, 1969. On December 7, 1969 appellant moved in circuit court for bail pending appeal. Denial of this motion resulted in the filing of a similar motion in this Court of Appeals, which motion was decided and order issued by the Court of Appeals on the 19th day of January, 1970, being Court of Appeals ease No 8537 stating as follows: “ ‘It is ordered that the motion for immediate consideration be, and the same is hereby granted. “ ‘It is further ordered that the motion for stay of sentence and to fix bail be, and the same hereby is granted and the sentence of the lower court is stayed pending determination of this appeal. Defendant is to be released on his own recognizance. “ ‘It is further ordered that this appeal be, and the same is hereby consolidated with Court of Appeals No 8714 for purposes of appeal.’ ” The defendants claim that the trial court erred in accepting their plea as it appeared from their statements that they denied possessing a material element of the crime of which they were charged. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). They assert that they did not have the intent to commit any felony in the building which they admitted breaking. They argue and admit now on appeal that they are guilty of the crime of breaking and entering under MCLA § 750.115 (Stat Ann 1954 Rev § 28.310), which is a misdemeanor and requires no specific intent. Under the facts of this case, we consider that the trial court erred in accepting the plea of guilty to the felony when it appeared that defendants denied having the necessary intent. Reversed and remanded. All concurred. MOLA § 750.110 (Stat Ann 1962 Rev § 28.305).—Reporter.

[ 44, 53, 5, 55, -16, -38, -10, 40, -30, 16, 27, -26, -8, 8, 30, -10, 29, 10, -23, -35, 9, -32, 30, 6, 7, -24, 37, 52, -15, 28, 60, 27, -6, -9, -18, 3, 2, -39, -10, 52, -20, 30, 53, -36, 13, 7, -11, -7, 49, -8, -4, -19, 26, 26, 14, 1, -31, 39, 10, -13, 44, 9, -25, -25, -25, -60, 3, 30, -8, 30, 1, -22, -19, 72, 10, -25, 3, 4, 24, 0, 0, 65, 38, 41, -10, -71, -29, -56, -20, -16, 24, 17, -19, -29, 21, -38, -26, 7, -6, -25, -50, -26, 12, -66, 6, 58, 0, -38, -30, 7, -21, 44, 65, -17, 12, -96, -24, -33, -18, 49, -41, -17, 71, -18, -21, -62, -72, 17, 8, -10, 28, 17, -16, -26, 0, 20, -33, 40, -30, 1, 7, 4, -1, 24, 54, -41, -9, 10, 67, 31, -48, -38, -16, -8, -19, 58, -4, -20, 12, 28, -3, -50, 14, -12, 25, -16, -4, 0, 4, -22, 1, 11, 49, 43, 61, 35, 7, 2, -17, 42, 19, 21, -4, 4, 43, -43, -43, -62, 26, -24, 0, -20, -42, -15, 1, -4, 2, 6, -10, 20, -22, -21, -38, 10, 61, -25, 43, 46, -5, -10, 10, -3, -32, -31, -20, -14, -8, -65, 52, -62, -34, -19, -29, -27, -49, 1, 1, 4, -19, -38, -59, -36, 9, 6, 31, -75, 26, -6, 17, 26, -2, -14, -5, -19, 1, 22, -14, 0, -74, 36, 20, -32, -24, -62, -50, 8, 48, 7, -24, 34, -31, 0, 0, -12, -28, -1, -9, -6, -53, -3, 15, -36, 16, 0, -33, 33, -30, 69, 23, 27, 35, 8, 13, 49, 19, -43, -17, 9, -22, 21, -42, 13, -11, -27, 71, 13, 19, -11, 37, 71, 3, 64, -30, -5, -27, -16, -37, 8, -15, -15, -6, 25, -35, 37, 41, -32, 23, 13, 18, -19, 3, -23, -15, 15, -58, -19, 30, 79, 7, 7, 0, -5, -16, 4, -75, -14, 19, 0, 38, 39, -27, -19, -25, -5, 33, 38, 25, 21, -52, -73, -9, -9, 52, 6, -4, -30, -46, 0, 23, -5, 14, -49, 18, 76, 23, 13, -37, 25, 34, 62, 6, -15, -43, -25, -26, -11, 73, 15, -69, 11, 70, -77, 10, 24, -8, 39, -21, -51, -38, -12, -18, -14, 8, -44, -30, 0, -16, 35, 9, -37, 38, -24, 38, -42, -13, -15, -33, 46, 72, -64, 12, -4, 55, 38, -14, 6, -9, 9, -25, -26, 9, 41, 25, -31, 21, 13, 2, 24, 38, 12, 41, 28, 30, 17, 51, 26, -42, 35, 84, -31, -13, 12, 28, 5, 50, 31, -16, -9, 12, -5, -21, 40, 7, 39, -89, 42, 8, 40, -25, -26, -20, 0, -10, -26, -4, -19, -93, -4, -19, -2, 8, 23, 12, -16, -69, 8, 64, 46, 33, 23, 21, 16, 2, 25, -47, -75, -4, -30, 28, 22, 37, -8, -24, 32, -25, 23, -15, -8, -51, 11, -45, -20, -74, 7, 31, 10, 35, 28, 11, 20, -10, 17, 20, -30, -10, -3, 42, -27, 4, 17, -23, 20, 2, 72, -7, -36, 3, -72, -55, -52, -14, -83, -27, -59, 1, 10, 26, 9, -43, -12, 30, -24, 29, -25, 11, 9, -35, -14, 29, 6, -36, 42, 18, -30, -45, 27, -43, -14, -31, -33, -23, -15, 28, 57, -11, 4, -34, 20, 27, -27, 2, 31, 13, 27, -18, 39, -8, -9, -1, 38, 28, 3, -56, 28, -56, 15, 35, -48, -63, -45, -33, 37, 2, 0, -17, 22, -17, -7, -27, 35, 23, -12, 36, -11, -21, 3, 4, 15, 10, 29, 57, -12, -24, 4, -1, 2, -48, -60, -13, 11, 30, -9, -1, 47, -17, -30, -26, -69, 14, 20, -21, -7, 18, -3, -5, 40, 3, 28, -25, 25, -34, 6, -34, 18, 29, 32, -30, 17, -15, -24, -47, -23, -6, 47, -12, -26, -46, 20, -3, -48, 8, 48, -11, 41, 7, -2, -5, -1, 16, 40, 2, -17, -9, -5, -1, -38, 25, 30, -2, 21, 2, -18, 31, -17, 14, -25, -29, -22, -16, 8, -56, 40, -35, -2, 13, 25, 24, 18, -27, -16, -28, -51, 12, 18, -35, 6, 48, -50, 3, 9, 9, 24, -5, 11, 21, -61, -32, 2, -19, 25, -61, -32, -2, 9, 60, -4, -54, -35, -6, -10, 39, -29, 24, -25, 14, 5, -22, -24, 12, 34, -65, -73, -37, -21, -18, -62, 0, -37, 57, -12, -12, 37, 24, 16, 49, 3, 13, 9, -73, 60, -15, 0, -3, -76, -39, 6, -5, 43, 12, -13, -58, -50, -38, 0, -43, 26, -23, -5, 56, 36, 34, 8, -6, -3, 36, -26, 31, -3, 7, 15, 20, -45, -46, 50, -13, 7, 30, -13, 16, 21, -8, -16, 41, -15, 10, -19, 43, 14, 25, 17, 4, 20, -19, 0, -80, 37, 1, -52, 38, 34, -12, -42, 31, -30, -4, 30, -20, -46, -23, -60, 14, -1, 41, 47, 10, -29, -4, -57, -25, 89, 37, 1, 2, 71, 20, -11, 13, -16, -23, 19, 10, -28, 10, -50, -13, 54, -14, -10, 30, -13, 22, -16, 0, -33, -16, 1, 33, 12, -39, -5, -9, 6, 80, 59, 11, 33, 30, 5, 0, 3, -32, 16, 13, 32, -7, 27, 3, -58, -39, 20, 45, 16, -17, -5, -8, -39, -11, -35, 11, 2, 24, -3, -49, 5, 29, -24, 20, -31, 2, 17, 9, 43, -16, 52, -34, 14, -56, 35, 5, -41, -16, 11, 19, 44, 14, -35, -25, -29, 5, 40, -2, 7, -6, -89, -44, 18, 71, -15, 39, 6, -4, 53, -36, 27, -13, 32, 39, -14, -2, 69, -45, 0, -3, 47, 41, 22, -15, 0, 14, 32, -101, 41, 11, -32, 1, -35, -40, -45, 49, 38, -12, 13, 17, 35, 33, -31, 4, 14, 52, -37, -31, -62, -1, 19, -15, -20, -6, 27, -20, -24, -44, 1, -8, 62, 23, 13, -7, -26, -7, -4, -8, 21, 31, 62, 67, 10, -9, 51, -36, -4, -48, -17, -3, -29, -22, 26, 10, -40, 6, 41, -17, 13, -4, 42 ]

Davidson, J. Following a jury verdict rendered against him on October 1, 1968 and a judgment entered thereon on October 23, 1968, appellant filed a motion for judgment notwithstanding the verdict on November 12, 1968. That motion was denied by the Honorable Robert L. Templin on January 15, 1969 and the court’s order was entered on February 5, 1969. This case is here as of right, appellant having filed his claim of appeal from the order denying his motion for judgment notwithstanding the verdict on February 24, 1969. The parties are in substantial agreement as to the facts, having stipulated thereto pursuant to GrCR 1963, 812.10. Suit was filed by the plaintiff in Oakland County Circuit Court on May 11, 1966 on the basis of an alleged cause of action arising on June 3,1963 as a result of an automobile accident wherein the plaintiffs and defendant were involved. Service was made at Oxford in Oakland County, Michigan by William H. Kindred, a police officer for the City of Dearborn in Wayne County, Michigan. The process server experienced difficulty in effecting service which was not made until August 4, 1966 when a copy of the summons and complaint was left with the appellant’s wife; on August 18, 1966 a copy was personally served upon defendant at the same place. On August 29,1966, appellant filed an appearance, answer and affirmative defense raising the statute of limitations as a defense for the alleged reason that the summons and complaint were not placed in the hands of an officer for immediate service prior to June 4, 1966 in conformance with the Revised Judicature Act’s 90-day tolling provision. PA 1961, No 236 § 5856, MCLA § 600.5856 (Stat Ann 1962 Rev § 27A.5856). Appellant states that the process server received the summons and complaint for service as a private citizen, while appellee maintains that he was an officer. In his affidavit of proof of service filed on August 22, 1969, Mr. Kindred described himself as a police officer for the City of Dearborn and stated that he had been so employed for approximately 20 years. On July 20,1967 defendant filed a motion for summary judgment on the ground that the action was barred by the statute of limitations. The pre-trial summary filed on July 20,1967 noted that the motion was to be decided before trial; the motion was denied on February 26, 1968. Defendant again moved for summary judgment on the day before trial and his motion was again denied. Issues A. Whether a police officer of the City of Dear-born, Wayne County, is an officer for immediate service of process issued from the Oakland County Circuit Court within the meaning of RJA § 5856(3)¶ B. Whether, in a case where the manner in which service of process was effected is not in dispute, the timeliness thereof under RJA § 5856 can be first attacked in defendant’s answerf Discussion A. Officer for immediate service The applicable section of the Revised Judicature Act establishes a method whereby the statute of limitations may be tolled for a maximum period of 90 days. It provides: “The statutes of limitations are tolled when (1) The complaint is filed and a copy of the summons and complaint are served on the defendant, or when (2) Jurisdiction over the defendant is otherwise acquired, or when (3) The complaint is filed and a copy of the summons and complaint, in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” The Committee Comments following RJA § 5856 show that the purpose of the statute was to enable a plaintiff to avoid the bar of a statute of limitation by taking the proper steps of establishing a court record and complying with the requirements of a method reasonably calculated to give a defendant notice. The comment contains the following statement: “It should also be noted that in order to secure the benefit of subsection (3), a copy of the summons and complaint must be placed in the hands of an ‘officer’ and not just any person of suitable age and discretion.” Service of process may be made by any person of suitable age and discretion not a party to the suit, GCR 1963, 103.1; but such service must be made within the period provided by the statute of limitations. The statute can be tolled by delivering the summons and complaint to an officer for immediate service, but Michigan courts have not clearly defined the terms “officer for immediate service.” An attorney, though an officer of the court, is not such an officer. Constantin v. Hofer (1967), 5 Mich App 597. In that case the court could have enumerated those persons who would come within the statutory classification, but decided instead to “* * * await either legislation or a case which requires such denomination for proper adjudication.” To draw the line of demarcation then between an ordinary person and one who is an “officer” within the meaning of the statute requires this court first to determine what is meant by the term “officer” and then to analyze the relationship between such a person and the courts of this state. After noting that the words “office” and “officer” are terms of vag-ue and variable import, one publication says: “Within the ordinary acceptation of the term, one who is engaged to render service in a particular transaction is not an ‘officer.’ That word implies continuity of service, and excludes those employed for a special and single transaction.” 29 Words and Phrases, Officer, p 289. Such a person is designated further as: “One who is invested with some portion of functions of government to be exercised for public benefit.” Black’s Law Dictionary (4th ed), p 1235. William Kindred, while certainly an officer of the Dearborn Police Department, did not bring with him the above attributes of an officer when serving process for plaintiff’s attorney. There is no doubt that a sheriff or his deputies are empowered to serve process, MCLA § 600.582 (Stat Ann 1962 Rev § 27A.582) as are bailiffs in common pleas court; MCLA § 728.23 (Stat Ann 1962 Rev § 27.3674), and constables or court officers of the district courts, MCLA 1970 Cum Supp § 600-.8321 (Stat Ann 1970 Cum Supp § 27A.8321). As appellant points out, a factor of paramount importance is the legal responsibility of these officers to the court issuing process. Any sheriff or constable who neglects to execute any process assigned to him is subject to disciplinary action, MCLA § 600.587 (Stat Ann 1962 Rev § 27A.587); and he is required to execute a bond in favor of the people of the State of Michigan to secure the faithful performance of his duties, MCLA § 51.68 ' (Stat Ann 1961 Rev § 5.861). Similarly, a bailiff of the Common Pleas Court of Detroit who fails to serve process issued to him is subject to disciplinary action, including suspension or removal, MCLA § 728.28 (Stat Ann 1962 Rev § 27.3679). He must also execute a bond securing the faithful performance of his duties, MCLA § 728.23 (Stat Ann 1962 Rev § 27.3674). While William Kindred is of suitable age and discretion to serve process, he is not subject to supervision by the court as are the enumerated officers. Another section of the Revised Judicature Act, PA 1961, No 236, §1811, MCLA § 600.1811 (Stat Ann 1962 Rev § 27A.1811) does provide that a disinterested person such as William Kindred may be appointed by a judge of the circuit court to serve process upon the following conditions: 1) The sheriff and coroners of the court, are parties, interested or incapacitated to act; 2) The appointment is in writing, signed by the judge; and 3) Such person execute a bond in favor of the people of the state of Michigan if the judge so requires. A special appointment is necessary to enable such a person to serve process and the person appointed is deemed a coroner of the county, and is liable in all respects to all the provisions of law respecting sheriffs where applicable. The only reasons for invoking this statute as stated in the Practice Commentary following MCLA § 600.1811, are when (1) service by an officer is required for process involving arrest or seizure of property, or (2) service by an officer is desired to toll the statute of limitations. Appellees argue that they did, in good faith, place the summons and copy of the complaint in the hands of an officer for service several weeks before the statute expired. It is asserted that extreme difficulty was experienced in serving appellant and that several summonses and complaints were given to other process servers in hopes of locating appellant. The case of Hoseney v. Zantop (1969), 17 Mich App 141, presented this court with somewhat the same situation. The statute of limitations had only three days to run when plaintiff’s attorney delivered the summons and complaint to the Wayne County sheriff’s office with instructions to hold such documents until notified. Two days prior thereto, process had also been delivered to one Robert Howard, a private process server with instructions to effect service on defendants as soon as possible. Robert Howard did make service on March 17, 27 days after delivery of process to the sheriff. In discussing the question of whether the delivery of process to the sheriff was in good faith and for immediate service, this court said at 145: “* * * While the legislature requires delivery of a copy of the summons and complaint to the officer to show that the plaintiff desires to invoke RJA § 5856 and thereby obtain the advantage of its 90-day tolling period, there is no reason to believe that the legislature preferred diligent efforts by an officer to diligent efforts of a private process server. Indeed, where there is difficulty in effecting personal service, service may be more likely to be effected by a private process server. * * The language indicates that this court is sympathetic to the plight of plaintiffs faced with the prospect of evasive defendants on the eve of the statute’s expiration. This is not, however, a case of balancing the equities or even of procedural due process as appellee suggests, but rather of statutory construction. In Hoseney plaintiff’s attorney had taken the one step necessary to invoke the 90-day tolling period— that of placing copies of the process in the hands of an officer (the sheriff). This court, in approving the method employed, said at 146: “If plaintiff had not delivered copies to the officer, she would not have been entitled to invoke the 90-day tolling period under RJA § 5856.” This crucial step was not taken in the instant case. Similar statutes of sister states shed some light on how the phrase “officer for immediate service” should be construed. Most states, however, have not had occasion to litigate the question of who is and who is not such an “officer.” Instead, questions arising under their respective statutes concern the time when the action commenced or what acts constitute delivery or “placing in the hands” of the officer. Others, such as Missouri, have statutes that provide that only the sheriff of the county in which suit is instituted is empowered to serve process. RS Mo (1949) § 506.110 (VAMS § 506.110). That the authority of the person serving process is paramount and a statute providing for the appointment of private process servers must be strictly complied with is shown by the Wisconsin case of Moulton v. Williams (1898), 101 Wis 236 (77 NW 918). In that case, failure of plaintiff's attorney to make the affidavit of necessity required by statute for the appointment of a person to serve a summons from a justice court rendered the service made by the server void. After the statute of limitations had expired, a constable did make valid service, but the court held that the action was void as the first process server was without power to serve the summons. Of the decisions of other states near the point, that of the Wisconsin Court in Rhode v. Quinn Construction Company (1935), 219 Wis 452 (263 NW 200), is the most helpful. The Wisconsin statute setting the time for the commencement of an action provided as follows: “Attempt To Commence Action. An attempt to commence an action shall he deemed equivalent to the commencement thereof, within the meaning of any provision of law which limits the time for the commencement of an action when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other proper officer of the county in which the defendant * * * resides.” That statute had been borrowed from New York. NY Code Civ Proc (1850) ch 4, §582. The Wisconsin court could find no New York decision construing the words “or other proper person” and looked to the pre-code law of New York for clarification. The court noted at 461: “It was clearly the common law of the State of New York that the delivery of a proper writ to the sheriff or other proper officer, such as a coroner with a hona fide and absolute intention to have it served was a commencement of an action within the meaning of the law * '* * . “So we may say with all confidence that the section which we borrowed from New York in 1858 had a clear and well defined meaning and had been given a definite construction.” (Emphasis added.) It should be noted that officer Kindred was a police officer in the City of Dearborn making service outside of the city limits of Dearborn and in fact in a different county, namely, Oakland, which is the county from which process issued. As a general proposition a city police officer has authority only within the limits of the city employing him and beyond the boundaries of the City of Dearborn he would be acting only as a private person, particularly for the purpose of serving civil process. B. Pleading the statute A motion to quash is the accepted manner of attacking* defects of service of process. It may he ground for abating or quashing a writ that is not in the proper form; that it is issued in the wrong county; that it was not served in a proper place; that the copy served varies materially from the original, etc. There was no defect in the process in this case nor in the service thereof; Kindred was a disinterested person of suitable age and discretion as required by GCR 1963, 103. The defense raised in defendant’s answer was that of the statute of limitations. No claim was made that Kindred was not a suitable person to serve process, but that since he was not an “officer for immediate service” the statute of limitations had expired. This was an affirmative defense, and was properly raised in defendant’s answer. The process server employed by plaintiff’s attorney was not an officer for immediate service within the meaning of RJA § 5856 and the statute’s tolling provisions did not apply. The accident occurred on June 3, 1963 and the statute of limitations expires three years thereafter, on June 4,1966. The statute of limitations is an affirmative defense and was properly raised in defendant’s answer. Appellant’s motions for accelerated judgment (erroneously called motions for summary judgment) should have been granted. Likewise, his motion for judgment notwithstanding the verdict should have been granted. The decision of the trial court in denying that motion was in error and is reversed with costs to appellant. All concurred. Hoseney was not followed by this court in Buscaino v. Rhodes (1969), 20 Mich App 329.

[ -32, -20, 14, 49, 5, 10, -8, -58, -43, 36, -55, -30, 38, 17, -7, -20, 22, 12, 15, -9, 1, -74, 0, 24, -14, -19, -10, 43, -18, 6, -40, -27, 13, 0, -35, -1, -7, -12, 25, 14, 44, 11, 13, -1, -26, -36, 43, 18, 18, 11, 20, 14, -55, 22, 5, 21, 26, -13, 10, 10, -51, 14, -25, -14, 11, -25, -34, 39, 10, -49, -5, -22, -9, -21, -4, 26, -16, -10, 8, 3, -25, -1, 44, 3, 11, 6, 15, 1, 27, -21, 5, 53, -36, -43, -31, -29, 14, -22, 24, -50, -58, 3, 26, 17, -7, 7, 0, -39, -12, -59, 25, 17, 59, -22, -17, -70, 11, -11, 31, 6, 14, -37, 78, -14, 22, -26, -10, -16, 46, 31, 6, -6, 70, -6, 19, 30, 51, -34, 14, 9, -10, -17, 8, -40, 42, 5, 13, 5, 12, -26, -21, 28, 5, 44, -12, 23, 16, -27, 16, -14, -4, -7, 17, -36, 7, -57, -21, 61, 0, 2, 3, -2, 58, -26, 24, 2, -47, 15, -33, 7, -42, 11, 36, -16, -3, -54, -1, -27, 8, -8, -1, -27, -4, 27, 28, 10, 15, -23, -27, -4, 15, -47, 26, -14, 7, 6, 74, -29, -18, 40, -36, -39, -1, -17, -31, -34, 9, 2, -14, -4, 21, 11, -3, -8, -5, -27, -35, 17, 7, -12, 12, 5, 11, 25, -47, 8, 15, 23, 28, 12, -37, -30, 0, 0, -13, 7, -3, -76, 2, -9, -18, 2, -34, -37, -18, -44, -9, -9, 37, 25, 32, 34, -6, 2, -4, 33, 11, 25, -32, -31, -2, 0, 14, -5, -20, -30, -26, 25, 31, 54, -44, 44, 0, -3, -32, -3, 65, -8, -22, 11, 21, -14, -50, 1, 11, -18, 40, -31, -8, 69, -15, 9, 6, 19, -18, -44, -31, -7, 26, -3, 3, -6, 23, -18, 34, -13, 27, -20, 56, -70, -55, 32, -10, 16, -22, -53, 12, 29, -38, -36, 15, 16, 5, 15, -5, -58, 26, 15, 26, 49, -20, 16, -20, 14, 4, 12, 50, -38, 20, -17, -9, 14, 31, 28, -24, 42, 1, -62, -2, 4, 3, -86, -43, 33, 1, -13, 19, -74, -19, 47, -28, 15, -13, -31, -23, -33, 25, 29, -7, 70, 31, -13, -24, -11, 6, -27, 5, -20, -7, -5, -48, 23, 6, 1, 4, -28, 15, 56, 13, 52, 15, -21, 12, 44, -44, 37, -46, 17, -8, 0, -6, -34, 18, 6, -13, 14, 47, 19, 27, -37, 49, 8, 3, -18, 39, -28, 2, 15, 75, 1, 16, 26, 16, -33, 24, 12, -32, -13, -18, 28, -23, -12, -18, -29, -29, -19, -24, 46, 10, 27, 27, -66, 4, -28, -52, 69, 18, -50, -4, -17, 3, -57, -47, 20, -6, 16, -23, -14, 11, -7, 6, 0, -25, 9, -28, -19, -10, -1, 8, -43, 49, 25, -5, -30, -35, -17, -16, -12, 32, 21, 2, 9, -37, 8, -18, 21, -70, 29, -21, -17, -6, 14, 10, 45, 12, -42, -1, -31, -36, 31, -3, 62, -9, -5, -23, 13, 42, 44, 34, -12, 32, 14, 3, 22, -6, -11, -5, -33, -27, -68, 47, 6, 12, -10, 38, 8, -36, -7, -15, -46, 27, 18, 21, 41, -27, -21, -70, -19, -2, -4, 3, 12, -5, 15, -25, -68, -17, -1, -12, -9, 19, -21, 18, 12, -4, -16, -2, 1, 27, -33, 8, 41, 3, -33, 38, 13, 14, 15, -29, -9, -28, -5, 51, 8, -12, -23, 47, 10, -25, -24, -19, 32, 7, -37, 32, 23, -52, -10, 20, -39, 83, -7, -41, 42, 51, -21, 25, 23, 2, -30, 27, 0, -34, -35, -24, -15, -39, -30, 26, 43, -19, 45, -12, 55, -24, 19, -6, -41, -14, -7, 26, 7, -44, -1, -1, 16, -9, 34, -31, -21, 5, 16, 59, -8, -20, -3, 6, 18, 6, 6, -16, 13, -11, 12, -19, -17, 15, -14, -5, -25, -4, 4, -53, 13, -25, -7, -3, -31, 66, 4, -17, -33, 36, -44, 1, -10, -16, -25, 11, 24, -17, 19, 0, 16, 27, -6, -2, 18, 19, -28, -34, -7, 0, 7, 3, 34, -32, 60, 0, -25, -4, 0, -43, 25, -44, 15, -13, -3, 39, -4, -74, -26, 51, -21, -12, 32, 19, -49, 12, -2, -9, 21, -52, -30, 17, 15, -9, -46, 16, -27, 4, 64, 18, 10, 12, -26, -19, -31, -85, -10, 4, -19, 12, -32, -25, -18, 28, 20, -6, 23, 46, 38, -1, -26, -14, 34, 39, 23, -42, -1, 38, 6, 9, -48, -9, 1, -27, 26, 34, 36, 0, -3, -3, -26, -41, 31, -1, -12, 13, -5, 44, 19, -18, -7, -37, -10, 0, 22, -33, 22, -3, -66, -2, -6, -8, -6, 7, 24, 51, -6, 14, 56, 61, 18, 6, 5, 30, -30, 8, -24, 35, 59, -2, -9, -26, 3, -9, 2, 1, -3, 10, 0, -14, 24, -22, -35, 60, -17, -44, 56, 2, -35, 18, 8, -63, -2, -3, 2, -21, 9, 21, 26, -10, 23, 2, 25, -24, 18, -3, 15, -2, 13, -39, -2, -10, 23, 12, -3, -47, -22, 24, 3, -30, -37, -7, 28, -12, -55, 33, 34, 44, 9, 23, 25, -9, 6, 15, -17, 22, -7, -30, -33, 1, -27, 10, 30, 13, -23, -26, 18, -8, 4, -9, -7, -34, 8, -15, 24, 6, -59, 36, 42, 3, 8, -1, 7, 36, 36, -44, 4, 9, -40, 11, -3, 29, 20, -25, 34, 48, -6, 20, 36, -31, -32, -11, 14, 13, -15, 2, 21, -20, -33, 15, -27, -16, -1, 57, -58, -22, 52, -26, -33, -43, 24, -7, -3, -43, 52, -16, 44, 18, -30, 11, -17, -16, 56, -4, -31, 23, 8, -20, 45, 27, 8, 23, -16, 35, -30, -10, 25, 16, -1, 13, -33, 21, -15, 0, 24, -11, -6, -23, -27, 0, 4, 8, -10, -44, 12, -43, 42, 4, 14, 4, -5, -7, 22, 5, 8, 23, 28, 46, 3, -5, 2, 25, -16, 56, -1, -12, 59, 9, 13, -14, 15, 16, 20, -16, 5, -49, 37, 4, -5, -8, 21 ]

Steere, J. Between 4 and 5 o’clock on the afternoon of January 17, 1914, plaintiff, while on his way south to a nearby grocery store, went upon defendant’s double main track railroad, at its right-angled intersection with Washington avenue, which runs north and south through the city of Lansing, just as the crossing gates were being lowered, and stood between the rails of the north, or west-bound, track, awaiting the passage into the passenger station immediately to the east, of defendant’s No. 8 fast Pullman express train from the west. While so standing he was struck and injured by a freight train of two or three cars, going westward unobserved by him upon the west-bound track. The case was tried in the circuit court of Ingham county before a jury, and resulted in a verdict .for plaintiff for $600 damages. At conclusion of plaintiff’s testimony defendant offered no proofs, its counsel contending that defendant was entitled to, and moved for, a directed verdict by the court in its favor, because plaintiff’s own evidence disclosed that he was guilty of contributory negligence, precluding recovery, as a matter of law, and because “no evidence had been introduced on the trial which showed or tended to show that the defendant company was guilty of any gross negligence.” This motion was denied, and the court, while charging the jury as a matter of law that plaintiff was guilty of contributory negligence in standing between the rails on the westbound track, refused to charge that there was no evidence tending to show gross negligence on the part of defendant’s servants — leaving that question to the jury as an issue of fact. Defendant, in bringing the case to this court for review on writ of error, relies on three assignments, which practically involve but the one question of whether there was any evidence tending to prove gross negligence, and which are as follows: “That it was error for the trial judge to hold on our motion for a directed verdict that the question of gross negligence on the part of the defendant was for the jury; secondly, in refusing to give our request to charge numbered 1 to the effect that there was ,no evidence in the case of gross negligence upon the part of the defendant; thirdj in submitting the question of gross negligence to the jury in paragraph No. 3 of the general charge.” Defendant’s motion and requests are in substance and effect a demurrer to plaintiff’s evidence, admitting the truth of the testimony and those conclusions of fact which may legitimately be drawn from it, but denying that there is any evidence from which a jury can properly proceed to find the fact of gross or discovered negligence, without which plaintiff, upon whom the onus of proof is imposed, cannot recover. That a jury has no right to assume the truth of any material fact, unless it is established by legal evidence, and it is therefore error for the court to instruct the jury they may find a claimed fact of which no, evidence is produced from which it may legally be inferred, is a well-settled rule of ancient origin. Plaintiff’s testimony clearly shows that his was the primary negligence, and his counsel, in support of the theory that defendant’s employees were guilty of subsequent, discovered, or gross negligence superseding that of plaintiff, says in his brief: , “There is but one question in this case. The plaintiff negligently went upon the sidewalk between the rails of the west-bound track at this crossing, stood there intently watching the passenger train going by. It was broad daylight. The depot was a few rods east. The freight engine and two cars were switching and running west. The engineer and fireman, or the person running that engine, must have seen the danger which the plaintiff was. in. No extraordinary effort was made to attract plaintiff’s attention, as Mr. Williams would have noticed it, if there had been.” At the place and under the surrounding circumstances the party running that engine at this guarded crossing near by the station was not guilty of even ordinary negligence in assuming persons crossing or standing upon the track as he approached would exercise commensurate vigilance to pare for their own safety, and the only pertinent question in that connection would be whether the person running the engine must have seen or anticipated that plaintiff would cling to this danger zone until the approaching engine struck him. That the train was not moving rapidly, and the engineer acted promptly when plaintiff’s negligence was actually discovered by him, is indicated in the following circumstances of the accident as related by plaintiff’s counsel: “As he was about to start from the place where he had stood all the time looking at the incoming and passing train from the west, and without warning or signal, a freight engine with two cars, coming from the east and running on the -west-bound track, ran upon him, jostling and tumbling him across the street to the west side thereof, some 20 feet, when the engine stopped and the plaintiff was picked up by the engineer and fireman at the side of the engine in an unconscious condition.” How long he stood there, or just where he stood, is not very satisfactorily shown, either by his testimony or that of Williams, who were the only witnesses to the accident; neither does their evidence show that warning signals were not given. Williams was walking south on the easterly side of Washington avenue, two or three rods behind plaintiff, and waited on the walk just north' of the north track for the two trains to. pass. The passenger train reached the crossing about the time he arrived, and he saw the freight train also. “It was in plain sight, approaching the crossing and moving right along.” . He knew plaintiff by sight, having seen him working on the streets and noticed that, like himself, he stopped for a train or trains to pass; that when he last noticed him he stood on the track. “ * * * Q. The north track? “A. Yes, he stood there; I do not know how long, because I was paying no attention and not thinking of any such thing” —for he had no idea that he was in danger' when witness saw the freight train approaching. Of this he testifies: “He (plaintiff) stopped for a little space, and of course I turned my head to see the other train. I knew I would have to wait for that to pass before I could go on. That was the freight train coming from the east. * * * “Q. You paid no attention to him, did you? “A. Of course not; I didn’t pay any attention to him. “Q. And whether or not he stepped there between the two rails, the two tracks, and stood in between the two tracks, you don’t know; you don’t know whether he did that or not? “A. No.” Williams did not see the accident, his attention being attracted to the passing trains, which compelled him to stop, and his first knowledge of it was the sudden stopping of the freight train, and he first saw plaintiff again when either the engineer or fireman of the train was picking him up. Questioned as to signals, he said: “I don’t know as I heard the engine of that freight train sound any bell or whistle before it struck Mr. Bonner. There was a bell going all the while on the other train, and I possibly would not have noticed. * * * “Q. (on cross-examination). And you would not say that the bell on this engine was not rung; when I say this engine, I mean that freight, west-bound? “A. No, sir. “Q. You were not paying any attention to it, whether it was or not? ‘■‘A. No; I saw the freight coming; I was in a place of safety, and was not paying any attention to what the engine was doing. * * *” Plaintiff’s testimony showed that he was a man over 70 years of age at that time, living on the first east and west street north of these tracks, and had been employed by the city as a street sweeper, working ten hours a day, on that section of Washington avenue, for about a year before the accident; his territory extending across defendant’s tracks, which he passed over several times each day while engaged in his work. He was familiar with conditions there, knowing that many trains passed in each direction daily, and a train was liable to go over that crossing from either direction at any time. He also knew which track was used by the east and which by the west bound trains, and understood the use and purpose of the crossing gates. They were lowered oh that occasion just as he reached the tracks, the north gate not being yet down when he passed it, and he stopped inside the gates to wait for the nassenger train from the west, which he saw approaching from the Grand river bridge near by. He at first testified that he stopped upon the walk running between the two tracks, .which were about ten feet apart, and stood still there, although he might have stepped back a little — “might have stepped back somewhere.” This, however, he corrected upon the following day, with the explanation, “I didn’t have my head right yesterday,” and testified that he stopped on the west-bound track, standing there until the train passed by, or until he was struck; that it was broad daylight, not cold, and he was not in a hurry; that he had nothing over his ears, his hearing was good, and ■sight all right, though he saw clearest with the right eye, but subsequently changed this to his left, and asserted that he had not said his right eye was his good eye; that he looked all around him when he first arrived at the crossing, and there was nothing in sight, except the train coming from the west, and he did not look to the east after he had looked to the west and seen No. 8 coming; that while waiting for the eastbound passenger train to pass, and watching it, he was struck by the other train, which he had not seen or heard or known anything about. Plaintiff’s evidence contains no showing as to improper speed of the freight train when it approached the crossing, or of inattentive conduct of those upon the engine, nor of anything, except that he was watching the other train, to indicate or give notice to the engineer that he could not or would not look out for his own safety and step out of the way. The engineer had a right to assume plaintiff had exercised reasonable precautions to observe if a train was approaching along the track on which he stood and would seasonably step aside. Until it became apparent that he would not do so, there could be no discovered negligence. Neither is it shown that, after plaintiff’s negligence and resulting actual danger was or should have been discovered by the engineer, he did not promptly make every effort possible to stop and avoid the accident. We find nothing in any of plaintiff’s evidence which, under the rules of law and definition of gross negligence recognized and declared by this court, shows or tends to show that there was on the part of the engineer of this freight train, “after the discovery of plaintiff’s negligence,” any “intentional failure to perform a manifest duty, in reckless disregard of consequences as affecting the life or property of another,” nor a “thoughtless disregard of consequences without the exercise of any effort to avoid them.” After a careful examination of this record, in the light of the following decisions, we are unable to discover any probative support in plaintiff’s evidence for the charge that defendant’s agents were guilty of wanton or gross negligence, which raised an issue for the jury, or would as a matter of law sustain a judgment entered by the court on a verdict in which the jury so found: Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, 278, 279; Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594) ; Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504) ; Putt v. Railway Co., 171 Mich. 216 (137 N. W. 13) ; Berry v. Railway Co., 173 Mich. 181 (138 N. W. 1038) ; Cardinal v. Railway Co., 174 Mich. 22 (140 N. W. 530). Defendant was entitled to a directed verdict on the grounds stated in its counsel’s motion and requests, timely made therefor. The judgment is therefore reversed, without a new trial. Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.

[ -48, -6, 33, -37, -22, 3, 58, -13, -16, 31, -36, -14, 20, -22, 1, -22, -27, 2, -27, -32, 12, -28, -14, 0, -36, -45, -22, 5, -28, -48, 51, 19, -13, 20, -5, 9, 34, -3, 6, -3, 25, -7, -3, -37, 31, 0, 13, -20, -19, -45, 39, 9, -23, -29, -10, -1, 32, 35, -36, -10, 27, -22, 6, -45, -21, 24, 38, -36, -47, -8, -59, 26, 23, -14, 34, -9, -44, 7, 0, -11, 7, -7, 16, 2, -3, 34, -8, -17, -21, -8, 3, -18, -53, 16, 62, 13, -35, -3, 14, -11, -20, 58, -41, -22, -2, -31, -36, -30, -8, 0, 3, -1, -4, -1, 1, -35, 29, -43, -4, 7, 19, -15, 11, 47, 4, 0, 19, 23, -24, 27, 31, -3, -23, 13, 40, -14, -6, -67, -19, -4, -6, 0, 10, -17, -35, 7, -41, 49, 22, 16, 3, 0, 13, -56, -11, 35, 17, -14, 50, 17, 6, 37, 38, 0, -15, 9, -9, 8, -34, 2, -55, -26, 56, -60, 55, 49, -7, -18, -48, -8, -17, -16, 14, -8, -81, -33, 22, 4, -40, -18, 13, 30, -25, -50, -29, 76, 0, -45, 25, 31, 46, -45, -8, -15, -87, -4, 32, -27, 27, -12, 10, -12, -26, 12, 9, 4, 15, -46, 29, -21, -23, 55, 29, -3, 18, -15, -12, 10, -58, 13, 35, -24, -3, -4, 6, -32, 4, -50, 43, -11, 34, -12, 27, -36, 13, -12, -28, -21, -32, 47, 18, 13, -46, -8, 4, -42, 43, 4, -49, -42, 33, 58, -37, 62, -32, 0, -12, 37, -15, -32, 0, 14, 26, 12, -1, -45, 24, 43, 60, 53, 20, -29, -23, -40, -29, 0, -26, 2, 11, 10, 6, -44, 0, 13, 1, 61, 19, 31, -31, -22, 21, -29, -7, 33, 15, 42, -48, -14, 9, -5, 13, 35, 3, -28, 44, 27, 35, -5, 31, -40, -77, 5, -38, -65, -2, 13, 1, -26, -5, 9, 13, 39, 18, 10, -44, -31, 16, 16, 64, -31, 49, 49, -24, -19, -19, 17, 13, 8, 24, -19, -14, -38, 35, -47, -10, -16, 15, -36, 22, 23, -12, -45, 8, 24, 9, -60, -21, -14, 7, -6, 15, -54, 18, -24, -58, -50, 9, 32, 14, 74, -16, -26, 14, -48, 7, -28, -12, -18, -72, 71, -11, -38, 71, 8, 24, 40, -37, 22, -28, -35, -12, 30, 14, 33, -3, 1, 1, -16, 9, 18, 30, -16, 39, -18, 19, -5, 16, 10, -1, 6, 49, 39, 11, -14, 16, -2, -6, -5, -11, -40, 22, 12, 61, -26, 8, 44, 21, -33, -20, -18, -39, 12, 25, 2, -22, -18, -27, 11, 10, -4, -3, 4, 6, 29, -19, 0, 47, -1, 60, 37, 29, -24, 10, 34, -2, 20, -16, -21, 44, 19, 0, 25, -25, 2, -8, 2, -4, 3, -13, -22, -34, -7, 13, -21, 10, -17, 37, -22, 34, -13, 27, 78, -6, -3, -20, -2, -23, 4, 6, 0, -54, -14, -13, -58, 21, -12, 39, -52, -30, 27, 14, 1, 38, -40, -9, 31, -16, -27, -29, -31, 20, 35, -17, -30, -20, 16, 17, -29, -4, -26, 51, 6, 1, 15, 32, -40, 14, -27, 4, 7, -19, -5, 15, -14, 9, -28, -28, -6, 23, -1, 36, 37, 13, -38, 5, -33, -14, -16, 14, 23, 0, -23, 13, -28, 22, 42, 15, -1, 28, -71, 18, 60, 38, -21, -12, 18, 10, 30, -15, -7, -14, 12, -26, -60, 13, -2, 0, -14, -36, 52, -35, -9, -18, -9, 13, -5, 14, 35, 51, -2, 15, -18, -37, 57, 24, 15, -55, 3, 38, -12, 31, -10, 10, 26, -3, 15, 7, -6, -20, -16, -37, -7, 0, 14, -27, -33, 9, 25, -38, -48, -30, 59, -40, 16, -33, 14, 28, -7, 0, -27, 26, 7, 1, -40, 13, -59, -50, -9, -25, 14, -29, 43, 28, -20, -18, 31, 16, 66, -28, -19, -3, 5, -31, -16, -35, 1, 19, -44, 34, 39, 46, -38, -26, 12, -11, -38, -4, 37, 32, 29, 40, -3, 53, -44, 10, -35, -14, 60, 57, -67, -51, 50, -32, 28, -4, -17, 26, 4, 15, -11, 0, 19, 11, 17, 5, -17, -12, -28, 25, 19, 20, 10, 10, -3, 23, 44, 17, 6, -18, 1, 29, 20, 10, -42, 21, -20, 53, -9, 12, -25, 10, -1, 16, 11, -25, 16, 16, -21, -50, 16, 19, -20, 23, 15, -55, 26, 53, 19, -47, 23, 20, 22, 58, 10, 0, -11, 36, 41, -13, -46, 29, -17, 30, -33, -60, 52, -1, -14, -16, 28, 0, 17, 11, -52, 2, 56, -5, -36, 15, 3, 29, -13, 2, 18, 21, 26, -12, 17, 23, 0, -15, -57, -17, 0, 3, -15, 20, -4, -23, 15, -9, -7, 3, 1, -32, 36, 9, 38, 9, 46, 11, 28, -49, -25, 6, -17, -7, -14, -29, -8, 19, 42, 32, -11, -23, 23, 12, -52, 26, -6, 6, 3, -24, 8, -2, -6, 35, -12, -36, 42, 21, 0, -32, -1, -2, 7, -32, 3, 17, -14, -22, 9, -2, -46, -26, -19, 23, 6, 7, 43, -20, 4, -62, -5, -14, -15, -45, -58, -8, -23, 16, 23, -27, 21, 2, -10, 30, -24, 40, -2, -9, -65, 36, 40, -9, -13, -49, -36, 27, 42, -19, 14, -1, -4, -30, -52, -43, -11, -6, 22, -6, 11, 30, -13, -1, -55, -4, 4, -51, 60, -24, -22, -33, -1, -4, 13, -42, 4, 21, -5, 37, 52, 8, 27, -27, 35, 8, 46, -25, 45, -33, -5, -7, -51, 54, -18, 14, -62, 42, 40, -6, -33, -53, 5, 10, -44, -21, 9, -17, 46, -20, -13, -32, 50, 9, 3, 11, -3, 0, -12, 45, 41, 28, -9, 2, 16, -7, -9, -7, 4, -12, -8, 5, -77, 12, -8, 25, 9, -14, 10, 55, -22, 6, 32, 24, -17, -7, -38, -58, 47, -12, 10, 4, -3, -35, 2, 9, -11, 5, -49, 10, -36, -5, 21, 24, -16, 28, 21, -41, 23, -30, 29, 46, 22, 29, 40, -50, -40, -49, -44, -19, 53, 29, 27 ]

Steere, J. This action was brought to recover damages for breach of a contract for sale to plaintiff by defendant of a garage business and stock in the city of Allegan. Defendant denied the contract. The case was tried in the Allegan county circuit court before a jury. At close of the testimony defendant moved for a directed verdict for the reason no contract had been proven. The court reserved decision under the statute and submitted the case to the jury, which rendered a verdict for plaintiff in the sum of $500. Defendant then moved for a judgment non obstante. The court concluded there was no testimony tending to show the minds of the parties met upon the kind of note to be given, time of payment or rate of interest, and therefore no binding contract, but finding it admitted “plaintiff paid defendant $50 to apply on the purchase price” the court ordered “the verdict of the jury in excess of that amount be set aside and a judgment be entered for the plaintiff for the sum of $50 and interest at 5% from date of payment to date.” Judgment was entered accordingly on February 13, 1924. On July 7, 1923, Martin, who was then living in Detroit with permanent employment in the traffic department of the Pere Marquette Railway Company at $200 per month, learned through an acquaintance that DeYoung was running a garage business in Allegan, selling Maxwell and Chandler autos with accessories, gasoline, etc., and had offered the business for sale. He went to Allegan and saw DeYoung about it. The latter told him he wanted to go to California and would sell him the business for just what the property would inventory at, on the prices he had purchased it for. Negotiations followed resulting in an admitted tentative agreement under which DeYoung was to make an inventory of the property, which he said would run to about $3,500, and send it to Martin. Just what further was then said or agreed upon is somewhat in dispute. Martin testified that in their negotiations on July 7th DeYoung told him inventory would run about $3,500 and he explained his financial circumstances to DeYoung, telling him he could pay down $1,000 in cash, and would give his note for the balance with chattel mortgage on the stock and new stock that came in to make the note good; that DeYoung replied, “Any way you say. I want to go to California. I promised my wife I would go and take her. I want to know the business was sold.” That Martin looked over the town and business prospects and finally told DeYoung if he would take $1,000 cash and Martin’s note for a reasonable length of time protected by a chattel mortgage he would take over the business, but before final decision he wanted to know somewhere near what the figures would be in the inventory, saying: “He told me on the night of July 7th that $1,000 cash and my personal note, secured by chattel mortgage, would be satisfactory.” DeYoung testified that nothing was said about the terms of payment, because Martin wanted the inventory first, and he promised to send him an inventory, but no mention was made at that time of any note or mortgage or how much cash he would pay down; cash was not mentioned but he “presumed likely it was going to be a cash deal.” Whatever may have passed between them on July 7th, on July 9th DeYoung wrote Martin inclosing an inventory of the property amounting to $3,950, stating in part: “I am willing to stay until August 1st and deduct everything sold from this inventory, but of course want to make sure of it, at that time, but would like it sooner if possible for it will take me some time to get ready and I know the Maxwell people would like to close a dealer as soon as possible here, so if you will give me a definite answer, I can get in touch with them regarding agency, also , a check to bind the sale until August 1st, then I know wh.ere I am at.” On July 11th Martin wrote DeYoung acknowledging receipt of the inventory, etc., concluding: “Will advise you definitely very soon now and forward a check should I decide in the affirmative.” Three days later he wired DeYoung, saying: “Everything is satisfactory for August 1st letter and inclosure to follow.” On the 16th of July he sent DeYoung a letter inclosing a check for $50, saying: “Enclosed find my check for $50 as evidence of my good faith in the matter and taking over the business of the Allegan Motor Sales Company,” asking to be advised in regard to whether or not a certain sedan was sold. On July 14th, DeYoung wrote Martin: “Received your telegram this a. m. and note contents. Well, everything is satisfactory with me, I have sold the sedan and got cash proposition on it and no trade in.” Touching DeYoung’s understanding of the situation at this stage of the proceedings, he was asked and answered: “Q. You considered when you got that cheek you were selling the business? “A. Yes, sir, I thought I had the business sold when I got the $50 deposit. “Q. You considered at that time that you had sold it? “A. When I got the $50 I thought the deal was made then; that he bought the business. * * * “Q. You considered it a sale then? “A. When I got the $50 check I thought Martin was coming over to run the business. “Q. You thought you had sold it to him? “A. Yes, sir, I did.” On July 22d Martin went to Kalamazoo and secured the agency at Allegan for the Maxwell car. He gave up his position, had letter heads printed for the garage business and on July 29th moved to Allegan to take over the business. DeYoung introduced him to a Mr. Mosier from whom he had leased the building where the garage was, as his new landlord, and Martin paid Mosier $80 for the next month’s rent which was, however, later returned to him.. He offered DeYoung the $1,000 with his note secured by chattel mortgage according to the terms of their agreement as he claimed, but DeYoung refused to accept the same and demanded cash in full. Martin testifies that he then said to him, “You agreed to accept the thousand-dollars and my note for the balance covered by a chattel mortgage,” to which DeYoung merely replied, “Well, it has got to be cash.” As situated, Martin made further effort to induce DeYoung to carry out the deal, offering to increase the' payment to $1,500, but DeYoung positively refused to accept or to close the deal for anything besides cash, or a note which would be accepted by a bank as cash, and when asked to at least return the $50 which had been paid he refused to do so at that time. Claiming to have been put to expense in loss of time and money paid out of over $600, plaintiff brought this suit. The controlling question involved here is whether, after showing the parties had agreed upon the goods to be sold, price to be paid, time for delivery of possession and payment of $50 earnest money, plaintiff’s testimony, viewed in its most favorable light, failed to cover other essentials of a valid contract of purchase and sale between the parties. In submitting that question to the jury the court said: “In order to constitute a valid binding contract it is not necessary that all of the terms be embodied in the talk. There are many terms not actually expressed in an offer which may be implied as a matter of law, which are binding on both parties after acceptance, as though actually spoken or written into the contract. A contract may include not only what the parties actually write down or say, but all of those things which the law implies as a part of it, and likewise all matters which both the parties intend to express but do not. * * * “In order to make a binding contract in this case it was necessary for the parties to have agreed not only as to the property that was to be sold and the price that was to be paid, but also as to the terms and conditions of the payment and if you find in this case that the parties did agree upon the price and the property, but did not agree upon the manner of payment, that is, the time in which the payment was to be made, and the manner in which it was to be paid, then I charge you that there is no binding contract between the parties, and if you so find the plaintiff could not recover damages in this suit, except for the fifty dollars advance payment.” So instructed, the jury found in plaintiff’s favor on the questions of fact involved essential to a valid contract including “all those things which the law implies as a part of it, and likewise all matters which both the parties intend to express but do not.” The intent of the contracting parties and meeting of their minds, within the scope of fair inference and legitimate implication from What they said and did, was within the field of facts and for the jury. In McConnell v. Harrell & Nicholson Co., 188 Mich. 369, where there had been a series of letters and oral negotiations between the parties, it was said relative to intent: “Whether these letters constitute a complete contract or whether they were but steps in negotiations leading up to one, is a question of the intention of the parties” (citing cases). As to what the parties understood and intended in the instant case there can be no doubt, taking plaintiff’s testimony as true and giving it the most favorable construction as we must (Quigley v. Yellow Taxicab Co., 225 Mich. 275). They met on July 7th, negotiated and came to an agreement on the terms of a unilateral contract of sale and purchase, then left subject to plaintiff’s acceptance on approval of an inventory which defendant promised to and did send him two days later. To plaintiff the tentative agreement was in its nature an option to be accepted within a reasonable time after receiving the inventory and not binding on either party unless he gave a “definite answer” of acceptance and sent a “check to bind the sale” as requested. He timely accepted and sent a check as payment on the contract which defendant accepted and cashed. There can be no question as to the intent and belief of the parties at that time. DeYoung said that when he received plaintiff’s letter and the $50 he thought the deal was made, that Martin had “bought the business.” Martin believed he had bought the business. He not only so testified but resigned his employment, moved his family and household goods from Detroit to Allegan, paid $50 for the Maxwell agency, $80 for the first month’s rent of the building where the business was located, and offered DeYoung the cash payment of $1,000 with note and mortgage for the balance of the purchase price. The reasons given by the trial court for holding the contract was not binding were that— “The minds of the parties did not meet upon the kind of a note to be given for the balance of the purchase price, the time of payment of the note, nor the rate of interest.” Failure to specify the rate of interest on an indebtedness does not invalidate the contract. Janiszewski v. Shank, 230 Mich. 189, and cases there cited. Neither does it invalidate the note evidencing such indebtedness. The kind of note to be given was a note secured by mortgage, presumptively containing the essentials of a valid note representing the deferred payment under the contract made payable within a reasonable time or as the parties might agree. But this action is upon a breach of the contract itself. Taking plaintiff’s testimony as true, there was an agreement that the deferred payment on the contract, as evidenced by a note and secured by mortgage, should run for a reasonable length of time. He testified on direct-examination: “I told him I was in,a position to pay one thousand dollars cash and give him my note for the balance. Nothing was said about the time of the note. Any reasonable length of time I would be willing to give, and I would give him a chattel mortgage to make the note good on the stock and any. new stock that came in.” To this he states defendant replied, “Any way you say.” On cross-examination he repeated the statement as follows: “I told him if he would take one thousand cash and my note for a reasonable length of time covered by chattel mortgage, that I would take the business over. * * * “Q. Was anything said as to when that note was to be due? “A. Nothing more than its being a reasonable length of time; no set date.” The fact that no exact time for performance is set in a contract does not render it invalid. “It will be noted that the contract, enforcement of which is sought, is silent as to the time of performance. The law would, therefore, imply that the performance was intended by the parties within a reasonable time.” McArthur v. City of Cheboygan, 156 Mich. 152. “Where no time for performance is fixed by the contract, the law implies generally that the performance is to take place within a reasonable time.” 13 C. J. p. 683; citing many decisions from various jurisdictions, including this State. The court submitted the case to the jury on the legitimate issues raised by the testimony in a clear and careful charge fully as fair and favorable to defendant as the law entitled him to. • The damages awarded were not speculative nor excessive, and were such as under the circumstances shown might reasonably be presumed within contemplation of the parties as a probable result of a breach of the contract. The order setting the verdict aside and judgment following must be vacated, and judgment entered in plaintiff’s favor for the amount of the verdict. The case is therefore remanded to the trial court for further proceedings in harmony with this opinion, with costs of this court to plaintiff. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Fellows, and Wiest, JJ., concurred.

[ -1, 34, -25, -18, -4, 14, 94, 48, -4, 14, -12, -19, 46, 41, -22, -7, 35, 40, -49, 6, 9, -53, -47, -10, 0, -17, -15, -37, -1, -11, -13, 18, -40, 29, -53, 24, -29, -34, 21, -51, 20, 14, 0, -3, 18, -19, -17, -58, 55, -20, 20, -10, 7, 7, -1, -29, 9, 39, -46, 0, 3, -22, 36, 17, -14, -21, -6, -24, -7, 7, -36, -11, -4, -23, 3, -14, -19, 9, -6, -37, 54, -21, 34, 24, -31, 17, -3, -27, -16, 26, -17, -15, -4, 43, 59, -13, 24, 13, 31, 0, -39, -25, -9, -8, 9, -20, -28, 0, -13, -24, -7, -26, 44, 12, 42, -18, -6, -5, 38, -20, 5, 30, -8, -12, 50, 47, -12, -22, -36, 24, 22, 0, -1, 18, 9, -1, -2, 15, -47, 0, 1, 21, -13, -37, 14, 48, 6, 15, -10, 32, -50, -19, 6, 43, -12, 6, -23, 11, 27, -27, -28, -34, 17, -30, -30, 12, -36, 39, -25, -11, -43, 21, -3, -44, 28, 25, -16, -7, -29, -35, -3, 14, -23, -2, 0, -19, 57, -8, 3, 30, 26, -4, -22, 13, -49, 29, 0, -25, -31, -1, 31, -55, -17, -13, -30, -22, 33, 17, -23, -15, -50, 1, -22, -29, -23, 39, 0, 15, 27, -11, 24, 6, -23, 45, 10, -29, 70, -3, 28, -1, -19, -23, -25, 20, -24, -49, 35, -17, 1, 29, -8, 6, 15, -1, -17, -52, -86, -17, 5, 26, -36, 8, -40, 29, -24, 13, -19, 9, -42, 7, 42, 75, -43, -21, -16, -20, -15, -19, -23, -8, 2, -3, 23, 57, 12, -41, 25, 48, 7, -14, 6, -70, -4, -27, 24, -8, 22, 10, -27, -11, -12, -24, 17, -33, 42, -5, 13, -1, 11, -6, -21, -48, -20, 4, 26, -1, -26, -19, -40, -3, -19, -20, 49, -17, 27, -27, 7, 30, -23, -29, -2, 5, -10, 28, 3, 14, 13, -24, 14, 9, 25, -9, -30, -33, -42, -19, 31, 18, 42, -13, -1, 61, 33, -33, 16, 0, -9, 12, 38, -1, -5, -101, -26, 18, -4, -2, 19, 3, -7, 14, 16, 1, -22, 17, 26, 33, -25, -14, 1, 28, 18, 25, -15, -7, -28, -42, -26, -63, -30, 32, 55, -4, 22, -17, 38, -39, -10, -67, -46, 35, -91, -19, 19, 11, 2, -20, 22, -46, -35, -90, -42, 17, -40, -33, -27, 29, 8, -27, -12, -7, 8, -39, -18, 15, 21, -24, 40, 20, -42, -30, 25, 29, -13, -33, -7, -64, 41, -35, -47, 23, 4, 27, 15, -34, 14, 27, 17, -44, -21, -27, 14, 22, 5, -9, 47, -7, -56, 6, 20, 3, 31, 4, 26, 14, 7, 35, 16, -18, -30, -33, 9, -34, 28, 14, -1, 13, -2, -30, 5, 17, -12, 36, 58, -29, -12, -23, 14, -38, -2, 69, -17, 51, 16, -12, -8, -47, -42, -28, 15, -13, 47, 1, 15, 2, -10, -13, 2, 27, 57, 11, -62, -31, -3, -2, 5, 4, 49, -42, -34, 23, -7, 28, 10, 27, -5, -27, -47, 31, -5, 48, 38, 30, -7, 0, 32, 2, 45, 11, 0, -24, -9, -20, 0, -17, 46, -48, 9, -14, 15, 0, -16, 6, -56, 21, -29, 11, -41, 8, 23, -9, -9, -10, 61, -8, 12, 37, 4, -34, 37, 37, 6, 12, 22, -41, 62, -37, 21, -6, 11, 41, -1, 22, 41, 0, 4, -64, -7, -24, 4, 6, -64, 6, 4, -49, -9, 17, -13, 7, -4, 33, -65, -43, -26, 13, -11, 30, 43, -5, 1, 13, 1, 4, -55, 29, -23, -39, -58, 0, 30, 27, 19, 0, -6, 3, 0, 12, -3, -14, 9, 28, 11, 6, 13, -13, 22, 13, 38, 6, -38, 34, -52, -8, 29, 19, -10, 19, 42, 7, -64, -37, -38, -2, 26, -44, -30, -16, -61, -17, -36, 16, -46, 7, 3, 24, 5, 30, 34, -16, 18, -30, 42, 11, -23, 4, 6, -5, 17, -22, 31, 13, 24, 8, 22, -10, 36, 2, 28, 77, 45, 66, 16, 3, -52, 16, -3, -54, 54, 2, 13, -19, -27, -1, -42, -11, 1, -1, -34, 47, -18, -40, 18, 0, -31, 36, -51, 38, 1, -22, -4, 11, -5, -42, -21, 54, 22, 26, 20, 27, -17, -29, 23, -39, -23, -19, 41, 15, 27, -15, -1, -3, 2, 25, 32, -10, 33, 58, -14, -52, -57, 30, 2, -5, 1, -12, -34, 15, 64, 73, 15, -20, 20, 14, 0, 58, 35, 5, 6, 32, -32, -8, -18, 9, 20, -5, -19, 66, 6, -41, 23, -38, -17, 20, 6, -5, 26, 25, -11, 9, 20, 4, 28, -32, 9, 3, -11, -17, -2, 15, 83, 64, 31, -34, -13, -37, -4, -9, 46, -16, 13, -29, 0, -3, -10, -28, -30, -48, 6, 6, 38, -6, -24, 33, -11, -30, 12, -4, -1, 10, -36, 23, -9, -1, -29, -37, -60, 0, -43, 6, -5, 44, 23, -34, -22, 14, -57, -27, 39, -40, 2, -12, 9, -34, -20, 61, 26, 20, -28, 23, -41, 20, -15, 6, -6, 30, -70, 41, 19, 7, 55, -6, 20, -11, -65, 11, 34, -26, -22, 1, 11, 17, 28, -15, -13, 18, -5, 24, 37, -8, 68, -13, 7, -2, 0, 34, -40, -16, 0, -33, 9, 61, -5, 20, -58, -52, -5, -27, 17, -49, 24, 5, 17, 0, 16, -4, 22, -39, 11, 63, 25, -1, 22, -17, -31, -6, -19, 15, 26, -10, 3, 1, 60, -20, -56, -20, 22, 11, -34, 39, -44, 30, -43, 17, 2, -46, 16, 15, 21, -68, 19, 8, 2, 13, -30, -8, 16, -31, 3, 0, 16, 64, 3, 10, 1, 45, 0, 3, -2, -19, 40, 13, 47, 46, 48, -95, -6, -15, 31, 16, -1, 1, 34, 19, 12, -45, -8, 6, 21, -18, -14, 1, 50, -13, -66, 26, 40, -55, 12, -24, -40, 10, 8, -13, 50, 23, -37, 21, 34, -4, 6, -43, 35, -20, -11, 0, 0, -36, 31, -5, -27, 30, -34, -5, 2, 7, -1, 24, 13, -1, 19, 37, -22, -38, -12, 59 ]