ABANDONMENT-See CRIMINAL LAW (1, 4); DIVORCE (1).
ACCEPTANCE-See SALES (2, 3).
ACCIDENTAL DEATH-See INSURANCE (6).
ACCIDENT ARISING OUT OF EMPLOYMENT-See MASTER AND
SERVANT (2).
ACCIDENT INSURANCE-See INSURANCE (3-6).
1. In stating an account between complainants and defend-
ant, who purchased lands upon a joint profit sharing ar-
rangement, where it appeared that a considerable portion
of the property had been sold and transferred a number
of years prior to the suit, the proper method of computa-
tion is to ascertain the actual cost of the property, deter-
mining the amount of the investments and interest at
the contract rate and applying thereon the total amounts
received for land which was sold, computing interest
on the balances at the agreed rate, treating the invest-
ment as paid with whatever was received from the pur-
chase price and ascertaining the profits, if any, as of that
date. Decedent, who had received back the entire amount
invested, with interest, should account to the defendant
precisely as if he had acted as agent for its collection.
Interest is chargeable in favor of defendant only from
the date of the demand made by him. Boeing v. Fordney,
153.
2. A demurrer was correctly overruled by the circuit court
in chancery to complainant's bill for an accounting,
averring that defendant employed complainant upon a
basis of ten per cent. of the net profits of a corporation
in Detroit theretofore controlled by plaintiff, which de-
fendant took over under a proviso that it should con-
tinue the business as a branch office under the same
name, also that the defendant discharged complainant
during the term fixed by the contract, and otherwise
violated its stipulations, and declined to render state-
ments of the business that was done. Reid v. Heater, 184.
See AMENDMENTS; EQUITY (5); FRAUD (1); JUDGMENT (1);
MISTAKE; TAXATION (3).
ACTION-See CONTRACTS (4); LANDLORD AND TENANT (3); LIMI
TATION OF ACTIONS (1); RAILROADS (8).
ACTION AT LAW-See WASTE (1).
ACTION TO RECOVER TAXES PAID UNDER PROTEST-See
TAXATION (1).
ADEQUATE REMEDY AT LAW-See EQUITY (3, 5); MUNICIPAL
CORPORATIONS (15); WASTE (1).
ADMISSIONS-See EVIDENCE (9); PRINCIPAL AND AGENT (1).
ADULTERY-See HUSBAND AND WIFE (3, 4); WITNESSES (1).
ADVANCEMENT.
Where plaintiff executed a writing setting up the fact that
she had given to her daughter a portion of her maternal
inheritance and that the daughter should pay interest
on the amount during the lifetime of the giver, and it
appeared from the testimony that it was later agreed
between the parties that the mother should live at the
daughter's house and should pay for her keep, and, that
without sufficient reason, she later attempted to rescind
the entire arrangement and brought suit to recover the
nine hundred dollars advanced, held, in the absence of any
evidence of fraud in bringing about the gift that defendant
was not liable on the theory of rescission and the trial court
should have granted her motion to direct a verdict in her
favor. Moeller v. Notter, 355.
ADVERSE POSSESSION-See BAILMENTS (3); EVIDENCE (9);
LIMITATION OF ACTIONS (2).
AGENCY-See PRINCIPAL AND AGENT.
ALIENATION OF AFFECTIONS-See HUSBAND AND WIFE (3,
5); WITNESSES (1).
An amendment of an injunction bill to meet testimony intro-
duced at the hearing showing that waste had already been
committed, and praying for an accounting, rests within the
discretion of the trial court. Heliker v. Heliker, 657.
See CONSTITUTIONAL LAW (4, 7); SCHOOLS AND SCHOOL DIS-
TRICTS (7):
ANIMALS-See BAILMENTS (1); LIMITATION OF ACTIONS (2).
APPEAL AND ERROR.
1. Where defendant's counsel, at the close of plaintiff's testi-
mony, in a personal injury case, asked the court to grant
a nonsuit in favor of defendant, without arguing the
point, and the court overruled the motion, reserving to
the defendant the right to call it up at the conclusion
of the trial, and where the motion for a directed verdict
was made after all the proofs were in, and an exception
APPEAL AND ERROR-Continued.
taken at that time, the exception was sufficient on error
to present the objections raised when the motion was
first made, and the attorney was justified in concluding
that the ruling of the court was not then final. Nelson
v. Mich. Tanning & Extract Co., 108.
2. It is not sufficiently specific, in assigning error, to state
that the court erred in not directing a verdict for the
defendant. But where the words were added, "as re-
quested by counsel at the close of the testimony in the
case," it referred to the reasons assigned when defend-
ant's counsel first moved the court to direct a verdict in
his favor. Id.
3. Questions not raised in the lower court and not covered
by assignments of error are not reviewable. Webber v. Bil-
lings, 120.
4. Assignments of error must be specific, and alleged errors
not covered by proper assignments of error will not be
passed upon. Id.
5. Where plaintiff brought an action upon a contract to in-
stall a heating plant in a church, and although it ap-
peared that the church and its pastor were parties to
the contract, the pastor was made sole defendant in the
action, and where it was agreed in open court by defend-
ant's counsel that he was the proper party, and on appeal
the court determined that the same was conceded, de-
fendant could not repudiate the concession of his counsel
at the second trial of the case, but was foreclosed by the
previous ruling of the court. Wenzel v. Kieruj, 284.
6. In determining whether the evidence of plaintiff, who
brought an action for the negligence of defendant rail-
road company in setting fire to his house, made out a
case for the jury, the testimony must be considered in
the light most favorable to him, irrespective of any evi-
dence in defendant's behalf tending to contradict it.
Pennsylvania Fire Ins. Co. v. Railroad Co., 375.
7. Upon appeal from findings and judgment of the circuit
court, sitting without a jury, under conflicting testimony
the findings of fact made by the court will be disturbed
only if they are erroneous or indicate that the court was
influenced by improper motives or misunderstood the
evidence. Knowlson v. Friar, 464.
8. Upon the trial of an action to recover back an illegal side-
.walk tax, the court sitting without a jury filing no find-
ings of fact and law, where no requests were presented
by either party, and no exceptions were taken or filed to
the opinion and judgment of the court on behalf of plain-
tiff and appellant, and the only exceptions appearing in
the record were filed after the motion for a new trial
was denied, appellant was not entitled to a review of ques-
tions presented under Circuit Court Rule 26, subdivisions
c and d. Walker v. Village of Brooklyn, 520.
APPEAL AND ERROR-Continued.
9. Upon the entry of an order overruling a plea in abatement
to plaintiff's declaration, the proper practice is not to
review the judgment by writ of error but by the more
expeditious method provided by Act. No. 310, Pub. Acts
1905 (5 How. Stat. [2d Ed.] § 12737 et seq.). Sault Ste.
Marie v. Railway Co., 681.
See DAMAGES (3); EQUITY (2-4); EVIDENCE (14); LIMITATION
OF ACTIONS (1); MASTER AND SERVANT (5); RAILROADS (4);
TRIAL (3, 4).
APPEAL BOND-See LANDLORD AND TENANT (3); LIMITATION OF
ACTIONS (1); PRINCIPAL AND SURETY.
ARCHITECTS-See CONTRACTS (2); NEGLIGENCE (7).
ARGUMENT OF COUNSEL See CARRIERS (3); TRIAL (5).
ASSAULT AND BATTERY-See EVIDENCE (6); DAMAGES (9, 10).
ASSESSMENT OF CREDITS-See TAXATION (13).
ASSIGNMENT OF ERROR-See APPEAL AND ERROR (3, 4).
ASSIGNMENTS-See CORPORATIONS; SPECIFIC PERFORMANCE (6).
ASSUMED NAME-See PARTNERSHIP (1).
ASSUMPTION OF RISK-See MASTER AND SERVANT (14, 16-18,
22, 32, 33, 36, 38).
ATTORNEY AND CLIENT-See CONTEMPT.
ATTORNEY FEES-See INTERNATIONAL LAW; MORTGAGES (2).
AUTOMOBILES.
1. Where the injured passenger in an automobile was instru-
mental in causing it to be overcrowded, and imbibed
intoxicating liquors with other members of the party,
and rode without objection at an excessive rate of speed,
the question of his contributory negligence was for the
jury, under instructions that if he acquiesced or partici-
pated in the negligence of the driver, he should not be
permitted to recover. Webber v. Billings, 120.
2. Held, also, that plaintiff's theory that he was injured on
a part of the previously arranged trip, and not, as de-
fendant claimed, that the portion of the journey during
which the car was overturned made no part of the agreed
trip, was sufficiently supported by the testimony.
3. In a prosecution for violation of an ordinance of the city of
Detroit regulating traffic in its streets, such provisions of
the ordinance as in any way contravene the general statute
affecting motor vehicles, Act No. 318, Pub. Acts 1909, must
be held invalid and void. People v. McGraw, 234.
See CONSTITUTIONAL LAW (3); EVIDENCE (1); MASTER AND
SERVANT (5); MUNICIPAL CORPORATIONS (1).
1. Where claimant delivered 12 ewes to one since deceased,
who receipted for the animals, stating that he was to
keep them for an annual rental of one-half the wool and
increase, for a term of three years, the transaction was
not a sale, but a bailment, since the obligation to be im-
plied from the transaction was that decedent was to re-
turn the same sheep or the survivors of them at the end
of the term. In re Parsell's Estate, 522.
2. If at the expiration of the agreed time the bailee does not
deliver the property or deny the bailor's right to posses-
sion, the bailment does not necessarily terminate, and he
holds the property in trust, the bailor having the right
to resume possession or consider the bailment as renewed.
Id. 523.
3. It is recognized as a general rule of bailment that mere re-
tention of possession by the bailee, however long con-
tinued, will not of itself effect change of ownership: until
he asserts an adverse claim the statute of limitations does
not operate in his favor. Id.
See EVIDENCE (9); LIMITATION OF ACTIONS (2).
1. Under subdivision f, § 67 of the bankruptcy law, providing
that all levies, judgments, attachments, etc., against the
insolvent, obtained within four months before the peti-
tion in bankruptcy was filed, shall be deemed null and
void in case he is adjudged a bankrupt, judgment in gar-
nishment obtained by one of the creditors of a bankrupt
against a mutual insurance association in which the in-
solvent had insured her goods, became void and inopera-
tive when the trustee in bankruptcy, who had commenced
an action within four months from the date of the in-
stitution of garnishment proceedings for the recovery of
the fund, obtained a judgment affirming his right to the
insurance due to the bankrupt. Wilson v. Fire Insurance
Co., 530.
2. Where defendant, in an action by a trustee in bankruptcy,
proceeded to a trial in the court below upon the assump-
tion that the plaintiff was in fact the lawful trustee and
his verified petition setting up the fact of his appoint-
ment as trustee was offered in evidence, no claim being
made upon motion for directed verdict that the proof
was inadequate, it was unnecessary to show by additional
evidence the appointment of plaintiff. Id.
3. Held, also, that the trustee acted with reasonable diligence
after making application for an order in the district court
for the eastern district of Michigan compelling the de-
fendant insurance company to pay over the money to him
as trustee, and obtaining a temporary injunction to re-
strain defendants from turning over the fund to plaintiff
in garnishment, in commencing action promptly after
dissolution of the restraining order. Id.
|