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Allen, J. In this appeal as of right, plaintiffs challenge a March 6, 1985, order which dismissed their 42 USC 1983 claim with prejudice on the ground that the claim was moot. Plaintiffs concede that, pursuant to the resolution of condemnation proceedings instigated by defendant in 1982, they had already attained all the relief they desired, i.e., just compensation for their property rights. However, plaintiffs’ § 1983 claim was never specifically adjudicated. A related claim for declaratory and injunctive relief was resolved in plaintiffs’ favor before plaintiffs amended their complaint to plead the civil rights claim. Based on this related claim, plaintiffs assert that they should be deemed "prevailing parties” on their § 1983 claim and awarded attorney fees under 42 USC 1988. This is the second lawsuit between these parties relative to the construction of the 1-696 freeway through the McGiverin-Haldeman Huntington Woods Manor Subdivision. Plaintiffs owned real property in the subdivision and resided there. Defendants acquired some subdivision lots by con demnation or purchase in preparation for the building of the freeway. In 1972, plaintiffs brought a class action against defendant, the Michigan Department of Transportation, seeking a declaratory judgment to determine their rights with respect to a 1958 restrictive covenant. The covenant had been signed by twenty-two lot owners and limited the use of twenty-two lots which had been acquired by defendant to single-family residential use. The covenant also provided that the benefit of the covenant would run to other subdivision landowners whose land was used for single-family dwelling purposes. The trial court held that the plaintiffs had the legal right to enforce their interests in this restrictive covenant even though they were not signatory parties to the agreement. This Court affirmed. Dorfman v State Highway Dep’t, 66 Mich App 1; 238 NW2d 395 (1975). The primary import of this first decision was a requirement that defendant compensate plaintiffs for the taking of this property right pursuant to the power of eminent domain. In 1976, plaintiffs commenced the present and second class action against the mdot. They alleged that defendant was using the lots it had acquired in violation of the restrictive covenant and sought to compel defendant to acquire their interests in the restrictive covenant before it proceeded with the highway’s construction. On November 21, 1979, a declaratory judgment was issued which held that the mdot was bound by the restrictive covenant. Further, the circuit court enjoined the mdot from taking further action in preparation for the freeway’s construction until it acquired by purchase or condemnation the plaintiffs’ interests in the restrictive covenant. On April 21, 1978, before the declaratory and injunctive order had issued, plaintiffs amended their complaint to add a § 1983 civil rights claim. This claim was dismissed without prejudice by stipulation of the parties on September 7, 1978. However, following the issuance of the declaratory judgment and injunctive order of November 21, 1979, plaintiffs filed a motion for attorney fees claiming they were entitled to such fees under 42 USC 1988 since their cause of action included a claim under § 1983. This motion was denied on June 23, 1980. Although this denial was presumptively based on the fact that plaintiffs’ § 1983 claim had been dismissed, the actual reason for the denial is not evident from the record. In any event, plaintiffs amended their complaint on December 4, 1980, to reassert their § 1983 claim. In January, 1981, the federal government gave final approval to the 1-696 project and the proposed route. Thereafter, in November, 1982, the mdot began condemnation proceedings to acquire plaintiffs’ interests in the restrictive covenant. This action was brought pursuant to the Uniform Condemnation Procedures Act, MCL 213.51 et seq.; MSA 8.265(1) et seq. The action resulted in an offer of just compensation to plaintiffs in the amount of $243,000. One-third of this amount or $81,166 was set aside for attorney fees and placed into an escrow account. By order dated June 13, 1984, the $81,166 was released to plaintiffs’ counsel as payment for attorney fees. The order states that this amount was intended as compensation to the attorneys for the declaratory judgment action commenced in 1976, as opposed to the condemnation action initiated by defendant in 1982. On February 8, 1985, plaintiffs moved to advance the civil rights claim to trial. It is from the denial of this motion that plaintiffs appeal. Plaintiffs claim that they "prevailed” in the lawsuit related to their § 1983 claim since they obtained the declaratory and injunctive relief that they sought. They do not claim that they would prevail in any other manner if they proceeded on their § 1983 claim. However, plaintiffs aver that their success in obtaining the declaratory and injunctive relief was sufficient to entitle them to attorney fees under 42 USC 1988, which provides in pertinent part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title ix of Public Law 92-318, or title vi of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. To qualify as a prevailing party for purposes of being awarded an attorney’s fee, a party need not prevail on every issue. Rather, a litigant will qualify for an award when successful on a single substantial claim. Reel v Arkansas Dep’t of Corrections, 672 F2d 693, 697 (CA 8, 1982). One may be entitled to an award in the court’s discretion when relief is awarded on the basis of a state claim which is pendant to a federal constitutional or statutory claim. Allen v Housing Authority of Chester Co, 563 F Supp 108, 109-110 (ED Pa, 1983). Moreover, an award may be granted where one obtains the desired result but a claim asserted under § 1983 remains unresolved. Southeast Legal Defense Group v Adams, 436 F Supp 891, 894-895 (D Or, 1977), rev’d on other grounds 657 F2d 1118 (CA 9, 1981); Davis v City of Ennis, 520 F Supp 262, 265 (ND Texas, 1981). However, in order to be entitled to an award of attorney fees under § 1988 when a § 1983 claim remains unadjudicated, there must be some causal connection between the plaintiffs lawsuit and the defendant’s ending its uncon stitutional behavior. Id.; Williams v Leatherbury, 672 F2d 549, 551 (CA 5, 1982). See also Co of Clark v Alper, 100 Nev 382, 396; 685 P2d 943, 952 (1984) (attorney fees award under § 1988 was in error where plaintiffs did not initiate a § 1983 action or argue that their civil rights were violated, but merely sought compensation for the taking of their land for a public use). In the foregoing cases, an assumed premise to an award of attorney fees under § 1988 is the fact that a civil rights claim has been pled and is pending when the desired relief is granted. Without the existence of such a claim at the time the court affords relief or the defendant acquiesces in the desired result, it cannot be said that the civil rights claim was a catalyst to the end sought. See, Williams, supra, 551. Accordingly, if the claim does not exist at the time the desired relief is obtained, it cannot be said that the civil rights claim was a basis for the plaintiff’s having "prevailed.” In the instant case, the plaintiffs’ civil rights claim had been voluntarily dismissed before the circuit court granted declaratory and injunctive relief, the relief which plaintiffs cite as the basis for having "prevailed” herein. The § 1983 claim was added by amendment after plaintiffs had attained their desired result. Hence, there is no logical basis for the conclusion that the § 1983 claim was instrumental in achieving the desired result of obtaining injunctive and declaratory relief. Therefore, plaintiffs cannot be said to have "prevailed” on their § 1983 claim and may not be deemed prevailing parties for purposes of qualifying for attorney fees under § 1988. Plaintiffs concede that the possible award of attorney fees under § 1988 was the only reason for moving to advance their § 1983 claim to trial. Since plaintiffs clearly would not be entitled to such an award, we see no cause for reversing the trial court’s denial of the motion to advance the claim to trial. Moreover, since this issue is dispositive of this appeal, we need not reach the other issues raised by the parties. Affirmed.

Cynar, P.J. Plaintiffs appeal by leave granted from an order of the Saginaw Circuit Court dismissing their appeal from the district court for failure to file a brief. They also appeal from the order of the district court granting defendant’s motion for directed verdict. Plaintiffs instituted this action to recover money loaned to Daniel Riley. Riley was an account executive (stockbroker) employed by defendant and assigned to plaintiffs’ account. Riley had handled plaintiffs’ account for almost two years when, in September, 1981, he contacted Ronald Smith and asked if plaintiff would loan him $5,000. Plaintiff agreed. Plaintiff gave Riley a second $5,000 loan in October, 1981. After it became apparent that Riley could not repay the loans, plaintiff sought repayment from defendant, which was refused. Plaintiffs filed a complaint in Saginaw Circuit Court alleging negligence, misrepresentation and respondeat-superior liability. Following arbitration, the case was removed to the district court where a jury trial was held. After the matter had been tried and presented to the jury, the district court judge granted defendant’s motion for directed verdict. Plaintiffs timely appealed the trial court’s order to the Saginaw Circuit Court. A copy of the trial transcript was filed on January 17, 1985. Under then applicable GCR 1963, 701.9, plaintiffs’ appellate brief was due within twenty days or on or about February 6, 1985. Plaintiffs’ brief was not filed until March 7, 1985. On February 26, 1985, defendant filed a motion to dismiss plaintiffs’ appeal pursuant to MCR 7.101(J), which became effective March 1, 1985. Under MCR 7.101(J), the circuit court may dismiss an appeal on seven days’ notice to the parties. A late-filed brief does not preclude dismissal unless the appellant shows a reasonable excuse for the late filing. Under the previous court rule, GCR 1963, 701.13(b), the circuit court could issue an order to show cause why the appeal should not be dismissed. On March 11, 1985, a hearing on defendant’s motion to dismiss was held. Plaintiffs’ attorney explained that a change in secretarial help caused the delay. On April 17, 1985, the circuit court issued its order granting dismissal under MCR 7.101(J). The court found the reason given for the delay unpersuasive. MCR 7.101(J) states: (J) Dismissal for Failure to File Brief. If an appellant does not file a brief within the time provided by subrule (I)(l) and neither the trial court nor the circuit court has granted a motion for further time, the appeal may be considered abandoned, and the circuit court may dismiss the appeal on 7 days’ notice to the parties. The circuit court clerk must promptly notify the trial court of a dismissal. Compliance with subrule (I)(l) after the 21-day period does not preclude dismissal of the appeal unless the appellant shows a reasonable excuse for the late filing. This rule, as well as all rules in the Michigan Court Rules of 1985, is to be construed to "secure the just, speedy, and economic determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties.” MCR 1.105. This Court has previously held that a circuit court’s decision to dismiss an appeal for failure to file a brief on time will not be reversed absent an abuse of discretion. Totman v Royal Oak School Dist, 135 Mich App 121, 125; 352 NW2d 364 (1984). Although Totman was decided under the former court rule, GCR 1963, 701.9(a), we hold that the abuse of discretion standard is equally applicable to decisions made under MCR 7.101(J). Employing this standard, we conclude that dismissal was too harsh a remedy to apply in the present case. The court rules "wisely contemplated that litigants and lawyers might make such errors without suffering the cataclysmic consequences of having a case dismissed without a hearing on the merits.” Totman, supra, p 126. Dismissal is too harsh a remedy where "the error is slight and the prejudice is minimal.” Totman, supra, p 127. Here, there is no indication that defendant was prejudiced by the one-month delay or that the delay was intentional or flagrant. In addition, any inconveniences or costs which defendant incurred could have been corrected by other, less harsh remedies. MCR 7.101(O); MCR 2.6255(1). In light of these facts, we believe that the circuit court abused its discretion in dismissing plaintiffs’ appeal. However, for the reasons discussed below, remand to the circuit court is not required. Plaintiffs have also challenged the district court’s grant of defendant’s motion for directed verdict. In reviewing this issue, we must examine the evidence presented in a light most favorable to the plaintiffs. If the evidence established a prima facie case, then the motion for directed verdict should have been denied. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). Plaintiffs presented essentially three theories of liability: negligence, misrepresentation, and respondeat superior. Plaintiffs’ negligence claim was in turn divided into three separate theories: (1) that defendant negligently hired Riley; (2) that defendant negligently supervised Riley; and (3) that defendant failed to warn plaintiffs of the law and business practices prohibiting self-dealing by stockbrokers. After reviewing the evidence under the appropriate standard, we conclude that plaintiffs failed to present any competent evidence regarding the proper standard of care in hiring and supervising stockbrokers or to establish that the standard was violated by defendant. To the contrary, the only evidence presented in this regard was on behalf of defendant and indicated that defendant acted appropriately in all respects. Absent any evidence, plaintiffs failed to establish a prima facie claim of negligent hiring or supervision. We also agree with the trial court that the relationship between defendant, a brokerage firm, and plaintiffs, its customers, does not by itself impose a duty upon defendant to inform plaintiffs of the laws and business practices regarding stockbrokers. We conclude that the trial court properly directed the verdict as to plaintiffs’ negligence claims. We find plaintiffs’ misrepresentation claim equally untenable. In support of their claim, plaintiffs relied also exclusively on advertisements which held out defendant’s account executives as trustworthy and reliable. After examining the advertisement and the testimony at trial, we find that plaintiffs failed to establish the requisite elements of fraudulent misrepresentation. See Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). The district court correctly granted a directed verdict on this issue. Plaintiffs’ final claim involves defendant’s vicarious liability under the doctrine of respondeat supe rior. Liability under this doctrine requires a finding that Riley was acting within the scope or apparent scope of his employment. Armstead v Jackson, 121 Mich App 239, 244; 328 NW2d 541 (1981). Generally, whether an employee is acting within the scope or apparent scope of his employment is a determination for the trier of fact. However, it is proper to take the case from the jury where it is apparent that the employee is acting to accomplish a purpose of his own. Burch v A & G Associates, Inc, 122 Mich App 798, 805; 333 NW2d 140 (1983); Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942). Here, plaintiff admitted at trial that, although he did not know the purpose of the loan, he believed that Riley intended to "invest in speculative stock.” Moreover, according to plaintiff, Riley characterized the loan as a "favor” to him and clearly indicated that the money was intended for his personal use. Although plaintiff claims to have relied on Riley’s representation that he was bonded, plaintiff initially asked Riley for collateral and ultimately required Riley’s promissory note. Based on plaintiff’s testimony, it is clear that Riley was acting outside of his employment to accomplish his own purpose. Reasonable minds could not differ in concluding that the loan was personal in nature. Since the defendant could not be held vicariously liable for Riley’s independent action, the court was correct in granting defendant’s motion for directed verdict. We reverse the order of the circuit court dismissing plaintiffs’ appeal but because we find that the district court properly granted a directed verdict for defendant, remand is not required.

Per Curiam. Defendant, Royden Walker, appeals the November 12, 1985, order of the Wayne Circuit Court, which denied the defendant’s motion to modify the alimony provision of the parties’ judgment of divorce. The defendant’s motion was made in anticipation of his retirement and the resultant decrease in his income. Following a hearing on the motion, the trial court ruled that the defendant’s retirement pension income was relevant to his ability to pay alimony. The defendant now contends that the pension benefits were improperly considered by the court. The parties’ judgment of divorce, entered on June 17, 1980, was the result of pro confesso proceedings. Included in the judgment is the parties’ agreed-upon alimony and property settlements. Among the property awarded to defendant was his "pension and retirement benefits to which he may be entitled due to his employment . . . free and clear from any and all claims on the part of the Plaintiff.” The judgment clearly designates the defendant’s pension interest as property, vested solely in defendant. When a party approves an order or consents to a judgment by stipulation, the resultant judgment or order is binding upon the parties and the court. Wold v Jeep Corp, 141 Mich App 476, 479; 367 NW2d 421 (1985), lv den 423 Mich 859 (1985); Christopher v Nelson, 50 Mich App 710, 712; 213 NW2d 867 (1973), lv den 391 Mich 819 (1974). Absent fraud, mistake or unconscionable advantage, a consent judgment cannot be set aside or modified without the consent of the parties, Greaves v Greaves, 148 Mich App 643, 646; 384 NW2d 830 (1986), nor is it subject to appeal, Trupski v Kanar, 366 Mich 603, 607; 115 NW2d 408 (1962). Thus, we have repeatedly upheld the binding nature of property settlements in divorce actions. Kline v Kline, 92 Mich App 62, 71-72; 284 NW2d 488 (1979). In the instant case, plaintiff consented to a judgment of divorce which awarded defendant’s pension benefits to him as property. Both plaintiff and the court are now bound by that settlement. The defendant’s pension cannot now be recategorized as income in determining his ability to pay alimony. To hold otherwise would violate the binding divorce judgment as well as the equitable principles upon which divorce actions are based. See Ripley v Ripley, 112 Mich App 219, 227; 315 NW2d 576 (1982). Accordingly, the trial court’s order of November 25, 1985, is reversed, and this case remanded for proceedings consistent with this opinion.

Per Curiam. Defendant appeals by leave granted from a decision of the Workers’ Compensation Appeal Board which affirmed a decision granting plaintiff disability compensation benefits for a work-related heart condition. We reverse. Plaintiff began working on February 17, 1969, and was forty-six years old at the time of the hearing. Plaintiff worked on an Impco machine, individually inspecting castings weighing twelve to fourteen pounds as they came out of the machine and then bending over to place them in a container called a "gons.” It was not unusual for parts to back up during the process, especially if the trucker failed to replace a full gons with an empty one. Plaintiff had performed the job for six months to one year prior to the date of his injury. On Friday, March 28, 1980, while plaintiff was working, he began to feel pain in his legs, back and left armpit. The pain gradually moved to the left side of his chest. After working the entire day, plaintiff went home and spent the next day sitting and lying around the house. The pain continued. On Sunday, March 30, 1980, the pain increased and plaintiff went to the emergency ward of Saginaw General Hospital. He was released that day and went home, where he stayed the following day, refusing to go to work because, although somewhat eased, the pain was continuous. On Tuesday, April 1, 1980, plaintiff returned to work. He still experienced pain, which increased gradually during the day, becoming sharper and spreading from the left side of his neck through his left armpit to the left side of his chest. He worked the entire day and went home. The pain became worse, and the next day plaintiff saw his personal physician, who sent him to North Detroit General Hospital. Plaintiff remained in the hospital for twenty-four days under treatment for the diagnosis of a subendocardial myocardial infarction of the septal area and hypertension. He did not return to work until March 3, 1981. Plaintiff’s expert witness Dr. Irving J. Kane testified by deposition that he began treating plaintiff on July 7, 1980. His report concluded that plaintiff suffered from ischemic heart disease. The electrocardiogram had shown changes indicative of "ischemia of the heart muscle, to the extent that there was a question of whether or not [plaintiff] had had what is a sub-endocardial infarction,” which is a type of heart attack. However, the doctor was not certain that plaintiff had suffered such an attack. In Dr. Kane’s opinion, plaintiff’s job duties "could possibly have aggravated, if not caused” his health problems. Dr. Schucter, defendant’s expert witness, stated that plaintiffs hospital records did not support a finding of myocardial infarction or heart damage. However, Dr. Schucter could not exclude the possibility that plaintiff had suffered an infarction. Based on the above evidence, the hearing officer found that "plaintiff proved a disabling heart condition related to his employment,” and the wcab affirmed. On appeal defendant contends that plaintiff failed to prove by a preponderance of the evidence that he had suffered heart damage, or even if he did, that such damage was sufficiently linked to his place of employment as required by Miklik v Michigan Special Machine Co, 415 Mich 364; 329 NW2d 713 (1982). On review of a wcab decision, findings of fact are conclusive in the absence of fraud. Const 1963, art 6, § 28; MCL 418.861; MSA 17.237(861). Such findings will not be overturned if this Court finds any competent evidence to support them. Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978); Leaveck v General Motors Corp, 147 Mich App 781, 784; 383 NW2d 154 (1985). However, the wcab’s application of legal standards is reviewable by an appellate court. Stover v Midwest Tank & Fabrication Co, Inc, 87 Mich App 452, 456-457; 275 NW2d 15 (1978), lv den 406 Mich 926 (1979); Ratliff v General Motors Corp, 127 Mich App 410, 414; 339 NW2d 196 (1983). Therefore, the wcab’s pronouncement that plaintiff in the instant case had met his burden of proof under the applicable legal standards as set forth in Miklik, supra, is properly reviewable by this Court. At the time of plaintiffs injury in 1980, MCL 418.401(c); MSA 17.237(401)(c) provided that: Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable.[ ] In Miklik, supra, the Supreme Court set forth a two-prong test for heart cases which a plaintiff must satisfy in order to be entitled to benefits. First, the plaintiff must prove heart damage. Then, as stated by the Supreme Court: There must be a, relationship proved between the damage and specific incidents or events at work. General conclusions of stress, anxiety, and exertion over a period of time do not satisfy this second requirement. There must be enough detail about that which precipitated the heart damage to enable the factfinder to establish the legal connection by a preponderance of the evidence. The link between the work and the heart damage need only be one of reasonable relationship of cause and effect. Other possible or probable causes need not be excluded beyond doubt. Further, the work need not be the sole cause of the damage; it is sufficient if the employment is a cause. The factfinder must identify and evaluate the discrete factors of employment which are connected to the damage. The Kostamo Court [Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979)] noted several examples which have been regarded as significant by courts and commentators: temporal proximity of the cardiac episodes to the work experience, hot and dusty conditions, repeated return to work after a cardiac episode, and mental stress. [415 Mich 370. Emphasis in original.] In the instant case, plaintiff failed to satisfy either prong of the Miklik test. Regarding the occurrence of heart damage, Dr. Kane testified that there was a question whether plaintiff had indeed suffered an infarction. Dr. Schucter testified that his review of the hospital records failed to show electrocardiographic evidence that would support a finding of an infarction. The scintigram and the enzyme tests, which Dr. Schucter said were among the best sources of information concerning possible heart damage, also failed to confirm an infarction. Despite the fact that the doctors’ testimony disputes heart damage, the wcab quoted it as conclusive evidence in support of its finding that plaintiff experienced an infarction. Plaintiff clearly did not satisfy the first prong of the Miklik test because he did not prove heart damage by a preponderance of evidence. Aquilina, supra, pp 210-211, 213-214. To allow a finding of heart damage based on evidence that merely raises a question that such damage might have occurred rather than on evidence that proves its occurrence, shifts the burden of proof onto the employer to disprove the injury’s occurrence. Such is clearly not the law in Michigan. Moreover, plaintiff also failed to satisfy the second prong of the Miklik test because he failed to prove any specific incident or event at work that resulted in an injury to him. Although a backup in parts did occur on the day plaintiff first suffered pain, he testified that such "backups” occurred all the time. The wcab failed to note any specific incident or event at work that resulted in an injury to plaintiff. In its opinion the appeal board merely noted that "[wjhile at work [plaintiff’s] symptoms worsened,” and that plaintiff’s "testimony relative to the worsening symptoms at his repetitive job on his last day of employment convinces us that the condition of disability was caused or aggravated by his employment with defendant.” We conclude that such a general finding that plaintiffs injury was aggravated by his employment was not predicated upon sufficient facts to enable the factfinder to establish the legal connection between the claimed heart damage and the workplace by a preponderance of the evidence. Miklik, supra, p 370. The instant case is similar to Moreno v Campbell, Wyant & Cannon Foundry, 142 Mich App 648, 654; 369 NW2d 867 (1985), lv den 423 Mich 852 (1985), where we reversed the wcab’s award of benefits and noted that the mere occurrence of symptomatology while working, absent specific precipitating events at work, was insufficient to support a finding of compensability. Contrast that case to our just released decision in Burns v General Motors Corp, 151 Mich App 520; 391 NW2d 396 (1986). In Burns, unlike in Moreno and the case at bar, the wcab specifically referred to medical testimony which considered the pressures of workplace stress as playing an aggravating role in the plaintiffs heart damage. Moreover, in Burns, the attack occurred at work when the plaintiff was hurrying to complete preparations for an impending inventory. The instant case, like Moreno, supra, is distinguishable because of the lack of evidence in the record that establishes the necessary legal connection between the alleged injury and the employment. Accordingly, we conclude that because plaintiff has failed to prove heart damage or any work-related injury by a preponderance of the evidence, the wcab’s decision that he is entitled to disability benefits must be reversed. In light of our disposition on this question we find it unnecessary to consider plaintiffs second issue. Reversed. MCL 418.401(c): MSA 17.237(401)(c) was amended in 1980, effective January 1, 1982. Since plaintiff’s injury occurred prior to that time, that portion of that statute requiring a showing that the heart condition was "contributed to or aggravated or accelerated by the employment in a significant manner” is not applicable here. Miklik, supra, p 368, n 4.

Per Curiam. The Michigan Public Service Commission and several intervening defendants appeal from an order of the Ingham Circuit Court which adopted the statutory rate of interest allowed in civil actions on money judgments, MCL 600.6013; MSA 27A.6013, as the appropriate rate of interest to be applied to refunds due customers of plaintiff The Detroit Edison Company. On April 10, 1975, Detroit Edison petitioned the commission for permission to increase its electric rates by $177,865,000. On March 30, 1976, the commission authorized a fate increase of $62,425,-000. On April 28, 1976, Detroit Edison filed a petition in Ingham Circuit Court for judicial re view. At the same time, Detroit Edison requested injunctive relief, seeking an additional, interim increase pending review. On May 28, 1976, the circuit court granted Detroit Edison’s request for an injunction, authorizing an additional rate increase of $13,846,000. If the interim increase were ultimately disallowed, the court order provided that the circuit court reserved jurisdiction to determine an appropriate interest rate and the method of refund. Thereafter, the circuit judge who had granted the injunction resigned and the case was reassigned to a different judge. On January 13, 1978, the circuit court remanded the case to the commission to consider additional evidence. The commission rendered its final decision on remand on July 19, 1979, reaffirming its previous order. On December 23, 1981, the circuit court affirmed the commission’s decision, thereby necessitating a refund of the $13,846,000. On January 8, 1982, the commission filed a motion in circuit court to verify the amount of the principal of the refund and to establish an appropriate rate of interest. Four days later, Detroit Edison claimed an appeal to this Court. On March 1, 1982, Detroit Edison moved the circuit court for a stay of execution of the December 23, 1981, order pending the outcome of the appeal process and submitted an appeal bond. On July 12, 1982, Detroit Edison, the commission, and the Attorney General (one of the intervening defendants) stipulated to postpone the commission’s January 8, 1982, motion until all appeals were completed and to accept Detroit Edison’s appeal bond as sufficient security. On July 20, 1983, we affirmed the circuit court’s decision disallowing the $13,846,000 interim rate increase. 127 Mich App 499; 342 NW2d 273. On May 7, 1984, the Supreme Court denied leave. 419 Mich 867. On August 2, 1984, the commission renewed its motion for the circuit court to determine the amount of the refund. On September 14, 1984, the commission modified its renewed motion and requested that the case be remanded to the commission so that the commission could determine the appropriate rate of interest. The motion to remand was heard on January 7, 1985. The circuit court ruled that it would decide the interest issue but remanded the remaining related procedural issues to the commission. The parties were given thirty days to file depositions of expert testimony and briefs. On February 26, 1985, the circuit court issued an opinion and an order adopting the rate of interest set forth in MCL 600.6013; MSA 27A.6013, the statute which governs the rate of interest to be applied on money judgments recovered in civil actions. On appeal, the commission argues that the circuit court erred by refusing to remand the interest question to the commission. Apparently, the main reason the circuit court determined the interest question itself was because it believed the parties had stipulated that it do so: It impresses this Court that when an appeal is taken that the interest rate rests within the determination of the Court, plus the fact that in this particular instance we have a stipulation. And I don’t know what a stipulation is worth if it doesn’t mean what it says. I cannot understand how it can say that the Court is to determine the interest if the Court is not to determine the interest. One thing that impresses me ... is that if it was known, obviously as it must have been at the time the stipulation was entered into, that this was such a complex matter, then obviously the stipulation shouldn’t have been drafted in the manner in which it was. It should have specifically recognized the importance of sending it back to the Commission. Now, to say that I’m pleased with having to make such determinations and getting involved in this matter any further is maybe an understatement [sic]. Frankly, I cannot conceive of why there can’t be more effort put forth in the settlement of these matters.[ ] The stipulation which the circuit court referred to is entitled "Stipulation for Postponement of Proceedings on Motion for Refunds and for Acceptance of Appellant’s Bond Pending Appeal” and provides in full: Now comes the parties hereto, Plaintiff-Appellant Detroit Edison Company (Edison), DefendantAppellee Michigan Public Service Commission (Commission), and Intervening Defendant-Appellee Attorney General Frank J. Kelley (Attorney General), by their undersigned counsel, and hereby stipulate and agree as follows: 1. The Commission’s January 8, 1982 Motion for Determination of Refunds, and Edison’s March 1, 1982 Motion For Stay After Appeal Taken, may be postponed until completion of appellate proceedings before the Michigan Court of Appeals, and if applicable, the Michigan Supreme Court. 2. Edison’s appeal bond attached to its March 1, 1982 Motion for Stay After Appeal Taken is hereby agreed to as constituting sufficient security to obligate Edison to making refunds, if necessary, of the principal amount collected pursuant to the Ingham Circuit Court’s 1976 preliminary injunctive orders, plus appropriate interest to be determined by the Court. The parties further agree that the terms of Edison’s appeal bond shall not prejudice any party’s right to contend that an amount of principal or interest, other than as stated in the appeal bond, should be refunded to ratepayers. 3. The parties agree to diligently pursue final determination of all appeal issues, and the determination of appropriate refunds, if applicable, upon final disposition of this case by the Michigan Court of Appeals and/or Supreme Court. 4. The parties agree that the attached proposed order of the Court accepting Edison’s appeal bond and postponing proceedings on the refund motion should be signed and entered by the Court in this docket. [Emphasis added.] It has long been the rule that stipulations should be construed as a whole, according to their purpose, and in light of the surrounding facts and circumstances. Security Trust Co v Glazier, 170 Mich 26, 34-35; 135 NW 904 (1912); Whitley v Chrysler Corp, 373 Mich 469, 474; 130 NW2d 26 (1964). Moreover, the language of a stipulation will not be construed so as to give the effect of a waiver of a right not plainly intended to be relinquished. Whitley, supra; In re Cole Estate, 120 Mich App 539, 544; 328 NW2d 76 (1982). In the instant case, the stipulation at issue had two express purposes: to postpone consideration of the commission’s motion until the appeal process was complete and to certify that Detroit Edison’s appeal bond was sufficient security. While there is language in the stipulation which suggests that the parties believe the circuit court would determine the interest issue, it is not sufficiently explicit nor does it display a plain intent on the part of the parties to bind themselves to a circuit court determination. Moreover, the assumption of the parties that the circuit court would decide the issue is understandable in light of the fact that the circuit court in its May 28, 1976, order purported to reserve jurisdiction to determine the rate of interest. Finally, we note that if the circuit court did not have subject-matter jurisdiction, the issue we address next, the stipulation could not confer it. Subject-matter jurisdiction cannot be gained by consent. Bandfield v Wood, 104 Mich App 279, 282; 304 NW2d 551 (1981), aff'd 421 Mich 774; 364 NW2d 280 (1985). Thus, we conclude that the stipulation did not require the circuit court to determine the appropriate rate of interest to be applied to the refund principal. Having so concluded, we now turn to whether the circuit court has original jurisdiction in a utility refund case to take evidence, to make factual findings, and to draw conclusions where the commission has not had the opportunity to consider the question under examination. Const 1963, art 6, § 13 and MCL 600.605; MSA 27A.605 confer broad original jurisdiction upon the circuit courts over legal and equitable claims. The latter provides: Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state. The jurisdiction of the Public Service Commission is set forth at MCL 460.6(1); MSA 22.13(6)(1): The public service commission is vested with complete power and jurisdiction to regulate all public utilities in the state except a municipally owned utility, the owner of a renewable resource power production facility as provided in section 6d, and except as otherwise restricted by law. The public service commission is vested with the power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of such public utilities. The public service commission is further granted the power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of all public utilities, including electric light and power companies, whether private, corporate, or cooperative, gas companies, water, telephone, telegraph, oil, gas, and pipeline companies, motor carriers, and all public transportation and communication agencies other than railroads and railroad companies. [Emphasis added.] We believe that the determination of the rate of interest to be applied to customer refunds falls within this broad grant of authority. The selected rate of interest has a direct impact on the fees and charges that a utility’s customers ultimately pay for service. For example, in the instant case, even the most conservative rate of interest presented to the circuit court represents a sum almost equal to the original principal. The least conservative figure is more than double the original principal. Since the rate of interest is at least incident to the regulation of a public utility, the commission should have been given the opportunity to hear and pass upon the issue. Our holding is buttressed by the fact that MCL 462.26; MSA 22.45 limits circuit court involvement to appellate review. Under subsection (a), the circuit court may only act if there is an order or decision by the commission and may set aside an order or decision only if it is unlawful or unreasonable. Further, subsection (c) requires the circuit court to transmit to the commission any evidence that is different than or additional to the evidence introduced at the agency level and requires the commission to consider the same and report any changes in its original order. Thus, MCL 462.26; MSA 22.45 clearly expresses a legislative intent that all relevant evidence be presented to the commission, that the commission have the opportunity to draw its own conclusions, and that the circuit court may not sit as the original trier of fact. Our opinion is not changed by the fact that the circuit court has general equitable powers to provide injunctive relief from decisions of the commission. Consumers Power Co v PSC, 415 Mich 134; 327 NW2d 875 (1982); Michigan Consolidated Gas Co v PSC, 389 Mich 624; 209 NW2d 210 (1973), or by the fact that the excess charges which must now be refunded were collected as a result of an exercise of the circuit court’s equitable powers. While a guarantee of a refund with interest protects the customers of a utility and facilitates the grant of an injunction which authorizes an increase beyond the level permitted by the commission, there is no reason why the interest element of the guarantee needs or ought to be determined by the circuit court as part of its equitable powers. The circuit court’s equitable powers arise from situations where there is probable cause to believe that a party is threatened with irreparable injury. Consumers Power, supra, p 153. The method of establishing an interest rate simply does not present a situation of a comparable nature. Moreover, this complex subject is one in which the commission has superior expertise. On remand, the commission will have the opportunity to consider the evidence presented to the circuit court or, if it chooses, to take new evidence. When it has reached its own determination of the appropriate interest rate, the circuit court’s review will be limited to whether the commission’s decision is lawful or reasonable and whether it is supported by competent, material, and substantial evidence. In light of our disposition, we decline to address whether the circuit court correctly applied the rate of interest set forth in MCL 600.6013; MSA 27A.6013 to the instant situation. Reversed and remanded for further proceedings consistent with this opinion. We retain no jurisdiction. In its opinion, the circuit court wrote: The parties did not agree to submit the issue to the Public Service Commission (Commission), but stipulated that the rates were to be determined by the Court. In part, the determination of the Court is based on its position that its role is not to be embroiled in the quagmire of theories propounded by the parties and to pick and choose therefrom. $12,202,376. This figure is the amount generated through application of MCL 600.6013; MSA 27A.6013 and is the interest figure which the circuit court selected. $28,871,852. The circuit court may also set aside an order if it is not supported by competent, material, and substantial evidence. Const 1963, art 6, §28.

M. E. Dodge, J. Plaintiff filed his complaint on August 13, 1985, alleging legal malpractice by defendant. Plaintiff attempted to serve defendant by certified mail on August 15, 1985, but failed to enclose a copy of the complaint. Service was attempted again by registered mail, return receipt requested, on August 19, 1985, but someone other than defendant, who was on vacation, signed the return receipt. Defendant moved for summary disposition pursuant to MCR 2.116(C)(2), insuffi cient process, and MCR 2.116(C)(3), insufficient service of process, on September 5, 1985. Defendant argued that the service did not comply with MCR 2.105(A)(2) because he did not sign for the letter. The trial court granted defendant’s motion on September 25, 1985. We reverse and remand for further proceedings. Service-of-process rules are intended to satisfy the due process requirement that a defendant be informed of the pendency of an action by the best means available, by methods reasonably calculated to give a defendant actual notice of the proceeding and an opportunity to be heard and to present objections or defenses. See Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950); Krueger v Williams, 410 Mich 144, 156-158; 300 NW2d 910 (1981), app dis 452 US 956; 101 S Ct 3102; 69 L Ed 2d 967 (1981). This constitutional precept has been included in a new section of the Michigan Court Rules, MCR 2.105(J)(3), which states: "An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.” Apparently, the time limit referred to is the 182-day period after which a summons expires. MCR 2.102(D). The use of "shall not” in the rule indicates that it is mandatory. Thus, if a defendant actually receives a copy of the summons and complaint within the permitted time, he cannot have the action dismissed on the ground that the manner of service contravenes the rules. See generally, 1 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), pp 105-106. In the instant case, plaintiffs manner of service notified defendant of the pendency of the action. Although defendant did not sign the return receipt as prescribed in MCR 2.105(A)(2), defendant ac knowledged receiving the summons and complaint by retaining counsel and filing a summary disposition motion. Thus, plaintiffs service was as effective as if defendant had signed the receipt. Arguably, defendant’s signature on a return receipt is more a part of proof of service than of service itself, and failure to file a proof of service does not affect the validity of the service. MCR 2.104(B); MCL 600.1910(3); MSA 27A.1910(3). MCR 2.105(J)(3) clashes with some of the service-of-process rules, but when the manner actually used satisfies constitutional due process requirements by giving a defendant sufficient notice, as in the instant case, dismissal is neither warranted nor allowed by the rule. While dismissal, or other sanctions, might be appropriate in some cases, this is not such a case. See Martin, Dean & Webster, supra. Accordingly, we reverse the grant of summary disposition and remand for further proceedings. Plaintiffs motion for summary disposition was never heard by the trial court. Inasmuch as the trial court never reached the merits of plaintiffs legal malpractice claim and never reduced it to judgment, those issues are not properly before us, but will presumably be considered in any further proceedings. Reversed and remanded.

Beasley, J. Defendant, Michael Timothy Willhite, pled guilty to unarmed robbery, MCL 750.530; MSA 28. 798, and to possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The felony-firearm charge was based on defendant’s obtaining possession of guns owned by the victim during the armed robbery. Defendant also pled guilty to a supplemental information charging him as an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. Defendant was sentenced to the mandatory prison term of two years on the felony-firearm conviction. His sentence for the unarmed robbery was enhanced, under the habitual offender statute, to a consecutive prison term of not less than three years nor more than twenty-five years. Defendant appeals as of right. On appeal, defendant challenges only the enhanced sentence arising out of his' habitual of fender conviction. First, defendant argues that resentencing is required because the trial judge failed to apply the Michigan Sentencing Guidelines applicable to the underlying unarmed robbery offense in sentencing him as an habitual offender. This argument is without merit. The guidelines explicitly state that they do not apply to habitual offender convictions. Defendant goes on to argue that resentencing is required because the trial judge failed to state his reasons for the sentence on the record, as mandated by People v Coles A review of the record reveals that the trial judge did not expressly state the reasons for the sentence he imposed on defendant. However, we believe that a remand of this matter to the trial judge for an express statement of his reasons for the sentence imposed would serve no purpose and would be a waste of judicial resources. We base our conclusion on the obvious leniency exercised by the trial judge in sentencing defendant. The record reveals that the trial judge originally sentenced defendant to a prison term of not less than three nor more than fifteen years on the underlying unarmed robbery conviction. The trial judge then immediately vacated that sentence and sentenced defendant as an habitual offender to a prison term of not less than three nor more than twenty-five years. The probation officer’s calculation of the sentencing guideline recommendation for the unarmed robbery offense contained a recommended minimum sentence of four to five years. Thus, defendant’s three-year minimum sentence on the underlying offense, and the final three-year minimum sentence after application of the habitual offender statute, were each less than the guideline’s recommendation of an appropriate minimum sentence. In People v Murray, this Court held that, when a defendant’s sentence falls within the guideline recommendation, the trial judge is not required to state any further specific reasons for the sentence and that any sentence which fell within the guidelines would not shock the judicial conscience. Likewise, in the within case, where the minimum sentence imposed on defendant as an habitual offender is less than the minimum recommended by the guidelines for the underlying offense, we believe that the trial judge was not required to state any further specific reasons for the sentence. A specific statement by the trial court of its reasons would in no way aid this Court in reviewing defendant’s sentence. The leniency exercised by the trial judge in sentencing defendant clearly indicates that the sentence was individualized here. On appeal, defendant does not in any way argue that his sentence is excessive. We conclude that remanding the case to the trial judge for a more detailed statement of his reasons for the sentence imposed on defendant as an habitual offender is unwarranted and would result in a waste of judicial resources. Affirmed. Michigan Sentencing Guidelines Manual, Instructions for Using Sentencing Guidelines, § (I)(A)(1); People v Peterson, 149 Mich App 158, 160; 385 NW2d 635 (1985). 417 Mich 523; 339 NW2d 440 (1983). 147 Mich App 227, 232; 383 NW2d 613 (1985).

J. H. Gillis, J. Plaintiff appeals as of right from an order of the circuit court dated May 22, 1985, granting summary disposition in favor of the defendant on plaintiff’s claims of negligence. On October 31, 1984, plaintiff Gary Hetterle filed this action, seeking damages for injuries sustained in an accident which occurred on April 25, 1982. On that date, Hetterle and a passenger were riding on Hetterle’s motorcycle when an automobile coming from the opposite direction crossed the center line of the road and struck the motorcycle. As a result of the collision, Hetterle’s passenger was killed and Hetterle was injured. In his complaint, plaintiff alleged that the accident was caused by the actions of a passenger in the automobile which struck his motorcycle. Specifically, plaintiff alleged that the defendant, Christopher Chido, while seated behind driver Gary Yeager, "began hitting Gary Yeager on the head causing Gary Yeager to turn his head around and causing Gary Yeager to cross the center line” and collide with his motorcycle. The complaint also contained the following allegations which are pertinent to the instant appeal: That Defendant was under a duty to control his actions so as to allow the driver of an automobile to drive in a safe and careful manner and to obey the statutes of the State of Michigan, as well as the ordinances of the City of Washington Township regarding the operation of automobiles within the city limits. That notwithstanding the above-mentioned duties, the said Defendant did violate same by interfering with the driver, Gary Yeager’s ability to drive in a safe and prudent manner by hitting him on the head while he was driving. In lieu of an answer, defendant filed a motion for more definite statement pursuant to GCR 1963, 115.1, now MCR 2.115(A), contending that plaintiff failed to plead the basis or origin of defendant’s duty to plaintiff. At the hearing, the trial court agreed that the complaint was not sufficiently definite regarding the allegations of duty and breach of duty and thus granted the motion. Plaintiff filed an amended complaint on March 28, 1985, alleging that defendant was under a common-law duty "to refrain from conduct which would create an unreasonable risk of harm to others,” that defendant breached this duty by causing the driver to divert his attention from the road, and that defendant knew or should have known that his actions created an unreasonable risk of harm to others on the roadway. In response, defendant again moved for a more definite statement, contending that the complaint contained the same vague allegations. At the hearing, defendant argued that he was under no duty to refrain from distracting Yeager since it was the duty of the driver to operate the vehicle in a safe manner. Plaintiff responded that the pleadings were sufficient to give notice of the claim and that defendant had a duty, as does every person, to conduct himself in a manner so as to avoid unreasonable risk of harm to others. After arguments, the trial court issued the following ruling: Counsel, I have considered the matter twice. I do not believe that you have stated a cause for action recognizable under the laws of this state and I am therefore going to grant the motion. Anybody wishing to allege a new cause of action in my opinion has a burden of showing clearly that such a cause of action exists. I do not believe it does exist. If it does exist, it is going to take the decision of an appellate court or statute to convince me that it does. The appellate courts of this state may well say that you are correct but I think as a trial judge, I am obligated to rule on what I believe the laws to be at this time. An order was entered on May 22, 1985, granting summary disposition pursuant to MCR 2.116(C)(8) in favor of the defendant, from which the plaintiff appeals. We begin by noting the procedural irregularity which occurred below as a result of defendant’s reliance on GCR 1963, 115.1 and its successor, MCR 2.115(A), to attack the plaintiff’s complaint. Rule 2.115(A) allows a party to move for a more definite statement if the complaint is so vague or ambiguous that it fails to comply with the court rules. However, under MCR 2.111(B), in addition to a demand for judgment, a complaint need only set forth "[a] statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims” he is called upon to defend. After reviewing the complaint filed in this matter, we find it beyond dispute that the court rules were complied with. It is obvious from the objections contained in defendant’s motion that his real challenge to the complaint was that it failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). However, since it is also apparent that both parties and the trial court itself understood the basis for defendant’s motion and treated it as one for summary disposition, we will undertake the appropriate review. The elements necessary to set forth a cognizable claim for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). The element with which we are concerned here, that of "duty,” has been defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another. Prosser & Keeton, The Law of Torts (5th ed), § 53, p 356; Meyers v Robb, 82 Mich App 549, 553; 267 NW2d 450 (1978). Whether the law will impose such an obligation depends upon the relationship between the actor and the injured person. Moning, supra, pp 438-439. As described in Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967): Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another. Pinnix v Toomey (1955), 242 NC 358, 362 (87 SE2d 893). [379 Mich 260-261. Emphasis supplied.] Further, the duty of care at issue may be specific, owed by the defendant to a particular plaintiff, or it may be of a general nature owed by the defendant to the public as a whole. 379 Mich 261. Determining whether there exists a duty under a particular set of circumstances requires an examination of the reasonableness of the risk created by the defendant’s conduct. Meyers, supra, p 554. This in turn depends upon a panorama of considerations such as the magnitude of the harm, the likelihood and foreseeability of its occurrence, weighed against the utility of the defendant’s conduct. Where there might be a reasonable difference of opinion regarding how the balance of these considerations is to be resolved, the question is for the jury. Meyers, p 554. However, where all reasonable persons would agree or where there is overriding legislative or judicially declared public policy, the question is for the court to decide. Moning, p 438. In the instant case, the trial court was of the opinion that plaintiff was alleging a "new cause of action” which does not exist under Michigan law. While we might agree that the facts are unique, the cause of action is not at all "new.” Rather, what is involved is no more than an application of the common law to the particular facts presented herein. The question, then, is whether, as a matter of law, an automobile passenger is under an obligation to refrain from taking action which is likely to so distract the driver of the automobile as to present an unreasonable danger to the person or property of others. In answer to the question, we have no difficulty finding that such a duty does indeed exist. Defendant argues that there is great utility in allowing a passenger of a motor vehicle unfettered movement since the passenger’s ability to communicate with the driver is enhanced. While communication is certainly valuable where it involves such matters as safety information, the driver’s ability to maintain control of the vehicle is clearly of paramount importance. Furthermore, even if we were more sympathetic to the assessment defendant places on free movement, we cannot comprehend the utility of the particular movement which occurred here, i.e., the repeated striking of the driver’s head. Defendant also argues that the risk factor should be weighed in his favor since, despite the magnitude of potential harm, the relative probability of its occurrence is slight. Defendant argues that it is highly unlikely that any particular contact with the driver will overcome his ability to control the car, that he will then be unable to regain control, and that other drivers on the road will fail to avoid a collision. Again, we strongly disagree. To begin, we are not concerned here with "any” contact between passenger and driver, but rather with actions taken by a passenger which are so likely to distract the driver as to create an unreasonable risk to the public. It is this type of affirmative action, such as striking the driver, which carries a strong possibility of interfering with the operation of the car. Further, in light of the great speed with which automobiles are designed to travel on our roads, any loss of control, regardless of later ability to regain that control, presents an unreasonable risk to others. Finally, defendant’s point that other drivers can frequently be expected to use defensive maneuvers to avoid a car which is out of control, even if not unrealistically optimistic, ignores the fact that pedestrians and bicyclists are also placed in the zone of danger created by a passenger’s distraction of his driver. Therefore, in weighing the magnitude of the risk involved, the likelihood of its occurrence and the utility of the conduct involved, we conclude that reasonable persons would find a duty owed by defendant to the public in connection with his behavior as a passenger of an automobile. The trial court erred by granting summary disposition in favor of the defendant since the pleadings filed by plaintiff stated a cause of action upon which relief can be granted. Reversed and remanded for proceedings not inconsistent with this opinion. Whether or not the issue presented in this case is unique, the circumstances which gave rise to the accident, i.e., a passenger’s distraction of the driver, are by no means unconceivable. In Kirby v Larson, 400 Mich 585; 256 NW2d 400 (1977), Justice Williams considered whether a passenger could be found contributorily negligent for urging her driver to make a turn, during which an accident occurred. Justice Williams noted: The case at bar is not the typical "back seat driver” situation where the passenger clearly inferieres with the safe functioning of the automobile. It is a closer question than that, and originally, plaintiff might have been negligent if she had failed to warn the driver to complete her turn as she observed the other vehicle bearing down on them. Arguably, too, plaintiff’s importunities had no effect on the driver, and she did what she was going to do in the first place anyway. But no one asked her that. [400 Mich 610. Emphasis supplied.] It would appear, then, that even if a passenger has never before been held liable to an injured bystander for negligence arising from his act of distracting the driver of an automobile, such a cause of action has at least been contemplated as viable in Michigan.

Per Curiam. Plaintiff appeals as of right from an order denying its summary disposition motion. Plaintiff had challenged the validity of defendant City of Ann Arbor’s zoning ordinances under which defendants Sorosis Limited Partnership and Sorosis Club of Michigan formulated plans to énlarge a home in Ann Arbor and to convert it to group home use as a sorority. Plaintiff alleged that the 1984 amendments to the zoning ordinance were invalid since they drastically altered the rules applicable to student group housing without providing adequate public notice. The trial court instead found that adequate notice of the proposed amendments had been given and that the ordi nance as amended was valid, and granted summary disposition in favor of the defendants. Our review persuades us that the trial court was correct, and we affirm. The house has been a single-family residence since it was built almost eighty-five years ago. The areas of the basement, first floor and second floor of the house, exclusive of the proposed addition, are 1,773, 1,796 and 1,773 square feet respectively. It is located within the R2B zoning district, which is designated for one- and two-family homes. Fraternities, sororities, student cooperatives, and boarding houses are permitted in R2B zoning areas as special exception uses once certain requirements are met. In 1984 many amendments were made to the City of Ann Arbor zoning ordinance. Two of these changes applied to the R2B zoning district. It is these changes which the plaintiff now challenges. Prior to the 1984 amendments to the zoning ordinance, fraternity houses, sorority houses, and student cooperatives were permissible in the R2B zoning district as special exception uses if they met the conditions for boarding house special exceptions. Ann Arbor City Code, Chapter 55, § 5:21(4)(c). Ann Arbor City Code, Chapter 55, § 5:21(4)(f)(l) provided that a boarding house special exception could be granted only if "the floor area of the existing structure exceeds 5,000 square feet.” (Emphasis added.) Since the 1984 amendments to the zoning ordinance, Ann Arbor City Code Chapter 55, § 5:10.4(2)(c) provides: (2) Permitted principal uses. (c) Fraternity houses, sorority houses and student cooperative houses as a special exception use pursuant to Section 5:104 if 350 square feet of lot area is provided per occupant, a resident manager is employed or appointed if the owner does not reside in the house, and if the floor area of the structure exceeds 5,000 square feet. The second change in the zoning ordinance covering the R2B zoning district involves the definition of "usable floor area.” Prior to the 1984 amendments, Ann Arbor City Code, Chapter 55, § 5:9(4) provided: Usable floor area residential: The measurement of usable floor area for residential uses shall be the sum of the area of the first floor, as measured to the exterior face of the exterior walls, plus that area, similarly measured, of all other stories having more than ninety (90) inches of headroom that are accessible by a fixed stairway and which may be made usable for human habitation; but excluding the ñoor area of uninhabitable basements, cellars, garages, accessory building, attics, breezeways, and unenclosed porches. [Emphasis added.] Ann Arbor City Code, Chapter 55, § 5:1(42) now provides: Usable Floor Area, Residential: The measurement of usable floor area for residential uses shall be the sum of the area of the first floor, as measured to the exterior face of the exterior walls, plus that area, similarly measured, of all other stories having more than 90 inches of headroom that are accessible by a fixed stairway and which may be made usable for human habitation; but excluding the floor area of garages, accessory building, attics, breezeways, and unenclosed porches. The plaintiff attacks the validity of the 1984 amendments to the ordinance, claiming that made quate notice was given of the proposed changes in the ordinance. Plaintiff argues that the changes drastically altered the requirements for a special exception use permit for student group housing by deleting the requirement that the existing structure exceed five thousand square feet and by allowing basements to be included in the calculation of usable floor area. Plaintiff claims that lack of proper notice of these changes invalidates the 1984 amendments to the zoning ordinance. MCL 125.584(1); MSA 5.2934(1) and Ann Arbor City Code, Chapter 55, §5:107(4)(a) set forth the notice requirements for such amendments. MCL 125.584(1); MSA 5.2934(1) does not provide for the content of the notice of public hearing concerning an amendment to a zoning ordinance other than requiring the notice to specify the time and place of the hearing. Ann Arbor City Code, Chapter 55, § 5:107(4)(a) requires that the notice state the time and place of the public hearing and the substance of the proposed amendment. Plaintiff claims that the notice given in this instance failed to meet the requirements. The notice provided: Notice of Public Hearing A public hearing on the following items will be held by the Ann Arbor City Planning Commission in the Council Chamber, City Hall, 100 North Fifth Avenue, Ann Arbor, Michigan on Tuesday, February 28, 1984 at 7:30 p.m. 4. Technical Amendment to Chapter 55 regarding Definitions, Permitted Principal and Accessory Uses, Outdoor Sales, and Day Care Facilities. Plaintiff’s summary disposition motion was predicated upon MCR 2.116(C)(10). Defendants’ motion was based upon MCR 2.116(I)(2). The trial court never specifically denominated the basis upon which it rendered its decision. However, since the facts are not disputed, we will assume for purposes of appellate review that the motion was granted in favor of defendants pursuant to MCR 2.116(I)(2). Plaintiff claims that, because the notice of public hearing said nothing about changes in the rules governing student group housing, the notice was inadequate and the amendments invalid. We disagree and find that the trial court correctly found the notice sufficient. The notice given indicated that the amendments being considered concerned "definitions” and "permitted principal and accessory uses.” The notice clearly stated that the amendments dealt with definitions contained within Chapter 55, the zoning chapter, of the city code. This notice was sufficient to inform plaintiff that the definitions of "usable floor area” and "existing structure” could be addressed. Although we find little Michigan case law that considers this sufficiency of notice question, we find that in Benesh v Frenchtown Twp, 58 Mich App 553; 228 NW2d 459 (1975), this Court held that a notice that was far more general than the notice given here was sufficient when a township undertook a complete revision of its zoning ordinance. Plaintiff has pointed to no Michigan cases that have invalidated a zoning ordinance because a notice of public hearing failed to say enough about the subject matter of an amendment pending before a legislative body. Nor do we find plaintiffs authorities from our sister jurisdictions to be relevant to the resolution of this question. Moreover, plaintiffs claim that the notice was misleading, since it stated that outdoor sales and day care centers would be addressed but neglected to include student group housing, is without merit. The notice specifically stated that permitted principal uses were to be addressed. No permitted principal uses were specifically excluded, and the fact that student group housing was not specifically identified as one of the permitted principal uses to be considered does not render the notice misleading and inadequate. Finally, we reject plaintiffs characterization of the amendment of provisions affecting student group housing in the R2B zoning district as being significant and substantial. The amendments are no more than a clarification of the existing regulations. The elimination of the term "uninhabitable basement” from the definition of usable floor area simply removed a redundant term from the zoning ordinance. Section 5:9(4) of the Ann Arbor City Code prior to the 1984 amendments clearly provided that the measure of usable floor area included the area of the first floor of the structure plus the area of "all other stories having more than ninety (90) inches of headroom that are accessible by a fixed stairway and which may be made usable for human habitation.” Since the provision stated that only those areas which could be made fit for human habitation may be included, it was merely superfluous to specifically exclude uninhabitable basements. We also view the removal of the word "existing” from the regulation requiring that the floor area of the existing structure exceed five thousand feet to be nothing more than a clarification. The use of the word "existing” was ambiguous. The word "existing” in the pre-1984. zoning ordinance is subject to several interpretations, including existing upon adoption of the zoning chapter, existing upon the adoption of the amendment adding the word, existing at the time the special exception use permit was sought, or existing when the structure begins being used pursuant to the special exception use permit. Removal of the word "existing” helped to clear up this ambiguity in the zoning ordinance. Accordingly, we conclude that the 1984 amendments to the zoning ordinance affecting student group housing were not significant and substantial, but merely operated to clarify the ordinance. The notice given was sufficient, and the trial court did not err in upholding the validity of the 1984 amendments to the zoning ordinance. Our disposition of this question makes it unnecessary to consider the remaining issues raised. Affirmed.

Beasley, P.J. Claimant, James R. McMillan, filed for compensation under the crime victims compensation act, seeking to recover his medical and other out-of-pocket losses incurred as a result of being shot in the leg. A member of the respondent, Crime Victims Compensation Board, reviewed claimant’s application and denied the claim, finding that claimant had, by his own conduct, "contributed substantially to the infliction of the injury.” Upon claimant’s timely application, the full crime victims board conducted an evidentiary hearing in this matter and subsequently affirmed the original denial of the claim, expressly finding that claimant had contributed substan tially to the infliction of his injury. Claimant appeals to this Court by leave granted. The compensation of crime victims statute was enacted in 1977. Earlier, in 1974, the American Bar Association had approved in principle the Uniform Crime Victims Reparations Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1973, which furnished the starting point for the Michigan statute. The statute grew out of the national awareness that greater attention must be given to victims of and witnesses to crime. Too often victims and witnesses were treated only as "pieces of evidence” and sometimes it seemed that more effort was devoted to protecting the rights of the criminal than to the well-being of his victims. One tangible form that this awareness took was compensation to the victims of crime for out-of-pocket losses as defined in the statute. In Michigan, the statute places greater limitations upon qualifying for benefits than does the uniform act. Also, the Michigan program has, from the beginning, suffered from under-funding. In fact, in the Legislature, the Michigan statute that was enacted was a compromise between those opposed to any public reimbursement of crime victims and those favoring such payments. Often, the commission has seemed to decide claims with one eye on the Legislature’s annual appropriations. The issue in the within case is whether claimant’s presence in an unlicensed bar, a misde meanor offense under MCL 750.167(1)(j); MSA 28.364(1)(j), and his conduct in the unlicensed bar at the time of the shooting that caused his injuries, provide a basis for denying his claim for compensation under the crime victims compensation act. Since the crime victims compensation statute is remedial in nature, we afford it liberal construction in questions of coverage. The facts surrounding the crime that caused claimant’s injuries are not in serious dispute. Claimant entered an unlicensed "after hours” bar at about 2:30 a.m. on June 15, 1984. Approximately one hundred other people were inside the bar. He noticed and observed two women sitting alone in the bar. A man whom he did not know, and who was later identified as Charles Hill, eventually approached the two women and sat down at their table. Claimant then approached the same table and asked one of the women to dance. Hill informed him that the woman was his wife. Claimant told Hill that he hadn’t known the woman was his wife. Hill, using obscenities, then warned him to keep away from his wife. Claimant asked Hill if he talked to his wife that way. At this point, Hill pulled out a pistol. When claimant saw the pistol he began to flee, but Hill shot him in the leg. Police officers arrived on the scene, had claimant taken to the hospital and completed a report concerning the shooting. After reviewing these facts, the full Crime Victims Compensation Board concluded: The claimant was a customer of an unlicensed establishment that was selling liquor after two o’clock in the morning. The owner of said establishment pled guilty to sale or traffic in alcohol without a license contrary to Section 436.32, C.L. 1970; MSA 18.1003. The injury occurred within the establishment. The above facts render the claimant ineligible to receive compensation for injuries incurred, as his presence at and participation in the activities of that establishment constitute a substantial contribution on his part to the infliction of injuries incurred there. On appeal, claimant argues that the facts of his mere presence in an unlicensed bar and of his innocent acts of approaching the two women and talking to Hill in the bar do not provide a basis for a finding that he "contributed to the infliction of his injury” which would allow a denial of his claim under MCL 18.361(4); MSA 3.372(11)(4). Thus, the resolution of this case requires this Court, for the first time, to interpret the language in the above statute which allows denial or reduction of an award to a crime victim when the victim "contributed to the infliction of his injury.” In Jerome v Crime Victims Compensation Board, the Michigan Supreme Court recently interpreted the language of the crime victims compensation act. While noting that the crime victims compensation act is a remedial act that generally requires liberal construction, the Court referred to the fact that the act is narrow in scope and offers relief otherwise not available from the state only as a last resort. In reaching this conclusion, the Jerome Court noted the various restrictive provisions of the act. A victim must demonstrate that a failure to provide compensation would result in a serious financial hardship in light of all of the victim’s financial resources. Only crimes involving personal injury are covered, and an award must be reduced by the amount covered by insurance, restitution, or other public funds. The Jerome Court also expressly noted the statutory restriction at issue in this case by stating that if one who is injured has contributed to the injury, the award must be reduced or denied. Further, we note that the narrow scope of the act is evidenced by the statutory provision limiting the maximum possible award under the act to $15,000. As indicated, in practice, the Legislature has funded the program with annual appropriations that are small when viewed against the heavy volume of crime. In light of the narrow scope of the act, the Jerome Court concluded that the board and this Court had not clearly erred in concluding that the term "other services” in MCL 18.361(1); MSA 3.372(11)(1) refers only to services directly related to assisting the victim’s recovery from personal injury and does not include services such as child care and housekeeping. However, the Jerome Court went on to hold that the board and this Court had erred in concluding that the term "loss of support” in MCL 18.361(2); MSA 3.372(11)(2) refers only to loss of monetary support, stating: The plain language of the statute does not limit "support” to tangible monetary support as the Court of Appeals found. Rather, we are persuaded that "support” may include the very kind of services at issue in the instant case, i.e., child care and housekeeping, and that money spent to replace such services is reimbursable to an eligible claimant who can prove the requisite need. Such an interpretation fulfills the legislative intent to aid the families of crime victims who suffer serious financial hardship as a result of the victim’s death. ”[ ] We believe that Jerome clearly indicates that the narrow scope of coverage of the act, as described in Jerome, does not require an interpretation so restrictive as to thwart the legislative intent to aid crime victims. Therefore, in this case, we reject the board’s interpretation of the statutory term "contributed to the infliction of his injury.” The board, under its interpretation, holds that anytime a claimant violates any criminal statute and the violation of the criminal statute is in any way a cause in fact of the claimant’s injury, the claimant has "contributed to the infliction of his injury.” Such an interpretation would lead, in some situations, to results that would appear to be contrary to the Legislature’s intent to aid certain crime victims who are not blameworthy in causing their injuries. We do not believe that the Legislature, through MCL 18.361(4); MSA 3.372(11)(4), intended to prohibit recovery to a crime victim who was not in any way truly blameworthy for his injury. We also reject the other possible extreme literal interpretation of the term "contributed to the infliction of his injury” that would require an injured person to have contributed to the actual act of inflicting his injury before being denied recovery. Under this other interpretation, the injured person would have to have helped pull the trigger or thrust the knife which caused his injury in order to allow the board to reduce or deny an award. We do not believe the Legislature intended either extreme result in using the term "contributed to the infliction of his injury.” Rejecting these somewhat extreme interpretations of the statutory term in question leaves us in a situation where each case in which the claimant has engaged in some possible peripheral criminal conduct that may have been connected with his injury must be decided in the light of its particular facts. In deciding such cases on a case-by-case basis, there are some general guiding principles which the board can follow in applying MCL 18.361(4); MSA 3.372(11)(4). The determination of whether a victim "contributed to the infliction of his injury” involves an assessment of the particular factual situation similar to that used in determining whether a defendant’s negligent acts were a proximate cause of a plaintiff’s injuries. The test used in determining proximate cause involves assessing the foreseeability that the injury would result from the defendant’s acts. If the injury which resulted from the defendant’s acts is deemed too remote or unforeseeable, the defendant’s acts are not held to be a proximate cause of the injury and the plaintiff cannot recover damages from defendant. We believe this general proximate cause analysis should be applied in determining whether a victim "contributed to the infliction of his injury” by his violation of a criminal statute. If the risk that the victim’s injury would result from his particular violation of a criminal statute is foreseeable and not too remote, then the board should be allowed to deny or reduce his award under the statute. However, if the risk of injury due to the victim’s particular type of violation of a criminal statute is very remote and unforeseeable, the board cannot deny or reduce his award under the statute. In applying the general proximate cause type of foreseeability test to the facts of this case, we believe the board erred in finding that the claimant contributed to the infliction of his own injury. His violation of a criminal statute in this case merely involved his knowing presence in an unlicensed bar. The risk of being shot while merely present in an unlicensed bar is too remote and unforeseeable to hold him blameworthy in any way for his injuries. In this case, the obvious, proximate, direct cause of claimant’s injury was being shot by Hill. While it is true that claimant would not have been injured "but for” having gone to the "blind pig,” it can be said his presence there was no more the cause of his injury than would his presence on a public street have been the cause if he had been shot by Hill on a public street. There is no apparent basis for saying that presence in a blind pig makes one more likely to be shot than presence on a public street at 2:30 a.m. in the morning. Thus, these analogies would seem to indicate that claimant’s mere presence in the blind pig did not "contribute” to his injury. Thus, as a matter of judicial policy, we do not choose to treat claimant’s illegal presence in the bar as a "proximate cause” of his injuries, since a gunshot injury was not a reasonably foreseeable risk of his act of entering an unlicensed bar. Therefore, we conclude that he did not "contribute to the infliction of his injury,” for purposes of the statute, by being present in the unlicensed bar, and the board erred in denying his claim on this basis. In reaching our conclusion, we distinguish the main case relied on by the board in this appeal. In re McNeil involved the interpretation of an Ohio crime victims compensation act provision which is analogous to MCL 18.361(4); MSA 3.372(11)(4). However, the Ohio provision differs from the Michigan statute in that it does not require the victim to "contribute to the infliction of his injury,” but merely requires him to engage in "contributory misconduct.” Furthermore, the victim in McNeil had actively engaged in prostitution activity, which certainly would require a separate assessment under the foreseeability test we have formulated herein from the one performed in this case where claimant was merely a patron in an unlicensed bar. The foreseeability of the risk of injury while actively engaging in prostitution, depending on the particular factual situation, appears much more likely than in the situation where the victim is merely present in an unlicensed bar. On appeal, the board here extends its extreme interpretation of the statute even farther and argues that even if claimant’s violation of a criminal statute does not allow it to deny an award to him under the statute, the conduct of claimant in talking to Hill does. We do not believe that claimant contributed to the infliction of his injury by approaching the table where Hill and the two women were seated, asking one of the women to dance and commenting on Hill’s obscenities. This presents a classic situation where a person is an innocent victim of a criminal act, such as when a person walks along a dark street and is attacked. Although such a victim may be said to have, in some way, "contributed to the infliction of his injury” by walking along a dark street, we do not believe the Legislature intended to deny an award to such a crime victim. Similarly, the Legislature did not intend to deny an award to a person who is shot when he mistakenly asks another man’s wife to dance while in a bar and then merely comments on the man’s obscene language. Based on our above findings, we conclude that it is necessary to remand this case to the board for a determination of whether claimant meets the other requirements necessary for an award under the crime victims compensation act. Reversed and remanded. MCL 18.351 et seq.; MSA 3.372(1) et seq. MCL 18.361(4); MSA 3.372(11)(4). MCL 18.358(1); MSA 3.372(8)(1). See Victim—Witness Legislation: Considerations for Policymakers, prepared by the Victim Witness Assistance Project of the American Bar Association Section of Criminal Justice (1981). The most recent manifestation of these concerns is the Crime Victim’s Rights Act, 1985 PA 87; MCL 780.751 et seq.; MSA 28.1287(751) et seq. Jerome v Crime Victims Compensation Bd, 419 Mich 161; 350 NW2d 239 (1984). See n 6, supra, Id., p 164. MCL 18.361(5); MSA 3.372(11)(5). MCL 18.360(b); MSA 3.372(10)(b). MCL 18.361(3); MSA 3.372(11)(3). Jerome, supra, p 164. MCL 18.361(1); MSA 3.372(11)(1). Jerome, supra, pp 165-166. 6 Ohio Misc 2d 12; 453 NE2d 1309 (1983).

Per Curiam. Plaintiffs appeal from an order of summary disposition in a third-party automobile negligence case. The motion raised the threshold question of whether Alex Washington (hereafter plaintiff) had suffered a serious impairment of body function as defined by Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982). Plaintiff, age 61, sustained a number of serious bruises, primarily to the left leg and left hip, in an automobile collision on May 11, 1984. He began to develop low back pain, which worsened and led him to seek medical treatment. Medical depositions and records were submitted to the court by stipulation. The treating orthopedic surgeons found that plaintiff, at the time of his injuries, had a preexisting degenerative disc disease and osteoarthritis of the lower spine. Those conditions, which had been asymptomatic until the accident, were aggravated by the injuries to plaintiff. It also appeared that there was a bulging of the disc between the 4th and 5th lumbar vertebrae which was considered to have been caused by the collision, and a cat scan provided objective evidence of that condition. Plaintiff demonstrated physical sequelae of such an injury in limitation of motion and flexion extension. Complaints of extreme pain have continued, and plaintiff has been under continuous medical care with a supportive brace/corset, traction, physical therapy, a t.e.n.s. electrical treatment unit and various medications. He was considered by his physician as being disabled from working, although the physician said that some ten months after the accident plaintiff could do some work on his farm. The treating physician believed that the prognosis for plaintiff was fair to good over the next year (i.e., into 1986). He said that he did not feel that surgery was indicated, although it was possible that the bulging disc might worsen and herniate instead of resolving itself. It thus appears that under the most favorable progression of his case, it would still be approximately twenty-two months from the time of the accident before-plaintiff would be recovered from the injury. Plaintiff by deposition and affidavit said that he had been unable to work, to lift things, to walk on uneven ground, to sit on his tractor, to drive his truck, to sleep, to have a normal sexual relationship with his wife, or to be free of pain, and that acute episodes of pain followed from any exertion. After reviewing the medical evidence, but without discussing plaintiff’s claims as to how his life had been affected, the trial court granted the motion for summary disposition in these words: While this court believes that the plaintiff is suffering some pain and suffering in his lower back, groin, pelvis and legs, the level of that pain and suffering does not meet the threshold required by the Cassidy case, supra. There is no dispute but that the plaintiff’s injury is objectively manifested and that the use of the back is an important body function. The issue which is argued is whether the impairment is serious, defined by Cassidy in terms of the effect of an injury on the person’s general ability to live a normal life. Considering the injury, the treatment required, the duration of plaintiff’s disability, the prognosis as to the future course of the disability, and the impact on plaintiff’s life, we believe that plaintiff has shown that the impairment of body function is serious. Harris v Lemicex, 152 Mich App 149; 393 NW2d 559 (1986). Reversed and remanded.

W. R. Peterson, J. This is an appeal from the action of the probate court removing appellant, Richard Cook, as personal representative of the estate of Mikell John Cook. On the face of it, the question is whether the probate court has the power to remove a personal representative who obtained his appointment by false representation. While the section of the Revised Probate Code, MCL 700.574; MSA 27.5574, which deals with removal of fiduciaries does not list erroneous appointment, lack of interest in the estate or false representation of such interest among the causes justifying removal, we think it implicit in the provisions of the Revised Probate Code specifying who may properly petition for the administration of an estate, MCL 700.115; MSA 27.5115, and the order of preference as to who is entitled to be appointed, MCL 700.116; MSA 27.5116, that one who has no right to be appointed fiduciary may not retain that position when shown to have petitioned falsely. As may be suspected, however, there is more involved. What really matters to those who held Mikell nearest and dearest to their hearts is this: (1) who will share in Mikell’s estate which will consist solely of an action for injuries which Mikell suffered and which caused his death, and (2) who will determine whether and how» such an action will be pursued? The dry legal issue masking it all is about res judicata. Mikell Cook was not yet four years old when he met an untimely death, allegedly because of the negligence of George Werden. Appellant petitioned for the administration of Mikell’s estate. He said in the petition that he was Mikell’s father. A birth certificate said so, as did the judgment of divorce which Mikell’s mother, Brenda, had obtained from appellant. When the petition was granted and appellant was named personal representative of Mikell’s estate, he commenced a wrongful death action against George Werden. Werden’s wife, Brenda, then filed the instant petition to remove appellant as personal representative of Mikell’s estate. No one disputes that George Werden’s wife, Brenda, was Mikell’s mother and that she is the same Brenda who was previously married to and divorced from appellant. So, we have a mother, the death of whose son has led her former husband to bring a wrongful death action against her present husband, seeking to remove the former as personal representative of her son’s estate. Her petition alleged that appellant was not Mikell’s father, that he therefore had no interest in Mikell’s estate, and that his appointment was thus improper. Despite the divorce judgment that said that Mikell was a child of Brenda’s marriage to appellant, the probate court heard her petition and granted it. The evidence consisted of the testimony of Brenda that appellant positively could not have been Mikell’s father, and appellant’s testimony that he could have been Mikell’s father and thought that he was, together with the attempts of each to explain why they had said otherwise on other occasions. We need not analyze that evidence at length since appellant does not raise any questions on appeal as to the correctness of the finding. Appellant’s position here, as before the probate court, is that the judgment of divorce is res judicata as to the paternity of Mikell and that it bars Mikell’s mother from denying appellant’s paternity in the probating of Mikell’s estate. In Loesch v First National Bank of Ann Arbor, 249 Mich 326, 330; 228 NW 717 (1930), the Court said: The final decree of a court of competent jurisdiction made and entered in a proceeding of which all parties in interest have due and legal notice and from which no appeal is taken cannot be set aside and held for naught by the decree of another court in a collateral proceeding commenced years subsequent to the date of such final decree._ The doctrine of res judicata bars a litigant from relitigating a claim when (1) the former action was decided on the merits; (2) the matter contested in the second action was or could have been decided in the first; and (3) the two actions are between the same parties or their privies. Admiral Merchants Motor Freight, Inc v Dep’t of Labor, 149 Mich App 344, 350; 386 NW2d 193 (1986). While appellee argues, and the probate court considered it significant, that the question of paternity was not tried as a contested issue in the divorce proceeding, that is beside the point. The doctrine of res judicata applies to default judgments and consent judgments as well as to judgments derived from contested trials, and includes every point properly the subject of the litigation which the parties could have brought forward at the time. Admiral, supra; Cogan v Cogan, 119 Mich 476; 326 NW2d 414 (1982), lv den 417 Mich 988 (1983); Harrington v Huff & Mitchell Co, 155 Mich 139; 118 NW 924 (1908); Gose v Monroe Auto Equipment Co, 409 Mich 147; 294 NW2d 165 (1980). The issue of a marriage is one of the subjects of every action for divorce brought in this state. MCL 552.16; MSA 25.96 and MCL 552.45; MSA 25.121. While the immediate purposes of the divorce liti gation (custody, support and visitation) do not coincide precisely with the probate court’s jurisdiction which also involves rights of descent and distribution, the underlying legal and factual determination is identical. In Jones v Chambers, 353 Mich 674, 680; 91 NW2d 889 (1958), the Court spoke of res judicata in this language: Where issues of fact or law have been finally decided by a court of competent jurisdiction in one legal action which are essential to the maintenance of another legal action, it is universally held that the second action must fail. Michigan’s leading case on the doctrine of res judicata is Justice Cooley’s opinion in Jacobson v Miller, 41 Mich 90. The second headnote gives us this pertinent summary: "An adjudication is conclusive in respect to (1) the subject matter of the litigation, and (2) the point of fact or law or both necessarily settled in determining the issue on the subject matter.” In determining the identity of the actions, it appears that the subject matter, the paternity of Mikell, is the same in both actions; that that subject matter obviously involves the same event; and that the evidence necessary to prove the factual issue is the same. We thus conclude that the appellee, having obtained a judgment of divorce determining her son’s paternity, is barred by the doctrine of res judicata from litigating his paternity in proceedings for the probating of his estate. Reversed. One having no interest in an estate is not entitled to petition for the administration of the estate. Diem v Drogmiller, 158 Mich 380; 122 NW 637 (1909). While no Michigan cases are found on point, see Estate of Lucas v Jarrett, 55 NC App 185; 284 SE2d 711 (1981). Given what this record shows about contemporary mores and indifference to truthfulness, perhaps one ought not take anything for granted. The wrongful death action has since been dismissed in the circuit court on grounds of parental immunity, which dismissal is the subject of a separate appeal in this Court. There are, of course, ramifications other than those involving the wrongful death suit. If appellant is not Mikell’s father and heir, then the other four children born to Brenda and appellant are not Mikell’s heirs either. The evidence disclosed this sequence of events: 1. After many years of marriage and four children, Brenda and appellant separated in June of 1978. Brenda began living with one David Vieau. 2. Mikell conceived, date uncertain. Brenda testified no sexual relationship with appellant after separation; appellant testifies to the contrary, though uncertain of date. 3. November 1,1978, Brenda files complaint for divorce. 4. June 19,1979, Mikell born, perhaps not full term. 5. August 3, 1979, Brenda and David Vieau filed an acknowledgement of paternity of Mikell in probate court pursuant to MCL 700.111(4)(a); MSA 27.5111(4)(a), through the good offices of the Department of Social Services. 6. Appellant appeared before the court on a support show cause hearing and said that Brenda told him he was not the father of Mikell. 7. September 18, 1979, proofs were taken pro confesso on Brenda’s divorce complaint. Counsel advised the court that the judgment would provide for five children. The court made specific inquiry because of apellant’s statements at the show cause hearing. Brenda replied that appellant was not contesting paternity. She then went on to testify that five children, Mikell included, had been born of her marriage to appellant. 8. January 14, 1980, divorce judgment entered naming Mikell as a child of the marriage. 9. July 22, 1980, appellant again before the circuit court on a show cause hearing, denies paternity and produces a copy of the acknowledgement of paternity signed by Brenda and David Vieau. No action is taken, however, to correct or modify the judgment. 10. May 7,1963, Mikell dies, twelve days after being injured. 11. October 25, 1984, appellant appointed personal representative of Mikell’s estate. A number of questions might have been raised before the probate judge but were not. Was the evidence sufficiently clear and convincing to overcome the presumption of legitimacy? MCL 552.29; MSA 25.107. Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977). The presumption seems never to have been considered. Moreover, what about the effect of the enactment of a similar presumption in the Revised Probate Code, MCL 700.111(2); MSA 27.5111(2), to which is added this further limitation, MCL 700.111(3); MSA 27.5111(3): Only the person presumed to be the natural parent of a child under subsection (2) may disprove any presumption that may be relevant to the relationship. . . . Neither do we consider whether the judgment of divorce may be modified or collaterally attacked because of some possible infirmity therein, those questions not being before us. Jacobson v Miller, 41 Mich 90; 1 NW 1013 (1879); 47 Am Jur 2d, Judgments, § 1197, pp 213-214; Restatement Judgments 2d, § 47, pp 22-27. Thelen v Ducharme, 151 Mich App 441; 390 NW2d 264 (1986). These statutory provisions seem to have been overlooked in In re Kinsella Estate, 120 Mich App 199, 205; 327 NW2d 437 (1982), where the Court found it significant that there had not been a contested trial on the issue of paternity. The result in Kinsella, however, was correct nonetheless, for the issue there was not one of res judicata but of collateral estoppel; because of the difference in parties. Children are not parties to divorce or annulment actions and thus are not bound thereby. 24 Am Jur 2d, Divorce and Separation, § 1099, pp 1082-1085. As noted in Kinsella, collateral estoppel applies only where the same parties are involved and the same issue was in fact litigated. Restatement Judgments, 2d, § 68 (2), pp 168-172; 47 Am Jur 2d, Judgments, § 1198, p 214; 10 Am Jur 2d, Bastards, § 7, pp 847-848. See the tests for determining the identity of actions suggested in 46 Am Jur 2d, Judgments, § 406 et seq. Mango v Plymouth Twp Bd of Trustees, 33 Mich App 715; 190 NW2d 285 (1971); Sheridan Drive Ass’n v Woodlawn Backproperty Owners Ass’n, 29 Mich App 64; 185 NW2d 107 (1970).

Per Curiam. Respondent, City of Ishpeming, appeals as of right from an order of the Michigan Employment Relations Commission in regard to an unfair labor practice charge asserted by the union representing supervisory personnel employed by the city under the provisions of the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq. The unfair labor practice charge was based on allegations that (1) the city had unlawfully discriminated against three employees (Lambert Chard, Richard Burke and George Stagliano) because of their union affiliation and activity; and (2) the city had failed or refused to bargain with the union over mandatory subjects of bargaining. Merc determined that the city had not engaged in unlawful discrimination under pera. However, merc concluded, contrary to the hearing officer’s recommendation, that the city had failed to bargain with the union concerning mandatory subjects of bargaining. Merc entered an order directing the city to bargain with the union and also issued a make-whole award to the employees who suffered losses as a result of the city’s unfair labor practice, i.e., Burke and Stagliano. The city appeals from this order. FACTS Employees of the City of Ishpeming are organized into three separate bargaining units: a supervisory unit, a clerical unit and a dpw (Department of Public Works) unit. In 1980, the city began to reorganize the supervisory structure of various city departments, including the Department of Public Works. During July through October of 1982, the city implemented the reorganization plan giving rise to the dispute in this case. At that time, George Stagliano was an Administrative Assistant within the Department of Public Works and Richard Burke was the Cemetery and Parks Director for the city. Stagliano and Burke were both members of the supervisory unit. On July 7, 1982, the Ishpeming City Council decided to make several organizational changes which were recommended by the city manager and which were to be effective August 1, 1982. The city manager had proposed that the Administrative Assistant-DPW position (which was held by Stagliano) be abolished. He also proposed that the position of Cemetery and Parks Director (which was held by Burke) be abolished and that a new "Cemetery and Parks Foreman” position be created. The new position was to incorporate most, but not all, of the job duties from the old position. In order to implement the proposed changes, the city manager requested a "special conference.” Articles 8 and 37 of the collective bargaining agreement between the city and the supervisory unit provided: Article 8. Special Conferences (a) Special conferences for important matters will be arranged between the Chapter Chairman and the Employer or its designated representative upon the request of either party. Such meetings shall be between at least two representatives of the Union and two representatives of Management. Arrangements for such special conferences shall be made in advance and an agenda of the matters to be taken up at the meeting shall be presented at the time the conference is requested. Matters taken up in special conference shall be confined to those included in the agenda. Conference shall be held a [sic] mutual agreeable time. The members of the Union shall not lose time or pay for time spent in such special conferences. This meeting may be attended by representatives of the Council and/or representatives of the International Union. (b) The Union representatives may meet on the Employer’s property for at least one-half hour immediately preceding the conference. Article 37. Consolidation or Elimination of Jobs The Employer agrees that any consolidation or elimination of jobs within the Unit shall not be effected without a special conference. On July 9, 1982, the city manager contacted the union business agent by letter requesting a special conference with the supervisory unit and also with the dpw unit regarding the reorganization plan. On August 30, 1982, a special conference was held. According to the city manager, the union’s attitude at the meeting was one of opposition to the reorganization plan and preference for maintenance of the status quo. No agreement was reached at the meeting and apparently no further meetings were held between representatives of the city and representatives of the supervisory unit prior to implementation of the reorganization plan by the city. On September 27, 1982, the city manager addressed a memo to Burke, who was the supervisory unit chairman. In that memo, the city manager notified Burke that Stagliano was to have his employment terminated. Burke requested a special conference and the city manager refused on the ground that the city had met its contractual obligation by meeting with the unit representatives at the August 30, 1982, special conference. On September 28, 1982, the city council approved implementation of the reorganization plan. On September 29, 1982, the city manager notified Stagliano of his layoff which was to be effective October 18, 1982. He also notified Burke of the elimination of three positions, including Burke’s own position and Stagliano’s. Burke was transferred from his old position to the newly created position of Cemetery and Parks Foreman. The reorganization ultimately resulted in a transfer of the duties of the old Administrative Assistant-DPW position to existing clerical and non- supervisory positions. It also resulted in a transfer of some of the duties of the Cemetery and Parks Director position to existing nonsupervisory positions. The remaining job duties were assigned to the newly created "working” foreman position. Some of the city employees who held the positions to which the job duties were transferred were represented by the clerical unit and some by the dpw unit. The city apparently bargained in good faith with the dpw and clerical units over the effects of the transfer of the job duties from the old supervisory positions to positions held by employees within those units. However, in spite of the fact that the reorganization plan had already been implemented, the supervisory unit maintained that the city should bargain over the dispersal of duties previously associated with positions held by employees within the supervisory unit to positions held by employees in other units. At least four meetings were held in November of 1982 in regard to changes occasioned by the reorganization and in regard to the 1983 contract. Apparently, the position of the city during these negotiations was that the elimination of the Administrative Assistant-DPW position and the dispersal of its duties to positions held by employees who were represented by other bargaining units was not a mandatory subject of bargaining with the supervisory unit. The city took the same stance in regard to the elimination of the Cemetery and Parks Director position and the dispersal of the duties of that job. Moreover, the city took the position that the Cemetery and Parks Foreman was to be represented by the dpw unit. The city maintained that the unilateral elimination or establishment of the positions was within the scope of the city’s powers provided in the supervisory union contract. On December 6, 1982, the supervisory unit filed the charges leading to this appeal. After two days of hearings, the hearing officer recommended that merc dismiss the charges. However, contrary to the hearing officer’s recommendation, merc determined that the city had failed to bargain with the union concerning several mandatory subjects of bargaining. Merc first concluded that Burke, in his newly-created foreman position, was to be represented by the supervisory unit and not the dpw unit as the city had contended. Therefore, merc concluded that the city had a continuing duty to bargain with the supervisory unit regarding wages and other terms of employment associated with that position. Merc next found that the work previously performed by the Administrative Assistant-DPW (George Stagliano) was improperly transferred to positions which were not represented within the supervisory unit. Merc held that a decision to remove bargaining unit work from the unit and to reassign it to employees outside the unit is a mandatory subject of bargaining. Merc concluded that although the city had no obligation to bargain over Stagliano’s layoff or the elimination of his position, it did have an obligation to bargain over the transfer of his work outside the bargaining unit, even though the transfer may have been part and parcel of the layoff decision. Merc also held that there was no clear and explicit waiver by the union of its right to bargain over the transfer of bargaining unit work from its unit to other units. Finally, merc found that the city did not satisfy its obligation to bargain over the transfer of work at the time that it implemented the changes in October of 1982. ANALYSIS This Court reviews a merc decision to determine whether the decision is authorized by law and whether the commission’s findings are supported by competent, material and substantial evidence on the whole record. Const 1963, art 6, § 28; MCL 423.216(d) and (e); MSA 17.455(16)(d) and (e); Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 121; 223 NW2d 283 (1974). A The main issue presented in this case is whether pera imposed a duty on the city to bargain in good faith regarding a proposed transfer of work from employees or positions within one bargaining unit to employees or positions outside the unit. We hold that the decision to transfer work in pursuit of a legitimate reorganization effort was not a mandatory subject of bargaining, but the impact of that decision was an issue for bargaining. Pursuant to § 15 of pera, a matter involving "wages, hours, and other terms and conditions of employment” is a mandatory subject of bargaining. MCL 423.215; MSA 17.455(15). That section does not immutably fix a list of subjects for mandatory bargaining, but, instead, courts must utilize a case-by-case approach in determining whether a given subject involves a "term and condition of employment.” Detroit Police Officers Ass’n v Detroit, 61 Mich App 487, 490-491; 233 NW2d 49 (1975), lv den 395 Mich 756 (1975). Once a specific subject has been classified as a mandatory subject of bargaining, the parties are required to bargain concerning the subject and neither party may take unilateral action on the subject absent an impasse in negotiations. Central Michigan University Faculty Ass’n v Central Michigan University, 404 Mich 268, 277; 273 NW2d 21 (1978). Subjects such as hourly rates of pay, overtime pay, shift differentials, holiday pay, pensions, no-strike clauses, profit sharing plans, rental of company houses, grievance procedures, sick leave, work rules, seniority and promotion, compulsory retirement age and management rights clauses are examples of mandatory subjects of bargaining. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 55; 214 NW2d 803 (1974); Central Michigan University, supra, p 278. In this case, the parties actually did bargain and reach an agreement concerning the city’s right to "reorganize.” The bargaining took place in 1981 and 1982 and resulted in the 1982 collective bargaining agreement. A management rights clause was set forth in Article 43 of the agreement. The agreement also contained Article 37, supra, which recognized that the city could consolidate or eliminate jobs within the supervisory unit. Thus, the agreement clearly allowed the city to reorganize its departments and to eliminate jobs held by employees within the supervisory unit pursuant to a legitimate reorganization plan. The only requirement imposed by contract was that such elimination not be effected without a special conference. Because the city had the right to reorganize, it necessarily had the right to transfer work to employees or positions not represented by the supervisory unit. When a job is eliminated pursuant to a reorganization, the duties previously connected with that job must necessarily be dispersed to other positions. A dispersal of the duties is part and parcel of the reorganization. A "reorganization” cannot be completed without a dispersal of the various job duties to other positions within the city. Thus, we believe that the parties actually agreed, after bargaining, that the city could decide which positions would receive the work which was to be dispersed. Even if they had not agreed in this regard, we believe that the decision to eliminate jobs pursuant to a reorganization was within the scope of management prerogative and was not a mandatory subject of bargaining. The same is true regarding the concomitant decision as to which positions were to receive the duties previously associated with the old jobs. However, we believe that the impact of such a decision is a mandatory subject of bargaining. Once the initial decision has been made, the union has the ability to protect its members by bargaining regarding the impact of the decision. For instance, if any employees are to lose their jobs because of the reorganization, the union can bargain concerning the specific individuals who are to be laid off. In Local 1277, AFSCME v Center Line, 414 Mich 642; 327 NW2d 822 (1982), the Supreme Court held that the impact of a decision may be a mandatory subject of bargaining even though the decision itself is not. In Center Line, an arbitration panel was involved which could compel agreement only as to mandatory subjects of bargaining. The arbitration panel had adopted a layoff provision which stated that employees represented by the union therein could be laid off only in conjunction with layoffs or cutbacks in other departments. The Supreme Court held that the clause severely restricted the city in its ability to function effectively and that it posed serious questions with regard to the political accountability for such decisions. The Court interpreted the clause as one that was within the scope of the city’s prerogative. However, the Court also went on to state: [WJhile the initial decision to lay off is not a mandatory subject of bargaining, and therefore cannot be compelled in an arbitration award, it is clear that there is a duty to bargain over the impact of that decision. Thus, the union has the ability to protect its members after the initial decision has been made. It is one thing to require the city to bargain over the impact of its decision to lay off police officers and quite another to permit them to lay off police officers only if layoffs are made in other departments as well. [414 Mich 661.] We are persuaded that a similar duty to bargain exists in this case. At the time they entered into the 1982 contract, the parties did not (and could not reasonably have been expected to) bargain regarding the impact of the as yet unannounced reorganization plan. We believe that a duty to bargain regarding its impact arose during 1982 when the city announced its intention to reorganize. B We next address the city’s argument that by virtue of provisions of the collective bargaining agreement the union waived the right to bargain. First, as noted previously, the city had a duty to bargain only in regard to the impact of the reorganization. We find no "waiver” in regard to the duty to bargain about the impact of the management decision. We first note that we have serious doubts as to whether a union may ever "waiver” an employer’s duty to bargain since that duty is imposed by statute in order to rectify the past practice of one party refusing to bargain with the other. Even assuming that such a "waiver” is possible, this Court has held that in order for a union to waive its right to bargain over a term of employment that is a mandatory subject of collective bargaining, the waiver must be "clear and unmistakable.” See Lansing Fire Fighters Union v Lansing, 133 Mich App 56, 66; 349 NW2d 253 (1984); Mid-Michigan Education Ass’n v St Charles Community Schools, 150 Mich App 763, 771; 389 NW2d 482 (1986). We agree with merc that there is no clear and unmistakable waiver in this case. No clause in the contract refers to any sort of "waiver” nor does any clause refer to a waiver of the "duty to bargain.” The clause concerning the city’s rights refers only to the contract and indicates nothing concerning a waiver of any statutory duties. Thus, we must conclude that the contract, when formulated, contained no clear waiver of any statutory duty to bargain. Nor do we find any clause in the contract which would allow the city to unilaterally determine how the elimination of jobs should impact on the union membership. Thus, the city had a duty to bargain concerning the impact of its reorganization plan. c We next address the city’s argument that it actually engaged in good faith bargaining with the supervisory unit over the impact of the reorganization plan. A review of the record fails to reveal any discussions or proposals in regard to the impact of the city’s decision. The union’s request that the city bargain concerning whether any work should be transferred out of the unit necessarily included a request that the city bargain over the impact of a transfer of work. D The city also challenges merc’s finding in regard to the transfer of work from the Administrative Assistant-DPW position. Merc found that after Stagliano’s layoff, the work was assigned to executive positions outside of any bargaining unit. The city argues that this finding is not supported by competent, material and substantial evidence on the whole record. We agree with the city that there is no evidence on the record to support merc’s finding. The work was transferred to positions held by members of the clerical and dpw units. However, that fact is irrelevant to this appeal. Regardless of whether the work was assigned to executive positions or to other nonsupervisory positions, the result was the same. That is, work was transferred away from positions held by employees represented by the supervisory unit. We have already indicated that the city had a duty to bargain only over the impact of the decision to transfer the work. E The city also contends that merc erred in finding that Burke, in his new position as Cemetery and Parks Foreman, was to be represented by the supervisory unit. The city contends that Burke’s duties in his new job were significantly different from the duties in his old job and that he should have been represented by the dpw unit. The city claims that it bargained appropriately regarding the effects of his transfer with the dpw unit. We disagree with the city’s contentions. Pursuant to MCL 423.213; MSA 17.455(13) and MCL 423.9e; MSA 17.454(10.4), the task of determining an appropriate collective bargaining unit is left to merc. It is well settled that the determination of an appropriate unit is a finding of fact which will not be overturned by this Court if supported by competent, material and substantial evidence. Michigan Educational Support Personnel Ass’n v Southfield Public Schools, 148 Mich App 714, 717; 384 NW2d 768 (1985). Merc’s decision in this case is supported by substantial, competent and material evidence. F Finally, the city contends that merc erred in awarding Stagliano back pay. We disagree. The legal test for determining whether a "back pay” order or monetary reimbursement is appropriate is whether or not the employee in question would have been paid absent the unlawful unilateral action. Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 399 Mich 449, 456; 249 NW2d 121 (1976). The city in this case had a duty to bargain over the impact of the reorganization decision. While the city could choose to eliminate the position formerly held by Stagliano, the city retained a duty to bargain regarding the impact of that decision. The city could not unilaterally choose which individual worker was to be laid off. Whether Stagliano or less senior coworkers were to bear the burden of the city’s decision was a mandatory subject of bargaining. See, e.g., Local 586, Service Employees Int’l Union v Union City, 135 Mich App 553, 556; 355 NW2d 275 (1984), lv den 421 Mich 857 (1985). CONCLUSION The decision of the Michigan Employment Relations Commission is affirmed in part and reversed in part. The case is remanded for further proceedings in accord with this opinion. We do not retain jurisdiction. It should be kept in mind that, in addition to its general effect on the various employment positions within the city, the reorganization also directly affected various individuals. Among them were Stagliano and Burke. The reorganization resulted in Stagliano’s employment being completely terminated and Burke losing his job, but being transferred to the newly created position. Those employees were represented by either the clerical or dpw unit both before and añer the reorganization. Because their jobs changed with the addition of the new duties, a possibility arose that the employees who ultimately held the new positions should have been included in a different bargaining unit. However, the parties and merc apparently agree that they were properly represented by the same bargaining units. Article 43 of the supervisory union contract provides: Article 43. Employer’s Rights Except to the extent expressly abridged by a specific provision of this Agreement, the Employer reserves and retains, solely and exclusively, all of its common law rights to manage the business, as such rights existed prior to the execution of or any other previous agreement with the Union or any other Union. The sole and exclusive rights of Management which are not abridged by this Agreement, shall include but are not limited to its rights to determine the existence or non-existence of fácts which are the basis of Management decision, to determine prices of service, extent of services, and methods of financing, to drop a service, contract a service when such contracting will not result in lost time for departmental personnel, or any part thereof, free of the liabilities of this Agreement; to establish or continue policies, practices and procedures for the conduct of the business and from time to time, to change or abolish such policies, practices or procedures; the right to determine and [from] time to time to redetermine, the number, the location, relocation and types of its operation and the methods, processes, and materials and services to be employed; to discontinue service, processes "or operations or to discontinue their performance by employees of the Employer; to determine the number of hours per day or per week operations shall be carried on; to select and to determine the number and types of employees required; to assign work to such employees in accordance with the requirements determined by Management; to establish and change work schedules and assignments; to transfer, promote, or demote employees, or to lay off, terminate or otherwise relieve employees from duty for lack of work or other legitimate reasons, to determine the facts relating to lack of work; to make and enforce reasonable rules for the maintenance of discipline; to suspend, discharge, or otherwise discipline employees for cause; and otherwise to take such measures as Management may determine to be necessary for the orderly, efficient, and economical operation of the Employer. [Emphasis added.] In this case, a special conference was held and the union was notified of the proposed action. Other panels of this Court have not ruled contrary to this holding. In Lansing Fire Fighters Union v Lansing, 133 Mich App 56; 349 NW2d 253 (1984), the defendant therein conceded that the transfer of bargaining unit work was a mandatory subject of bargaining. This Court did not address the issue, but merely referred to previous merc decisions on the issue. While we recognize that merc is the agency created to deal with such issues and that it has special competence concerning such matters, we believe, in light of Local 1277, AFSCME v Center Line, 414 Mich 642; 327 NW2d 822 (1982), that merc has committed an error of law in this regard. We feel that it is a management prerogative to reorganize and to reassign job duties to other jobs within the city. We note that no retaliatory animus was found to exist in this case.

Per Curiam. On February 27, 1984, defendant pled guilty to a charge of entry without breaking with intent to commit larceny, MCL 750.111; MSA 28.306. He was sentenced on May 29, 1984, to a prison term of from twenty-seven months to five years and now appeals as of right. Defendant’s first argument on appeal is that he is entitled to be resentenced because the trial court allegedly erroneously calculated one of the prior record variables in filling out the sentencing information report (sir). Defendant however did not object to the scoring during the sentencing proceedings and, therefore, has waived this claim on appeal. People v Jones, 147 Mich App 292, 294-295; 382 NW2d 772 (1985); People v Kennie, 147 Mich App 222, 225-226; 383 NW2d 169 (1985). Defendant also argues that his trial counsel’s failure to object to the alleged improper scoring of the sir deprived him of effective assistance of counsel. We also decline to review this issue. If defense counsel had pursued proper procedures, he would have brought a motion in the trial court to vacate the sentence. Jones, supra; Kennie, supra. The court then could have reviewed the claim of inaccuracy, thereby alleviating the need for defendant to raise the ineffective assistance claim with this Court. Were the lower court in such a situation to conclude that the sentencing guidelines were erroneously computed, then the defendant would be entitled to be resentenced. On the other hand, if defendant’s claim of inaccuracy were found to be without merit, then he would have no grounds upon which to base an argument in support of ineffective assistance. Adherence to this procedure provides the defendant with the opportunity to be sentenced based on accurate information without having to file an appeal. Affirmed.

Per Curiam. Defendant was convicted by a jury of unlawfully driving away an automobile, MCL 750.413; MSA 28.645, and was sentenced to four months in the county jail. Defendant appeals as of right raising three issues, none of which requires reversal. Defendant first argues that the trial court erred by denying his request for paragraph (3) of CJI 3:1:12 which provided: (1) If there is a conflict in the testimony of witnesses, it is your responsibility as jurors to determine, if you can, what testimony you believe to be true._ (2) Consider the extent to which conflicting testimony is supported by other evidence and whether the conflict involves a matter of importance or merely some detail. (3) However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant. Paragraphs (1) and (2) were given. The trial court denied the request for paragraph (3) citing People v Vernon Johnson, 127 Mich App 587; 339 NW2d 489 (1983), lv den 419 Mich 860 (1984). In Johnson, supra, pp 589-590, this Court held that paragraph (3) does not accurately state the law: The published comments regarding the instruction give no indication of its source .... The issue is whether there is reasonable doubt as to the guilt of the defendant, not as to which testimony to believe. Certainly conflicting testimony may create a reasonable doubt but we find no basis for the statement that the jury has a duty to accept any testimony where there is a conflict. Therefore, it appears that the instructions of the court, when read in their entirety, correctly instructed the jury on the burden of proof and the jury’s duty in considering and weighing the evidence. We agree with the panel in Johnson and adopt its reasoning herein. The trial court instructed the jury on its role in evaluating the testimony for weight, credibility and believability. The jury was given the greater portion of CJI 3:1:12 and the trial court fully instructed the jury on the burden of proof and the necessity for proof beyond a reasonable doubt. We find no error. Defendant next argues that because his conviction was based upon circumstantial evidence, the prosecution was required to disprove defendant’s reasonable theory of innocence as presented by the testimony of Charles Cowper. We disagree for the reasons stated in People v Doss, 122 Mich App 571, 574-575; 332 NW2d 541 (1983), lv den 417 Mich 1100.16 (1983): In People v Davenport, 39 Mich App 252, 256; 197 NW2d 521 (1972), the Court stated that: "[WJhere the People’s case is based on circumstantial evidence the prosecution has the burden of proving 'that there is no innocent theory which will, without violation of reason, accord with the facts’.” This oft-cited rule does not require the prosecutor to specifically disprove all innocent theories, rather: "It should be sufficient if the prosecution proves its own theory beyond a reasonable doubt in the face of whatever- contradictory evidence the defense may produce.” [People v Edgar, 75 Mich App 467, 474; 255 NW2d 648 (1977).] See also People v Richardson, 139 Mich App 622, 626; 362 NW2d 853 (1984). Defendant’s final claim of error is that there was insufficient evidence of the element of specific intent. We disagree. The elements of an unauthorized driving away of a motor vehicle are: (1) the possession of the vehicle must be taken; (2) there must be a driving away; (3) done wilfully; and (4) possession and the driving away must be done without authority. People v Shipp, 68 Mich App 452; 243 NW2d 18 (1976), lv den 397 Mich 826 (1976). The "done wilfully” element of the offense does not require the prosecution to establish an intent to permanently deprive the owner of possession of the vehicle, but defendant must have guilty knowledge. People v Andrews, 45 Mich App 354; 206 NW2d 517 (1973). William Thompson, one of defendant’s accomplices, testified that he agreed to pay defendant $50 if defendant would help him steal a tow truck. Thompson also testified that defendant was concerned that his fingerprints were on the truck. Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the essential elements, including guilty knowledge, were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den sub nom Michigan v Hampton, 449 US 885 (1980); People v Frank Johnson, 146 Mich App 429, 435; 381 NW2d 740 (1985). Affirmed. CJI 3:1:12 was deleted by the Jury Instruction Committee on July 13, 1984: [The essence of instructions contained in CJI 3:1:12 has been moved into more general instructions: CJI 3:1:12(2) now appears in CJI 3:1:11(2), and CJI 3:1:12(3) appears in proposed CJI 3:1:03(3). See Commentary, pages 5-87 through 5-90.] See also People v Stewart, 126 Mich App 374, 376-377; 337 NW2d 68 (1983), and People v Hatch, 126 Mich App 399, 404-405; 337 NW2d 79 (1983), where it was held that the trial court’s refusal to give CJI 3:1:12(3) in itself is insufficient to support a defendant’s claim of error requiring reversal where the jury is instructed on reasonable doubt, burden of proof, the elements of the crime charged, and the responsibilities and duties of the jury. Cowper, one of defendant’s accomplices, testified that he (Cowper) knew that the tow truck was stolen but that he did not convey the information to defendant and that defendant did not become aware of that fact until they were stopped by the police.

Per Curiam. Plaintiff appeals as of right from the circuit court’s order granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10), based upon a finding that plaintiff had failed to show that his injuries met the no-fault threshold requirement of a serious impairment of a body function under MCL 500.3135; MSA 24.13135. We reverse. On December 24, 1983, plaintiff was a passenger in a pickup truck driven by his father-in-law when it was struck head-on by a car driven by the defendant. The plaintiff saw the defendant’s car cross the center line of the road. Anticipating the collision, the plaintiff assumed a fetal position on the front seat of the pickup so he would not be thrown into the windshield. On impact, the plain tiff was thrown forward and his buttocks struck the dashboard. After the collision, plaintiff attempted to approach the defendant’s car to render aid, but experienced severe pain in his back forcing him to lie down in a snowbank. Plaintiff was taken to the hospital and diagnosed as having compression fractures of the first and second lumbar vertebrae, jamming of the first metatarsophalangeal joint of his left foot, bruises and contusions. Plaintiff suffered a ten to fifteen percent loss in height in the L-l vertebrae, and was hospitalized for five days. Upon discharge from the hospital, plaintiff was required to wear a back brace for three months and was unable to return to work for three months. Plaintiff saw Dr. T. L. Couden on three occasions and received injections for pain and inflammation in his back, which plaintiff claims were unsuccessful. At the time of the accident, plaintiff was a student at the Illinois College of Podiatric Medicine in Chicago. As a result of the accident, plaintiff was ineligible to apply for two positions with the Air Force for podiatric physicians in February, 1984. In April, 1984, plaintiff obtained a position in a podiatry practice in Macomb, Illinois. Plaintiff does not claim that his injury significantly impaired his ability to practice podiatry, but does claim that he experiences pain when bending down to examine his patients’ feet. Plaintiff claims that his injuries have curtailed his participation in sports including tennis, racquetball and golf. In addition, he claims to experience extreme discomfort when attempting activities like lifting his daughter, lifting groceries, walking long distances, and standing or lying down for long periods of time. The question of serious impairment of a body' function is determined on a case-by-case basis. Where there is no material factual dispute regarding the nature and extent of the plaintiffs injuries, the trial court may determine as a matter of law that there has been a serious impairment of a body function when it finds the following three criteria have been met: (1) the body function impaired must be an important one; (2) the impairment must be serious; and (3) the injuries must be objectively manifested. Cassidy v McGovern, 415 Mich 483, 502-505; 330 NW2d 22 (1982); Williams v Payne, 131 Mich App 403, 409; 346 NW2d 564 (1984). The movement of one’s back is an important body function. Harris v Lemicex, 152 Mich App 149; 393 NW2d 559 (1986). In addition, here the x-rays of the plaintiff’s back reveal the compression fractures, thus satisfying the requirement of objective manifestation of the injury. The final question to be decided is whether the impairment is sufficiently serious to impact upon plaintiffs ability to lead a normal life. Plaintiff presented evidence indicating that, although his compression fractures have healed, scarring of the ligaments remains, ultimately causing extreme discomfort when plaintiff attempts to perform normal activities such as lifting groceries, lifting his daughter, walking long distances, or standing or lying down for extended periods of time. Here, as in Harris v Lemicex, supra, we find that the evidence presented, although not overwhelming, was sufficient to establish a serious impairment of a body function. The trial court erred in granting defendant’s motion for summary disposition. Reversed and remanded.

R. B. Burns, P.J. This appeal arises out of the order terminating respondent’s parental rights during proceedings for the adoption of a minor child by his stepfather, petitioner Randall Kleinheksel, entered over the objection of respondent father. Following various hearings, the trial court terminated the parental rights of respondent, the noncustodial father of the minor child and former husband of petitioner Sheryl Kleinheksel. The trial court stayed execution of the order and suspended further proceedings pending appeal. Respondent now brings this appeal and we reverse. The child’s parents were married in 1969 and divorced in 1974 in Florida. Carlos was born in 1971. The mother remarried in 1980. Respondent was incarcerated in 1981 in the Federal Correctional Institution in Talladega, Alabama. In February, 1985, the mother and her husband commenced adoption proceedings in the Ottawa Probate Court. That petition stated that respondent’s whereabouts was unknown. However, at a February, 1985, hearing to terminate respondent’s parental rights, petitioner mother acknowledged that she had reason to believe that respondent was under the jurisdiction of the federal corrections system. The trial court then suspended the proceedings so respondent could be served with process. Respondent was located and various documents were sent to him in prison by ordinary first-class mail. Respondent replied by objecting to the adoption and requested an adjournment so he could obtain counsel and prepare a defense. Respondent also complained that the service of process was deficient and requested a dismissal. The trial court conducted a hearing on May 6, 1985, and denied the motion to dismiss, but granted an adjournment until July 22, 1985. At the July hearing, at which respondent was absent and not represented by counsel, the trial judge again took petitioner mother’s testimony and indicated that he would terminate respondent’s parental rights and enter an adoption order if the minor child consented, which the child subsequently did. The first issue for our consideration is also the dispositive issue: Did the trial court err in not appointing counsel to represent respondent? We answer this in the affirmative. While the parties frame this in terms of federal and state constitutional considerations, we decline to apply either constitution. Rather, we believe that the individual circumstances of this case allow resolution of the right to counsel issue by reference to court rules and Supreme Court precedent. In In re Sanchez, 422 Mich 758; 375 NW2d 353 (1985), the Supreme Court considered the question of the appointment of appellate counsel for an indigent noncustodial parent in a stepparent adoption case brought under § 51(6) of the Adoption Code. The Court concluded that appellate counsel should be appointed, absent a change in circumstances, whenever the trial court had determined it was necessary to appoint trial counsel. 422 Mich 771. The Court provided guidelines for the appointment of trial counsel: We find that the probate court is authorized to appoint counsel for a nonconsenting noncustodial parent in proceedings brought pursuant to § 51(6) of the Adoption Code. In exercising such discretion, the trial court will be guided by the principle of assuring the nonconsenting parent the ability to present a case properly, measured in the particular case by factors such as the relative strength of the adversaries and the presence or absence of legal, factual, procedural, or evidentiary complexity. See, e.g., Cleaver v Wilcox, 499 F2d 940, 945 (CA 9, 1974). [422 Mich 770-771.] While we acknowledge that in this case that respondent never formally requested the appointment of trial counsel, we believe that, under the circumstances of this case, the probate court should nevertheless have appointed counsel. In his first response to the adoption petition, respondent indicated that he desired to retain local counsel. Next, in an unsuccessful motion to obtain a writ of habeas corpus ad testificandum, respondent clearly stated that he was unable to pay for legal representation. Respondent’s indigent status was recognized by the trial court by the granting of his motion to proceed in forma pauperis. While we are not willing at this point to create a rule which would require that probate courts must, in all cases, consider sua sponte the appointment of trial counsel in proceedings under the Adoption Code involving the termination of parental rights, we conclude that, given respondent’s stated desire for counsel and his lack of funds, coupled with his inability to freely appear before the probate court and attend to the litigation, the trial court should have considered respondent’s communications as a request for the appointment of trial counsel. This is particularly true in view of the trial court’s acknowledgment of the complexities of this case. Turning to the Sanchez factors, we conclude that this case presents an instance in which trial counsel should have been appointed. In this case, respondent sought to challenge both the validity of the service of process and the court’s subject-matter jurisdiction in light of the jurisdiction of the Florida courts arising from the prior divorce. The need for counsel is also demonstrated by respondent’s unsuccessful attempt to obtain the above-mentioned writ of habeas corpus to appear for the trial court proceedings. Counsel might well have been able to secure respondent’s presence at the termination hearing. The trial court, at the May 6, 1985, hearing also noted the necessity of counsel relative to potential constitutional issues: [The Court:] There may or may not be some constitutional problems with Michigan Statute for terminating non-custodial parents’ rights. I think there may be, but— Mr. Van Eck [Counsel for Petitioners]: We just hope that nobody decides to wager [sic] that battle in this case. The Court: Well he’s going to have to get some representation to wage it somehow. And he’s going to have to appeal my decision unless he can persuade me it’s unconstitutional. Moreover, a review of the February 4, 1985, hearing, conducted before respondent even received notice of the proceedings, discloses comments by the trial court which lend further support to the conclusion that respondent needed to be represented by an advocate to protect his rights: The Court: The record should indicate that based on the evidence I’ve heard, there certainly is a basis for terminating a non-custodial parent’s rights. Mr. Van Eck: Then I can — the two orders the Court needs then is the Order Terminating the Parental Rights of the father. And then also, the Order for Adoption which is the normal probate order form would be; the two orders, I would anticipate to be signed? The Court: Well let’s see once, if you — this hasn’t been stamped yet has it? Well let’s do something that isn’t quite kosher. What [sic] don’t you check, we request that the adoption be completed immediately. Well wait a minute, you’ve got to have a reason for that. Okay, what will happen once I terminate the non-custodial parent’s rights as I sign an order ordering the Department of Social Services to make a home investigation, then you will have to file a motion for immediate confirmation whenever that’s done. And I’m sure that the recommendation will be that it be immediately confirmed given the four year marriage or five year marriage and remarriage and so forth. The Court: All right so really the only thing we’ve got to make an effort to do, is to notify the father who I think there’s a strong suspicion is somewhere with the federal penitentiary people somewhere. The Witness [.Petitioner-Mother]: Will his notification make any difference in the outcome of this, do you think? The Court: Under Michigan law, he has a right to make some kind of an appearance here and request custody of the child, or even make a defense to termination of his rights, but he would have, in my opinion, a rather difficult time showing that the best interests of your child would be served by not terminating parental rights. Ten years is five times what the statute requires, and that seems to have some relevance on the best interests of the child or the vitality of trying to preserve whatever parental rights he thinks he has. So no— The Witness: So he either has to make an appearance or make a defense? The Court: Well unfortunately, the statute says, I may terminate parental rights on a showing that there’s been no support and no visitation for two years. But ultimately anything under the Adoption Code has to be determined on the best interests of the minor involved. So he could either come in and defend and say I’ve been paying support all along and I visited last month, you know, that kind of stuff. Or even saying, yes, that’s true, I haven’t seen him in ten years make some pitch that it’s in the best interests of the child not to terminate his parental rights. And that’s where he would probably have some difficulty in this Court anyway. Mr. Van Eck: It gives the Judge a basis to move on this. It would thus appear that, before respondent was even aware that the petition had been filed and could present a defense, the trial court had virtually concluded that the petition should be granted and proceeded to assure petitioners that there was little doubt about a speedy and favorable resolution of the matter. At this point, effective advocacy became essential to protect respondent’s rights. Respondent certainly lacked the ability to provide that advocacy from a prison cell in Alabama. Given the circumstances of this case, we conclude that the trial court should have exercised its discretion and the failure to do so constitutes error requiring reversal. The order terminating respondent’s parental rights is vacated. The case is remanded to the probate court for further proceedings consistent with this opinion. Jurisdiction is not retained. Costs to respondent. MCL 710.51(6); MSA 27.3178(555.51)(6). Respondent did request the appointment of appellate counsel. The trial court denied the request, citing Sanchez, based upon the nonappointment of trial counsel. Respondent appears before this Court in propria persona.

Per Curiam. Plaintiff, John G. Lipka, commenced this action as administrator of the estate of his son, the deceased, John H. Lipka, who was struck and killed by a motorist while riding his bicycle across Hilldale in Clinton Township. He was struck on Hilldale, one hundred feet south of the intersection of Sargent, by a vehicle that had left Groesbeck Highway (M97). The complaint contained three counts against the Board of County Road Commissioners of the County of Macomb. Counts i and n alleged negligence, and Count m alleged nuisance. Plaintiff also instituted suit against the Michigan Department of Transportation in the Court of Claims. The two suits were consolidated in circuit court. The county moved for summary judgment claiming that it had governmental immunity and that the state, not the county, had jurisdiction of the roadway at the time of the accident. The motion was granted. Plaintiff appeals as of right. We affirm. We must first consider whether summary judgment was appropriately granted as to Counts i and ii on the grounds that the county lacked jurisdiction over the area in question. Summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(0(10), should be granted when there is no serious dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Reeder v Hammon, 125 Mich App 223; 336 NW2d 3 (1983). When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available at the time summary judgment was granted. Longley v Blue Cross & Blue Shield of Michigan, 136 Mich App 336; 356 NW2d 20 (1984). This Court is liberal in deciding when a genuine issue of fact exists. Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). The issue of fact in this case is whether the county or the state had jurisdiction over that portion of Hilldale where the accident occurred. Plaintiff originally submitted an affidavit by Henry W. Thomas of the Michigan Department of Transportation which stated that Hilldale was originally established as a state trunkline highway, but was certified as a county primary road by the county in 1953. The county supported its motion for summary judgment with an affidavit by county employee John Gray, the Assistant County Highway Engineer. His affidavit said that Hilldale, at the point of the intersection of Groesbeck and north to a point approximately 350 feet north of its intersection with Sargent Street, is still under the jurisdiction of the Michigan Department of Transportation. Further, Mr. Gray stated that he had read the affidavit of Mr. Thomas and that, although true, it did not state that, in fact, the Macomb County Road Commission certified to the state for maintenance of only a portion of Hilldale, not the entire stretch, and that the section of Hilldale where the accident occurred was not within the area certified by the county. Plaintiff did not submit a counter-affidavit to the summary judgment motion. The word "maintenance” is used several times. Both plaintiff and the county seem to concede that this means "jurisdiction” over the road. In any event, if indeed only a contract of maintenance is meant, and not jurisdiction, this will not help plaintiff, as MCL 250.61; MSA 9.901 provides that counties which have contracted to maintain a state trunkline highway, as opposed to certifying one as a county road, are relieved of all legal liabilities in connection therewith. So if all of Hilldale was not certified as being under the jurisdiction of the county, but the county merely had a contract to maintain it, the county would be relieved of liability and summary judgment would be proper. However, we have assumed, for plaintiff’s benefit, that the parties meant jurisdiction rather than mere maintenance. Plaintiff asserts that the fact that the county established speeds on Hilldale indicates that it has jurisdiction over Hilldale. However, MCL 691.1402; MSA 3.996(102) precludes tort liability of counties for negligent maintenance of roads not under their jurisdiction. After careful review of the proofs, we find that there is no dispute as to jurisdiction. What plaintiff contends is an inconsistency is reconcilable with defendant’s supplemental answers. The accident area is under the state’s jurisdiction. The second issue is whether plaintiff sufficiently alleged a nuisance to avoid governmental immunity. In Michigan, governmental agencies are immune from tort liability when engaged in a governmental function. Governmental immunity is statutorily granted by MCL 691.1407; MSA 3.996(107), which states: Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Maintenance of a highway is a governmental function. Thomas v Dep’t of State Highways, 398 Mich 1, 11-12; 247 NW2d 530 (1976). There are four statutory exceptions to this grant of governmental immunity. The exception that could apply here, negligent maintenance of a public road under MCL 691.1402; MSA 3.996(102), offers plaintiff no relief because the county did not have jurisdiction of the road. However, there is a nuisance exception to governmental immunity that arises out of case law. The two leading cases that outline this exception are Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978). As discussed in those cases, there are two types of nuisances, per se (or at law) and in fact. The exception applicable here is nuisance per se, which is "an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.” Gerzeski, supra, pp 156-157, quoting Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959), quoting with approval 66 CJS, Nuisances, § 3, pp 733-734. Nuisance per se is established as a matter of law. 403 Mich 160. Plaintiff must allege an intentional nuisance to avoid governmental immunity. Rosario, supra, p 142; Gerzeski, supra, pp 153-154. Further, in order to find an intentional nuisance, the trier of fact must decide, based upon the evidence presented, that the governmental agency intended to bring about the conditions which are in fact found to be a nuisance. Rosario, supra, p 142, relying on the definition of intentional nuisance set forth in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952), states: A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance. Full knowledge that harm was substantially certain to occur is not required. Carney v Dep’t of Transportation, 145 Mich App 690, 701; 378 NW2d 574 (1985), lv den 424 Mich 889 (1986). Plaintiff claims that the county’s design and maintenance of the area constituted an intentional nuisance. A plaintiff’s pleadings must be liberally construed to determine whether they sufficiently allege an intentional nuisance. Taggie v Dep’t of Natural Resources, 87 Mich App 752; 276 NW2d 485 (1979). Carney, supra, involved similar allegations. There, the trial court found that the plaintiff had sufficiently alleged an intentional nuisance to avoid governmental immunity. While the trier of fact may ultimately find in the instant case that there was no nuisance, as did the fact finder in Carney, supra, plaintiff has sufficiently alleged intentional nuisance to avoid governmental immunity. The final issue is whether one may be liable for nuisance if one creates a nuisance even though one has no control over the premises through ownership or otherwise. In this case, it is alleged that the county created the nuisance. In other words, plaintiff contends that even if the county did not have jurisdiction over the accident sité as found, the county created the nuisance, and, therefore, should be held liable. Liability for nuisance turns upon whether the defendant was in control, either through ownership or otherwise. Liability for nuisance may be placed on one who either created the nuisance, owned or controlled the property from which the nuisance arose, or employed another to do work which he knows is likely to create a nuisance. Stemen v Coffman, 92 Mich App 595; 285 NW2d 305 (1979). However, by statute, only the governmental agency having jurisdiction over a highway shall maintain the highway in a condition fit for travel. MCL 691.1402; MSA 3.996 (102). As discussed above, the state had jurisdiction, therefore, the question is whether plaintiff can overcome this statutory provision by his allegation of intentional nuisance on the part of the county. We find he cannot and maintain that only the governmental agency which had jurisdiction over the road at the time of the accident could be liable for injuries arising out of the maintenance and condition of the road. Potes v Dep’t of State Highways, 128 Mich App 765, 769; 341 NW2d 210 (1983). Therefore, the county cannot be liable and summary judgment was proper. The grant of the county’s motion for summary judgment was proper as to Counts i and ii which alleged negligence. Governmental agencies are immune from tort liability in all cases wherein the governmental agency is engaged in the exercise of a governmental function. The exception, negligent maintenance of a road, allows an injured plaintiff to recover against the governmental agency which has jurisdiction over the negligently maintained road. In the instant case, the affidavits and pleadings showed that the State of Michigan had jurisdiction over Hilldale at the place of the accident. Thus, there was no dispute of a material fact and defendant was entitled to judgment as a matter of law. As to Count hi, sounding in nuisance, summary judgment was also proper. Governmental immunity is not a bar to a claim of intentional nuisance. Plaintiff did allege an intentional nuisance; how ever, MCL 691.1402; MSA 3.996(102) limits liability to the entity which has jurisdiction over the road. Since that entity was indisputably the State of Michigan, the county cannot be liable. Affirmed.

Per Curiam. This is a medical malpractice action. On February 26, 1979, defendants Dr. E. S. Woodworth and Dr. R. V. Stuber performed a tubal ligation on plaintiff Louella Thomas. Although the procedure was performed at defendant McPherson Community Health Center (health center or center), it is undisputed that defendant physicians are not agents of the center. Two weeks after the tubal ligation was performed, a perforation of Mrs. Thomas’ small bowel was discovered, causing extensive peritonitis and necessitating the removal of approximately twelve inches of the bowel. A second surgery was required several days later to drain the infected pelvic area. On March 20, 1980, plaintiffs filed suit against the defendant physicians, Byron Road Medical Group, and McPherson Community Health Center. Jury trial commenced on April 24, 1984. At the close of plaintiffs’ proofs, the trial court granted a directed verdict in fayor of the health center. A judgment in favor of the remaining defendants was entered pursuant to a jury verdict of no cause of action. The trial court subsequently denied plaintiffs’ motion for a new trial. Plaintiffs now appeal as of right. We affirm. Plaintiffs’ expert, Dr. Kalman Gold, testified by deposition upon his review of defendants’ records that the perforation of Mrs. Thomas’ bowel occurred during the tubal ligation procedure when the bowel was burned, either by direct contact with the cauterizer used in the procedure or by a defect in the cauterization machine which caused a spark to jump. He saw no evidence in the medical records as to what specific error in fact caused the perforation, however. Plaintiffs also presented the deposition testimony of defendant physician Woodworth. He stated that all normal precautions had been taken to insure that no tissues other than Mrs. Thomas’ fallopian tubes were contacted by the cauterizer and that the cauterization machinery, owned by the health center, worked properly. Although Dr. Woodworth felt that there was a cause-and-effect relationship between the tubal ligation and the perforated bowel, neither he nor defendant physician Stuber, whose deposition testimony was also presented by plaintiffs, could specify the cause of the perforation. Defendants’ expert, Dr. Alvin Siegler, testified by video deposition that he found no breach of the normal standard of care in the tubal ligation procedure used by Woodworth and Stuber. He posed three explanations for Mrs. Thomas’ perfo rated bowel: (1) an infectious process related to the tubal ligation; (2) direct trauma to the bowel; and (3) thermal trauma to the bowel. He thought the first to be the most likely possibility, through an abscess at the operative site which adhered to the bowel and eventually caused perforation. Siegler found no evidence of a thermal or burn-related injury in the pathology report he reviewed, but conceded that he was not cognizant of a pathologist’s ability to find such evidence under the circumstances. Plaintiffs first contend that the trial court erred in granting a directed verdict in favor of the health center on the ground that there was no evidence of the center’s negligence. Plaintiffs advanced three theories of liability against the health center. Two related to the furnishing of a defective cauterizer and the third to improper grounding of the cauterization device. Plaintiffs provided expert testimony that such actions would constitute a breach of the appropriate standard of care; however, they did not produce evidence in the form of expert opinion that the health center had in fact breached the standard of care. On appeal, plaintiffs essentially maintain that the center’s breach was so apparent that such expert testimony was unnecessary and that a directed verdict was therefore improper. We disagree. The standard of review of motions for a directed verdict is well settled. The trial judge must accord the nonmoving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the nonmoving party. If the evidence, when viewed in this manner, establishes a prima facie case, the motion must be denied. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). We conclude that, because plaintiffs failed to present expert opinion that the center breached the appropriate standard of care and that the breach caused the injury, jury consideration of the center’s liability would have been the subject of speculation or conjecture. Under the circumstances, directed verdict for the center was proper. Starr v Providence Hospital, 109 Mich App 762, 766; 312 NW2d 152 (1981); Marchlewicz v Stanton, 50 Mich App 344, 348; 213 NW2d 317 (1973), lv den 391 Mich 813 (1974). This Court has recognized that in medical malpractice cases issues of negligence and causation are normally beyond the ken of laymen. Baldwin v Williams, 104 Mich App 735, 739; 306 NW2d 314 (1981), lv den 412 Mich 873 (1981). Thus, in an action for malpractice against a hospital, expert testimony is required to establish the applicable standard of conduct, the breach of that standard, and causation. Starr v Providence Hospital, supra, p 765; Ewing v Alexander, 93 Mich App 179, 187; 285 NW2d 808 (1979). There are two closely connected exceptions to this requirement. Where the negligence claimed is "a matter of common knowledge and observation,” no expert testimony is required. Daniel v McNamara, 10 Mich App 299, 308; 159 NW2d 339 (1968). And, where the elements of the doctrine of res ipsa loquitur are satisfied, negligence can be inferred. Neal v Friendship Manor Nursing Home, 113 Mich App 759; 318 NW2d 594 (1982). Plaintiffs argue that their proofs at trial were adequate to place their claims against the health center within either or both of the above exceptions. As to the "ordinary negligence” rule of Daniel, they posit that the health center’s alleged furnishing of a defective electrocauterizer or failure to properly ground the equipment constituted "ordinary negligence” as evidenced by injury to a nontreated body part. In this connection, plaintiffs cite Higdon v Carlebach, 348 Mich 363; 83 NW2d 296 (1957), and Hand v Park Community Hospital, 14 Mich App 371; 165 NW2d 673 (1968). See also Fogel v Sinai Hospital of Detroit, 2 Mich App 99; 138 NW2d 503 (1965), and Gold v Sinai Hospital of Detroit, Inc, 5 Mich App 368; 146 NW2d 723 (1966). The contention is without merit. Unlike the above cases, here Mrs. Thomas’ injury was susceptible to a number of explanations, all of which required medical knowledge to discern. Thus, the "ordinary negligence” exception to the requirement of expert testimony does not apply on these facts. Plaintiffs also rely upon the inference of negligence absent expert testimony which can be founded upon satisfaction of the following four elements: (1) the event is of a kind which does not occur absent negligence; (2) the event is caused by an instrumentality within the exclusive control of the defendant; (3) the event is not due to any voluntary action by the plaintiff; and (4) the explanation is more accessible to the defendant than the plaintiff, citing Neal v Friendship Manor Nursing Home, supra, pp 764-765. Although plaintiffs insist that they do not invoke the doctrine of res ipsa loquitur, apparently in recognition that this Court and our Supreme Court have declined to expressly adopt the doctrine in medical malpractice cases, we note that plaintiffs rely upon the precise elements of res ipsa loquitur. See Gadde v Michigan Consolidated Gas Co, 377 Mich 117, 124; 139 NW2d 722 (1966). Assuming without deciding that res ipsa loquitur may be invoked in this case, it is clear that plaintiffs have failed to establish the second element of that doctrine, i.e., that the negligent conduct causing Mrs. Thomas’ injury was within the exclusive control of the health center. The thrust of plaintiffs’ evidence established that the defendant physicians were primarily responsible for Thomas’ tubal ligation. The health center merely provided the operating facilities and some supportive staff. Thomas was at all times a patient of the physicians of Byron Road Medical Group, not the center. The health center had little, let alone exclusive, control of the actual tubal ligation procedure. Plaintiffs argue that they have satisfied this factor by a showing of concurrent control and that concurrent control, although not yet addressed in Michigan case law, has been recognized by states which apply res ipsa loquitur, citing Matlick v Long Island Jewish Hospital, 25 App Div 2d 538; 267 NYS2d 631 (1966). Matlick, however, merely held that a directed verdict for the defendant hospital was inappropriate where the defendant anesthesiologist was an employee of the hospital and thus the hospital had concurrent control over the anesthesiologist’s actions. It is thus wholly inapposite to the instant case. Plaintiffs next claim that the trial court’s directed verdict in favor of the health center denied them a fair trial in that they then had to prove that full responsibility for Mrs. Thomas’ perforated bowel was that of the physicians. The argument is without merit. This Court has concluded that where separate acts of negligence are asserted on the part of a hospital and an independent physician, disposition of one claim does not govern disposition of the other. Ravenis v Detroit General Hospital, 63 Mich App 79; 235 NW2d 411 (1975), lv den 395 Mich 824 (1976). See also Bivens v Detroit Osteopathic Hospital, 77 Mich App 478; 258 NW2d 527 (1977), rev’d on other grounds 403 Mich 820 (1978); Richardson v Schlosser, 54 Mich App 1; 219 NW2d 790 (1974). The trial court in the instant case was thus empowered to grant a directed verdict on behalf of the health center without the necessity of a similar disposition regarding the remaining defendants. The directed verdict for the center was proper and did not deprive plaintiffs of their theory of liability against the defendant physicians. Plaintiffs next allege several errors in the admission of the testimony of defendants’ expert, Dr. Siegler, a New York obstetrician and gynecologist. First, plaintiffs claim that the entirety of Dr. Siegler’s testimony was improper because there was no foundation laid that he was familiar with the standard of care appropriate to the local community. While the applicable standard for general practitioners is tha£ of the local community or similar communities, Francisco v Parchment Medical Clinic, PC, 86 Mich App 583, 588; 272 NW2d 736 (1978), modified 407 Mich 325 (1979), the standard of care for a specialist is nationwide. Naccarato v Grob, 384 Mich 248, 253-254; 180 NW2d 788 (1970); Francisco v Parchment Medical Clinic, PC, 407 Mich 325, 328; 285 NW2d 39 (1979). This Court has repeatedly held that the field of obstetrics and gynecology is a speciality subject with nationwide standards. See, e.g., Swanek v Hutzel Hospital, 115 Mich App 254, 257; 320 NW2d 234 (1982), and McCullough v Hutzel Hospital, 88 Mich App 235, 241; 276 NW2d 569 (1979). Accordingly, Dr. Siegler’s testimony as to the standard of care applicable to the defendant physicians was properly admitted. Next, plaintiffs argue that certain opinions of Dr. Siegler were inadmissible because they were based upon pathological reports and thus based upon hearsay. MRE 703 provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence. MRE 705 provides: The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. Under these rules, an expert witness may testify to an opinion based on hearsay information. Swanek v Hutzel Hospital, supra, pp 259-260. The trial court thus did not err in admitting the opinion of Dr. Siegler because it was based upon the pathologist’s report. Plaintiffs further contend that certain of Dr. Siegler’s testimony was inadmissible because it was speculative. They point to Siegler’s opinion as to the various possible causes of Thomas’ perforated bowel and Siegler’s opinion as to the lack of evidence of a burn on Thomas’ bowel in the pathologist’s report. The trial court admitted Siegler’s testimony because it found it would be helpful to the jury, particularly in view of the inexactness of the testimony of plaintiff’s expert witness. All relevant evidence is admissible. MRE 402. "Relevant evidence” is evidence having any tendency to make the existence of a fact of consequence more probable or less probable than it would be without the evidence. MRE 401. Nevertheless, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of prejudice or confusion. MRE 403. The relevance and admissibility of evi dence is within the sound discretion of the trial court and will not be disturbed on appeal unless a clear abuse of discretion has been shown. Jarecki v Ford Motor Co, 65 Mich App 78, 83; 237 NW2d 191 (1975). Here, no such abuse has been shown. Rather, the trial court’s reasoning that Siegler’s testimony would be helpful to the jury in determining causation, especially in view of the equally ambiguous testimony of Dr. Gold, is reasonable. We find no error on this ground. Plaintiffs’ final claim is that the trial court erred in refusing to give four requested jury instructions. They cite no authority in support of their position on any of the four requested instructions, however. A party may not leave it to this Court to search for authority to sustain or reject its position. Butler v Detroit Automobile Inter-Ins Exchange, 121 Mich App 727, 737; 329 NW2d 781 (1982). Thus, plaintiffs have abandoned this issue on appeal. In the Matter of Futch, 144 Mich App 163; 375 NW2d 375 (1984). In any event, our review of the record indicates that the requested instructions were properly refused as they either dealt with matters not properly an issue at trial or they were inapplicable, an incomplete statement of the law, or moot. Affirmed.

Per Curiam. Plaintiff appeals from an order of the circuit court granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(3). Plaintiff injured his back on May 6, 1982, during the course of his employment as a mechanic for a trucking company and as a result received benefits pursuant to the workers’ compensation act. The injury occurred when plaintiff pulled up on a lever to release a pin holding a trailer box in place over the trailer axle. The purpose of releasing the pin was to permit the trailer box to slide over the axle so that the position of the wheels relative to the box could be changed; sliding the trailer box back and forth would place the wheels closer to the front or closer to the back of the trailer. After the lever is pulled to release the pin, the trailer is moved by being pulled forward or pushed back by the tractor or cab. While the box is being moved in this fashion, the wheels of the trailer are locked and remain stationary throughout the process. Plaintiff filed a complaint claiming entitlement to benefits pursuant to the Michigan no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. On November 4, 1983, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), claiming that plaintiff was performing mechanical work when the injury occurred and was therefore barred by MCL 500.3106(2); MSA 24.13106(2) from recovering no-fault benefits. The trial court denied the motion. Subsequently, plaintiff filed a motion for summary judgment under GCR 1963, 117.2(3), and defendant responded with its own motion under that subrule. On March 15, 1985, the lower court denied plaintiffs motion and granted defendant’s cross-motion, concluding the plaintiff was working as a motor vehicle mechanic and was performing a function within the scope of his employment duties at the time of the injury. It would appear, then, that the trial court found that plaintiff was in fact performing mechanical work at the time of his injury, contrary to its ruling on defendant’s earlier motion for summary judgment under rule 117.2(1). Pursuant to MCL 500.3105; MSA 24.13105, no-fault benefits are available for "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle,” subject to the provisions of the no-fault act. As mentioned above, one of those provisions, MCL 500.3106(2); MSA 24.13106(2), was relied upon by the trial court in finding plaintiff ineligible for benefits. Section 3106(2) provides as follows: Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the úse or operation of another vehicle. In finding plaintiff ineligible for no-fault benefits under the above provision, the trial court obviously concluded that the vehicle in question, i.e., the trailer, was parked at the time of the injury. Plaintiff now argues that §3106 is inapplicable because the vehicle was not in fact parked since the tractor was moving back and forth slightly in order to reposition the trailer box in relation to the wheels. However, plaintiff never raised this issue before the trial court, apparently conceding the trailer’s status as a parked vehicle. Defendant argues that plaintiff has waived his right to raise the issue on appeal, while plaintiff contends that this general rule is not applicable since consideration of the claim is necessary to a proper resolution of the case and the question is one of law which may be decided without reference to material issues of fact in dispute. Harris v Pennsylvania Erection & Construction, 143 Mich App 790, 795; 372 NW2d 663 (1985). Although we do not condone plaintiff’s failure to raise this issue before the trial court, we agree that the parties do not materially dispute the facts surrounding the incident, and since it is necessary to a proper resolution of the case, we will consider the issue. Although not an easy question to answer in light of the unique factual situation presented, we believe that, in determining whether the vehicle was in fact parked, the focus should be on the wheels, rather than the trailer box. Under the no-fault act, a motor vehicle is defined as a vehicle, including a trailer, designed for operation on a public highway by power other than muscular power. MCL 500.3101(2)(c); MSA 24.13101(2)(c). Since it is the wheels of the trailer, rather than the box, which enable its operation on a highway, we conclude that only the movement of the former is relevant in determining whether the vehicle was parked. Here, defendant was injured when he pulled a lever which would allow movement of the trailer box over the axles. At the time of the injury, the wheels of the trailer were locked by the brakes and thus did not move during the procedure which led to the plaintiff’s injury. Therefore, we conclude that the vehicle was parked, as that term is used in § 3106 of the no-fault act. The next question presented, then, is whether the trial court erred in finding that the injury, which indisputably arose in the course of plaintiffs employment and for which workers’ compensation benefits were available, occurred while plaintiff was "doing mechanical work on a vehicle . . . .” MCL 500.3106(2); MSA 24.13106(2). We believe so. Plaintiff was a mechanic employed to service vehicles on his employer’s premises. He was injured while working on a vehicle which was completely stationary. Neither his occupation nor his injury were related to the hazards of moving vehicles. Thus, he fits squarely within the group to which the Legislature, by adoption of § 3106(2), evidenced an intent to deny no-fault benefits. It could be argued that since plaintiff was not repairing a defect but was only shifting the trailer’s axle from one normal position to another to alter its operating characteristics, plaintiff was not doing mechanical work. However, if plaintiffs purpose had been to restore the axle to a position from which it had been moved by accident or mistake, plaintiff would more clearly be deemed to have been repairing a defect and doing mechanical work. We believe that to distinguish on this basis would be both pointless and irrelevant to the language and purpose of § 3106(2). Therefore, we conclude that a mechanic engaged in servicing a vehicle, whether he is engaged in repairing a defect, performing preventive maintenance or making an adjustment to alter operating characteristics, is performing mechanical work within the meaning of § 3106(2). Furthermore, even if one were to conclude that plaintiff was not doing mechanical work, he would not be entitled to no-fault benefits since § 3106(2) also provides for ineligibility where the injury occurred while the employee was loading or unloading the vehicle. In Bell v F J Boutell Driveaway Co, 141 Mich App 802; 369 NW2d 231 (1985), this Court had an opportunity to consider this aspect of § 3106(2) and concluded that the terms should be broadly construed to encompass the complete operation of loading and unloading, including "activities preparatory to the actual lifting onto or lowering of property.” 141 Mich App 809. Applying this broad definition of the terms "loading” and "unloading,” it is clear that plaintiff is not entitled to no-fault benefits. Plaintiff admitted in his deposition that his purpose in pulling the lever which releases a pin holding the trailer axle in place was so that the trailer could be backed into the loading dock more easily. The purpose for backing into the dock was to either load or unload the trailer. Therefore, at the time of his injury, plaintiff was engaged in an activity preparatory to the actual procedure of loading or unloading goods from the trailer. Pursuant to Bell, supra, this brings plaintiff’s injury within the contemplation of § 3106(2). As his final argument, plaintiff makes the conclusory statement that, even assuming § 3106(2) is otherwise applicable to bar his claim, he is nonetheless entitled to benefits as a result of the last portion of that section, which excludes from its effect injuries which "arose from the use or operation of another vehicle.” Plaintiff contends that his injury arose out of the operation of the tractor, thus bringing this portion of the statute into application. We disagree. In Kalin v Detroit Automobile Inter-Ins Exchange, 112 Mich App 497; 316 NW2d 467 (1982), this Court stated that where the "involvement of the moving vehicle is merely inciden tal or fortuitous,” the parked vehicle exclusion still applies. 112 Mich App 501. Here, plaintiff’s back "popped out” when he pulled a lever on the trailer. Any movement of the tractor played absolutely no part in causing this injury, and thus whatever involvement one might wish to ascribe to it would have to be characterized as incidental or fortuitous. Therefore, plaintiff’s position is untenable. We conclude that the trial court ruled correctly in denying plaintiff’s motion for summary judgment and in granting the cross-motion of the defendant. Affirmed.

Per Curiam. Respondent appeals from an order of the circuit court granting petitioner a restricted license. We reverse and reinstate the decision of the hearing officer. The record reveals that petitioner’s driver’s li cense was suspended from September 29, 1982, through December 29, 1982, after petitioner refused to submit to a chemical test on August 23, 1982. On April 18, 1985, petitioner was involved in an automobile accident in which his vehicle struck a parked vehicle. Apparently, petitioner was informed shortly thereafter that his refusal to submit to a chemical test on the date of that accident would result in a suspension unless he requested a hearing within fourteen days. He requested a hearing, but failed to appear. His license was thereafter suspended from July 7, 1985, through July 7, 1986. On September 24, 1985, petitioner filed a petition in circuit court requesting a restricted license, alleging that he otherwise had no means of getting to and from work. A hearing on that petition was held on October 21, 1985. Petitioner testified that his wife could not drive, that there was no public transportation, and that he had no other relative or fellow employee who could drive him to and from work. When questioned whether he had in fact refused a Breathalyzer test on April 18, 1985, petitioner responded that he could not remember refusing the Breathalyzer test. Petitioner testified that the impact of the collision caused him to go through the windshield of his automobile. Because he sustained head injuries, petitioner initially intended to contest the validity of his refusal, but "cancelled” his hearing because "I had to have apparently a real strong statement from the doctor . . . that I had head injuries and so forth.” Relying on petitioner’s testimony that he could not remember refusing the chemical test, the circuit court judge issued petitioner a restricted license for driving to and from work. Respondent appeals, alleging that the circuit court had no discretion to order a restricted li cense to a person who has refused a Breathalyzer test twice in seven years and contending that petitioner’s failure to appear at the July 2, 1985, hearing waived his right to circuit court review of whether he in fact refused a chemical test on April 18, 1985. Petitioner contends that the circuit court "may take testimony and examine into all the facts and circumstances incident to the . . . suspension . . . of the person’s license” and thereafter "affirm, modify, or set aside the restriction, suspension, revocation, or denial.” MCL 257.323(3); MSA 9.2023(3). In the alternative, petitioner contends that the circuit court’s wide equitable powers enables the circuit court to review agency determinations. A person who refuses to submit to a chemical test may request a hearing, which is limited to a determination of the following issues: (1) whether the officer had reasonable grounds to believe the driver committed the crime specified in MCL 257.625c(1); MSA 9.2325(3)(1); (2) whether the person was arrested for the crime; (3) whether the driver unreasonably refused to submit to the test upon the officer’s request; and (4) whether the driver was advised of his or her rights concerning the chemical test. After the hearing, the Secretary of State may suspend the driver’s license for six months or, for a second refusal within seven years, for one year. MCL 257.625f(2), (4); MSA 9.2325(6)(2), (4). Circuit court review of the hearing officer’s determination is provided for by statute, but is limited to whether the hearing officer correctly determined the above four issues or whether a restricted license should be provided. MCL 257.323; MSA 9.2023. A restricted license, however, is prohibited when the petitioner’s license has been suspended twice within seven years. MCL 257.323c(2); MSA 9.2023(3)(2); Kester v Secretary of State, 152 Mich App 329; 393 NW2d 623 (1986). Petitioner’s citation to MCL 257.323(3); MSA 9.2023(3) is inapposite. By its express terms, that subsection has no application to determinations resulting in a denial or suspension for failure to submit to chemical tests. Did the circuit court, then, have the power to grant petitioner a restricted license based on his testimony that he could not remember refusing a chemical test? Initially, we reject petitioner’s contention that the circuit court’s equity powers permit circuit court review outside the statute. An appeal to equity is not alone and by itself a sufficient implication of equity jurisdiction. Love v Wilson, 346 Mich 327; 78 NW2d 245 (1956). Nothing in petitioner’s petition below and nothing cited by petitioner on appeal states grounds for equity jurisdiction. Otherwise, circuit court review is limited to review of the record prepared at the hearing held pursuant to the driver’s request. MCL 257.323(4)(a), 257.625f(2), (3); MSA 9.2023(4)(a), 9.2325(6)(2), (3). No record of the hearing was available for circuit court review in the instant case. As such, circuit court review was precluded and modification of respondent’s order of suspension by trial de novo was improper. We reject petitioner’s contention that respondent had the duty to produce the record for circuit court review. While respondent would have had a duty to make a record and produce that record for circuit court review had a hearing been held pursuant to petitioner’s request, MCL 257.625f(3); MSA 9.2325(6)(3), we regard petitioner’s failure to appear for the hearing to be in the nature of a default, i.e., an admission of the facts contained in the peace officer’s report made pursuant to MCL 257.625d; MSA 9.2325(4) of which the driver received notice from the Secretary of State pursuant to MCL 256.625e; MSA 9.2325(5). No record of proceedings scheduled pursuant to a driver’s request for a hearing need be made when the driver fails to appear for the hearing and circuit court review is thereafter precluded. It must be remembered that the administrative hearing at issue is not a criminal proceeding. Had petitioner failed to request a hearing, suspension would have been automatic. MCL 257.625f(l); MSA 9.2325(6X1). We can not believe that the Legislature intended a different result where, without a request for adjournment, a driver fails to appear for his scheduled hearing. The order of the circuit court granting petitioner a restricted license is reversed and we remand for reinstatement of the hearing officer’s decision. Petitioner makes no claim that the officer who filed his report of defendant’s refusal with the secretary failed to appear at the scheduled hearing. See 1979 AC, R 257.37(3).

G. B. Ford, J. Defendant appeals as of right from a jury verdict awarding $550,000 in damages to plaintiff for injuries incurred by plaintiffs deceased husband from a fall in a restaurant. Defendant was found liable as manufacturer of the quarry tile used on the floor of the restaurant, which plaintiff claimed was unsuitable for such use because of its slippery propensity when wet. The incident in question occurred in a Halo Burger restaurant in Mt. Morris Township in September, 1981. At approximately 9:00 a.m., Edward Duke, Sr., entered the restaurant, fell on the floor, and broke his right leg. Although there were no witnesses at the precise moment of the fall, customer Virgil Ross observed a substantial portion of the incident. Ross testified that a light, intermittent rain was falling that day. As he was walking toward the restaurant, Ross observed Mr. Duke walking with a limp at a brisk pace in front of him. As Ross reached the entrance and opened the door, he observed Duke falling inside the restaurant onto the quarry tile. Duke was 6V2 to 7 feet from the door and two feet past a carpeted mat located just inside the door. Ross noticed that the tile floor was dry, as did two restaurant employees. Marie Winters, the assistant manager of the restaurant, called for an ambulance, while Ross assisted Duke in contacting his wife by telephone. Ross recalled Duke telling his wife something to the effect that "he fell on his bad leg or he had a bad fall on his leg.” The two restaurant employees recalled Duke saying that he fell on his bad leg or his bad leg gave out. By contrast, Marian Duke recalled her husband stating: [H]e stepped inside of the door, his feet flew out from under him, the floor was wet he stepped inside, his feet flew out from under him, and he could not control his fall. Duke was transported to McLaren Hospital where Dr. Vladimir Schwartzman diagnosed the injury as a fracture of the right femur. He also determined that Duke had a mild arthritic condition in his right knee which did not contribute to the fall. An incidental diagnosis was that Duke suffered a pathological fracture, i.e., an abnormal break in the bone. X-rays taken of the leg revealed a suspicious condition which led Dr. Schwartzman to perform a biopsy. The biopsy revealed that Duke was suffering from cancer, identified as reti culum cell sarcoma. Duke died from cancer three years after the accident, and before trial began, without regaining the normal use of his leg. On appeal, defendant raises numerous issues, three of which we find provide an independent basis for reversing the judgment for plaintiff and remanding the case for a new trial. The first of these errors concerns the admission of testimony from plaintiff’s expert witness, high school teacher Orville Yenior. Mr. Yenior testified that he conducted a scientific test on the floor of the restaurant five months after the accident to determine the floor’s slip resistance. A friction-measuring device described as a drag-type meter was utilized to determine a coefficient of friction, i.e., a numeric value between 0 and 1 used to describe the ratio of the force of friction to the weight of an object, measured by sliding an object along a surface. The force necessary to slide the object is measured in pounds. The higher the number achieved, the more slip resistant the surface is considered. Yenior found that the coefficient of friction of the restaurant’s quarry tile was near 1 when dry, but dropped to 0.32 when wet and under "static” conditions. Static refers to the force which keeps an object from initially sliding. Once the slide begins, the condition is then "dynamic,” and the coefficient of friction was determined to be 0.22. The record indicates that the drag-type meter was selected for the test because it was less machine-dependent than other machines. Thus, some judgment was involved regarding the acceleration and velocity used to pull the machine across the floor during the test. Judgment was also involved in determining where to place weights in Duke’s shoes, which were used for the test. Yenior concluded that the floor was not suited for the restaurant because moisture tracked in by customers created an extremely slippery situation. Although Yenior opined that his test procedure was reliable, he admitted that no industry standard regarding acceptable testing procedures and coefficients of friction had been established. Defendant now argues that Yenior’s friction test results should not have been admitted because plaintiff failed to establish a foundation for the test. We agree. Although the admissibility of test results and experiments performed by experts and nonexperts is a matter within the discretion of the trial court, "before such test results can be admitted, a proper foundation must be laid to show that the test in question properly duplicated the actual conditions giving rise to the lawsuit.” Hartford Fire Ins Co v Walter Kidde & Co, Inc, 120 Mich App 283, 288; 328 NW2d 29 (1982); Vanderberg v General Motors Corp, 96 Mich App 683, 688; 293 NW2d 676 (1980). Thus, in order for the test performed by Yenior to have any probative value, it must have recreated the original conditions of the occurrence. Hartford, supra, p 288; Elliott v A J Smith Contracting Co, Inc, 358 Mich 398, 417; 100 NW2d 257 (1960). Here, five months elapsed between the time of the accident and the test. Plaintiff’s witness testified that he had no knowledge of the physical condition of the quarry tile floor at the time of the accident. Plaintiff presented no evidence establishing its condition. When defendant objected and moved to strike Yenior’s testimony on this basis, the trial court responded: Well, there has been no testimony that it was any different. Now if you are going to introduce some testimony that there was some change in it, I will entertain your motion, but I would like to know what that change is. The trial court’s ruling was erroneous because the issue was not whether testimony was presented tending to show that the conditions changed, but whether there was testimony tending to establish a substantial similarity of conditions. The trial court’s decision effectively shifted the burden of proof on this essential factual issue to defendant. The burden, however, is on the party presenting the evidence to satisfy the court that the necessary similar conditions exist. Pohlod v General Motors Corp, 40 Mich App 583, 585; 199 NW2d 277 (1972). The floor in question was located at the entrance of a fast-food restaurant. Without proof that the condition of the floor as it existed at the time of the accident five months previously was effectively recreated at the time of the testing, Yenior’s testimony lacked probative value and should have been stricken. Since this expert testimony was crucial to plaintiff’s case, its admission amounted to error requiring reversal. Defendant also contends that the closing argument given by plaintiff’s counsel included numerous impermissible remarks which denied defendant a fair and impartial trial. Having reviewed the transcripts of the closing argument, we must agree. Viewing the argument as a whole, we can come to no other conclusion than that the purpose and probable effect was to direct the jurors away from the real issues to be decided and, instead, to render a verdict based upon passion, sympathy for the plaintiff and prejudice against the defendant. To begin, throughout the trial and closing argument, plaintiff’s attorney, who is the son of plaintiff and decedent Edward Duke, Sr., constantly referred to his clients as "Mom and Dad.” There is a strong possibility that such references left the jurors with the impression that the attorney had some personal perception of the damages incurred outside of the evidence placed on the record. For example, plaintiffs attorney gave the following personal perception of his parents’ marital relationship: What about their marriage relationship, his sleeping arrangement? He had to sleep in his own bed, she had to sleep in a different bed. They were no longer lovers. I am not, I am not embarrassed to stand up here in front of you and to talk about my. parents as being lovers because they loved each other very much. And there she was watching her husband when they both knew that he had a limited time left. This mode of argument carried throughout the entire closing, potentially evoking sympathy from the jury and altering their view of the evidence. Plaintiffs attorney also remarked on the defendant’s corporate nature and wealth, which the Supreme Court has noted is always improper, although not always constituting error requiring reversal. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 111; 330 NW2d 638 (1982). However, we construe the comments of plaintiffs counsel as evidencing "a deliberate course of conduct on the part of counsel for plaintiff aimed at. preventing defendant from having a fair and impartial trial.” Reetz, supra, pp 111-112, quoting Steudle v Yellow & Checker Cab & Transfer Co, 287 Mich 1, 11-12; 282 NW 879 (1938). For example, in attempting to convince the jurors to return a verdict for a substantial monetary award, plaintiffs counsel referred to the defendant’s executives as sitting in their "plush paneled corporate offices in Pennsylvania” and "sitting at the country club or something having lunch” with no concern for the complaints of consumers. Further, counsel advocated that a substantial verdict was required because "money talks,” and the corporate executives would then "sit up and take notice” of the opinion of the jurors. He then stated: They snicker now. They treat what we are doing here lightly, but I will tell you something, if you return a substantial verdict against the defendants, they won’t snicker at you. The last comment quoted above leaves the clear impression that, unless the jurors return a verdict in plaintiff’s favor for a substantial sum of money, they will have been made fools of by the defendant. Such comments have no place in a courtroom. See Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339; 273 NW2d 75 (1978), reh den 406 Mich 1103 (1979), where counsel’s comments on experts showed a steady purpose to prejudice the jury. The only conceivable purpose of these comments was to inflame the prejudice of the jurors against the defendant, to play upon the helplessness individuals sometimes feel in their dealings with a large corporation. Plaintiff’s counsel delved into another area of impermissible and prejudicial argument with the following comments: So the issue is really whether you are going to put the stamp of approval on their conduct, and let business go on as usual, and if you find for the defendants, I can assure you business will go on as usual because there is no reason for business not to go on as usual. There is nothing to change it. They will continue to manufacture this tile, they will continue to be careless not to test it, and send it out and install more hundreds of thousand of millions of square feet of it. And then there is going to be somebody else out there just like my dad; could be me, could be you, Mr. Loper, could be your wife, Mr. Yoesting, could be your wife, Mr. Armitage, could be your mother, could be your father. Somebody is going to slip and fall on that tile because it is unreasonably dangerous, because it is slippery and maybe they won’t be so lucky. You know, my dad broke his leg. It crippled him for the rest of his life, but he only broke a leg. Remember those statistics from the National Safety Council in ’76 alone there were over fourteen thousand deaths. So maybe they won’t be so lucky. Then when that happens, if you look back and you have returned a verdict in favor of the defendant, then what are you going to say? You are going to say, you know what, we were wrong. That tile was dangerous. But if you return a verdict in favor of my mom and dad in this case, you reject the defendant’s conduct, you put a big "r” on it, you reject it. In Clark v Grand Trunk W R Co, 367 Mich 396, 400; 116 NW2d 914 (1962), the Supreme Court noted that any attempt to appeal to the sympathy of the jury is improper, and any attempt to appeal to the jurors’ self-interest by suggesting what the consequences of the verdict would mean to them personally constitutes error requiring reversal. We have no doubt that this is precisely what plaintiffs counsel sought to do in his argument to the jury. When this error is considered in conjunction with the improper remarks discussed earlier, we are convinced that the defendant was denied its right to a fair trial before an impartial jury. The trial court did instruct the jury that (1) the argument of the attorneys was not evidence, (2) defendant, as a corporation, was entitled to the same impartial treatment as individuals, and (3) the verdict must be solely to compensate plaintiff and not to punish defendant. However, viewing all of the improper remarks made by plaintiffs counsel, we do not find it probable that the court’s instructions were enough to obviate the clear prejudicial impact of the remarks. Therefore, we find that a new trial is mandated by the improper closing argument given by plaintiffs counsel. The third independent basis for reversing the judgment for plaintiff and remanding for new trial results from the trial court’s refusal to give a requested jury instruction on comparative negligence, and its decision to instruct the jury, as follows, that they were to presume that Duke acted with reasonable care: Because Edward Duke, Sr. has died and cannot testify, you must presume that he was in the exercise of ordinary care for his safety at the time of this accident. There has been no evidence of any negligence on the part of Mr. Duke, and therefore this presumption is conclusive. The trial court denied defendant’s request for a comparative negligence instruction because (1) it would not be permissible to infer that Duke walked briskly inside the restaurant simply because he did so outside and (2) it would be impermissible to infer negligence based on (1). Pursuant to GCR 1963, 516.6, now MCR 2.516(D)(2), pertinent portions of the Michigan Standard Jury Instructions shall be given if they are applicable and they accurately state the law. Noncompliance with this rule is not a basis for reversal unless it results in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be inconsistent with substantial justice. Johnson v Corbet, 423 Mich 304, 325-326; 377 NW2d 713 (1985). When deciding whether an instruction on com parative negligence is appropriate, the question is whether, in viewing the evidence most favorably to the defendant, there is sufficient evidence for the jury to find negligence on the part of the injured plaintiff. Bluemlein v Szepanski, 101 Mich App 184, 189; 300 NW2d 493 (1980). Circumstantial evidence and permissible inferences therefrom may constitute sufficient proof of negligence. May v Parke, Davis & Co, 142 Mich App 404, 417; 370 NW2d 371 (1985). The trend is to allow all issues, when supported by facts, to go to the jury. Charleston v Meijer, Inc, 124 Mich App 416; 335 NW2d 55 (1983). Viewing the evidence most favorably to the defendant, the record discloses the following facts. Customer Virgil Ross observed Duke walking with a limp at a fast pace outside the restaurant where there was a light and intermittent rain falling. Although it is reasonable to infer that Duke continued to limp indoors, it is not reasonable to infer from this evidence alone that he maintained his fast pace and then to infer from this inference that he failed to use reasonable care. However, the testimony also showed that he fell 6V2 to 7 feet from the door as a customer grabbed the door which was closing behind him. Once inside, the customer and two employees noticed that the floor was dry. Plaintiff’s expert witness testified that the floor had a high degree of safety when dry. How much, if any, moisture was tracked in on Duke’s shoes is unknown. It is known, however, that he had to walk across a carpeted mat to reach the quarry tile floor. Though no witnesses observed Duke at the precise moment of the fall, three witnesses testified that he may have stated that his bad leg gave out on him. While this was contradicted by his wife’s testimony which implied that he slipped because the floor was wet, her testimony does not . reveal whether Duke used due care in light of all the circumstances. From these facts, one could reasonably infer that the floor was in a dry and safe condition when Duke stepped on it. Furthermore, the jury could infer from Duke’s ability to travel 6V2 to 7 feet, while manifesting a limp, before the restaurant door closed behind him that he was in fact still walking at a brisk pace and that this was not reasonable conduct. Thus, viewing the evidence most favorably to the defendant, a factual question regarding Duke’s exercise of due care was raised, and the request for an instruction on comparative negligence should have been granted. At the same time, it was error to instruct the jury that it must presume due care as a result of Duke’s death. Rather, the court should have given SJI2d 10.08, which provides for a rebuttable presumption of due care as a result of the injured party’s death. The defendant’s remaining arguments on appeal are without merit. The trial court’s denial of defendant’s pretrial request to add one Robert Brungraber as an expert witness was not an abuse of discretion. Pursuant to a local court rule, the parties were directed to complete a discovery pretrial questionnaire, which gave notice that the names and addresses of all known witnesses were to be listed and that the failure to list a known witness would bar his production at trial unless the omissions were excused by the court for good cause shown. In response to the questionnaire, defendant failed to list any names or addresses. After a pretrial conference of November 4, 1983, the trial court ordered that all expert witnesses be disclosed within ninety days and all discovery be completed within 150 days. However, defendant did not give notice that Robert Brungraber might be called as a witness until November 7, 1984. On November 26, 1984, plaintiff moved to strike Brungraber as a witness because defendant did not establish good cause for failing to list the witness within the court-ordered time limits. At a hearing held to consider the matter, the trial court ruled that because defendant failed to file a formal and timely motion to add Brungraber as a witness, it would be unreasonable to add him as an expert at that late stage of a complex case. We find no abuse of discretion. Defendant has failed to suggest, either at the hearing on plaintiff’s motion or here on appeal, its reasons for failing to list its proposed expert witness within the time limits set by the court. Thus, it must be assumed that defendant cannot establish good cause for the omission as required by the local court rule. Defendant’s assertion that the November 4, 1983, pretrial order permitted the addition of further witnesses upon prompt notice is without merit since the order also states that "all experts shall be disclosed within 90 days.” In light of this more specific order, we believe that the "prompt notice” provision of the pretrial order referred only to nonexpert witnesses. We also reject defendant’s claim that the pretrial order was applied inconsistently. While the pretrial order did require plaintiff to file a detailed damage specification by January 4, 1984, defendant never filed a formal motion objecting to plaintiff’s alleged failure to comply with the order. Further, no prejudice occurred since plaintiff filed a detailed damage specification prior to the pretrial conference and plaintiff’s answers to interrogatories, filed on October 5, 1983, provided defendant with information on the alleged damages. There was no abuse of discretion. Wood v Posthuma, 108 Mich App 226, 230; 310 NW2d 341 (1981). Defendant also argues that the court abused its discretion in denying defendant’s motion for adjournment to redepose Dr. Schwartzman on grounds that defendant was unaware prior to the deposition of the death of Edward Duke, Sr. We are unpersuaded by the defendant’s arguments. While defendant’s request for an adjournment was in fact denied, we note that the trial was adjourned anyway for one week to enable scheduling on a daily basis without interruption. Defendant’s failure to avail itself of the opportunity presented makes it difficult for us to accept that it was prejudiced by the denial of its request for an adjournment. Further, defense counsel was reminded after his objections to certain depositional testimony were denied that he was free to have the doctor testify in court. Whatever relevancy defendant attached to the death of Edward Duke, Sr., could then have been explored. Nonetheless, defendant also declined this invitation. Under such circumstances, we can find no abuse of the trial court’s discretion. We next reject defendant’s objections to the trial court’s decision to permit plaintiff to amend her complaint. The amendment enabled plaintiff to specifically include a breach of warranty claim in addition to her claim of negligence. The trial court permitted the amendment because, among other reasons, the defendant’s affirmative defenses denied any breach of warranty. Further, in its pretrial conference questionnaire, defendant framed the issues as containing a breach of warranty claim and averred in its factual statement that no such breach occurred. Obviously, then, defendant could not have been prejudiced by the late amendment of the complaint. We also note that the Supreme Court has held that under the common law of products liability, breach of implied war ranty and negligence claims involve identical evidence and require proof of the same elements. Prentis v Yale Manufacturing Co, 421 Mich 670, 692; 365 NW2d 176 (1984). No abuse of discretion occurred. Welke v Kuzilla, 140 Mich App 658, 665; 365 NW2d 205 (1985). Defendant also argues that it was error to permit the introduction of plaintiff’s hearsay testimony regarding the telephone conversation she had with her husband, during which Edward Duke, Sr., allegedly informed her that "the floor was wet, my feet went out from under me, and I fell.” The conversation took place approximately three minutes after the accident and its introduction into evidence was permitted under the "present sense impression” exception to the hearsay rule, MRE 803(1). That rule defines a present sense impression as "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” We find no error. As noted in Johnson v White, 144 Mich App 458; 376 NW2d 130 (1985), the phrase "immediately thereafter” is not synonymous with "instantly thereafter.” Rather, a review of the facts and circumstances of each case is necessary in order to determine the likely trustworthiness of the statement. 144 Mich App 468; Hewitt v Grand Trunk W R Co, 123 Mich App 309; 333 NW2d 264 (1983). We believe that the statement here in question was made soon enough after the event and under circumstances which negate the likelihood of memory problems and calculated distortions of the event. Id., p 317. Whether the telephone conversation actually took place as plaintiff remembered it or whether the witnesses who assisted Mr. Duke in telephoning his wife offered a more accurate version of the conversation was a question for the trier of fact. Defendant further claims that error occurred in plaintiff’s testimony which related statements made by Mr. Duke to the medical personnel at the hospital. According to plaintiff’s testimony, the medical personnel asked Mr. Duke to explain what happened, and he replied, according to plaintiff, that he "stopped in for a cup of coffee, the floor was wet as he entered the door as his feet went out from under him, and he just couldn’t control his fall.” The testimony was admitted under MRE 803(3), the hearsay exception for statements of the declarant’s then existing mental, emotional or physical condition. We agree with defendant that only Mr. Duke’s later statement to hospital personnel that he was in pain was admissible under MRE 803(3), and not his explanation of the circumstances of the accident. However, we find no error since the statement was in fact admissible under MRE 803(4), which provides: Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment. [Emphasis supplied.] A patient’s statements are likely to be reliable because of the patient’s strong motivation to tell the truth and because facts reliable enough to serve as a basis for medical diagnosis are also reliable enough to escape the hearsay proscription. People v Creith, 151 Mich App 217; 390 NW2d 234 (1986). We believe Mr. Duke’s statement that he lost control and fell, and that he was in pain as a result of the fall, was reasonably necessary to diagnose and treat his fractured leg, particularly in view of the unusual nature of the fracture. While it may not have been necessary to add that the floor was wet, this was cumulative of plaintiffs earlier hearsay testimony relating Duke’s statements to her on the telephone. The erroneous admission of hearsay testimony is harmless error where the same facts are shown by other competent testimony. People v Hoerl, 88 Mich App 693, 702; 278 NW2d 721 (1979). Thus, since the trial court reached the correct result, its reliance on MRE 803(3) rather than 803(4) does not constitute error requiring reversal. DeWitt Twp v Clinton Co, 113 Mich App 709; 319 NW2d 2 (1982). The remaining arguments advanced by defendant need not be considered in light of our resolution of the case. The judgment for plaintiff is reversed and the case remanded for a new trial. Reversed and remanded.

Per Curiam. Defendant Michael D. Holland was charged with one count of possession of less than fifty grams of cocaine, MCL 333.7403, subds (1) and (2)(a)(iv); MSA 14.15(7403), subds (1) and (2)(a)(iv), and one count of possession of marijuana, MCL 333.7403, subds (1) and (2)(d); MSA 14.15(7403), subds (1) and (2)(d). Pursuant to a plea bargain, he pled guilty to the possession of cocaine charge in consideration for the dismissal of the possession of marijuana charge. The plea however was conditional upon defendant’s being allowed to appeal from a previous order entered by the trial court denying his motion to suppress. Sentenced to three years probation, defendant now appeals as of right. We affirm. At the hearing on the motion to suppress, it was stipulated that defendant and a Bernard Lindeman were operating a pleasure boat on the Black River in St. Clair County which was stopped and boarded by United States Customs officials for a documents inspection pursuant to 19 USC 1581(a). Apparently, as defendant took his identification out of his pocket, a packet containing cocaine fell to the floor. The officers then searched the boat and found the marijuana. It is undisputed that at the time the boat was stopped, the customs offi cials had no knowledge of whether the boat had crossed international lines nor of the illegal contraband on board. Defendant now argues on appeal that the initial stop and boarding of the vessel without a warrant and without probable cause violated his rights against unreasonable searches and seizures under both US Const, Am IV and Const 1963, art 1, § 11. We disagree. 19 USC 1581 provides that "[a]ny officer of the customs may at any time go on board of any vessel ... at any place in the United States . . . and examine the manifest and other documents and papers . . . and to this end may hail and stop such vessel . . . .” In United States v Villamonte-Marquez, 462 US 579; 103 S Ct 2573; 77 L Ed 2d (1983), the Supreme Court held that a stop of a vessel without a warrant and without suspicion, conducted pursuant to this statute, was reasonable under the Fourth Amendment where the boat was located in water providing access to the open sea. Noting that the constitutionality of such boardings are to be judged by balancing the intrusion they cause on the suspect’s Fourth Amendment interests against the promotion of legitimate governmental interests served by the intrusion, the Court concluded that "[t]he nature of the governmental interest in assuring compliance with documentation requirements, particularly in waters where the need to deter or apprehend smugglers is great, is substantial; the type of intrusion made in this case, while not minimal, is limited.” 462 US 593. Application of Villamonte-Marquez to the instant facts warrants a finding that defendant’s constitutional rights were not violated. Defendant’s boat was located in the Black River, a designated port of entry, off the St. Clair River, which itself serves as a boundary between the United States and Canada. Consequently, due to the easy access the river provides to Canada, document checks of boaters thereon serve the same public interests as those present in Villamonte-Marquez. As elaborated upon by that Court, documentation laws assist in the regulation of imports and exports and the enforcement of environmental laws and United States shipping laws. 462 US 591. Further, enforcement of the documentation laws requires only a brief detention, during which searches are limited to a visual inspection of only those areas within the official’s plain view. Unfortunately there does not appear to be a way to enforce the stated public interests in a less intrusive manner. Due to the nature of the waterborne commerce, permanent checkpoints, such as the type utilized on main roads leading away from borders, cannot be maintained. The random stops therefore appear to be necessary to achieve the state’s interests. We accordingly hold that defendant’s rights under either the United States or the Michigan Constitution were not violated. Although defendant asks us to interpret the Michigan Constitution in a manner which would afford him greater protection than under the United States Constitution, we are not persuaded that we should strike a different balance than did the Supreme Court in Villamonte-Marquez. Affirmed._ In United States v Martinez-Fuerte, 428 US 543; 96 S Ct 3074; 49 L Ed 2d 1116 (1976), the Supreme Court upheld the authority of federal border patrols to maintain permanent checkpoints at major roadways leading away from international borders, at which vehicles may be stopped for brief questioning even though officials have no reason to believe that such vehicles contain illegal aliens.

Per Curiam. Defendant was charged with indecent exposure and with being a sexually delinquent person at the time of that offense, MCL 750.335a; MSA 28.567(1). Defendant pled guilty to indecent exposure. Thereafter, he moved to quash the sexual delinquency charge on constitutional grounds. The trial court denied defendant’s motion. Following a jury trial, defendant was found to be a sexually delinquent person. The trial judge sentenced defendant to one year in the county jail. Defendant appeals as of right his conviction of sexual delinquency. We reverse and remand this case for a new trial or, in the alternative, to permit the prosecutor, at his option, to dismiss the sexual delinquency charge and allow the defendant to be resentenced on the underlying indecent exposure guilty plea. Defendant argues that the sexual delinquency statute punishes him for his status as a sexual offender and that any punishment imposed because of that status is cruel and unusual punishment. US Const, Am VIII and Const 1963, art 1, § 16. See also Robinson v California, 370 US 660; 82 S Ct 1417; 8 L Ed 2d 758 (1962), reh den 371 US 905; 83 S Ct 202; 9 L Ed 2d 166 (1962). MCL 750.335a; MSA 28.567(1) provides: Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life: Provided, That any other provision of any other statute notwithstanding, said offense shall be triable only in a court of record. MCL 750.10a; MSA 28.200(1) provides: The term "sexually delinquent person” when used in this act shall mean any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16. Defendant contends that these statutes, read together, punish him for having the status of a sexually delinquent person at the time of the indecent exposure. As noted above, defendant relies on Robinson, supra. In that case, the United States Supreme Court held that it was cruel and unusual for a defendant to be charged with the crime of being a narcotics addict. Although the Court implicitly approved of that portion of the statute which made use of narcotics a crime, the court held that a defendant could not be punished for having the status of being an addict. In Powell v Texas, 392 US 514; 88 S Ct 2145; 20 L Ed 1254 (1968), reh den 393 US 898; 89 S Ct 65; 21 L Ed 2d 185 (1968), the Court held that its decision in Robinson would not be extended to a defendant who was prosecuted under a statute which prohibited public intoxication. The Court reasoned that the defendant in Powell was being punished for his acts (i.e., intoxication in a public place) rather than for his status (i.e., being an alcoholic). This Court has already rejected a challenge to MCL 750.335a; MSA 28.567(1) on the basis of Robinson, supra. People v Griffes, 13 Mich App 299; 164 NW2d 426 (1968). In Griffes, the defendant claimed that the enhanced penalty for one who was a sexually delinquent person amounted to criminal punishment for a mental condition or status and, therefore, it was cruel and unusual. Construing the sexually delinquent person statute with the criminal sexual psychopath statute, MCL 780.501 et seq.; MSA 28.967(1) et seq., which had been repealed by 1968 PA 143, this Court held that, because a sexual psychopath was a person who suffered from a mental disorder, a sexually delinquent person was not one whose sexual conduct was coupled with or due to a mental disorder. Hence this Court concluded Robinson was inapplicable. We agree with the conclusion in Griffes. In People v Helzer, 404 Mich 410, 422; 273 NW2d 44 (1978), the Michigan Supreme Court noted that the sexual delinquency provision of the gross indecency between males statute, MCL 750.338; MSA 28.570, provided alternative sentencing for one who was sexually delinquent at the time of the offense. The Court further held that a defendant was entitled to have a separate jury consider the sexual delinquency charge, absent waiver of his right to a jury trial. We note that defendant may raise an insanity defense at that time, MCL 768.20a-768.21a; MSA 28.1043(1)-28.1044(1), or may claim that he was mentally ill, MCL 768.36; MSA 28.1059. These possibilities are provided for in MCL 767.61a; MSA 28.1001(1): In any prosecution for an offense committed by a sexually delinquent person for which may be imposed an alternate sentence to imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life, the indictment shall charge the offense and may also charge that the defendant was, at the time said offense was committed, a sexually delinquent person. In every such prosecution the people may produce expert testimony and the court shall provide expert testimony for any indigent accused at his request. In the event the accused shall plead guilty to both charges in such indictment, the court in addition to the investigation provided for in section 35 of chapter 8 of this act [MCL 768.35; MSA 28.1058], and before sentencing the accused, shall conduct an examination of witnesses relative to the sexual delinquency of such person and may call on psychiatric and expert testimony. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk. Upon a verdict of guilty to the first charge or to both charges or upon a plea of guilty to the first charge or to both charges the court may impose any punishment provided by law for such offense. This statute also protects a defendant who pleads guilty to being a sexually delinquent person. Therefore, wé hold that to enhance a defendant’s sentence because he is a sexual delinquent punishes him for his acts and not for his status. MCL 750.10a, 750.335a, and 767.61a; MSA 28.200(2), 28.567(1), and MSA 28.1001(1). Powell, supra; Griffes, supra. Hence the statute does not provide for cruel and unusual punishment. Defendant further argues that the sexual delinquency statute, MCL 750.10a; MSA 28.200(1), quoted above, is unconstitutionally vague. A statute is unconstitutionally vague if: (1) it is over-broad, impinging on First Amendment freedoms; or (2) it does not provide fair notice of the conduct proscribed; or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether the offense has been committed. Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980). Because defendant does not assert that his First Amendment rights were violated, the first prong of Woll is inapplicable. People v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984). Moreover, vagueness challenges which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. People v Howell, 396 Mich 16, 21-22; 238 NW2d 148 (1976). The evidence introduced at defendant’s trial included testimony of numerous instances and convictions for indecent exposure, a conviction for assault and battery (which resulted from defendant’s act of pulling down a fifteen-year-old’s halter top), a conviction for fourth-degree criminal sexual conduct, MCL 750.520e; MSA 28.788(5), and a conviction for molesting a person (which resulted from defendant’s act of pulling down a sixteen-year-old’s tube top, exposing her breasts). Although we agree that the phrase "any person whose sexual behavior is characterized by repetitive or compulsive acts which indicate a disregard of consequences or the recognized rights of oth ers,” standing alone, fails to give adequate notice of the conduct proscribed, defendant cannot say that he was not forewarned that his acts were prohibited, either under the statute itself or by case law. See People v Winford, 404 Mich 400, 404, n 4; 273 NW2d 54 (1978); Griffes, supra, p 304. Hence defendant lacks standing to claim that the statute was vague as it applied to him. Howell, supra, pp 21-22. However, defendant also claims that the same language which supports his vagueness claim vested unstructured discretion in the trier of fact to determine whether a crime had been committed. We agree because in this case the trial judge instructed the jury only that: "Any person whose sexual behavior is characterized by repetitive and compulsive acts, indicating a disregard of the consequences or the recognized rights of others is guilty of this offense [being a sexually delinquent person].” We believe this standard, like the common-sense-of-society standard discussed in Howell, leaves the jury free to decide, without any legally fixed standards, what is and what is not prohibited on a case-by-case basis. Nonetheless, we believe that the remaining language of the sexual delinquency statute when read in context with the aforementioned language provides sufficient notice of what types of acts are prohibited. Similarly, the charges for which the sexual delinquent may receive an enhanced sentence also provided standards by which defendant’s conduct may be judged. See MCL 750.158, 750.335a, 750.338-750.338b; MSA 28.355, 28.567(1), 28.570-28.570(2). Hence, we find the trial court’s jury instruction in this case was insufficient and we reverse defendant’s conviction. We remand this case to allow the prosecutor, at his option, to retry defendant on the sexual delinquency charge or to have defen dant sentenced on the underlying indecent exposure guilty plea. We reach defendant’s remaining issues in the event the prosecutor elects to retry this case. Defendant claims that the trial court abused its discretion when it admitted evidence of acts which occurred subsequent to the underlying charge of indecent exposure to show that he was sexually delinquent at the time of that offense, MCL 750.335a; MSA 28.567(1). We believe that the trial court did not abuse its discretion when it admitted testimony about acts which occurred within one week of defendant’s arrest on the underlying charge. MRE 404(b) allows evidence of other crimes, wrongs or acts, even if they occur subsequently, to be used to prove a defendant’s intent, preparation, knowledge or system in doing an act, as opposed to his character. Here the state had to demonstrate that defendant’s behavior at the time of the underlying indecent exposure charge was characterized by repetitive and compulsive sexual behavior. We hold that acts occurring within one week of such a charge are relevant in determining whether defendant’s acts at that time were of such a nature. MRE 401. We further note the trial judge told the jury that it could only consider this subsequent acts evidence to determine defendant’s sexual delinquency on the date of the underlying charge. Finally, defendant claims the trial court abused its discretion when it admitted evidence of convictions which were eleven and twelve years old, citing MRE 609. We believe MRE 609 applies only to impeachment situations and not to a situation where the issue is whether a defendant should receive an enhanced sentence, as is the case here. People v Taylor, 422 Mich 407; 373 NW2d 579 (1985). Although we note that there were two four-year gaps between defendant’s convictions (from 1975 to 1979 and from 1979 to 1983) we cannot say that the trial court abused its discretion in admitting evidence of defendant’s earlier convictions when it gave a limiting instruction as to their use. Id. Reversed and remanded for proceedings consistent with this opinion.

Per Curiam. Plaintiff filed a products liability action against defendant and now appeals as of right from a grant of summary judgment in defendant’s favor. The circuit court ruled that, under California law, defendant did not owe a duty to plaintiff under the facts of this case. We affirm the trial court’s grant of summary judgment. The facts, as alleged by plaintiff, which gave rise to this appeal are relatively simple. On December 17, 1976, plaintiff was driving his 1966 Cadillac on Franklin Avenue in the County of Los Angeles, California. Plaintiff sustained serious injuries when his vehicle was struck head-on by a 1973 Lincoln Continental, manufactured by defendant Ford Motor Company, which had crossed over the center line. Plaintiffs allegations of negligence do not relate to any vehicle parts mechanically involved in the operation of the vehicle on the highways. Rather, plaintiff merely alleges that Ford was negligent in the design of the ignition locking system on the 1973 Lincoln such that it failed to operate as an effective anti-theft device which made Ford vehicles more subject to theft than other types of cars. At the time of the accident in this case, the Lincoln was a stolen car. The car had been stolen several hours prior to the accident. However, the person who stole the car was not the driver at the time of the accident. Rather, the thief had given the car to another person shortly before the accident. Both plaintiff and the driver of the vehicle were residents of the state of California when the accident occurred. Plaintiff asserted that stolen cars are more likely to be involved in injury-causing collisions with other members of the public. Plaintiff alleged that defects in the ignition locking system encourage car thefts that result in injuries to motorists who are struck by stolen cars. The trial court determined that, under Califor nia law, the defendant did not owe a duty to the plaintiff under the facts of this case as alleged by plaintiff. For purposes of defendant’s motion for summary judgment, the court assumed that the ignition locking mechanism on the Lincoln did not meet with contemporary technical standards. The court also rejected defendant’s argument that there was a lack of proximate cause. We find that the trial court correctly granted summary judgment. i As a preliminary question, we must determine whether California or Michigan substantive law controls this action. We find that California law is applicable. In Sexton v Ryder Truck Rental, Inc, 413 Mich 406; 320 NW2d 843 (1982), a divided Supreme Court reexamined the question of whether the traditional lex loci delicti rule should be followed. While no single opinion earned majority support, the Supreme Court did indicate that in certain circumstances the doctrine of lex fori should be followed. In Sexton, both the plaintiffs and the defendants were Michigan residents, or corporations doing business in Michigan, and the accident took place in another state. Subsequent to Sexton, this Court has held that, where either plaintiff or defendant is not a Michigan resident nor doing business in Michigan, a comparison of the interests of each jurisdiction in having its law govern the case is warranted. Vogh v American International Rent-A-Car, Inc, 134 Mich App 362, 368; 350 NW2d 882 (1984); Olmstead v Anderson, 145 Mich App 160, 166-167; 377 NW2d 853 (1985). In this case, a superior foreign state interest exists which calls for the application of foreign law in order to reach a just resolution of the controversy. Michigan has no significant interest in this litigation. The plaintiff was a resident living in California at the time of the accident and has never resided in Michigan. The accident occurred in California and the Ford vehicle involved was registered and licensed in California. The connections to Michigan are limited to the fact that Ford’s headquarters are located in Michigan and the action was filed in this state. We note that plaintiff is apparently now a resident of Massachusetts. We also note that, at the time of the hearing on defendant’s motion, plaintiff did not object to the court’s application of California law to this case. ii In regard to the substantive issues of this appeal, plaintiff argues that the trial court erred in determining that California law did not impose a duty on defendant under the facts of this case. We disagree. A manufacturer’s duty to use reasonable care to design a product such that it is reasonably safe for its intended and foreseeable uses does not extend to the protection of the whole world. The scope of the duty often depends primarily on whether the injuries to a particular plaintiff are foreseeable. See Elmore v American Motors Corp, 70 Cal 2d 578; 75 Cal Rptr 652; 451 P2d 84 (1969). In granting summary judgment to defendant, the trial court relied on California authority which precludes recovery against the owner of a vehicle when he leaves his keys in his car, the car is stolen and an innocent third party is injured when he is involved in an accident with the stolen vehicle. Richards v Stanley 43 Cal 2d 60; 271 P2d 23 (1954). The trial court reasoned that, since California law did not recognize a duty under those facts, California would not impose a similar duty on an automobile manufacturer. We agree. In Richards, supra, the court initially determined that the defendant therein was negligent in leaving the keys in an unattended car, but concluded that the real issue in the case was whether there existed a duty of care owed by the wrongdoer to the person injured, or to a class of which he was a member. The plaintiff in Richards contended that, since both theft and negligent driving on the part of the thief were foreseeable consequences of the defendant’s negligence, the defendant created an unreasonable risk of harm to the general public by her negligence and was therefore liable to him. The court reasoned that the determination of whether a duty exists was not answered simply by pointing out that there is a foreseeable risk of negligent driving on the part of the thieves. To recognize a duty under such circumstances, the court concluded, would involve imposing a duty to prevent action by a third person. The court noted that ordinarily, in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another. Finally, the court concluded that, by leaving the keys in her car, the defendant, at most, merely increased the risk that the car might be stolen and, even if defendants should have foreseen the theft, the duty of reasonable care did not extend to protect plaintiff from the negligent driving of a thief. The basic rule announced in Richards, supra, was reaffirmed by the California Court of Appeals in Kiick v Levias, 113 Cal App 3d 399; 169 Cal Rptr 859 (1980). Contrary to the assertion made by plaintiff, the trial court in the present case did not equate Ford’s duty as a manufacturer with that of the owner of the vehicle and thereby require plaintiff to establish privity with the manufacturer in order to recover. The lower court merely reasoned that, since California did not impose a duty on the owner of a vehicle to prevent theft for the benefit of third parties, it would therefore not impose a similar duty on the automobile manufacturer under similar circumstances. We are persuaded by this reasoning. Defendant owed no duty to plaintiff in this case. We note that no "special circumstances” exist in this case to alter that conclusion. In Palma v U S Industrial Fasteners, Inc, 36 Cal 2d 171; 203 Cal Rptr 626; 681 P2d 893 (1984), the California Supreme Court created an exception to the general Richards rule that the owner of the car is not liable for injuries to third persons injured by the negligent operation of the car by a thief. The court held that, when "special circumstances” exist such that the owner of the vehicle is placed on notice that his negligent conduct would likely result in an incompetent person’s stealing the car, then the owner owes a duty of care to the person ultimately injured. The special circumstances present in Palma which prevented summary judgment were that defendant therein left an expensive, difficult-to-operate, truck parked overnight, unlocked, in a high-crime area. The facts of this case are not even vaguely similar to the circumstances which existed in Palma. No special circumstances have been alleged in this case which are sufficient to withstand summary judgment. Summary judgment pursuant to GCR 1963, 117.2(3) is proper only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test the factual support for a claim. Maccabees Mutual Life Ins Co v Dep’t of Treasury, 122 Mich App 660, 663; 332 NW2d 561 (1983), lv den 417 Mich 1100.15 (1983). The court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim or position asserted cannot be supported by evidence at trial because of some deficiency which cannot be overcome. Id. The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. Id. In this case, accepting plaintiffs alleged facts as true and viewing them in the light most favorable to plaintiff, defendant is entitled to judgment as a matter of law. Plaintiff has failed to show that defendant owed a duty to plaintiff. It is well-settled law that the question of duty is to be resolved by the court rather than the jury. Antcliff v State Employees Credit Union, 414 Mich 624, 637-638; 327 NW2d 814 (1982). The trial court properly ruled that Ford did not owe a duty to plaintiff in this case. Plaintiff presented no genuine issue of material fact in regard to the issue of duty and summary judgment was appropriately granted on that ground. Finally, we reject plaintiffs argument that the trial court’s grant of summary judgment is subject to automatic reversal because defendant failed to file any affidavits in support of its summary judgment motion pursuant to GCR 1963, 117.2(3). We decline to reverse the grant of summary judgment on this basis. Requiring the submission of affidavits in this case would serve no legitimate purpose. Instead of submitting an affidavit, defendant relied solely on deposition transcripts. Moreover, because all of the facts alleged by plaintiff could be accepted as true, there was no need for defendant to submit affidavits or other evidence. The facts as alleged by plaintiff did not support his claim because of the duty issue. Furthermore, affidavits are now only one of several alternative documents which may be used to support or oppose grounds asserted in a motion for summary judgment. See MRE 2.116(G)(2). The trial court’s grant of summary judgment is affirmed.

Beasley, P.J. On January 24, 1985, plaintiffs, Eric Blana and Gloria Blana, filed suit against defendant dentist, Dr. Ronald Spezia, claiming that defendant had committed dental malpractice in treating plaintiff Eric Blana for periodontal (gum) disease. Defendant moved for disposition pursuant to MCR 2.116(C)(7), formerly GCR 1963, 116.1(5), claiming that plaintiffs had failed to file their cause of action within the applicable statute of limitations period provided in MCL 600.5805; MSA 27A.5805 and MCL 600.5838; MSA 27A.5838. On March 4, 1985, the trial judge granted defendant’s motion for summary disposition and dismissed plaintiffs’ complaint. Plaintiffs appeal as of right. We first note that the trial judge, in deciding whether to grant defendant’s motion for summary disposition on March 4, 1985, properly applied the new Michigan Court Rules which took effect on March 1, 1985. MCR 2.116(G)(5), provides that in deciding a motion based on MCR 2.116(C)(7) a trial judge must consider the affidavits, pleadings, depositions, admissions and documentary evidence filed at the time the motion is considered. At the time the trial judge considered defendant’s motion, plaintiffs had filed a complaint and an affidavit, as well as defendant’s having filed an affidavit. Plaintiffs’ complaint and affidavit alleged that plaintiff Eric Blana had been informed by Dr. Gitlin, D.D.S., in June of 1981 that he suffered from periodontal disease that required gum surgery and the removal of five teeth. On July 2, 1981, Blana consulted with defendant for a second opinion. Defendant proposed mouth treatment that did not involve surgery, but involved pulling the gums from the teeth and the placement of a bridge in the mouth. Defendant began treating Blana in July of 1981. Blana discontinued treatment on September 30, 1981, after the bridge was placed in his mouth. Subsequently, Blana allegedly did not treat or consult with a dentist until January 17, 1984, when he was treated by Dr. Dobrusin, D.D.S., for sudden and excruciating mouth pain. Dr. Dobrusin removed an abscessed tooth on that date. On November 23, 1984, Blana returned to Dr. Dobrusin for a full mouth examination. On that date, Dr. Dobrusin informed Blana, allegedly for the first time, that his periodontal disease had progressed significantly since 1981 and proper treatment required that all but six of Blana’s teeth and the bridge placed in his mouth by defendant be removed. Allegedly, Dr. Dobrusin refused to comment on whether defendant had improperly treated Blana’s gum disease. However, plaintiff consulted an attorney in December, 1984, who suggested that he might have a malpractice claim. As previously indicated, plaintiffs filed suit in this matter on January 24,1985. On appeal, plaintiffs argue that the trial judge erred in granting defendant’s motion for summary disposition because a material factual dispute existed as to the date that plaintiffs discovered the alleged malpractice. The applicable statute of limitations, MCL 600.5838(2); MSA 27A.5838(2), provides: An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred. [Emphasis added.] Plaintiffs do not dispute that they filed their complaint more than two years after the last date of treatment by defendant on September 30, 1981. Thus, it is clear that plaintiffs failed to assert their claim within the two-year statutory period provided in MCL 600.5805; MSA 27A.5805. However, plaintiffs allege that they filed their complaint within six months after the time they allegedly discovered or should have discovered, their possible malpractice claim in November, 1984. The trial judge found that plaintiffs had failed to allege sufficient facts to sustain their burden of proving that Blana, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the malpractice claim six months prior to filing their complaint. In addressing this issue, we must first determine when a trial judge can properly grant summary disposition under the new Michigan Court Rules based on the running of the statute of limitations period in a medical malpractice action. This Court, in applying the former General Court Rules, held that the granting of accelerated judgment under GCR 1963, 116.1(5) is improper when a material factual dispute exists regarding the date of discovery of the alleged malpractice. This rule of submitting the statutory "date of discovery” issue to the jury if there is any material factual dispute was adopted by this Court pursuant to Winfrey v Farhat, where, prior to the enactment of MCL 600.5838; MSA 27A.5838, the Supreme Court applied a judicially constructed "discovery” rule. This former, judicially constructed discovery rule provided that the statute of limitations in malpractice cases did not begin to run until the date the plaintiff should have discovered the wrongful act. It is not clear whether the Michigan Supreme Court would have adopted the rule requiring any material factual disputes to be submitted to the jury for purposes of the statutory discovery rule provided in MCL 600.5838(2); MSA 27A.5838(2). The statute expressly places on plaintiff the burden of proving that the plaintiff did not discover, or should not have discovered, the existence of a malpractice claim over six months prior to filing suit. Furthermore, allowing the jury to decide a preliminary statute of limitations issue expressly created by the Legislature in order to preclude the filing of certain medical malpractice claims creates a serious risk of nullifying the Legislature’s intent in passing the statute of limitations. A jury presented with evidence of a seriously injured plaintiff may be prone to disregard the facts and find that the plaintiff should have discovered his claim only within six months of filing his complaint in order to provide the plaintiff an award of damages. The risk presented in this situation is analogous to the risk that exists in allowing a jury to decide preliminary questions concerning the admissibility of evidence at trial. A jury is deemed unable to hear certain evidence, such as an illegally obtained confession or hearsay evidence, decide that the evidence is inadmissible, and then fairly decide the main issue at trial, having heard the inadmissible evidence. Therefore, the preliminary question concerning the admissibility of evidence at trial, which often involves the resolution of material factual disputes, is left solely to the trial judge. Although this Court, as noted above, has held that under the former General Court Rules any material dispute of fact concerning a plaintiff’s discovery of the existence of a malpractice claim requires the issue to be submitted to the jury, we believe that under the new Michigan Court Rules this rule should be altered to assure a fair adjudication of this preliminary statute of limitations issue. GCR 1963, 116.3 merely provided that a party may submit affidavits or other evidence in supporting or opposing a motion for accelerated judgment. The former court rule did not require a trial judge to consider the affidavits and other evidence in deciding an accelerated judgment motion. However, MCR 2.116(G)(5) expressly requires a trial judge to consider affidavits and other evidence in deciding a motion for summary disposition based on the statute of limitations. This change in the court rules may indicate a broader role for the trial judge in deciding factual issues concerning the application of the statute of limitations. As we indicated in making our analogy to the rules of evidence above, we believe an expanded role for the trial judge in deciding the preliminary issues involved in applying the medical malpractice statute of limitations is appropriate. Thus, we hold that the trial judge in the within case was not required to submit to the jury the issue of when plaintiffs discovered or should have discovered the existence of their malpractice claim for purposes of the statute of limitations. This presents a preliminary question which should be decided by the trial judge. We review the trial judge’s findings on this preliminary issue to determine whether he clearly erred in finding that plaintiffs failed to submit sufficient evidence to satisfy their burden of proving that they did not or should not have discovered the existence of their malpractice claim prior to six months before filing their complaint. Our review of the pleadings and affidavits filed in this case leads us to conclude that the trial judge did not clearly err in finding that plaintiffs’ malpractice claim was barred by the statute of limitations. In his affidavit, Blana stated that Dr. Dobrusin informed him on November 23, 1984, that his gum disease had advanced significantly since 1981 when the defendant had treated him for the disease. Dr. Dobrusin also informed Blana that his gum disease was so advanced that all but six of his teeth had to be removed. Based on these facts in Blana’s affidavit, the trial judge could reasonably infer that Blana would have experienced considerable pain in and problems with the appearance of his mouth as his gum disease progressed from the time defendant treated him in October, 1981, to the time his gum disease was diagnosed as being in an advanced stage in November, 1984. Based on this proper inference, the trial judge, despite Blana’s later allegation that he had not discovered the possible existence of his malpractice claim prior to November 23, 1984, could reasonably conclude that Blana, at some point in time prior to six months before filing a complaint, should have known that he had a malpractice claim against defendant for defendant’s obvious failure to properly treat his gum disease. Blana’s complaint and affidavit completely fail to raise specific facts that would rebut the trial judge’s conclusion. Therefore, we find that the trial judge did not clearly err in finding that plaintiffs discovered or should have discovered the existence of their medical malpractice claim prior to six months before filing their complaint and in granting defendant’s motion for summary disposition based on the running of the applicable statute of limitations period. Affirmed. D. L. Sullivan, J., concurred. Chernavage v Gromada, 138 Mich App 619, 624; 360 NW2d 617 (1984), modified on other grounds 422 Mich 929 (1985); Kelleher v Mills, 70 Mich App 360, 365; 245 NW2d 749 (1976). 382 Mich 380; 170 NW2d 34 (1969). Kelleher, supra, p 367. MRE 104(a).

Per Curiam. Plaintiffs appeal as of right from a circuit court order granting defendant’s motion for summary judgment. In 1975, plaintiffs were the owners of Press’s Bakery, a restaurant in White Cloud, Michigan. In July, 1975, they obtained health insurance for themselves and the restaurant’s employees through a group policy of insurance issued to the Home Furnishings and Appliance Industry Trust. The policy listed the trustees and "participating employers” as the policyholders. The restaurant was a participating employer. On December 1, 1980, plaintiffs sold the business to Robert and Kathleen Larsen. Pursuant to a private agreement between plaintiffs and the Larsens, plaintiffs continued to be listed as employees for purposes of the insurance coverage. The Larsens ceased paying the insurance premiums on behalf of the restaurant in January, 1981. By letter dated May 30, 1981, defendant notified the Larsens, as agents of the bakery, that the group policy had been terminated on May 15, 1981, due to nonpayment of premiums. The letter directed the Larsens to notify their employees that the group medical insurance had been cancelled. Plaintiffs were not so notified. On July 1, 1981, plaintiff Virginia L. Jones was hospitalized and incurred substantial medical bills. Plaintiffs submitted a claim for benefits to defendant on August 1, 1981. The claim was denied by defendant because the treatment had occurred after the group insurance had been terminated. Thereafter, plaintiffs commenced the instant action alleging a breach of contract for the nonpayment of insurance benefits. Plaintiffs did not include the employer as a defendant. _ Defendant’s motion for summary judgment was brought pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10). A motion for summary judgment on the ground that there is no genuine issue of material fact tests whether there is factual support for the claim. When passing on a motion based on rule 117.2(3), the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Longley v Blue Cross & Blue Shield of Michigan, 136 Mich App 336; 356 NW2d 20 (1984). Plaintiffs maintain that defendant was required to provide the employees with notice of termination of insurance. We disagree. First, the contract itself does not require defendant to notify the employees that the insurance has been cancelled. Second, the Michigan Insurance Code does not require that those insured under a policy of group disability insurance receive notice of termination. Plaintiffs rely on Lease Car of America, Inc v Rahn, 419 Mich 48; 347 NW2d 444 (1984), for the proposition that the insurer must provide notice of termination to each party who qualifies as an "insured” under the policy, not merely the named insured or designated insured. Plaintiffs’ reliance on this case is misplaced. In Lease Car, the Supreme Court was called upon to construe MCL 500.3020; MSA 24.13020 which provides that an insurer may cancel a policy of casualty insurance by mailing written notice of cancellation to the insured. The policy of insurance in this case is not one of casualty insurance. There is no analogous statute with respect to group insurance. Third, plaintiffs cannot point to any Michigan decision wherein the courts have held that the insurer has a duty to personally notify the employees that a contract for group medical insurance has been terminated. While it would be more equitable to require such notice, only the contract or an appropriate statute can make such a requirement. See, e.g., Sims v Buena Vista School Dist, 138 Mich App 426, 430; 360 NW2d 211 (1984), Iv den 422 Mich 940 (1985); Szymanski v John Hancock Mutual Life Ins Co, 304 Mich 483, 490; 8 NW2d 146 (1943). Plaintiffs argue that the group insurance policy is a contract of adhesion. This argument is without merit. While the employees are the insureds and, thus, are the beneficiaries of the insurance contract, the contract is between the insurer and the employer. Don-Ray Tool & Die, Inc v John Hancock Mutual Life Ins Co, 381 Mich 416; 163 NW2d 225 (1968). An adhesion contract refers to standardized contract forms offered to consumers of goods and services on a "take it or leave it basis.” This is not the case here. Furthermore, the "adhesion contract” doctrine is a defense to the enforceability of a contract. Moreover, plaintiffs themselves contracted for the insurance and knew the terms thereof. This is not a "take it or leave it situation.” Plaintiffs argue that summary judgment should not have been granted because discovery is incomplete. We disagree. Plaintiffs can point to no questions of fact left to be resolved. Further discovery would not uncover factual support for plaintiffs’ claim. Page v Clark, 142 Mich App 697; 370 NW2d 15 (1985). Plaintiffs argue for the first time on appeal that they should be allowed to amend their complaint to add a cause of action grounded in tort. An amendment to plaintiffs’ complaint would be futile as plaintiffs have not advanced a meritorious tort claim which can be asserted against defendant. There are no genuine issues of material fact. Defendant is entitled to judgment as a matter of law. Affirmed. For purposes of the motion, defendant did not contest plaintiffs’ claim that they were employees. Plaintiffs’ counsel stated: [T]he employer had more financial difficulties than just his ability to make the premiums, and there is absolutely no value in obtaining judgment against the employer for failing to give us notice ....

H. W. Moes, J. Plaintiff appeals as of right from the October 10, 1984, order granting defendant Robert Langeland’s motion for summary judgment in this negligence action. Although the order does not expressly state the grounds upon which summary judgment was granted, a review of the trial court’s oral findings and conclusions reveals that it was grounded upon GCR 1963, 117.2(1), now MCR 2.116(C)(8), failure to state a claim upon which relief can be granted. A brief recitation of facts is necessary in disposing of this matter. For some period of time prior to October 12, 1981, Venessa Vilcans, plaintiffs decedent, and defendant Robert Langeland were involved in a very close social relationship. Langeland was married; decedent was a widow. Langeland can be best generally termed an experienced outdoorsman. Decedent was not. Langeland, for some fourteen years, went duck hunting with a friend, Donald Verberkmoes. Such a hunting trip was scheduled by Langeland and Verberkmoes for October 12, 1981, on the Muskegon River. Decedent invited herself along on the duck hunting trip and advised Langeland that she had purchased a duck stamp, a federal stamp, and low hip waders for the hunting trip. Early on the morning of October 12, 1981, the three met at a restaurant and went to the boat launching site. The boat and motor were owned by Verberkmoes and were carried to the site on Langeland’s truck. The boat, with the motor mounted on it, was placed in the water. Langeland put on his full length water waders, but removed them for decedent to use, decedent’s hip waders being too short. The waders were insulated and had adjustable shoulder straps. A leather belt was placed around the top of the waders decedent was wearing. Langeland used another pair of full-length waders. The high waders were utilized because the river had overflowed and the water was high. Verberkmoes got into the boat first and went to the rear. Langeland next went to the middle of the boat and decedent pushed the boat from shore and jumped in. Verberkmoes attempted to start the motor. It stalled and more gas was given. The motor started fast. Langeland told Verberkmoes to shut it off or they would sink. Upon the motor being stopped, the front end of the boat went down and water came in and filled the boat. Langeland told everyone to remain where they were. Verberkmoes tried, however, to step past Langeland. The weight in the boat was shifted and all three fell into the water. The weight of Langeland’s waders caused him to go under water; however, he cut the wader straps and surfaced. Verberkmoes and decedent were heard some fifteen to twenty feet distant. Verberkmoes and decedent drowned. Plaintiff claims on appeal that the trial court erred by holding that no legal duty existed between decedent and Langeland as a matter of law. Plaintiff alleged that Langeland, in allowing decedent to use his full-length waders, owed decedent a duty of care and further alleged that it was breached in four ways: he allowed decedent to wear waders that were too large; he failed to warn and instruct her of the proper and safe use of waders; he failed to warn and instruct her of the proper use of a life jacket; and he failed to act when decedent complained that the waders were cumbersome and clumsy. The test on a motion for summary judgment based on GCR 1963, 117.2(1), now MCR 2.116(C)(8), is whether the claim involved is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recover. Cramer v Metropolitan Savings Ass'n, 125 Mich App 664; 337 NW2d 264 (1983). All factual allegations of the claim are taken to be true, along with any reasonable inferences or conclusions which may fairly be drawn from the facts alleged. Kinnunen v Bohlinger, 128 Mich App 635; 341 NW2d 167 (1983). A motion brought pursuant to GCR 1963, 117.2(1) tests only the legal sufficiency of the claim, not whether there is any factual support for the claim. Huff v Ford Motor Co, 127 Mich App 287; 338 NW2d 387 (1983). The elements of plaintiff’s action for negligence are 1) duty, 2) general standard of care, 3) specific standard of care, 4) cause in fact, 5) legal or proximate cause, and 6) damages. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). Where there is no legal duty, no actionable negli gence exists. Butrick v Snyder, 236 Mich 300, 306; 210 NW 311 (1926). The question of duty is one of law and solely for the court to decide. Moning v Alfono, supra. "Duty” was defined in Antcliff v State Employees Credit Union, 414 Mich 624, 630-631; 327 NW2d 814 (1982), reh den 417 Mich 1103 (1983), where our Supreme Court quoted the following from Prosser, Torts, § 53, p 324: A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. It is axiomatic that, where no duty exists, there can be no actionable negligence. Butrick v Snyder, supra. It is a general rule of common law that a person has no duty to render assistance to another if he is not liable for the initial injury in the absence of a special relationship. 2 Restatement Torts, 2d, §§ 323, 324, pp 135-142. Further, every person who engages in the performance of an undertaking has an obligation to use due care or to act so as not to unreasonably endanger the person or property of another. Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). It is not enough that an individual simply acts. The act must have been one to render service to another. Smith v Allendale Mutual Ins Co, 410 Mich 685; 303 NW2d 702 (1981), reh den 411 Mich 1154 (1981). In the instant case, Langeland simply loaned more appropriate waders to replace the waders which had been purchased and were being worn by decedent. This cannot be considered the rendering of a service or an undertaking which would have been performed for Langeland’s ben efit. It was a reasonable act under the situation that existed and did not increase any danger accepted by the decedent. It was a gratuitous act in which defendant did not assume an obligation or render a service. Scott v Detroit (On Rehearing), 113 Mich App 241; 318 NW2d 32 (1981), lv den 422 Mich 892 (1985). No special relationship existed requiring Langeland to be more affirmative in his actions and requiring Langeland to instruct decedent. It was a simple act of allowing another person to utilize a more appropriate piece of water equipment. To impose a duty would fly in the face of all commonly accepted codes of conduct. Here, we cannot conclude that defendant’s loan of the insulated waders worsened the situation or increased the risk when decedent had already intended to wear her newly purchased hip waders. Defendant did not have a legal duty to plaintiffs decedent as claimed in plaintiffs complaint. We therefore do not need to address the remaining questions raised by plaintiff on appeal. Affirmed. R. M. Maher, J., concurred.

Per Curiam. Defendant appeals as of right from a June 6, 1985, order entered in Shiawassee Circuit Court finding defendant in contempt for failure to comply with an interim order for child support. The trial court ordered defendant to pay $1,000 towards his arrearage or serve forty-five days in the county jail. Plaintiff Billie Smith originally filed her complaint for divorce on April 25, 1978. On May 8, 1978, an interim order for support was entered providing that defendant was to pay $36 per week for the support of his minor child commencing on May 1, 1978. Apparently defendant did not make regular payments and on February 21, 1980, an order to show cause was entered pursuant to a petition by the Friend of the Court. On March 23, 1981, an order was entered dismissing plaintiff’s complaint for divorce because neither party appeared for trial. Additionally, the order abated defendant’s support obligations, but preserved an outstanding arrearage of $4,675 owed to the State of Michigan. The circuit court further ordered a bench warrant for defendant’s arrest which was effected on June 5, 1985. On June 6, 1985, a show cause hearing was held, wherein defendant was found in contempt for failure to pay his child support obligations of $36 per week when he was able to do so. Defendant was ordered to immediately pay the sum of $1,000 toward his arrearage or serve forty-five days in the county jail. Since defendant testified that he had only $66 to his name on the date of the show cause hearing, he was committed to jail. The lower court record indicates that on June 27, 1985, a $500 ten percent cash bond was paid to secure defendant’s release from custody on the civil contempt charge. Defendant first asserts on appeal that the trial court erred in finding him in contempt of court. We disagree. Pursuant to two statutory provisions contempt of court is available as a sanction in cases of failure to pay child support. The applicable section in the instant case is MCL 552.635; MSA 25.164(35), which provides for a finding of contempt if a payer who is in arrears and who, by the exercise of due diligence, has the capacity to pay the amount due, fails or refuses to so pay: (1) The court may find a payer in contempt if the court finds that the payer is in arrears and if the court is satisfied that by the exercise of diligence the payer could have the capacity to pay all or some portion of the amount due under the support order and has failed or refused to do so. Since this civil contempt provision is relatively new, this Court has relied on interpretations of similar provisions of now-repealed MCL 552.201; MSA 25.161. Wells v Wells, 144 Mich App 722, 732; 375 NW2d 800 (1985). The Wells panel noted that civil contempt is a coercive remedy that is designed to induce compliance with a court order by the threat of incarceration until there is compliance with the order. Id. The issuance of an order of contempt is in the sound discretion of the trial court. However, the trial court must consider whether the payer has sufficient present ability to comply with the support order. Sword v Sword, 399 Mich 367, 378; 249 NW2d 88 (1976), reh den 400 Mich 952 (1977); Wells, supra, p 732. The factors to be considered in determining whether a defendant has a sufficient present ability to obey such an order include: (1) employment history; (2) education and skills; (3) work opportunities; (4) diligence in seeking employment; (5) defendant’s personal history, including present means of support; (6) assets; (7) health and physical ability to obtain employment; and (8) availability for work. Sword, supra, pp 378-379; Wells, supra, p 732. At the show cause hearing defendant testified that he was unemployed and last worked as a landscaper in Florida in January, 1985, earning approximately $100 per week. He did not pay child support during this time. Prior to this, defendant was employed by a contractor for approximately seven or eight months, earning $130 a week. He did not pay any child support while he was employed by the contractor. The only time he paid child support was while he was working for the Shiawassee Community Development Corporation. We find that defendant’s testimony supports the trial court’s finding that defendant was able to make some payments on his support obligation but failed to do so. We therefore conclude that the trial court did not abuse its discretion in finding defendant in contempt of court under § 35. However, we note that § 35 permits the court to enter an order committing the defendant to the county jail with the privilege of leaving to go to his place of employment or to seek employment: (2) Upon finding a payer in contempt of court under this section, the court may immediately enter an order committing the payer to the county jail with the privilege of leaving the jail, during such hours as the court determines and under such supervision as the court considers necessary, for the purpose of allowing the payer to go to and return from his or her place of employment or, if the person wishes to seek employment, to seek employment. Here, although defendant testified that he was willing to seek employment, the trial court’s order failed to provide for a work release. We believe that a work release advances the purpose of civil contempt by combining the coercive aspect of jail with the aspect of providing the payer with the means to effect compliance with the order. Therefore, while we affirm the contempt order, pursuant to the powers provided in MCR 7.216(A), we modify same. Specifically, since it appears that defendant does not have the present ability to pay the arrearage and has been committed to the county jail for contempt, the order is modified to provide that defendant be given the privilege of leaving the jail, under the supervision of the county sheriff, during such hours as the sheriff deems necessary, for the purposes of allowing defendant to go to his place of employment or to seek employment. We find defendant’s other arguments with respect to the contempt order to be without merit. Pursuant to MCL 552.637(1); MSA 25.164(37)(1) the record in the instant case supports a finding that other remedies appeared unlikely to correct defendant’s failure or refusal to pay child support. Further, there was sufficient evidence on the record to support a finding that defendant was $4,675 in arrears. Accordingly, we conclude that entry of an order finding defendant in contempt pursuant to § 35 was permissible. Finally defendant contends he was denied due process of law because he was not represented by an attorney at the show cause hearing. This claim has been considered and rejected in a well-reasoned opinion by the Supreme Court in Sword, supra. We find this opinion to be persuasive and accept it in rejecting defendant’s claim. Although the Supreme Court noted that the court may appoint counsel if the civil contempt proceeding is complex, we do not find that such was the situation here, nor does defendant make such a claim. Accordingly, defendant’s argument is without merit. Affirmed as modified. While this issue in the present case may well be moot for the reason that defendant has been released on bond, we hold as we do in the event the same issue should arise in the future and for the benefit of bench and bar.

M. R. Knoblock, J. The defendants were charged with the offense of braking and entering a place of business with the intent to commit the crime of larceny therein, MCL 750.110; MSA 28.305. Before trial, the trial judge granted the defendants’ motion to suppress evidence and dismissed the case without prejudice. The people appeal by leave granted. Defendants are City of Detroit police officers. In the early morning of July 29, 1983, a break-in occurred at Alexander’s Bookstore on Conant Avenue in the City of Detroit. Police department records indicate defendants were assigned to plainclothes duty on the date in question and were driving a brown, unmarked police vehicle. The records further indicate defendants arrived at the scene at approximately 2:45 a.m. Subsequent investigation revealed that a quantity of lottery tickets and a .25-caliber automatic pistol in a case were missing from the store. Members of the Detroit Police Department Internal Affairs Section conducted an investigation. As part of that investigation, an affidavit for a search warrant was prepared containing the following: The affiant is a member of the Detroit Police Department assigned to the Internal Affairs Section, and is investigating a Breaking and Entering of Alexander’s Book Store, located at 12104 Conant, which occurred on July 29, 1983, at approximately 2:45 a.m., where the above mentioned items were taken. At approximately 2:45 A.M., Miss Sherry Lee Tyminski, 12/w/f, of 12041 Conant, was awakened by the sound of glass breaking and the sound of a police radio. Within one to two minutes after hearing the above noises, Sherry Tyminski went to her front bedroom window, which faces 12104 Conant, and from there she observed a brown 4 door vehicle parked on the sidewalk facing Alexander’s Book Store. She then observed a b/m, tall and thin build, with a black stick in his hand, breaking out a 24 x 36 plate glass window and subsequently enter the Book Store. She then notified her mother, Ms. Betty Zydura, 31/w/f, who in turn notified the Hamtramack [sic] Police Department. Police Officers R. Szafran, Badge 36, and S. Sadzinski, Badge 63, arrived at approximately 2:57 A.M., and found a brown unmarked vehicle with the front fender directly under the broken window of the Book Store. Officer Sadzinski yelled inside the store, "Police, is everything ok?” At this time a w/m walked out from the back and said "everything is all right.” At exactly 3:00 a.m., the Emergency 24 Alarm Company received an alarm signal from the Book Store. The alarm is located within the premises and would not have been activated as a result of the front window being broken. The alarm was activated only in the area where the above listed items were taken. Detroit Police Department records reveal that on this date, Police Officer John Glide, w/m, and Police Officer Aaron Turner, b/m, were assigned to plainclothes duty and were driving a 1982 Grand Fury 4 door brown in color, Code 823010. The records further indicate that they were at the scene at approximately 2:45 a.m. on this date. Therefore, the affiant has probable cause to believe that the above listed items were taken and are still in the possession of Police Officers John Glide and Aaron Turner. Based on the above affidavit, a search warrant was issued authorizing the search of the defendants’ respective homes and personal automobiles. As a result of the search conducted pursuant thereto, the missing property was found and seized. On the first day of trial, defendants moved for suppression of the evidence on the basis that the affidavit contained several errors or omissions. The trial court ordered an immediate hearing during which the following errors or omissions were established. 1. In statements to police, the witness Sherry Tyminski described the color of the automobile she observed first as "brown” and later as "dark blue.” This fact was omitted from the affidavit which recited that she observed a brown vehicle. 2. Sherry Tyminski stated that she observed a tall thin black man 6' 12" tall, dressed in a police uniform, breaking out the rest of the front window of the store. The affidavit did not contain her statement as to the perpetrator’s exact height or that he was dressed in a police uniform and breaking out the "rest” of the window. 3. Sherry Tyminski stated that her vision was blurry without her glasses, although she stated she had her glasses on during most of her observations. 4. Sherry Tyminski’s mother stated that she saw a man who looked like a police officer climb through the window. This was omitted from the affidavit. 5. During the investigation of the premises two pieces of concrete and a crowbar were found in the area of the broken window. This information was omitted from the affidavit. At the conclusion of the hearing the trial court stated: The question here is whether or not, what I count to be a total of six errors and ommissions [sic], that we can then look at this affidavit and see whether there is still sufficient probable cause. And I’m not sure I can answer that question. All I know is that an extraordinary taint remains. I don’t know what a magistrate would do. I don’t even know what this affidavit would look like, frankly, if those mistakes, for want of a better phrase,, were excluded and the ommissions [sic] included, or the affidavit corrected to be consistent with the statement of Sherry Tyminski and her mother and the investigation conducted by Sgt. Miller. In that sense the affidavit is not salvageable. The motion to quash the warrants, suppress the evidence is granted. In Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978), the United States Supreme Court held that a defendant had a right to challenge the truthfulness of factual statements made in an affidavit supporting a warrant. The Court held: There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or recldess disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing, is of course, another issue. [Id., pp 171-172.] In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit. [Id., p 156.] This Court has adopted and applied the Franks standard on several occasions. See People v Poindexter, 90 Mich App 599; 282 NW2d 411 (1979), lv den 407 Mich 876 (1979); People v Williams, 134 Mich App 639; 351 NW2d 878 (1984); People v Howey, 118 Mich App 431; 325 NW2d 451 (1982), lv den 418 Mich 882 (1983); People v Ward, 107 Mich App 38; 308 NW2d 664 (1981), lv den 417 Mich 938 (1983). And the Michigan Supreme Court has given its approval to the Franks standard by remanding the case of People v Price, 86 Mich App 641; 273 NW2d 97 (1978), for reconsideration in light of the Franks decision. 406 Mich 881 (1979). The trial court in the present action concluded that the omissions and misstatements amounted to a reckless disregard for the truth. The people do not dispute this assertion but contend that the trial court erred in concluding, after the misstatements were omitted and the omissions supplied, that the affidavit’s content was insufficient to establish probable cause. We agree and reverse. Uncontested portions of the affidavit establish that defendants were at the scene at 2:45 a.m. on the date in question, that they were driving a brown vehicle, that Hamtramck police arrived at the scene at 2:57 a.m. and observed that an apparent break-in had occurred and that a brown vehicle was parked on the sidewalk with a front fender directly below the broken store window, that the alarm, which could only be activated in the area in which the missing property was located, was activated at 3:00 a.m. while defendants were apparently still in the building. These facts are, in our opinion, sufficient to establish probable cause to believe the missing items were taken by defendants and, therefore, were in their possession. Deletion of the alleged misinformation and addition of the omitted information, as was done by the trial court, does not alter our conclusion that the factual content of the affidavit was sufficient to establish probable cause. The fact that the witness, Sherry Tyminski, at one time described the vehicle at the scene as dark blue is insignificant in light of the uncontested Hamtramck police report that the vehicle was brown. The record is silent as to defendant Turner’s actual height, but he was described as "tall” and he may very well be within a few inches of seven feet tall. The fact that the individual seen breaking and crawling through the window was in a police uniform supports the assertion that defendants were the perpetrators since, although assigned to plainclothes duty that morning, being police officers, they had ready access to police uniforms. The fact that Sherry Tyminski’s vision is blurry without her glasses is irrelevant since she stated she had them on during most of her observations. Although Sherry Tyminski stated she observed the individual breaking out the rest of the window, she also stated she heard the sound of breaking glass prior to making her observations. The statement that he was breaking out the rest of the window can just as readily be construed to mean he was finishing the job, as that he was breaking glass out of the window that someone else had previously broken. Similarly, the presence of the pieces of concrete and the crowbar in the area of the window are equally consistent with the theory that they had no involvement in the crime or were used by the defendants, as that they were utilized for the breaking by some other person. Having applied the Franks standard, we are convinced that the trial court erred in suppressing the evidence seized. The order of the trial court quashing the search warrants and suppressing the evidence is reversed and the case is remanded for trial. There is no express authority under Franks for the trial court to have included the information which had allegedly been improperly omitted. However, since we conclude there was sufficient evidence to establish probable cause irrespective of whether this information is considered, we decline to address the issue.

Per Curiam:. Plaintiff appeals from an order denying modification or termination of alimony. We affirm. Plaintiff and defendant were divorced in 1979 after a thirty-six-year marriage. The divorce judgment required plaintiff to pay alimony of $525 a week until defendant remarried or one of the parties died. In 1985, plaintiff moved for modification or termination of alimony after an alleged decrease in income due to retirement. The trial court denied plaintiff’s motion, finding that, although plaintiff’s wages had decreased, his income had not. During the thirty-six-year marriage, plaintiff and defendant started the very successful Advance Pattern and Machine Company. At the time of the divorce, plaintiff was drawing a salary of $79,500 and defendant earned $23,400. As a stipulation to receiving alimony defendant was required to give up her job. After the divorce, plaintiff raised his own Salary to cover the amount of alimony he had agreed to pay. The company also redeemed defen dant’s stock, leaving plaintiff and the couple’s son as the sole stockholders. In late 1984, plaintiff decided to retire, and a sale of most of the company’s assets was arranged. Henry Allen Eckhardt, plaintiff and defendant’s son, formed his own company and brought the assets of his father’s company for $621,731, redeeming his stock in his father’s company as part of the sale. Plaintiff reduced his salary to $7,280 and retired on January 1, 1985. Eight days later he moved to modify the divorce judgment to reduce or terminate alimony. After 2V2 days of proofs, the trial court found that, in addition to plaintiff’s salary of $7,280, plaintiff was receiving $8,412 in social security, $4,800 in interest on a money market account, and $24,000 for a covenant not to compete with his son. In addition, the trial court found that plaintiff’s new wife had been given a salary of $39,000 for answering the phone at home and filling out a couple of papers each month. The money actually available to plaintiff each year was $83,492, an increase from his salary at the time of the divorce. For that reason, the trial court denied plaintiff’s motion. The court also noted that plaintiff, as sole stockholder, had control of interest income of $65,-000 that Advance Pattern and Machine was receiving yearly on the sale of its assets and cash on hand. Furthermore, plaintiff has a pension plan of at least $116,000 from which he could draw when he chose to do so. Authority for modifying a divorce judgment is statutory. MCL 552.28; MSA 25.106. Modifying an award of alimony under this section may be based only upon new facts or changed circumstances arising since the judgment which would justify revision. Crouse v Crouse, 140 Mich App 234; 363 NW2d 461 (1985). The party requesting modification has the burden of showing a sufficient change of circumstances to warrant it. Couzens v Couzens, 140 Mich App 423; 364 NW2d 340 (1985). This Court reviews divorce judgment modifications de novo and will not disturb trial court decisions unless convicted it would have reached another result. Schaeffer v Schaeffer, 106 Mich App 452; 308 NW2d 226 (1981). We find that, although plaintiffs circumstances have changed, the change does not justify modification of his alimony obligation. Plaintiffs wages have decreased drastically, but his income has remained stable. Now that the company has redeemed his son’s stock, plaintiff is the sole owner of Advance Pattern and Machine Company and is able to manipulate the income of the company for his own benefit. For example, he has the company paying his wife a salary of $39,000 for answering her. home phone, writing out her own and her husband’s pay checks, and filling out a few forms. The trial court did not abuse its discretion by finding that the $39,000 was actually money available to plaintiff. Nor was it an abuse of discretion to find that the $24,000 plaintiff contracted to receive each year from a covenant not to compete with his son was income available to plaintiff. Although plaintiff has ostensibly assigned this money to the company, it is money over which he has complete control and was not strictly a return on company assets because there was never a threat that plaintiff would compete against his son. Arrangements made for tax or social security purposes to divert wages to another form of income are not enough of a change in circumstances to justify a modification in alimony. Affirmed.

Per Curiam. Respondent, the Department of Treasury, appeals from an order of the Michigan Tax Tribunal which directed it to refund $341.33 in 1982 intangibles taxes to petitioner Mary Matz. We affirm. The Michigan Tax Tribunal outlined the facts as follows: On April 4, 1980, Mary Matz, a resident of the State of Michigan, created the Mary Matz Trust and named First of America Bank-Muskegon, a Michigan corporation with principal offices in Muskegon, Michigan, as Trustee. For tax purposes, Mrs. Matz is deemed the owner of any property held in the Mary Matz Trust and is taxed on the income of the Trust. First of America Bank-Muskegon, as Trustee, purchased for Mrs. Matz a number of shares of beneficial interest in the Trust for Short-Term U.S. Government Securities (The Government Trust). The Government Trust is a mutual fund technically described as a no-load, open-end, diversified investment company, established as a Massachusetts Business Trust. The Government Trust sells its shares of beneficial interest to the public and invests the proceeds exclusively in short-term United States Government securities. The United States Government securities which The Government Trust holds and the income generated thereby would, without dispute, be exempt under federal law from state taxation of any kind if Mrs. Matz had nominal title to the securities. Some of the U.S. Government Securities pur chased through the Government Trust are. held pursuant to repurchase agreements, although the repurchase agreements do not change the character of the security as a United States Government security. The Government Trust was and is organized and operated in a manner which meets the requirements of Section 851 of the Internal Revenue Code of 1954, as amended, applicable to regulated investment companies. Each year since inception, the entire net income of the Government Trust has been distributed to the holders of its shares of beneficial interest. Mrs. Matz filed a Michigan Intangibles Tax Return for the year 1982 on March 14, 1983, and included, as "Income on Assets Taxed at 3Z% [sic]”, distributions of $9,752.27 from the Government Trust to Mrs. Matz. Application of the 3Z% [sic] intangibles tax rate resulted in tax of $341.33 which was paid. Mrs. Matz timely filed an amended Michigan Intangibles Tax Return for 1982 on March 26, 1984, claiming an exemption for the distribution from the Government Trust and a refund of the tax paid. The claim for refund was denied by the Michigan Department of Treasury on April 27, 1984. This action was then timely filed. Over fifty Michigan banks on behalf of trust customers and a significant number of Michigan residents have funds exceeding $500 million in the Government Trust or similar trusts. On or about February 21, 1984, the Department of Treasury issued Income Tax Bulletin 1984-2, to clarify the tax treatment, under the Michigan Income Tax and Intangibles Tax Acts, of state and federal bonds held by investment companies (Mutual Funds) that are organized as corporations or as Massachusetts business trusts. Appellate review of decisions of the Michigan Tax Tribunal is limited. We will not upset the tribunal’s findings of fact if they are supported by competent, material and substantial evidence. In the absence of fraud, we uphold the tribunal’s decision unless the tribunal made a legal error or adopted an erroneous principle. See Zenith Industrial Corp v Michigan Dep’t of Treasury, 152 Mich App 476, 480; 394 NW2d 451 (1986). The Michigan intangibles tax act, MCL 205.131 et seq.; MSA 7.556(1) et seq., provides for the imposition and collection of a specific tax upon the privilege of ownership of intangible personal property. "Obligations of the United States, or guaranteed as to principal or interest by the United States, which are exempt from taxation by reason of act of congress” are specifically exempted from the intangibles tax, MCL 205.133(b)(4); MSA 7.556(3)(b)(4). One such act of congress, 31 USC 3124, provides, in pertinent part: (a) Stocks and obligations of the United States Government are exempt from taxation by a State or political subdivision of a State. The exemption applies to each form of taxation that would require the obligation, the interest on the obligation, or both, to be considered in computing a tax, except— (1) a nondiscriminatory franchise tax or another nonproperty tax instead of a franchise tax, imposed on a corporation; and (2) an estate or inheritance tax. The question presented in this appeal is whether or not, under the Michigan intangibles tax act, respondent may tax shares in a mutual fund which invests only in U.S. government obligations. We hold that it may not. Respondent concedes that if petitioner were the owner of United States government securities there would be "no question” that neither the securities nor the income from those securities would be subject to the intangibles tax. It also notes that, if the state were attempting to tax a mutual fund which was the owner of the United States government securities, the securities and the income from those securities would be immunized by federal law and exempt from the intangibles tax. It correctly notes that neither situation is involved in this case. However, respondent argues that, in this case, the mutual fund, rather than petitioner and other shareholders of the fund, is the owner of the United States government securities. In its view, petitioner is the owner of shares of the mutual fund. Respondent argues that petitioner "holds shares in the fund in basically the same manner that she would hold shares in . . . any . . . corporate entity” and thus, she has no more ownership right in the products or investments of that corporation than she has in the fund’s ownership of United States government securities. In our view, this argument elevates form over substance. The Tax Tribunal noted: The investment policies of the Trust, as stated in the prospectus are: "The Trust invests in U.S. Government securities that mature in one year or less from the date of acquisition. The U.S! Government securities in which the Trust may invest are either issued or guaranteed by the U.S. Government, its agencies or instrumentalities.” The Trust is allowed no discretion to invest in instruments other than U.S. Government securities for its portfolio. U.S. Government securities are the only acceptable investments. Congress has acknowledged the basic economic nature of a regulated investment company, or mutual fund, as simply a vehicle for pooled investment. Federal courts, too, have refused to elevate form over substance. In Burks v Lasker, 441 US 471; 99 S Ct 1831; 60 L Ed 2d 404 (1979), in the context of a derivative action by shareholders of a regulated investment company and in discussing the congressional policy of the Investment Company Act and the Investment Advisors Act, the Supreme Court defined a mutual fund as "[A] pool of assets, consisting primarily of portfolio securities, and belonging to the individual investors holding shares in the fund.” 441 US 471, 480. The Trust is an opportunity for a smaller investor to make a safe, moderate and steady rate of return by buying, through his or her bank and the mutual fund, a combination of tax-exempt United States Government obligations. By and large, only a single security out of all the underlying U.S. Government securities held in the Government Trust would have been financially accessible to Mrs. Matz if she had taken her funds and attempted to invest directly in such securities. By using a vehicle for pooled investment, Mrs. Matz and others like her can pool their funds and buy not one, but a wide combination of, U.S. Government securities. The practical reality is that Mrs. Matz owns U.S. Government securities, which are specifically exempt under MCL [205.133(b)(4); MSA 7.556(3)(b)(4)]. To draw a distinction between ownership through a mutual fund and individual direct ownership for tax purposes, ignores the statute granting exemption. "Owner” has been defined and referenced in the Intangibles Tax Act. If ownership of the U.S. obligations was vital to the exemption, it would be stated in the exemption description. The Legislature, in granting an exemption for U.S. obligations, has recognized the fact that U.S. Government securities have comparatively lower yields than corporate bonds as a group, but compete for available investment dollars by making up for the lower yield with the fact that the income will be free from state tax. The Supreme Court has identified a Congressional intent to "prevent (state) taxes which diminish in the slightest degree the market value or the investment attractiveness of obligations issued by the United States in an effort to secure necessary credit”. Smith v Davis, 323 US 111, 117; 65 S Ct 157; 89 L Ed 107 (1944); Memphis Bank & Trust Co v Garner, 459 US 392; 103 S Ct 692; 74 L Ed 2d 562 (1983). It is a matter of law as well, that any direct or indirect tax on U.S. Government obligations does have an impact on the market value or the investment attractiveness of the U.S. Government obligations involved. Macallen Co v Massachusetts, 279 US 620; 49 S Ct 432; 73 L Ed 874 (1928). The State of Michigan may not, through the application of this tax to Mrs. Matz, directly or indirectly diminish in the slightest degree the market value or the investment attractiveness of the underlying U.S. Government obligations. The impact of the tax is directly traceable to the ownership of, and income derived from, exempt obligations of the United States. We cannot accept the technical distinction between the Trust and its shareholder for the purpose of the application of the Intangibles Tax. We conclude that the petitioner is entitled to the Intangibles Tax Act exemption for obligations of the United States Government when the investment is through a mutual fund. We agree. Affirmed.

Per Curiam:. Defendant, plaintiffs insurer, rejected plaintiffs proof of loss for fire damage to his house and garage, claiming that the amount claimed greatly exceeded the value of the loss and that the fires were set, or procured to be set, by plaintiff. Plaintiff responded by filing a complaint against defendant for breach of contract, "negligence and unfair trade practices,” and intentional infliction of emotional distress. Defendant’s affirmative defenses included arson and fraud. Following the trial court’s grant of summary judgment to plaintiff pursuant to GCR 1963, 117.2(3) because there was no credible evidence to support defendant’s affirmative defenses of arson and fraud and the trial court’s judgment for plaintiff of $54,000 on an award of an umpire on the breach of contract claim, defendant filed appeals to this Court. The appeals were consolidated, the trial court’s decisions reversed, and the case remanded for trial. See Crossley v Allstate Ins Co, 139 Mich App 464; 362 NW2d 760 (1984). Following remand, defendant turned the tables and filed a motion for partial summary disposition under MCR 2.116(C)(8), failure to state a claim, against plaintiff on the unfair trade practices and infliction of emotional distress counts. Defendant appeals, by leave granted, the trial court’s adverse ruling on that motion. We conclude that the trial court erred. Accordingly, we reverse that order and remand for trial on plaintiffs breach of contract claim. A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal basis of the complaint, and not whether it can be factually supported. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 647; 363 NW2d 641 (1984). A court must accept as true all well-pled facts and determine whether plaintiffs claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Trotter v Hamill Mfg Co, 143 Mich App 593, 596; 372 NW2d 622 (1985). In Count i, plaintiff alleged that defendant’s conduct constituted an unfair trade practice within the meaning of § 2006 of the Unfair Trade Practices Act, MCL 500.2001 et seq.; MSA 24.12001 et seq. In Count n, plaintiff alleged generally that defendant violated its fiduciary and statutorily prescribed duties under utpa. Plaintiff further alleged that defendant’s negligent and decep tive acts and practices, an allegation of practices within the ambit of §2026 of the act, were the direct and proximate cause of plaintiff’s injuries and his claimed entitlement to insurance proceeds and exemplary damages. An allegation, such as plaintiff’s allegation that defendant’s conduct violated §§2000 and 2026 of the utpa, that a defendant has breached an obligation imposed upon the defendant by law is an allegation of tort. See Valentine v General American Credit, Inc, 420 Mich 256, 259; 362 NW2d 628 (1984), and Prosser & Keeton, Torts (5th ed), § 92, pp 655-656. Plaintiff’s allegation with regard to violation of the utpa fails as a matter of law because the act provides a comprehensive, exclusive scheme of enforcement of the rights and duties it creates; no private cause of action exists in tort for a violation of the utpa. Bell v League Life Ins Co, 149 Mich App 481; 387 NW2d 154 (1986), see also Young v Michigan Mutual Ins Co, 139 Mich App 600, 605; 362 NW2d 844 (1985), lv den 422 Mich 977 (1985). Nor can the relationship between an insurer and insured support recovery for plaintiff. Contrary to plaintiff’s allegation, that relationship is not fiduciary in nature. Hearn v Rickenbacker, 140 Mich App 525, 528; 364 NW2d 371 (1985). While this Court has recognized a relationship of trust and confidence between insurer and insured which permits an action for fraud predicated upon a claim of misrepresentation, Drouillard v Metropolitan Life Ins Co, 107 Mich App 608, 621; 310 NW2d 15 (1981), lv den 413 Mich 874 (1982), no misrepresentation by defendant is alleged here. Finally, to the extent plaintiff’s complaint alleges "negligence” in defendant’s refusal to pay, or failure to more properly investigate and assess the merit of plaintiff’s claim, the complaint merely alleges a breach of contract, and summary disposition would properly have been granted with regard to such a "negligence” claim. Hart v Ludwig, 347 Mich 559, 565; 79 NW2d 895 (1956). We choose to address separately plaintiff’s Count hi, which alleges emotional distress damages caused by defendant’s conduct. Initially, we note that an allegation of bad faith breach of an insurance contract does not support recovery of damages for mental distress in Michigan. There must be a finding of tortious conduct independent of the contractual breach to justify the award of mental distress damages. Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 416; 295 NW2d 50 (1980). In Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985), our Supreme Court declined to decide if a separate tort of intentional infliction of emotional distress exists in Michigan. With regard to the establishment of that tort, the Roberts Court quoted the following from the Restatement: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!’ "The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” [Roberts, supra, p 603 (quoting Restatement Torts, 2d, § 46, comment d, pp 72-73).] The Roberts Court found that Kewin, supra, and the Restatement comments "significantly” limit the "range of circumstances in which a prima facie showing of outrageousness can be made in the insurance context.” In Roberts, the Court found the plaintiffs’ reliance on the insurer’s failure to supply the insured with forms, delay in responding to his claims, and "denial” of benefits by a request for verification of loss insufficient as a matter of law. The instant plaintiff rests his mental distress damages claim on defendant’s alleged failure to reasonably investigate his claim and alleged deliberate oppression of plaintiff to deny him benefits. The underlying factual allegation is defendant’s "accusing plaintiff David Crossley of arson and fraud when defendant had absolutely no evidence whatsoever to support those allegations.” From the allegations in plaintiff’s complaint, it is clear that the alleged "accusation” was responsive to plaintiff’s filing of a proof of loss. Plaintiff has alleged, at most, a bad faith attempt by defendant to avoid paying under the insurance contract. No claim arising independently of the contract has been stated. Defendant’s response to plaintiff’s proof of loss was not a type which would cause an average member of the community to scream "Outrageous!” The order of the circuit court denying defendant’s motion for partial summary disposition is reversed. This matter is remanded for trial on plaintiff’s breach of contract claim. We find nothing in plaintiffs allegations indicating that the 'accusation” was published.

Per Curiam. In this breach of employment contract case, defendant appeals as of right from a November 30, 1984, judgment entered pursuant to a $150,000 jury verdict in favor of plaintiff. Plaintiff is a former sales representative employed by defendant and compensated by commissions in Grand Rapids since October, 1976. He was required to sell defendant’s insurance products and serve the company’s customers. On May 21, 1982, plaintiff’s employment was terminated by defendant for failure to fulfill the company’s mini mum production requirements for sales employees paid by commissions. Prior to termination, he received a number of warnings informing him that his level of production was unacceptable. Upon termination, he was offered a salaried sales position with defendant as a member advisor, but he rejected it on the grounds that it was a demotion because the position paid less and the hours were more structured as compared with his former sales representative position. On October 8, 1982, plaintiff filed the instant suit against defendant, alleging that the termination of his employment constituted a breach of his employment contract with defendant. Plaintiff also alleged that he was evaluated by defendant in a negligent fashion. He claimed that the terms of his employment contract with defendant only allowed defendant to terminate his employment for good cause. He alleged that the termination was not for good cause because his employment contract never contemplated that he would have to adhere to a minimum production level as a condition of continued employment. Rather, he alleged that a written sales manual given to him upon commencement of his employment and oral representations made to him during the course of his employment established the terms of his employment contract and only required him to service his "book” of insurance policies and to sell "some” additional insurance. Defendant claimed that it had the right to impose additional requirements on its employees as a condition of continued employment. It argued that the imposition of a minimum production level upon plaintiff in September, 1981, constituted a valid term of plaintiff’s employment contract. Defendant has contested plaintiff’s breach of contract suit on the grounds that it had good cause for terminating plaintiff’s employment because plaintiff failed to meet required production levels. Following a three-day jury trial, a jury verdict was entered in favor of plaintiff in the amount of $150,000. Defendant made post-trial motions for a new trial, judgment notwithstanding the verdict, and remittitur, all of which were denied by the trial court. Defendant first claims on appeal that the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict. At the close of plaintiff’s proofs at trial, defendant raised a motion for directed verdict on both plaintiff’s breach of contract claim and negligent evaluation claim. Defendant contended that under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), it had the right to unilaterally change its employment contract with plaintiff. The trial court granted defendant’s motion for a directed verdict with regard to the negligent evaluation claim, but determined that, viewing the breach of contract claim in a light most favorable to plaintiff, there were sufficient facts to present plaintiff’s claim to the jury. The trial court subsequently denied defendant’s post-trial motions for a new trial and judgment notwithstanding the verdict on the same grounds. In reviewing a trial court’s refusal to grant a defendant’s motion for a directed verdict or judgment notwithstanding the verdict, this Court properly examines the evidence and all legitimate inferences that may be drawn therefrom in the light most favorable to the plaintiff. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986). See, also, Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975), aff'd on other grounds 395 Mich 903 (1975). If this Court determines that reasonable jurors could honestly have reached different conclusions, the motion should have been denied by the trial court. If reasonable jurors could have disagreed, neither the trial court nor this Court has the authority to substitute its judgment for that of the jury. Matras, supra, p 682. Plaintiff presented four pieces of evidence at trial to support his claim that defendant’s written and oral representations to him had established an employment contract in which defendant agreed not to impose enforceable minimum production levels upon plaintiff. The first piece of evidence consisted of the parties’ stipulation that prior to 1981 defendant had not enforced any sales quotas on its sales representatives and had not dismissed or demoted any of its sales representatives for failure to achieve quotas or production standards. Secondly, plaintiff presented evidence that his branch manager, Mr. Fennech, had informed him at the time he was hired that his responsibility was to sell some insurance and to make his "book” of insurance grow. According to plaintiff, Fennech told him at the time of his hiring that he need only handle his book of business, sell some insurance and he would be set financially for the rest of his life if he worked at it for three or four years. Thirdly, plaintiff established at trial that at the time of his hiring Fennech handed him a Sales Rules Manual which provided that he was required to sell some insurance as a condition of continued employment, but which did not refer to a quota or minimum level of sales that he was required to meet. Plaintiff testified that the only requirements imposed by the Manual were that he produce some new business, memberships and insurance. Finally, plaintiff also presented evidence to the effect that at the time defendant’s employee union in Detroit was negotiating with defendant, regarding a new contract with defendant which included minimum sales production requirements, the regional manager, Mike Mallott, informed plaintiff that he need not be concerned about the union contract because it would not apply to the Grand Rapids employees. According to plaintiff, Mallott told him that if the union contract contained something better than what the employees currently had, the Grand Rapids employees would also be benefitted, but if it contained something worse, it would not affect them. Regarding the union negotiations, plaintiff also contends in his supplemental brief on appeal that defendant instituted a policy requiring its sales staff to meet a monthly sales quota only after negotiations had stalemated with its employee union in the metro-Detroit area. Plaintiff points to the case of Bullock v Automobile Club of Michigan, 146 Mich App 711; 381 NW2d 793 (1985), lv gtd, 425 Mich 871 (1986). As discussed infra, Bullock is similar in its facts to the instant case. The plaintiff in Bullock was hired by the same defendant as here as a commissioned sales person. When he did not fullfil sales quotas imposed upon him following the union negotiations stalemate, his employment was terminated. Based upon the above four pieces of evidence, plaintiff claimed that the 1981 minimum production requirements were not part of plaintiff’s employment contract with defendant because defendant had previously agreed that it would not impose quota requirements upon plaintiff. We will address defendant’s counter-arguments to plaintiff’s evidence individually. First, defendant claims that manager Fennech’s remarks were im properly relied upon by the jury because they were void under the statute of frauds, not based upon any consideration and exceeded Fennech’s authority as a manager. It is well-settled that where an oral contract may be completed in less than one year, even though it is probable that the contract will extend for a period of years, the statute of frauds is not violated. MCL 566.132(a); MSA 26.922(a); Cowdrey v A T Transport, 141 Mich App 617; 367 NW2d 433 (1985). Neither plaintiff nor defendant has claimed that the employment contract was one for a definite term. Although Fennech stated that if plaintiff performed satisfactorily for three to four years he would be set for life, there is no indication that the employment contract could not have been terminated during plaintiff’s first year of employment if plaintiff had not performed satisfactorily. Hence, the agreement between the parties must be construed as one for an indefinite term not falling within the statute of frauds. Toussaint, supra, p 612; Rowe v Noren Pattern & Foundry Co, 91 Mich App 254, 257; 283 NW2d 713 (1979), lv den 409 Mich 880 (1980). Regarding the Sales Rules Manual, defendant cites other provisions contained within the manual which state that the sales representatives must maintain an acceptable ratio of new business and comply with the rules established by defendant’s agents. According to defendant, this establishes that the jury unreasonably relied upon the provisions of the Sales Rules Manual that plaintiff pointed to as evidence in reaching its verdict. Defendant also claims that Mallott’s alleged representation to plaintiff was unreasonably relied upon by the jury because Mallott had no authority to make that representation and because there was sufficient evidence to establish that Mallott only made the remark in a "bull session” with plaintiff. Viewing these claims in a light most favorable to plaintiff following Matras, supra, we find no clear error. These claims present only factual disputes with the evidence as presented by plaintiff. We find that plaintiff did present sufficient evidence to establish that reasonable minds could differ concerning the factual claims. The fact that defendant had never imposed such an enforceable quota requirement upon its sales representatives prior to 1981, combined with the oral representations allegedly made by Fennech and Mallott, viewed in light of the ambiguous terms of the Sales Rules Manual, results in our conclusion that plaintiff did present enough evidence to warrant presenting his factual claim to the jury and to support the jury’s verdict. As previously discussed, this Court has recently ruled in Bullock, supra, that a provision of an employment contract providing that an employee shall not be discharged except for cause is legally enforceable even though the contract is for an indefinite term. Such a provision may become part of the contract either by express agreement, oral or written, or as a result of an employee’s legitimate expectations grounded in an employer’s policy statements. The question of whether there was a reasonable and legitimate expectation in an employee that an employer’s policy or practice was a term of an employment contract is a question for the trier of fact. Bullock, supra, p 721. This Court also discussed in Bullock the fact that the Supreme Court in Toussaint, supra, provided that employers can make known to their employees that personnel policies are subject to unilateral changes. This Court interpreted Toussaint as holding that notice or knowledge of unilateral changes can be construed from the circumstances surrounding employmént. The Bullock Court reasoned that whether such notice or knowledge was ever given to an employee was a question for the trier of fact. In the instant case, defendant has raised conflicting facts regarding the provisions of the Sales Rules Manual, the authority by which its employees, Fennech and Mallott, spoke with plaintiff and other factual disagreements with plaintiffs evidence. Defendant has not shown, however, that, viewing the evidence in a light most favorable to plaintiff, the jury could not have reasonably concluded in favor of plaintiff. We therefore do not find that the trial court erred in denying defendant’s motions for a directed verdict and judgment notwithstanding the verdict. Defendant next contends on appeal that the trial court abused its discretion by refusing to grant a new trial for plaintiffs failure to fully comply with discovery requests. During the discovery period, defendant requested via its depositions and interrogatories to plaintiff that plaintiff disclose what oral and documented representations he was relying upon for his claims. Plaintiff, in his deposition, stated that there were numerous individuals including Fennech, his branch manager, who had made representations to him. In his answer to defendant’s first interrogatories, plaintiff referred only to Fennech and the Sales Rules Manual as a basis for his claim. However, pursuant to the trial court’s pretrial order, plaintiff exchanged his list of proposed witnesses and exhibits that he intended to present at trial with defendant. This list included employees Mike Verdón and A1 Wells and all of plaintiff’s trial exhibits. The list was exchanged pursuant to the pretrial order ten days before trial. On the first day of trial, defendant moved to exclude from evidence all of plaintiff’s witnesses and exhibits that were not disclosed to defendant during the discovery period. Plaintiff argued that he had just discovered many of the witnesses and exhibits shortly before trial, had informed defendant of the evidence via the list exchange pursuant to the pretrial order, and did not surprise defendant with any new evidence because defendant had known of the evidence at least ten days before trial and had much of the evidence in its own control. The trial court ultimately denied defendant’s request for a new trial. MCR 2.313(B), formerly GCR 1963, 313.2, provides a variety of remedies for a party’s failure to respond to discovery orders. This Court has stated that the above provision is broad enough to permit a trial court to exclude evidence if the court believes that such action is an appropriate remedy for violation of discovery practice. Kurczewski v State Highway Comm, 112 Mich App 544, 549; 316 NW2d 484 (1982), lv den 414 Mich 957 (1982). However, the imposition of sanctions for failure to comply with a discovery order is a matter within the trial court’s discretion. This Court will not reverse a trial court’s decision not to exclude documents and evidence from trial absent a finding that the trial court abused its discretion. Id., p 550. Defendant does not dispute the fact that each of the documents it objected to at trial appeared in plaintiff’s list of trial exhibits and witnesses exchanged with defendant ten days prior to trial pursuant to the pretrial order. Although we find that ten days’ notice prior to trial is arguably insufficient for proper preparation of a case, we do not find an abuse of discretion in the instant case. Plaintiff testified that he did not expect to rely upon witness Verdon’s testimony until shortly before trial. We do not find it was an abuse of discretion for the trial court to accept this as true. The record shows that plaintiff agreed to allow defendant to interview Verdón and all other witnesses prior to commencement of trial. Regarding the testimony of witness Wells, who was a commissioned sales representative of defendant, defendant has not shown that Wells could not have been deposed at any time prior to trial. He was identified to defendant as a potential lay witness via plaintiff’s list of proposed witnesses presented to defendant pursuant to the pretrial order. Defendant further claims that it was surprised by the introduction of plaintiff’s trial exhibits and that many of them were irrelevant. The majority of the documents presented by plaintiff to which defendant objected were letters and documents involving plaintiff’s employment with defendant. These documents were equally within the control of defendant and should have been anticipated as a basic part of plaintiff’s case. Defendant had possession of the majority of these documents itself. There are only two documents that are arguably prejudicial to defendant. One is plaintiff’s own damage calculation, Exhibit No. 13. Regarding this document, however, it must be noted that the trial court gave defendant a full day to review the document before granting plaintiff’s request to admit the damage calculations into evidence. The other document is plaintiff’s Exhibit No. 16, which was a synopsis of plaintiff’s production increase during his probationary period. This also was within defendant’s knowledge because it was based upon defendant’s own production reports. We therefore find that the trial court did not abuse its discretion because defendant was not surprised by these documents. Defendant next claims that the trial court abused its discretion in failing to grant a new trial based upon plaintiff’s revised proposed jury in structions after the close of evidence. We do not find any error in the trial court’s allowing plaintiff to modify his proposed jury instructions after the presentation of the evidence so as to conform with the evidence and issues presented at trial. The four jury instructions objected to by defendant are: (1) that the oral and written statements by an employer of its personnel policies, work rules and procedures can give rise to contractual rights in employees without evidence that the parties mutually agreed that the policy statements created contractual rights; (2) that an employer’s oral statements, written personnel manual and the actual conduct of its policies and procedures can form the basis of an employment contract with an employee; (3) that a breach of an employment contract is objectionable at law and that oral promises made by an employer may negate or take away the effect of other statements or written disclaimers which are intended to absolve employers from liability for breach of employment contracts; and (4) that a provision of an employment contract which provides that employees shall not be subject to certain kinds of work rules may become part of a contract via express agreement, oral or written, or as a result of an employee’s legitimate expectations grounded in an employer’s statements or in its conduct and the implementation of its personnel policies. The court instructed the jury that employers can make known to their employees that personnel policies can be subject to unilateral change by an employer, thereby avoiding any reasonable expectation in their employees that a particular policy will continue to remain in effect. We find that these jury instructions properly followed the law as stated in Toussaint, supra, and Bullock, supra. We disagree with defendant that any of these jury instructions led the jury to believe that an employer is obliged to maintain existing policies in force ad infinitum, that only oral policies can modify prior employment policies, and that an employer must expressly reserve its right to change an employment contract prior to modifying the contract. Instead, the court properly informed the jury that an employment contract can be modified via oral and written representations and by policies on the part of the employer. The court properly instructed the jury regarding unilateral changes of an employer as stated in Bullock, supra. We therefore do not find that the trial court erred in failing to grant defendant a new trial based on these jury instructions. Finally, defendant claims on appeal that the trial court abused its discretion by refusing to grant defendant’s motion for remittitur. We agree with defendant that the court improperly failed to instruct the jury on the issue of present value of future damages. We therefore remand this case to have this accomplished. See Goins v Ford Motor Co, 131 Mich App 185, 199-200; 347 NW2d 184 (1983), lv den 424 Mich 879 (1986); SJI2d 53.03. We need not discuss defendant’s other grounds for arguing that the trial court erred in not granting remittitur. Affirmed in part and remanded for reduction of future damages awarded to their present value. See Farrell v Auto Club of Michigan, 148 Mich App 165; 383 NW2d 623 (1986), regarding plaintiffs attempt to receive unemployment benefits.

Per Curiam. On June 27 and August 6, 1985, the circuit court for Oakland County, pursuant to GCR 1963, 117.2(1) and (3), entered orders of summary judgment in favor of defendants Ayerst Laboratories, Inc., and American Home Products, Inc., as to the issues of defendants’ failure to test their drug product, Phospholine Iodide, and failure to warn plaintiffs of its dangers. Plaintiffs appeal as of right raising two issues: (1) whether a drug manufacturer has the duty to warn the ultimate consumer of the product’s dangers; and (2) whether the trial court erred in finding that defendants’ alleged failure to adequately test the drug product was not the proximate cause of plaintiff’s injury. On August 26, 1981, at Crittenton Hospital, codefendant Dr. Rose Malach performed a cataract removal and implantation of an intraocular lens on plaintiff Bonnie Mowery’s right eye. The procedure involved the removal of the eye’s natural lens which has an opaque covering or a cataract and its replacement with an artificial lens. Preoperatively, Dr. Malach explained to plaintiffs this surgical procedure’s known risks of detachment of the retina, the portion of the eye containing the rods and cones, which transmits images to the optic nerve allowing vision. Plaintiff Bonnie Mowery signed a consent form acknowledging her awareness of all of the risks of cataract surgery. Postoperatively, on September 10, 1981, Dr. Malach discovered a detachment of the lower loop keeping plaintiff’s intraocular lens in place. Dr. Malach explained to plaintiffs what was wrong and how she planned to correct it and prescribed an eye drop, Phospholine Iodide, an opthamologic therapeutic drug. In prescribing the drug, Dr. Malach verbally explained to plaintiffs the drug’s risks, which were retinal detachment and complications with certain types of general anesthesia. She did not give them any written information from the manufacturer, defendant Ayerst Laboratories. Despite the risks of retinal detachment with the use of Phospholine Iodide, Dr. Malach prescribed this eye medication because it could prevent dislocation of the intraocular lens. Such dislocation could damage the cornea’s endothelium (the outer covering of the eye), which would require a corneal transplant. Because plaintiff’s intraocular implant lens was again dislocated on October 23, 1981, Dr. Malach discontinued the Phospholine Iodide. After several unsuccessful attempts to medically reposition the lens, Dr. Malach successfully surgically repositioned it. Phospholine Iodide was again used during that procedure. On November 13, 1981, plaintiff contacted Dr. Malach’s office complaining of a change of vision in her right eye. Because Dr. Malach was ill, plaintiff sought treatment from Dr. Aragonés, who diagnosed retinal detachment. Surgery was performed to correct this detachment. However, plaintiff claims that she has suffered "permanent or protracted vision loss.” On September 14, 1983, plaintiffs filed a complaint against Crittenton Hospital, Dr. Malach, and Ayerst Laboratories, Inc., alleging negligence for the failure to adequately test or warn. On October 20, 1983, plaintiffs filed an amended complaint adding American Home Products, Inc., as a defendant and alleging that both Ayerst and American (1) breached their express or implied warranty and were strictly liable because the drug Phospholine Iodide is defective, and (2) consciously misrepresented the safety of its product, a proximate cause of plaintiffs injuries. Following the taking of depositions, Ayerst and American moved on June 13, 1984, for summary judgment on grounds they did in fact adequately warn the treating physician of the risks of retinal detachment. On June 27, 1984, the trial court granted partial summary judgment on grounds there was no question of fact but that Dr. Malach had been adequately warned of the drug’s risks. However, the trial court held that the motion for summary judgment regarding adequate testing was denied without prejudice. On July 3, 1984, defendants filed a supplemental motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3) regarding defendants’ adequate testing of Phospholine Iodide. Defendants submitted an affidavit by Robert Lehman, Ph.D., who was the pharmacist primarily responsible for supervising the research and development of Phospholine Iodide (generic name: Echothiophate Iodide). Dr. Lehman claimed that extensive animal testing was done with this drug, during which retinal detachment was never observed. Phospholine Iodide was approved by the Food and Drug Administration in 1959. On July 13, 1984, plaintiffs submitted the affidavit of David Schneider, Ph.D., stating that he had reviewed the literature relating to this drug. Dr. Schneider believed that the warnings and package inserts given to physicians by defendants do not adequately set forth the specific danger of retinal detachment associated with this drug. Independent published research states the link between Phospholine Iodide and retinal detachment. On July 25, 1984, the trial court granted defendants’ supplemental motion for summary judgment after finding that even if defendants’ testing of Phospholine Iodide was inadequate, it was not the proximate cause of plaintiffs injury. While adequate testing would have allowed defendants to effectively warn plaintiffs and the treating physician of the risks of retinal detachment, Dr. Malach already knew of its risks, but chose to prescribe the drug and informed plaintiffs of the risks. Following the filing of plaintiffs’ claim for appeal as of right to this Court, defendants moved to dismiss the appeal. Defendants’ motion was denied on July 26, 1985. On December 17, 1985, defendants’ application for leave to appeal to the Michigan Supreme Court was also denied as the Court was "not persuaded that the question presented should be reviewed by this Court.” 424 Mich 861 (1985). i At the outset, plaintiffs contend that summary judgment was inappropriate as discovery was not yet complete. On this issue the standard of review is whether further discovery stands a fair chance of uncovering factual support for the opposing party’s position. Goldman v Loubella Extendables, 91 Mich App 212, 218; 283 NW2d 695 (1979), lv den 407 Mich 901 (1979); Huff v Ford Motor Co, 127 Mich App 287, 296; 338 NW2d 387 (1983); Kortas v Thunderbowl & Lounge, 120 Mich App 84, 87; 327 NW2d 401 (1982). Here, plaintiffs filed their complaint approximately ten months before summary judgment was granted. Six depositions were taken and numerous interrogatories were answered by all parties. In light of Dr. Malach’s and Bonnie Mowery’s deposition testimony, we find that a sufficient period of time and sufficient amount of discovery occurred. It does not appear that further discovery will uncover factual support for either party’s position. On the substantive issue of a drug manufacturer’s duty to warn, plaintiffs urge this Court to close the void in Michigan law created by the majority opinion in In re Certified Questions, 419 Mich 686; 358 NW2d 873 (1984), by issuing an opinion requiring that a prescription drug manufacturer has the duty to directly warn the consumer of the drug’s risks. We respectfully decline the invitation. In 1979, our Supreme Court in Smith v E R Squibb & Sons, Inc, 405 Mich 79, 88-89; 273 NW2d 476 (1979), stated: A manufacturer of a prescription drug has a legal duty to warn the medical profession, not the patient, of any risks inherent in the use of the drug which the manufacturer knows or should know to exist. McEwen v Ortho Pharmaceutical Corp, 270 Or 375; 528 P2d 522 (1974); Sterling Drug, Inc v Yarrow, 408 F2d 978, 993 (CA 8, 1969); Love v Wolf, 226 Cal App 2d 378, 395; 38 Cal Rptr 183, 192-193 (1964). However, this duty has been held to require warnings to the patient when the prescription drug is administered in a mass immunization program. E.g., Davis v Wyeth Laboratories, Inc, 399 F2d 121 (CA 9, 1968). Determination of whether this duty has been breached in the context of a negligence claim necessitates that the warnings given be examined as to their reasonableness under the circumstances. Between 1979 and 1984 the Supreme Court’s holding in Smith that a drug manufacturer’s duty to warn does not extend to the patient was fol lowed in several decisions of the Court of Appeals. Reeder v Hammond, 125 Mich App 223, 226; 336 NW2d 3 (1983); Taylor v Wyeth Laboratories, Inc, 139 Mich App 389, 397; 362 NW2d 293 (1984), lv den 423 Mich 852 (1985); Dunn v Lederle Laboratories, 121 Mich App 73, 79; 328 NW2d 576 (1982), lv den 417 Mich 1098 (1983); Muilenberg v Upjohn Co, 115 Mich App 316, 332; 320 NW2d 358 (1982); Formella v Ciba-Geigy Corp, 100 Mich App 649; 300 NW2d 356 (1980), lv den 411 Mich 995 (1981). However, Justice Levin in the Supreme Court’s majority opinion, In re Certified Questions, supra, p 697, stated that the Court’s prior statement in Smith, supra, was dictum and, therefore, did not establish a rule of law. The allocation of the duty to warn patients is a public policy question involving the marketing system and economics of a major industry and the everyday practice of an essential profession. We believe that the Legislature is in a better position to allocate those duties. [In re Certified Questions, supra, p 691-692.] In a strong dissent, Justice Boyle, joined by Chief Justice Williams and Justice Brickley, distinguished the duty owed by a drug manufacturer of oral contraceptives and that owed by a manufacturer of a "therapeutic, diagnostic, or curative prescription drug.” Justice Boyle explained that the "learned intermediary” doctrine is an exception to the axiomatic principle that a manufacturer has a duty to warn the user of known dangers inherent to its product. This exception is applied to manufacturers of prescription drugs, who are required to warn only the prescribing physician, who acts as a "learned intermediary” between the manufacturer and consumer. 419 Mich p 704. The exception has also been justified by an assertion that direct manufacturer-consumer communication is difficult if not virtually impossible. Terhune, supra, p 14; Carmichael v Reitz, 17 Cal App 3d 958, 988-989; 95 Cal Rptr 381 (1971). In addition, it has been argued that a duty to warn the user directly would cause undue interference with the relationship between doctor and patient. Dunkin v Syntex Laboratories, Inc, 443 F Supp 121, 123 (WD Tenn, 1977); Carmichael, supra, p 988. "Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative.” Reyes v Wyeth Laboratories, 498 F2d 1264, 1276 (CA 5, 1974) [cert den 419 US 1096 (1974). 419 Mich p 707.] The "learned intermediary” doctrine has been adopted by many other jurisdictions, where it has almost unanimously been applied for all prescription drugs, including oral contraceptives. Justice Boyle concluded that while the "learned intermediary” doctrine should not apply to oral contraceptives because women may obtain a refill without repeated medical assessment, it should apply to cases involving prescription drugs. In such a context, it is true that the patient relies almost completely on the skill and judgment of the physician in selecting an appropriate drug for the treatment of the patient’s illness or injury. A warning to the patient under these circum stances could potentially cause undue interference with the doctor-patient relationship, cause patient confusion, and result in a hampering of the healing process. To this extent, the rationale for the learned intermediary doctrine supports a duty to warn only the prescribing physician.” 419 Mich pp 709-710.] This panel’s declination to "close the gap” or otherwise change the law regarding a drug manufacturer’s duty to warn in accordance with plaintiffs’ request is posited on two grounds. First, since the Supreme Court has ruled that this is a matter for the Legislature rather than the courts, we decline at this time to act contra to the Supreme Court and make this a judicial matter. While we may not agree with Supreme Court decisions, we must respect and follow them. Schwartz v City of Flint (After Remand), 120 Mich App 449, 462; 329 NW2d 26 (1982); Ratliff v General Motors Corp, 127 Mich App 410, 416; 339 NW2d 196 (1983). Second, public policy supports the result reached below. Phospholine Iodide, unlike the contraceptive pills in In re Certified Questions, supra, or Odgers v Ortho Pharmaceutical Corp, 609 F Supp 867 (ED Mich, 1985), is not a "consumer demand” of "mass consumption” type drug. It is purchasable legally in the United States only with a valid prescription issued by a doctor. To expect the average citizen to know if he or she should take the drug or when to stop taking it, or to understand the technical language so often necessary to explain the dangers of the drug, is unreasonable. This is the basis for the "learned intermediary” rule adopted by a majority of jurisdictions in cases involving therapeutic, diagnostic or curative drugs. Accordingly, in the absence of a clear legal duty imposed on defendant manufacturers to directly warn plaintiffs, plaintiffs have failed to state a claim upon which they may recover, GCR 1963, 117.2(1), now MCR 2.116(C)(8). n It was also plaintiffs’ theory of liability that defendants failed to adequately test the drug and, because of such inadequate testing, defendants were unable to sufficiently warn Dr. Malach of Phospholine Iodide’s risks. On this issue, as noted earlier, the trial court found that even if defendants had completed adequate testing, enabling them to effectively warn Dr. Malach of the danger of retinal detachment, the lack of such a warning was not the proximate cause of plaintiff’s injury. Dr. Malach testified that she was aware of the association of retinal detachment with this drug from reading the opthamologic literature. She informed plaintiffs of this risk. Despite her knowledge that this drug could cause retinal detachment, Dr. Malach chose to prescribe this drug for plaintiff. She stated that it was worth taking the "risks” to avoid repeated intraocular lens dislocation, endangering plaintiff’s cornea. Thus, it appears that even if Dr. Malach had been given additional warnings by defendants of the risk of retinal detachment, she would have chosen to prescribe Phospholine Iodide for plaintiff. There is no evidence that she would have done otherwise. Plaintiffs also argue that further discovery may have allowed them to establish proof that Dr. Malach possibly would have made another drug choice or to raise any other question of fact. Two months before the second summary judgment motion was heard on the adequacy of defendant’s testing of this product, plaintiffs’ counsel deposed Dr. Malach and asked, inter alia, why she decided to use Phospholine Iodide with the knowledge that it could cause retinal detachment. Dr. Malach responded that she was warned of the specific risks of retinal detachment, but by sources other than the defendants. Based upon this testimony, we do not believe that further warnings would have led Dr. Malach to have prescribed any differently, even if defendants themselves had warned her of the risks about which she already knew. Accordingly, we find no error on this issue. Affirmed. Hereinafter, "plaintiff’ refers to Bonnie Mowery. "Plaintiffs” refers to both Bonnie and Richard Mowery. Hereinafter the word "defendants” refers to Ayerst Laboratories, Inc., and American Home Products, Inc. See 419 Mich pp 704-705 for a lengthy list of cases from other jurisdictions.

Per Curiam. On October 7, 1985, defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. On November 21, 1985, he was sentenced to from fourteen to twenty-five years in prison. Thereafter, the trial court denied motions to vacate the sentence and to withdraw his guilty plea. The first issue we address is defendant’s argument that the circuit court so abused its discretion that this Court may and should vacate his sentence pursuant to the "conscience-shocking” stan dard set forth by the Supreme Court in People v Coles, 417 Mich 523; 339 NW2d 440 (1983). Despite this assertion, defendant acknowledges in his brief: "Appellant does not claim his sentence exceeds the Guidelines, as it does not.” Accordingly, the question is posed whether a sentence which is within the range recommended in the Sentencing Guidelines may ever be so excessive as to permit this Court to conclude as a matter of judicial conscience that the sentence imposed should not be tolerated. The guidelines are the product of many years of data compilation and revision. They represent the collective concerns and the opinions of trial judges, appellate judges, and probation personnel, as well as many other interested persons in the law enforcement and judicial community. The guidelines balance a wide variety of sentencing considerations with special attention devoted both to the offender’s prior record and the details and circumstances surrounding the charged offense. Felony and misdemeanor as well as adult and juvenile offenses are studied. Inquiry is made as to the severity of the prior offenses and whether the prior acts were similar to the instant offense. As to the charged offense itself, the guidelines scrutinize several variables, for example, whether a weapon was used, displayed, or pointed at a victim, the type of weapon used, the extent of the victim’s injury, whether the victim was held captive or carried away, whether there were multiple victims, whether the offender exploited the vulnerability of the victim, whether the offender was a member of a professional crime organization or gang and his role in the organization or gang, the level of the offender’s participation in the crime, the extent of contemporaneous criminal activity, the value of property stolen or destroyed, whether property damage was malicious, and on and on. Finally, the guidelines consider if mitigating circumstances are present. On January 17, 1984, the Supreme Court ordered every circuit court and Detroit Recorder’s court judge to use the guidelines for a period of one year. 418 Mich lxxx. On January 23, 1985, the Supreme Court ordered that use of the guidelines be continued until further order of the Court. 420 Mich lxii. We believe it would be inconsistent to order use of the guidelines and on the other hand hold that their proper application may constitute a shocking abuse of discretion. With no illusions of the guidelines’ infallibility, we find that they are an ample consensus of judicial conscience and permissible discretion. Accordingly, we hold as a matter of law that a sentence which falls within the range recommended in the guidelines may not be set aside on appeal. In so holding, we join the panel which reached a similar result in People v Murray, 147 Mich App 227, 232; 383 NW2d 613 (1985), lv gtd 425 Mich 870 (1986). Cf., People v Broden, 147 Mich 470; 382 NW2d 799 (1985), lv gtd 425 Mich 870 (1986). Defendant’s remaining arguments require less comment. Defendant argues that he did not have an opportunity to review the presentence report prior to his sentencing hearing. Before the circuit court imposed sentence, defendant’s attorney affirmatively responded to an inquiry by the court whether he had an opportunity to review the presentence report and to go over the contents with his client. Defendant argues that the trial court should have also asked him whether he had an opportunity to review the report. This argument has been previously raised and rejected by this Court. People v Daniels, 149 Mich App 602; 386 NW2d 609 (1986). MCL 771.14(4); MSA 28.1144(4), the statutory provision upon which defendant relies, does not require the court to verify on the record that defendant has received or been given the opportunity to review the report prior to sentencing. It only prohibits the court from denying counsel or the defendant access to the report. Id. Next, defendant argues that the circuit court erred in refusing to hold an evidentiary hearing on the issue of his opportunity to review the presentence report. In light of our above holding, such a hearing would serve no purpose. Defendant’s contention, even if supported by evidence, would not change our conclusion that the claim of error is without merit and is insufficient to render his sentence invalid. Finally, defendant argues that the trial judge abused his discretion in denying his motion to withdraw his guilty plea. During the guilty plea hearing, defendant stated that he and Fred Norment entered the building with intent to rob the occupants. After defendant was sentenced, he moved to withdraw his plea, asserting that, while he was present at the scene, he had no knowledge of the intended robbery and that his participation was limited to a "pre-robbery fight between the victim and Fred Norment.” There is no right to withdraw a guilty plea once it is accepted. People v Bentley, 94 Mich App 19; 287 NW2d 355 (1979). However, such a request, when offered prior to sentencing, is to be treated with great liberality, especially if the basis for the request is a claim of innocence. People v Sanders, 112 Mich App 585, 586; 316 NW2d 266, lv den 413 Mich 917 (1982). In the instant case, defendant did not move to withdraw the plea until after sentencing. The same liberality in passing upon such motions is not to be accorded where the defendant has already been informed of the length of the prison term. Were we to hold otherwise, any defendant unhappy with his sentence could gain another "shot” simply by asserting he had lied when he had previously confessed criminal intent. In the absence of any compelling evidence of innocence, we find no abuse of discretion in denying defendant’s request to withdraw his guilty plea. Affirmed. Defendant contends his participation in the armed robbery was "rather peripheral.” In view of the level of his participation and in view of "the extremely light” eight to twenty-five year sentence given to the principally culpable participant, defendant argues his sentence should be reduced. Sentences are to be individualized and tailored to fit the offender. People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973). A sentencing court is not required to consider the sentence received by a codefendant. People v Bisogni, 132 Mich App 244; 347 NW2d 739 (1984). Even if it were required to consider such facts, we would find no abuse. Defendant had five prior felony convictions, was on escape status from the Department of Corrections at the time the instant offense was committed and the Sentencing Guidelines indicated a higher range of sentence than was indicated for the coparticipant. The Supreme Court granted leave in Murray and Broden and limited the review to the question of whether it is sufficient under Coles, supra, for a sentencing judge to refer only to the fact that he followed the guidelines when giving reasons for the sentence imposed. We perceive that the instant case addresses an issue distinct from the question upon which the Supreme Court has granted leave.

Per Curiam. Defendant appeals as of right from an order denying child support. We reverse. Plaintiff and defendant were divorced in 1976 and defendant-father was given custody of the couple’s two daughters, ages three and four. The property settlement awarded plaintiff-mother a twenty percent interest in the marital home and provided that she would not be responsible for the support of the children. At the time of the divorce, plaintiff earned $94 a week and defendant earned $255 a week. In 1980, defendant petitioned the court to modify the divorce judgment to require plaintiff to pay child support. By this time plaintiff was earning a net weekly salary of $204. The friend of the court recommended that plaintiff pay $30 a week per child in support. The trial judge, however, denied defendant’s petition holding: "The property settlement is the agreement between the two parties and provided that she shall not pay support and maintenance. He signed it and they both agreed to it. I won’t change it.” Defendant did not appeal the decision. In 1984, defendant again petitioned the court for a modification of the divorce judgment to provide for child support. The friend of the court then recommended that plaintiff pay $58 per week, per child, as her salary had increased to an average net weekly earnings of $716. The original trial judge had died, but the successor trial judge held that, although there had been a change in circumstances, the parties were bound by the earlier ruling, and that defendant’s only remedy was to appeal the 1980 decision. We disagree. Parents of a minor child may not agree to deprive a court of the power to set or modify child support. West v West, 241 Mich 679, 683-684; 217 NW2d 924 (1928); Cochran v Buffone, 137 Mich App 761; 359 NW2d 557 (1984); Sayre v Sayre, 129 Mich App 249; 341 NW2d 491 (1983). Thus, even if the parties had agreed that the wife would receive only twenty percent of the marital home’s sale proceeds in exchange for her release from all future support obligations, the agreement would not be enforceable. The parties could not deprive the trial court of the power to set or modify child support. Furthermore, the divorce judgment does not state that the plaintiff was forever released from paying child support. Regardless of what the parties agreed to originally, the court had authority to modify the divorce judgment to provide for child support when defendant so petitioned in 1980 and again in 1984. A trial court has continuing jurisdiction to modify a divorce judgment to provide for or alter child support upon a change in circumstances justifying modification. MCL 552.17; MSA 25.97 and MCL 722.27(c); MSA 25.312(7)(c). Thus, the trial court erred in 1980 by refusing to review the parties’ changed circumstances, and the trial court erred in 1984 by ruling that the parties were bound by the prior decision denying modification. Although the trial court found that there was a change in circumstances, no finding was made as to the amount of child support. Thus, the trial court’s order is reversed and this case is remanded for a determination of child support. We do not retain jurisdiction.

Wahls, P. J. Defendants were convicted of breaking and entering an unoccupied building, MCL 750.110; MSA 28.305. Marks was sentenced to a prison term of from five to ten years. Holmes was sentenced to a term of from thirty months to ten years. Both defendants appeal as of right. On November 5, 1983, at approximately 5:53 a.m., an alarm came in from Jan’s Hair Fashions to the Silent Alarm Company. The Flint Police Department was immediately contacted and Officers Thomas Hilgendorf and Joel Florida were dispatched to Jan’s. As the officers pulled into Jan’s driveway, Hilgendorf saw two individuals standing four to six feet in front of the side door. The two ran in opposite directions upon sighting the police. Hilgendorf apprehended Holmes while Florida caught Marks. Florida observed perspiration on Marks’ face and neck, and wood chips and ceiling tile fragments on his hair, neck, and clothing. After apprehending the two suspects, the officers checked the building and saw scuff marks on the east rear wall. Tauheed Mateen, an employee of Church’s Fried Chicken, located across the lot from Jan’s, was closing the restaurant at the time. Looking out of the restaurant’s window, he saw a tall, slim man with a long afro, dark pants and a jacket disappear behind Jan’s and later come out of Jan’s and walk around the building while carrying a bag. He next saw the police car arrive and observed the officers get out of the cruiser. However, he did not see a woman at the scene nor did he see the officers chase anyone. After the officers had placed Marks and Holmes in the police car, Mateen ap proached the officers and told Officer Florida that he saw who broke into Jan’s. Florida asked if the person Mateen saw was the man in the cruiser (Marks) and Mateen responded affirmatively. On cross-examination at trial, Mateen admitted that he was unable to see the suspect’s face from the restaurant because he was too far away. Rodney Simpson, the husband of the owner of Jan’s, arrived at the scene and unlocked a door. He entered the building with Officers .Florida and Hilgendorf, observed a number of wastepaper baskets filled with beauty equipment, and further noticed that a portable television set and radio were missing. At that time, Simpson also discovered a square hole in the bathroom ceiling, which was made of one-inch thick plywood. Later that day, Simpson found a claw hammer and a screwdriver. These tools did not belong to Simpson, his wife or any of the store’s employees. Marks and Holmes were transported to the police station, where Officer Hilgendorf also observed wood chips in Marks’ clothing and a white powdery substance and pieces of white ceiling tile on his pants. The clothing was stored in an evidence locker, "bunched together.” As a result, when the clothing was produced at trial, it did not contain all the wood chips and other particles as they were observed at the crime scene. The police did not conduct a laboratory analysis to determine if the particles on the clothing matched the material from Jan’s bathroom ceiling. Marks and Holmes were interviewed separately at the station. Sergeant Acy Butler testified that he interviewed Holmes from approximately 6:30 to 7:00 a.m. on November 5, 1983. After waiving her Miranda rights, Holmes told Butler that, at the time of her arrest, she was passing by Jan’s with Marks while on the way to the E-Z Stop party store to purchase diapers and milk for her baby and that she knew nothing about the break-in. Butler next interviewed Marks, who corroborated Holmes’ account. At trial, an employee of Jan’s testified that the E-Z Stop store is six blocks away from Jan’s and is closed from approximately 2:00 a.m. to 7:00 A.M. Both defendants took the stand on their own behalves and insisted that they knew nothing about the burglary. Holmes testified that during the evening of November 4, 1983, she went to the home of Marks’ father because she needed money to purchase diapers and milk. During this time, her upstairs neighbor watched her children. Because Marks was not at his father’s home at the time she arrived, Holmes left a message and returned to her residence. Marks’ father corroborated this testimony and further stated that he refused to lend Holmes money because she was already in debt to him. Meanwhile, Marks was at the Dirty Disco, an afterhours nightclub. Upon returning to his father’s home early in the morning of November 5, 1983, his father gave him Holmes’ message and lent him $10. Marks went to Holmes’ residence and the two went to the E-Z Stop store. On the way to the store, the two approached Jan’s. Holmes decided to take a shortcut across the lot behind Jan’s and agreed to meet Marks again in front of the Church’s restaurant. Both defendants testified that, while Holmes was behind Jan’s and Marks was in front of the building, the police officers arrived and immediately placed them under arrest. According to Marks, he and Holmes decided to go to the E-Z Stop store because they had seen a 24-hour sign in front of that store and they knew that the other stores nearby would be closed. Marks also explained that his clothing contained wood chips at the time of his arrest because, the night before the arrest, he put plywood on a table top for Roger Brownlee. Marks stated that he wore his dirty work clothes to the Dirty Disco, he did not run away from Officer Florida, and, contrary to Florida’s testimony, he was not sweating or breathing heavily at the time of his arrest. Brownlee corroborated that Marks did indeed do carpentry work for him the day before, but this involved only the construction of steps for a trailer. i Defendant Marks argues that he should not have been subjected to the on-the-scene identification procedure without the presence of counsel. He asserts that the procedure as conducted violated his Sixth Amendment right to counsel. We disagree. A Actually, the Sixth Amendment does not apply to the "pre-indictment” identification in this case. The basis for defendant Marks’ assumption that it does is easily documented. In People v Anderson, 389 Mich 155, 168; 205 NW2d 461 (1973), our Supreme Court concluded that defendants are entitled to counsel at all pretrial identification procedures, on the basis of United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). Considering that Kirby v Illinois, 406 US 682; 92 S Ct 1877; 32 L Ed 2d 411 (1972), contained no majority opinion, our Supreme Court concluded that Kirby provided no basis for distinguishing between "pre-indictment” and "post-indictment” cases. 389 Mich 171. The Court acknowledged that justifications for the absence of counsel did exist and identified three: (1) "intelligent” waiver of counsel by the accused, see e.g., People v Shipp, 21 Mich App 415 [175 NW2d 529] (1970); (2) emergency situations requiring immediate identification, see e.g., People v Adams, 19 Mich App 131, 133 [172 NW2d 547] (1969); (3) prompt, "on-the-scene” corporeal identifications within minutes of the crime, see e.g., Russell v United States, 133 US App DC 77; 408 F 2d 1280 (1969). [389 Mich 187, n 23. Emphasis in original.] Since Anderson, the question of on-the-scene identification has been raised in the context of the "constitutional right to counsel,” see e.g., People v Wilki, 132 Mich App 140, 142; 347 NW2d 735 (1984), and specifically the "Sixth Amendment right to counsel,” see e.g., People v Fields, 125 Mich App 377, 380; 336 NW2d 478 (1983); People v Turner, 120 Mich App 23, 33-34; 328 NW2d 5 (1982), lv den 417 Mich 1064 (1983); People v Coward, 111 Mich App 55, 62; 315 NW2d 144 (1981), lv den 417 Mich 873 (1983). While Anderson and the above cases from this Court at first glance appear to be Sixth Amendment cases, further inquiry reveals otherwise. In People v Jackson, 391 Mich 323, 338; 217 NW2d 22 (1974), the Supreme Court observed that the Anderson rules "represent the conclusion of this Court, independent of any Federal constitutional mandate, that, both before and after commencement óf the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification.” Furthermore, were Anderson a statement of Sixth Amendment law, it would no longer be controlling, because the United States Supreme Court has since approved of the distinction drawn by the Kirby plurality but rejected in Anderson. In Moore v Illinois, 434 US 220, 226-227; 98 S Ct 458; 54 L Ed 2d 424 (1977), the Court said, In Kirby v Illinois, 406 US 682 [92 S Ct 1877; 32 L Ed 2d 411] (1972), the plurality opinion made clear that the right to counsel announced in Wade and Gilbert attaches only to corporeal identifications conducted "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 406 US, at 689. This is so because the intiation of such proceedings "marks the commencement of the 'criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” Id., at 690. Thus, in Kirby the plurality held that the prosecution’s evidence of a robbery victim’s one-on-one stationhouse identification of an uncounseled suspect shortly after the suspect’s arrest was admissible because adversary judicial criminal proceedings had not yet been initiated. In such cases, however, due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Id., at 690-691; Neil v Biggers, 409 US 188 [93 S Ct 375; 34 L Ed 2d 401] (1972); Stovall v Denno, 388 US 293 [87 S Ct 1967; 18 L Ed 2d 1199] (1967); see generally Manson v Brathwaite, 432 US 98 [97 S Ct 2243; 53 L Ed 2d 140] (1977). See also Summitt v Bordenkircher, 608 F2d 247 (CA 6,1979), aff'd sub nom Watkins v Sowders, 449 US 341; 101 S Ct 654; 66 L Ed 2d 549 (1981). The question then is not whether defendant Marks was deprived of his Sixth Amendment right to counsel, but whether the right to counsel estab lished by Anderson was violated. As noted earlier, Anderson recognized that the absence of counsel is justified where a prompt, on-the-scene corporeal identification is held. We turn our focus now to that justification. B As an example of the "on-the-scene” justification, Anderson cited Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969), cert den 395 US 928; 89 S Ct 1786; 23 L Ed 2d 245 (1969). The facts of the latter case are as follows: At day-break on June 28, 1967, one George McCann investigated the sounds of a blaring radio and breaking glass at the Community Shoe Shine shop. The radio was sitting on the sidewalk outside the broken shop window. Stationing himself in a brightly-lighted gas station across the street, he saw a man emerge from the shop, look across at him, and proceed past him up the street. McCann went directly to a nearby police station and reported the incident three or four minutes after it occurred. The police broadcast a radio look-out, and officers in a responding squad car promptly encountered appellant in the vicinity. Since he matched the radioed description of the suspect and fled from the approaching police car, the officers pursued him to the porch of a house. There they discovered that he had a radio in one hand and a hatful of cigarettes and small change concealed under his coat. He also had a coat hanger and a screwdriver in his pocket, and on this particular summer night he was wearing gloves. They arrested him and drove him to the shoe shine shop where McCann identified him as the man he had seen coming out of the shop. [133 US App DC 78; 408 F2d 1281.] Chief Judge Bazelon, writing for the majority, wrestled with the implications of Wade (the Supreme Court had not yet decided Kirby or Moore). He recognized that the facts before him were quite different than those of Wade, stating, The present case, however, involves an immediate on-the-scene confrontation 5 o’clock in the morning when there would necessarily be a long delay in summoning appellant’s counsel, or a substitute counsel, to observe a formal lineup. Such delay may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement. [133 US Ap DC 80-81; 408 F2d 1283-1284.] He then considered and balanced the suggestiveness of the identification procedure and the limitations of human perception and recognition and concluded; [I]t appears that prompt confrontations in circumstances like those of this case will "if anything promote fairness, by assuring reliability . . . .” This probability, together with the desirability of expeditious release of innocent suspects, presents "substantial countervailing policy considerations” which we are reluctant to assume the Supreme Court would reject. We therefore conclude, with some hesitation, that Wade does not require exclusion of McCann’s identification. This conclusion does not rest on a determination that McCann’s identification was in fact especially reliable. It rests instead on a general rule that it is not improper for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before. [133 US App DC 81; 408 F2d 1284.] Judge Danaher, concurring, noted that the thor oughly experienced trial judge had characterized the circumstances as the strongest case of identification he had observed in sixteen years on the trial bench. 133 US App DC 83, n 3; 408 F2d 1286, n 3. I find the Russell analysis and rule persuasive. However, the simplicity of the Russell rule has not been accepted by this Court. The case was cited along with several other cases in People v Hutton, 21 Mich App 312, 322, 324; 175 NW2d 860 (1970), lv den 383 Mich 796 (1970), where this Court picked and chose elements from the various cases to support its conclusion that Hutton’s identification constituted a "critical stage” in the proceedings. In subsequent cases, this Court has uniformly been suspicious of police motivation and necessity in conducting on-the-scene identifications. Nevertheless, a split has developed over the scope of the on-the-scene justification. One line of cases, beginning with People v Turner, 120 Mich App 23; 328 NW2d 5 (1982), lv den 417 Mich 1064 (1983), requires counsel when the police have "very strong evidence.” The other line, exemplified by People v Coward, 111 Mich App 55; 315 NW2d 144 (1981), lv den 417 Mich 873 (1983), allows the police broad discretion. I disagree with those cases which say that People v Coward, supra, adopted a blanket rule allowing the police to conduct prompt, on-the-scene identifications without counsel under any circumstances. People v Fields, 125 Mich App 377, 381; 336 NW2d 478 (1983); People v Raybon, 125 Mich App 295, 307; 336 NW2d 782 (1983), lv den 418 Mich 949 (1984); Turner, supra, p 35. In Coward, the Court noted that there was nothing in the record "to suggest that the police officers were not attempting, in good faith, to decide whether there was a reasonable likelihood that the suspect was connected with the crime or merely an unfortunate victim of circumstances.” 111 Mich App 63-64. Coward thus holds true to the long list of cases cited therein which generally hold that the identification procedure must be on-the-scene and reasonable police practice. See People v Wright, 38 Mich App 427, 431; 196 NW2d 839 (1972), lv den 388 Mich 758 (1972). I must acknowledge, though, that Coward comes closest to stating a simple proposition similar to the Russell rule, and for that I applaud it. I do not believe we need to go beyond Coward and its predecessors and utilize the "very strong evidence” rule of Turner, supra. Having said that, I hasten to point out that this case does not require a choice between Coward and Turner. For reasons I will state later, the police did not have very strong evidence against Marks and, therefore, the identification was proper under either case. Nevertheless, to stimulate further consideration by bench and bar of this conflict in the case law, I will address the problems I see with Turner and its successors. c Coward was criticized in Turner, supra, p 36, n 1, and Raybon, supra, p 307, for not adequately accounting for the inherent suggestiveness of the on-the-scene identification. In both Turner and Raybon, this Court then referred to Russell, pre sumably as an example of proper consideration of the inherent suggestiveness in the identification procedure. However, note that Coward suggests pretty much the same general rule as Russell. The fact that Coward did not discuss suggestiveness does not mean it was not accounted for. In fact, suggestiveness is one of the underpinnings of the Russell rule. Russell created the rule, Coward simply followed it. That Coward string cited its precedent, rather than "recreate the wheel,” should not be construed as a failure to account for a necessary element expressed in that precedent. Turner and the subsequent cases have accounted for suggestiveness twice over and reached, I believe, á wrong result. Suggestiveness was accounted for once in reaching the rule that defendant is entitled to counsel at a pretrial identification. That did not, however, prohibit a justification for the absence of counsel where the identification was prompt and on-the-scene. Anderson, supra. In Turner and its progeny, suggestiveness was then counted again to break down the "on-the-scene” rule further so that the justification for the absence of counsel exists only where there is less than "very strong evidence.” This analysis is not suggested by Anderson and runs counter to the result in Russell, where the Court upheld the identification under circumstances constituting the strongest case of identification observed by the trial judge in sixteen years. Much of the motivation behind the Turner rule seems to be the Court’s effort to reconcile People v Patskan, 387 Mich 701; 199 NW2d 458 (1972), with the Supreme Court’s later recognition of the on-the-scene identification exception in Anderson. In Patskan, the police arrived while the crime was in progress, observed a person flee, chased and caught him, and returned him to the scene of the crime, where he was identified by the victim. There was some factual dispute whether the victim volunteered the identification or was asked by the police. This Court affirmed the defendant’s conviction and, on the issue of his right to counsel at the identification, declined to address the merits where the issue was raised for the first time on appeal. The Supreme Court reversed on other grounds but addressed the right to counsel because the defendant’s identification would be an issue on retrial. The Court addressed the matter very briefly and did not hint that there were any exceptions to Wade. Given the newness of the on-the-scene justification to this state at that time, see People v Martin, 42 Mich App 236; 201 NW2d 284 (1972); People v Wright, supra; People v Hutton, supra, I do not think it wise to infer that the Supreme Court in Patskan considered the justification or intended its opinion to be dispositive of the limitations of the justification. See People v Dixon, 85 Mich App 271, 283; 271 NW2d 196 (1978), lv den 406 Mich 906 (1979) (Bashara, J., dissenting). Turner also states that where the defendant is highly identifiable the exculpatory rationales for the police and the defendant are absent and counsel is that much more important. 120 Mich App 37. I agree that the police have less of a need to eliminate from suspicion a highly identifiable person. I do not understand, though, in what sense Turner means that in such a situation "counsel is that much more important.” I think it sufficient that, although the police have less need of the identification, the identification is also less likely to deprive the defendant of a fair trial by leading to a wrong result. Under Russell and Coward, if the identification is prompt and on the scene, suggestiveness is to be considered, not with respect to the right to coun sel, but in terms of the reliability of the identification and whether the defendant has been denied due process of law. Consideration of reliability is proper regardless of what standards or rules are used to determine the right to counsel. In light of the due process protection provided a defendant undergoing an uncounseled on-the-scene identification, I cannot find a compelling need for the Turner rule. Furthermore, I do not believe the police can practically make a decision whether they have "strong evidence” or "very strong evidence.” Sometimes it will be obvious, as where the defendant immediately confesses. However, standards such as "highly distinctive evidence of the crime” or "highly distinctive personal appearance,” Turner, supra, pp 36-37, are going to end up requiring such a subjective determination by the police when confronted with complicated fact situations that the police will know no more than to act in good faith. This good faith entered into the definition provided in Wilki, supra, p 144, where this Court said: In view of the purposes for on-the-scene identifications, we interpret the term "very strong evidence” to mean evidence such that the police, acting in good faith, have no reasonable necessity for confirming that the suspect they have apprehended is in fact the perpetrator. Unfortunately, I cannot understand what the rest of the Court’s definition has to do with the strength of the evidence. In terms of police necessity, in every instance where the police have probable cause to arrest, they have the right to take the defendant to the station house, book him and begin judicial proceedings. Furthermore, if they are not sure they have the right person, they can still continue their investigation without first rul ing out that they have the wrong person. The release of the wrong person is more necessitous for that person than for the police, it would seem. The police are going to determine whether an on-the-scene identification is necessary, proper or reasonable based on the totality of the circumstances, and not simply the strength of the evidence. For example, Russell pointed out the potential difficulties in promptly obtaining counsel where a nighttime arrest has occurred. D As I stated earlier, the above discussion is intended to stimulate further thought on this subject but is not necessary for resolution of the instant case because, even under the Turner rule, the on-the-scene identification of Marks was proper. At the time of Marks’ arrest, the evidence against him was that he was seen standing close to an establishment within minutes after a silent alarm had been triggered, he ran when the police approached, and he had wood chips and white particles on his clothing. That Marks was present at the scene is difficult to explain away, but his later explanation that he was going to a party store with a "24 hour” sign out front is not inherently incredible. His flight is certainly some evidence of a guilty conscience, but, as far as the police were concerned, he could have felt guilty about something else. That Marks had wood chips and particles on his clothing is not of great value because it does not appear that the police knew how Jan’s had been entered until later, when the owner’s husband let them in and they found the hole in the ceiling. Accordingly, the evidence does not qualify as "very strong evidence” and the on-the-scene identification is not rendered unjustifiable. Marks does not argue that the identification procedure was so suggestive as to render the on-the-scene identification unreliable. Because we find that identification proper, we need not reach the question of whether there was an independent basis for Mateen’s in-court identification of Marks. ii Marks also argues that he was denied a fair trial by the people’s failure to adequately preserve and test the wood chips and white particles found on his clothing. Defendant did not request that the evidence be preserved or tested. Because we do not find any intentional misconduct or suppression or bad faith on the part of the police or the prosecutor, defendant’s argument is without merit. People v Jeffrey Johnson, 113 Mich App 650; 318 NW2d 525 (1982). The people did not have a duty to test the evidence. People v Allen, 351 Mich 535; 88 NW2d 433 (1958). m Defendant Holmes first argues that the evidence against her was insufficient and that the court erred in denying her motion for a directed verdict. In reviewing this claim, we must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). In this case, the evidence was clearly sufficient to convict Holmes on an aiding and abetting theory. The jury could properly believe that Marks climbed to the roof of Jan’s, broke his way in, prepared certain items for removal and actually removed other items. Because there was other evidence from which the jury could believe that Holmes was with Marks immediately before the break-in and at the time the police arrived, and that Holmes fled from the police, the jury could conclude that Holmes shared Marks’ felonious intent and participated in the crime. People v Olszewski, 119 Mich App 455; 326 NW2d 394 (1982). Compare the facts in People v Henry, 395 Mich 367; 236 NW2d 489 (1975). iv We lastly address Holmes’ arguments that the court abused its discretion at sentencing. We find no basis for reversal. Holmes first asserts that the court considered her failure to admit guilt, contrary to the clear rule stated in People v Randle, 104 Mich App 1; 304 NW2d 9 (1981). The record does not support this assertion. The court expressed a belief that Holmes was guilty but never intimated that Holmes’ failure to admit guilt was a factor in determining her sentence. Holmes next contends that the court erred in departing from the sentencing guidelines’ recommended minimum range for reasons that were already factored into the guidelines’ scoring system. This Court has consistently rejected this argument. See e.g., People v Richard Johnson, 146 Mich App 809; 381 NW2d 424 (1985). Holmes lastly urges that, pursuant to People v Coles, 417 Mich 523; 339 NW2d 440 (1983), she should be granted relief because the court abused its discretion in focusing on an attitude problem Holmes had during the prebail investigation. Holmes notes that, during the later presentence interview, she cooperated with the probation officer. We find no abuse of discretion to the extent that it shocks our conscience. 417 Mich 550. Judges Mackenzie and Tahvonen concur in the results only as to Part i and concur fully with Parts n, ni, and iv. As to the propriety of the on-the-scene identification procedure challenged by defendant Marks, they would apply the rule of People v Turner, 120 Mich App 23; 328 NW2d 5 (1982), lv den 417 Mich 1064 (1983), and People v Fields, 125 Mich App 377; 336 NW2d 478 (1983), and affirm. Affirmed. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Marks recognizes that People v Dixon, 85 Mich App 271; 271 NW2d 196 (1978), lv den 406 Mich 906 (1979), has never gained any support and he does not urge us to follow its "more than a mere suspicion” rule. We note that the two judges signing the Dixon majority opinion have since disaffirmed the rule and followed Turner. People v Wilki, 132 Mich App 140, 146; 347 NW2d 735 (1984) (Maher, J., concurring); People v Fields, 125 Mich App 377, 382; 336 NW2d 478 (1983) (Holbrook, Jr., J., concurring). The majority in Wilki, supra, p 143, n 2, persuasively demonstrated the problem with Dixon.

Per Curiam. In our previous opinion in this case, reported at 148 Mich App 197; 384 NW2d 407 (1986), we deferred to the trial court’s finding of fact in regard to the West Big Twin Lake 5-18 well, that the governmental survey submitted into evidence by the defendants established, contrary to defendants’ claim, that the section line between Section 13 of Coldsprings Township and Section 18 of Blue Lake Township crossed Big Twin Lake. The trial court’s decision was contrary to defendants’ claim that the section line was established by the meander of the lake and that the lake and the subject well bottom hole was therefore just as much in Section 13 as in Section 18. However, by order dated July 23, 1986, the Supreme Court vacated our judgment and remanded to this Court "for reconsideration in light of the portion of the record on appeal that was not considered by the Court in reaching its decision.” 425 Mich 878 (1986). Plenary review of the relevant exhibits, now that the parties have supplied them to this Court, convinces us that the trial court correctly found that the section line crossed Big Twin Lake and did not, as defendants assert, follow the meander of the lake. Defendants’ contention that the Big Twin Lake 5-18 producing well caused their lease to remain in force as to the subject 120 acres (Area "e” on Appendix a found at 148 Mich App 210) in Section 13 is predicated upon the erroneous argument that the land surrounding Big Twin Lake was meandered in the original government survey. While defendants posit that the eastern boundary of Section 13 is not the section line but rather is the meandered western shoreline of the lake, defendants’ exhibit 127 clearly demonstrates that the section line between Section 13 and Section 18 cuts across rather than meanders the western shoreline of the lake. Exhibit 127 is the 1839 government survey and field notes for Coldsprings Township. Appendix "a” shows the contested area and surrounding environs of Coldsprings Township and Blue Lake Township. The surveyor’s field notes show that he proceeded north on the east side of Section 24 (of Coldsprings Township) "To a Lake & Hemlock 30 in for Meander post on South Side.” The surveyor then proceeded, "North on East Side Section 13 to point of Land & Set Meander post.” The field notes continue: "To Same Lake & Hemlock 18 in for Meander post on N. Side By Trigonom. (Emphasis added.) From the 1839 survey it appears that Big Twin Lake and Little Twin Lake were at the time connected and the first reference to the "Lake” in the field notes under Section 24 is to the southern shore of what is now Little Twin Lake. The point referred to in the field notes was a spit of land at the narrows then connecting Little Twin Lake and Big Twin Lake. The spit divided the north shoreline of Little Twin Lake from the south shoreline of Big Twin Lake. The surveyor’s notes and the survey map clearly show that from the spit of land and the meander post on the south side of what is now Big Twin Lake, the surveyor proceeded to survey the section line between Section 13 and Section 18 over the lake to a meander point on the north side of Big Twin Lake by means of trigonometry. We find the survey map and accompanying field notes are conclusive to establish that the section line was not meandered along the shoreline and instead crosses Big Twin Lake as the trial court found. Accordingly, we conclude that defendants’ argument that the 5-18 well and production unit does not lie entirely in Section 18 because the lake is neither in Section 18 nor in Section 13 is without merit. Clearly, the bottom hole location of the well, which the parties agree determines the location of the well since that is where production occurs, is located in Section 18. Based upon the judge’s factual finding, which was correctly based upon the trial exhibits which the parties had not previously supplied to this Court, the trail court accurately stated: "[N]o activity related to the West Big Twin Lake 5-18 well could serve to affect the lease on section 13 at any time.” Therefore, the decision of the trial court as to the 5-18 well is affirmed. On all of the other issues, we affirm the decision of the trial court for the reasons that were fully set forth in our original opinion in this case. Affirmed.

R. M. Maher, J. Plaintiffs appeal as of right from a trial court order granting defendant’s motion for accelerated judgment pursuant to GCR 1963, 116.1(5). This medical malpractice action arises out of surgery performed on Helen Whitmore by Robert Fabi, M.D., a neurosurgeon, and Ernesto L. Suarez, M.D., a cardiologist, on February 2, 1976. Each doctor performed a separate surgical procedure on Mrs. Whitmore, out of the presence of each other. During Dr. Suarez’s surgical procedure, Mrs. Whit-more’s brachial plexus was severed. Dr. Fabi returned to the operating room and attempted to repair the damage to the nerve, but was unsuccessful. Dr. Suarez last treated Mrs. Whitmore on July 21, 1976. Dr. Fabi last treated Mrs. Whitmore on July 8, 1977. Plaintiffs commenced the instant action on May 2, 1979, against Dr. Fabi, Dr. Suarez, their respective professional corporations, and the hospital. In addition to allegations that both Dr. Fabi and Dr. Suarez were individually liable for their own negligent acts, plaintiffs alleged that there existed reciprocal principal-agent relationships between the doctors and that each doctor was vicariously liable for the negligent acts of the other. On May 3, 1983, the trial court entered an order granting partial accelerated judgment in favor of defendants, stating that the following claims were barred by the statute of limitations: 1. Plaintiffs’ claim against Ernesto L. Suarez, M.D. and Kalamazoo Cardio Thoracic Surgery, P.C., his employer, based upon the alleged personal negligence of Ernesto L. Suarez, M.D. 2. Plaintiffs’ claims against Robert Fabi, M.D., Neurosurgery of Kalamazoo, P.C. and Borgess Hospital as the alleged principals of Ernesto L. Suarez, M.D. and Kalamazoo Cardio Thoracic Surgery, P.C. and based upon the alleged personal negligence of Ernesto L. Suarez, M.D.[ ] A trial court should grant a motion for accelerated judgment based on a statute of limitations where a jury has been requested only where the court can conclude as a matter of law that the plaintiffs claim is barred by the running of the period of limitations. When deciding a motion for accelerated judgment, the court must accept all well-pled allegations of the nonmoving party as true. In addition, the trial court may consider affidavits submitted by either party. Smith v Consengco, 146 Mich App 401, 405-406; 380 NW2d 478 (1985); Wallisch v Fosnaugh, 126 Mich App 418, 424; 336 NW2d 923 (1983), lv den 418 Mich 871 (1983). The period of limitations for claims of medical malpractice is two years. MCL 600.5805(4); MSA 27A.5805(4). A claim based upon the medical malpractice of a doctor accrues:_ [A]t the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. [MCL 600.5838(1); MSA 27A.5838(1).] An action for malpractice may be commenced within two years after the claim accrues or six months after the plaintiff discovers or should have discovered the existence of his or her malpractice claim, whichever is longer. MCL 600.5838(2); MSA 27A.5838(2). A malpractice action not commended within the statutory period is barred. Id. Since plaintiffs failed to commence a malpractice action against Dr. Suarez within the statutory period, it would appear that the claim is barred. Plaintiffs argue, however, that the period of limitations is tolled due to the reciprocal agency relationship between the two doctors. Defendants argue that the legal relationship alleged by plaintiffs is not regarded as one of agency. It is well settled, however, that the existence and scope of an agency relationship are questions of fact for the jury. Michigan National Bank of Detroit v Kellam, 107 Mich App 669, 678; 309 NW2d 700 (1981), lv den 413 Mich 870 (1982); Caldwell v Cleveland-Cliffs Iron Co, 111 Mich App 721; 315 NW2d 186 (1981), lv den 417 Mich 914; 330 NW2d 854 (1983). Physicians and surgeons, like other persons, are subject to the law of agency. Barnes v Mitchell, 341 Mich 7, 19; 67 NW2d 208 (1954). A physician or surgeon may be liable for the negligence or malpractice of another physician or surgeon acting as his agent. Barnes, supra, pp 18-19; see, also, Anno: Liability of one physician or surgeon for malpractice of another, 85 ALR2d 889. A physician who calls in or recommends another is not liable for the other’s malpractice where there is no agency, concert of action or negligence selection. Rodgers v Canfield, 272 Mich 562, 564; 262 NW 409 (1935); Hitchcock v Burgett, 38 Mich 501 (1878). Likewise, physicians who are independently employed or acting independently in a case cannot be held vicariously liable. Brown v Bennett, 157 Mich 654, 658; 122 NW 305 (1909). Vicarious liability has been recognized, however, where the physicians are jointly employed or acting jointly on a case. See 85 ALR2d 889, 904 and the cases cited therein. The facts of this case, with respect to the agency relationship of the doctors, have yet to be developed. As the case now stands, it cannot be said as a matter of law that an agency relationship did not exist between Dr. Suarez and Dr. Fabi. Furthermore, the issue on appeal in this case is not whether a reciprocal agency relationship existed, but whether the principal-agency relationship, if proven, tolled the period of limitations with respect to Dr. Suarez. Plaintiffs allege alternative agency relationships. Plaintiffs first claim that (1) Dr. Suarez was the principal, (2) Dr. Fabi was the agent, (3) Dr. Suarez committed the alleged negligent act, and (4) Dr. Fabi was the last to treat. The issue under this factual background is: When did the period of limitations begin to run against Dr. Suarez, the principal, as a result of his own allegedly negligent act? Plaintiffs argue that the two-year period began to run against Dr. Suarez on the date that Dr. Fabi, the agent, last treated Mrs. Whitmore. Plaintiffs’ alternative factual scenario is that (1) Dr. Fabi was the principal, (2) Dr. Suarez was the agent, (3) Dr. Suarez committed the alleged negligent act, and (4) Dr. Fabi was the last to treat. The question under this factual background is: When did the period of limitations begin to run against Dr. Fabi, the principal, as a result of the alleged negligent act of Dr. Suarez, the agent. Plaintiffs argue that the two-year period began to run against Dr. Fabi on the date that Dr. Fabi last treated Mrs. Whitmore. We agree with plaintiffs and hold that the period of limitations begins to run against a doctor on the last date of treatment by the doctor or his agent, whichever comes later. Our holding is the same whether plaintiffs seek individual or vicarious liability against the principal doctor. We believe that where an agency relationship exists, a doctor does not "discontinue treating or otherwise serving” within the meaning of § 5838 until both the doctor and his or her agent(s) have discontinued treating or otherwise serving a plaintiff. Our holding is based in part upon the purpose of the "last treatment” rule, which is: The purpose of the "last treatment” rule is to permit a patient to continue treatment with a physician after the commission and discovery of misfeasance with the hope that the resulting problem may be remedied without recourse to legal proceedings. Such a rule is believed to foster better physician-patient relationships. "The justification for the termination rule is that it strengthens the physician-patient relationship. The patient may rely upon the doctor’s ability until the relationship is terminated and the physician has the opportunity to give full treatment, including the immediate correction of. any errors in judgment on his part. In short, it was thought that the termination rule is conducive to that mutual confidence which is essential to the physician-patient relationship.” Thus, to require a patient to file suit for malpractice during the course of treatment for a particular injury or disease when he believes or reasonably should believe that he has a malpractice claim would destroy this mutual confidence in the physician-patient relationship. Such a requirement would place the patient in the unacceptable situation of deciding whether to continue the ongoing treatment and thus risk the chance of forfeiting his right to bring suit at a later date, or terminate the relationship, and, perhaps deny the physician the opportunity of correcting his error. Ishler v Miller, 56 Ohio St 2d 447, 449; 384 NE2d 296, 298 (1978). [Strong v Pontiac General Hospital, 117 Mich App 143, 150-151; 323 NW2d 629 (1982).] The policy of the "last treatment” rule is equally compelling where one doctor is acting as the agent of another. An agent, in the broadest sense of the word, is one who acts for or represents another by his authority. Mallory v Conida Warehouses, Inc, 113 Mich App 280; 317 NW2d 597 (1982). In Strong, supra, p 152, this Court stated: It is preferable that corrective actions be taken by health care providers when possible without the need for legal recourse. When a physician undertakes such remedial action himself he obviously continues treatment. A subsequent suit for malpractice should be treated no differently when the physician farms out the subsequent remedial treatment at his own expense. To hold otherwise would require patients to choose between foregoing possible corrective measures or foregoing their right to legal relief and thus would encourage patients to view offers of corrective measures with a jaundiced eye. This would hardly be conducive to strong physician-patient relationships. The Strong Court held that when the alleged negligent doctor provided the plaintiff, at his expense, with another doctor’s care, he continued to "otherwise serve” the patient. Similarly, we believe that where either member of the principal-agent relationship treats the plaintiff after the allegedly negligent act, the principal doctor continues to "treat or otherwise serve the plaintiff in a professional capacity.” Accordingly the two-year period of limitations does not begin to run until both the principal and agent doctors have discontinued treating or otherwise serving the plaintiff for the matter from which the malpractice cause arises. In the instant case, Dr. Fabi, whether as principal or agent, ceased treating Mrs. Whitmore on July 8, 1977. Plaintiffs’ complaint was filed on May 2, 1979, within two years after last treatment by Dr. Fabi. If plaintiffs can prove that Dr. Fabi’s postoperative treatment of Mrs. Whitmore was done as an agent of Dr. Suarez, then the period of limitations has not run against Dr. Suarez for his own act of negligence. If plaintiffs can prove that Dr. Suarez was the agent of Dr. Fabi, then the period of limitations has not run against Dr. Fabi on plaintiffs’ claim of vicarious liability based on the act of Dr. Suarez. Since we cannot conclude as a matter of law that plaintiffs’ claims are barred by the statute of limitations, we must reverse the trial court’s order granting partial accelerated judgment. Reversed. R. L. Tahvonen, J., concurred. Plaintiffs’ claims against Dr. Fabi based on his personal negligence proceeded to trial. Prior to trial, plaintiffs reached a settlement with Dr. Fabi, but only with respect to the claim based on his own negligence. Plaintiffs continue to seek to hold Dr. Fabi vicariously liable for Dr. Suarez’s alleged negligence.

Per Curiam. Plaintiff, Catherine Coen, filed a medical malpractice action against defendants, Oakland County, South Oakland Community Mental Health Clinic, a Division of Oakland County Community Mental Health Services, Patricia Hop-son, M.D., Sinai Hospital of Detroit, Comprehensive Psychiatric Services, P.C., Sandra Silver, as personal representative of the estate of Richard Kalman, D.O., deceased, and William M. Leuchter, M.D. Defendants-appellees, Oakland County, South Oakland Community Mental Health Clinic (clinic), which is owned and operated by Oakland County, and Patricia Hopson, M.D., who is employed by Oakland County at the clinic, brought a motion for summary judgment under GCR 1963, 117.2(1), now MCR 2.116(C) (7), claiming that they were entitled to governmental immunity in this matter pursuant to MCL 691.1407; MSA 3.996(107) and the common law. The trial judge granted defendantsappellees’ motion for summary judgment and dismissed plaintiff’s claims against defendants-appellees. Plaintiff appeals as of right. The facts which gave rise to plaintiff’s claim are not in serious dispute. Plaintiff is a young female who suffered from paranoid schizophrenia. From January, 1982, until December, 1982, she was treated by a private physician, defendant Richard Kalman, D.O. Dr. Kalman administered antipsychotic drugs to plaintiff. The antipsychotic drugs (Haldol and Mellaril) that were administered to plaintiff sometimes produce a side effect known as tardive dyskinesia. Tardive dyskinesia is a muscle disorder which causes uncontrollable muscle spasms, jerking and other disabling side effects. Plaintiff alleges that she began suffering symptoms of tardive dyskinesia in November, 1982. She goes on to allege that when symptoms of tardive dyskinesia appear, drug therapy should be discontinued. Despite the appearance of these symptoms, defendant Dr. Kalman allegedly continued administering antipsychotic drugs to plaintiff. We note that plaintiff’s claims of medical malpractice against her private physician, defendant Kalman, are still pending and were not affected by the trial judge’s grant of summary judgment to defendantsappellees. In January, 1983, plaintiff began treating with defendant Dr. Hopson at defendant clinic. At this time, plaintiff allegedly continued to exhibit symptoms of tardive dyskinesia. Despite these symptoms, defendant Hopson allegedly continued treating plaintiff with the antipsychotic drugs through March, 1983. In March, 1983, plaintiff was admitted to Harper Grace Hospital where it was determined that she had developed a permanent condition of tardive dyskinesia. On appeal, plaintiff first argues that the trial judge erred in granting summary judgment to defendant Oakland County and defendant clinic based on the governmental immunity statute. In making this argument, plaintiff asserts that defendant Oakland County was not discharging a governmental function in operating the defendant clinic and, thus, neither defendant Oakland County nor defendant clinic were entitled to governmental immunity under the statute. We disagree. In Ross v Consumers Power Co (On Rehearing) the Michigan Supreme Court set out a broad test for determining whether an activity involves a governmental function. The Ross Court concluded that a governmental function, for purposes of the governmental immunity statute, is an activity which is expressly or impliedly mandated or authorized by constitution, statute or other law. Applying the Ross test to this situation, we conclude that the provision of mental health services by defendant Oakland County through defendant clinic involves an activity impliedly mandated by the state constitution. Specifically, Const 1963, art 4, § 51 and art 8, § 8 impliedly mandate defendant Oakland County to provide institutions, programs and services to its inhabitants suffering from mental handicaps. In reaching our conclusion, we note that in Canon v Bernstein this Court recently applied the Ross governmental function test and held that the provision of counseling and treatment to an outpatient by the Livingston County Community Mental Health Services facility was a governmental function and, thus, immune from tort liability under the statute. The Canon decision is directly analogous to the situation presented in the within case, and we agree with the conclusion reached in that case. Therefore, we conclude that the trial judge did not err in finding that defendant Oakland County and defendant clinic were engaged in a governmental function for purposes of the governmental immunity statute. Plaintiff goes on to assert that the governmental activities of defendant clinic, which allegedly charged plaintiff a fee for its services, are proprietary in nature and, thus, the clinic is not entitled to governmental immunity pursuant to MCL 691.1413; MSA 3.996(113). We disagree. The statute defines proprietary function as any activity conducted primarily for pecuniary profit. The Ross Court held that the fact that a fee is charged for a particular portion of service, or that an incidental profit may be derived from such fees, does not transform an obvious governmental function into a proprietary one. In Faigenbaum v Oakland Medical Center the Court found that in this age of governmental subsidies for health care it cannot be seriously maintained that the operation of a governmental care facility is a "proprietary function.” We agree with the conclusion reached by the Faigenbaum Court in the area of health care service provided by governmental units and, thus, find that defendant clinic in this case was not engaged in a proprietary function for purposes of the governmental immunity statute. The fact that defendant clinic competes to some extent with health care services provided in the private sector does not render the clinic’s functions as "proprietary” for purposes of the statute. Therefore, we conclude that the trial judge did not err in finding that defendant Oakland County and defendant clinic were engaged in a governmental function and were entitled to governmental immunity in this matter. The trial judge properly granted summary judgment to these defendants. Plaintiff also argues on appeal that the trial judge erred in granting summary judgment to defendant Hopson based on the common-law doc trine of qualified tort immunity applicable to officers, employees and agents of a governmental agency. The Supreme Court in Ross set forth the tests which are applicable in determining whether an individual is immune from tort liability: Lower level officials, employees, and agents are immune from tort liability only when they are , 1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; 2) acting in good faith; and 3) performing discretionary, as opposed to ministerial acts. [Ross, supra, pp 633-634.] Plaintiff does not seriously argue that the first two tests were not met in this case. However, plaintiff does assert that defendant Hopson’s administration of antipsychotic drugs to plaintiff involved a ministerial act, rather than a discretionary act. We disagree. In Tobias v Phelps this Court, in applying the Ross ministerial/discretionary test, adopted this Court’s numerous pre-Ross decisions which held that medical decision making is inherently discretionary. The Tobias Court went on to hold that the execution of medical decisions involved ministerial acts. The Court then concluded that the defendant doctors’ decisions whether to wean a patient from medication and whether or how often to monitor the patient’s condition during the weaning process involved medical judgments and, thus, constituted discretionary acts. However, the Tobias Court also held that once the defendant doctors had decided to monitor the patient during the weaning process, the execution of that decision involved ministerial acts. Thus, the defendants were immune from claims arising from the defendant doctors’ initial decisions on weaning and monitoring the patient. However, the defendants were not immune from claims arising from their actual execution of the weaning and monitoring process. Applying the Tobias analysis to this case, we believe defendant Hopson’s decision to administer anti-psychotic drugs to plaintiff involved substantial medical judgment. Thus, Hopson’s decision to administer antipsychotic drugs to plaintiff is directly analogous to the defendants’ decisions in Tobias on whether to wean or monitor the patient. Hopson’s decision did not merely involve the execution of a medical decision. Therefore, we conclude that Hopson’s decision to administer antipsychotic drugs to plaintiff constituted a discretionary act and that defendant Hopson was immune from any claims arising from this decision. In reaching this conclusion, we reject the analysis of the Ross ministerial/discretionary test made by another panel of this Court in Davis v Lhim (On Remand). The Davis Court held that a defendant psychiatrist was not immune from a malpractice claim since he had no discretion to breach the standard of care imposed by the common law of malpractice. This holding in Davis results in a rule that, if a government official’s professional conduct is negligent, he is not immune, but, if his conduct is not negligent, he is immune. This holding in Davis appears to destroy individual immunity for lower government officials whose conduct allegedly constitutes professional negligence. We do not believe the holding in Ross was intended to lead to such a far reaching result. We agree with the analysis in Judge Cynar’s dissent in Davis and refuse to apply the analysis made by the Davis majority to this case. Therefore, we conclude that the trial judge did not err in finding- that defendant Hopson was immune from plaintiffs claim in this case which arose out of Hopson’s decision to administer anti-psychotic drugs to plaintiff. The trial judge properly granted defendant Hopson’s motion for summary judgment in this matter. Affirmed. MCL 691.1407; MSA 3.996(107). 420 Mich 567; 363 NW2d 641 (1984). Id., p 620. 144 Mich App 604; 375 NW2d 773 (1985), lv gtd 425 Mich 851 (1986) Ross, supra, pp 612-613; see Faigenbaum v Oakland Medical Center, 143 Mich App 303, 313-314; 373 NW2d 161 (1985), lv gtd 425 Mich 857 (1985). Faigenbaum, supra, p 314 See Canon, supra, p 608. 144 Mich App 272, 280-281; 375 NW2d 365 (1985), lv gtd 424 Mich 859 (1985). 147 Mich App 8; 382 NW2d 195 (1985), lv gtd 425 Mich 851 (1986).

Per Curiam. Plaintiff appeals as of right from an order denying her motion for partial summary judgment as to the individual defendant pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10). We affirm. The facts are not in dispute. On June 30, 1982, defendant C. L. Rieckhoff Company, Inc., executed a promissory note in the amount of $385,714.29 payable to the trustee of the Herbert R. Damerau revocable living trust. At the bottom of the promissory note appeared the words, "payment guaranteed,” followed by the signature of defendant C. L. Rieckhoff in his individual capacity. The note required nineteen quarterly payments of $20,300.75 plus interest. On the same date the promissory note was executed, the trustee and the National Bank of Detroit entered into a "subordination agreement and assignment” of the note, apparently to assist the company in obtaining a loan from nbd. The document was also signed by Rieckhoff on behalf of the company. The document provided in pertinent part: Subordination Agreement and Assignment * * * Now, therefore, in consideration of the sum of one dollar ($1.00), paid by the National Bank of Detroit to the undersigned [trustee] and the further consideration of making a loan or loans and/ or discounts, whether direct or indirect, to said Borrower [the Company], the undersigned hereby agrees that all indebtedness (both principal and interest) of said Borrower to the undersigned . . . shall be subordinate and the same is hereby subordinated to any and all indebtedness now or hereafter owing by said Borrower to said Bank until the said indebtedness to said Bank shall have been fully paid and satisfied, together with interest thereon . . . and the undersigned hereby sells, assigns, transfers, sets over, mortgages and conveys to said National Bank of Detroit, said indebtedness of said Borrower to the undersigned as security for the payment of any and all indebtedness of said Borrower to the National Bank of Detroit. . . . Any collateral or other security of said Borrower, or any other party, which said Bank may hold or which may come to it or to its possession may be released or otherwise dealt with by said Bank in all respects and particulars as though this assignment were not in existence and the obligation of the undersigned hereunder shall be in no wise affected thereby, the undersigned hereby waiving and foregoing any right in respect of any such action of said Bank. The possession by said Bank of any note, or other commercial paper made, indorsed or guaranteed by said Borrower unless direct written evidence to the contrary be produced, shall be conclusive that it is a part of the indebtedness covered hereby, and that full value was given by said Bank therefor. In conjunction with the execution of this agreement and assignment, the trustee delivered to nbd possession of the company’s note. It appears that Herbert R. Damerau died sometime in 1982. On January 6, 1983, the trustee of the Herbert R. Damerau revocable living trust assigned to plaintiff, Damerau’s widow, a one-half interest in the June 30, 1982, promissory note as part of her distributive share of her husband’s estate. The company made its quarterly payments on the note to plaintiff for approximately eighteen months. In a letter dated June 6, 1984, however, pursuant to the subordination agreement nbd instructed the company to suspend its payments to plaintiff because the company was in default on "certain financial requirements.” Upon this instruction the company ceased making its quarterly payments on the promissory note to plaintiff. On August 3, 1984, plaintiff filed this action to recover past due payments on the note from the company as maker and C. L. Rieckhoff individually (defendant) as guarantor. The complaint was later amended to include subsequent past due payments. Plaintiff then filed a motion for partial summary judgment against defendant only, alleging that he failed to make any note payments to plaintiff in breach of his unconditional personal guaranty and was liable to her as a matter of law. The trial judge disagreed. She found: That the subordination agreement and assignment assigns to the National Bank of Detroit the promissory note of June 30, 1982. That along with that assignment goes the guarantee, which is on the face of the note. That this was a matter, the guarantee on the note and the assignment, that was known to all parties at the time it was signed. And that the National Bank of Detroit, pursuant to its subordination agreement, had the right both as holder of the subordination agreement and the promissory note to subvert — excuse me, to subordinate the payment, which they did do, by advising the Rieckhoff Company to pay to the National Bank of Detroit only on the major loan and not pay to the trust on the promissory note. And under those terms and conditions, this was not a default on the note and the guarantee cannot be enforced. I would go further to say I don’t see how the guarantee — I just don’t see how the guarantee can be separated in an assignment from the note that goes with it. It is my belief that when you assign a note, you assign not only part of the note, but you assign the whole note. And if that note is guaranteed, then you assign that guarantee. On appeal, plaintiff contends that the "Subordination Agreement and Assignment” is nothing more than a subordination agreement and that, as such, it does not affect defendant’s personal obligation as a guarantor of,payment of the note. We disagree. As a general rule, where a contract is open to construction, it is the duty of the court to determine, if possible, the true intent of the parties. Remes v Holland, 147 Mich App 550; 382 NW2d 819 (1985). In determining true intent, the court should consider the language employed in the contract, its subject matter, and the circumstances surrounding the making of the agreement. Id. In the instant case, the document at issue is titled "Subordination Agreement and Assignment.” The very fact that the document is so titled indicates the intent of the parties to effectuate both a subordination agreement and assignment of rights. A court cannot remake a contract through construction or by addition of words to find a meaning not intended. In re Seitz Estate, 142 Mich App 39, 44; 369 NW2d 258 (1985), lv gtd 424 Mich 877 (1986). Similarly, we decline plaintiffs invitation to read out the words "and assignment” to reach the result she seeks. Moreover, the language of the agreement evidences more than an intent to subordinate the note. The language of the agreement clearly contemplates the transfer of the trustee/payee’s rights in the company’s note should the company default on its obligation to nbd. We agree with the trial court that, by its terms, the agreement assigned a security interest in the note to nbd. Pursuant to the agreement, the trustee did not simply agree to be second in priority of payment; he also agreed to relinquish his rights associated with the note upon the company’s default to the bank — including the right of payment and the right of enforcement. We also agree with the trial court that the assignment of these rights included the assignment of the right to turn to the guarantor for satisfaction. Such a construction is wholly consistent with the parties’ intent that the note serve as security to the bank The cases cited by plaintiff do not dictate a different result, since none of those cases involved an assignment of rights. If the trustee assigned and subordinated his rights to nbd, how does this affect the subsequent assignment to plaintiff? It is hornbook law that an assignee only receives those rights which the assignor possessed. 6A CJS, Assignments, § 84, p 734. It follows that, when the trustee assigned and subordinated his rights to nbd and subsequently assigned his remaining interest to plaintiff, plaintiff’s interest was subject to nbd’s claims and rights. Plaintiff cannot enforce defendant’s individual guarantee because her rights are secondary to those of nbd. The court did not err in denying plaintiff’s motion for summary judgment. Affirmed.

Per Curiam. The issue presented in this case is whether plaintiffs are entitled to a credit for income taxes paid to Belgium under § 255 of the Income Tax Act, MCL 206.255; MSA 7.557 (1255). Plaintiffs are United States citizens and Michigan residents. Mr. Ludka worked in Belgium from 1980 to 1983 on an average of five months a year. When Mr. and Mrs. Ludka filed a joint Michigan individual income tax return for tax year 1980, they claimed a credit of $6,153 for taxes paid to "another state” as then permitted by § 255. The credit was not allowed by the Department of Treasury, however, and plaintiffs paid the alleged deficiency under protest and filed this suit in the Court of Claims. Plaintiffs subsequently amended their complaint in order to claim credit for tax years 1981, 1982 and 1983. The lower court held that § 255 did not entitle the plaintiffs to a tax credit for Belgian taxes paid. Plaintiffs appeal as of right. We affirm. I. STATUTORY HISTORY Basically, this Court is called upon to determine what meaning should be assigned to the language employed by the Legislature in § 255 with respect to credit for taxes imposed by another "state.” The original form of the foreign tax credit section of the Income Tax Act, MCL 206.255; MSA 7.557 (1255), read as follows: (1) A resident individual or resident estate or trust shall be allowed a credit against the tax otherwise due under this act for the amount of any income tax imposed on him for the taxable year by another state of the United States or a political subdivision thereof or the District of Columbia on income derived from sources therein and which is also subject to tax under this act. (2) The credit provided under this section shall not exceed the proportion of the tax otherwise due under this act that the amount of the taxpayer’s adjusted gross income derived from sources in the other taxing jurisdiction bears to his entire adjusted gross income as modified by this part. [1967 PA 281.] In 1978, the statute was amended to read as follows (the emphasized parts of the above statute were deleted and the emphasized parts of the following statute were added): (1) A resident individual or resident estate or trust shall be allowed a credit against the tax otherwise due under this act for the amount of an income tax imposed on a resident individual or resident estate or trust for the taxable year by another state, a political subdivision of another state, the District of Columbia, or a Canadian province, on income derived from sources without this state which is also subject to tax under this act. For purposes of the Canadian provincial credit, the credit shall he allowed for only that portion of the provincial tax not claimed as a credit for federal income tax purposes when claiming a credit for United States federal income tax purposes. It is presumed that the Canadian federal income tax is claimed ñrst. (2) The credit provided under this section shall not exceed the proportion of the tax otherwise due under this act that the amount of the taxpayer’s adjusted gross income derived from sources without this state bears to the taxpayer’s entire adjusted gross income as modified by this part. [1978 PA 589.] 1979 PA 30 added the following subsection (2), renumbering the existing subsection (2) to become subsection (3): (2) The Canadian provincial credit shall be allowed for the 1978 tax year and for each tax year thereafter. In 1982, § 255 was amended for the last time, with the modifier "of the United States” reinserted after the word "state” in the statute: . (1) A resident individual or resident estate or trust shall be allowed a credit against the tax otherwise due under this act for the amount of an income tax imposed on a resident individual or resident estate or trust for the taxable year by another state of the United States or a political subdivision of another state of the United States, the District of Columbia, or a Canadian province, on income derived from sources without this state which is also subject to tax under this act. For purposes of the Canadian provincial credit, the credit shall be allowed for only that portion of the provincial tax not claimed as a credit for federal income tax purposes when claiming a credit for United States federal income tax purposes. It is presumed that the Canadian federal income tax is claimed first. (2) The Canadian provincial credit shall be allowed for the 1978 tax year and for each tax year thereafter. (3) The credit provided under this section shall not exceed the proportion of the tax otherwise due under this act that the amount of the taxpayer’s adjusted gross income derived from sources without this state bears to the taxpayer’s entire adjusted gross income as modified by this part. [MCL 206.255; MSA 7.557(1255).] This final amendment was given retroactive effect (back to the point the 1978 amendment went into effect) by the Legislature. 1982 PA 516. This Court in Shulevitz v Dep’t of Treasury, 78 Mich App 655, 658; 261 NW2d 31 (1977), held that the modifier "of the United States” precludes the use of the §20(2) definition of a "state,” meaning that Belgium would not be covered by § 255. Section 20(2) provides: "State” means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, and any foreign country, or political subdivision thereof. [MCL 206.20; MSA 7.557(120).] Plaintiffs argue that the deletion of these modifying words evidences a legislative intent that "state” was to be given its generic meaning as provided in §20(2). Accordingly, plaintiffs argue that the §255 credit may be claimed for income taxes paid to a foreign country, e.g., Belgium. Defendant responds that the 1979 amendment effected no change in either the purpose of § 255 or the meaning of "state,” and this interpretation is supported by the fact that the modifier was put back into the section. The Court is thus presented with a question of statutory interpretation, and is guided in its task by several traditional rules of construction. The most pertinent of these were cited concisely in Davis v Bd of Ed of the River Rouge School Dist, 73 Mich App 358, 363; 251 NW2d 585 (1977), rev on other grounds 406 Mich 486; 280 NW2d 453 (1979): The function of the reviewing court is to seek to effectuate the Legislature’s intent. ... If the statutory language is clear and unambiguous on its face, the statute must be enforced as written. . . . But if the language contains an ambiguity, or is susceptible to two or more constructions, then the Court must look to the objectives sought to be accomplished by the Legislature in passing the statute. [Citations omitted.] Applying these rules to § 255, we conclude that the Legislature at no time intended that one in the plaintiffs’ situation be entitled to a foreign tax credit. Certainly, as long as the modifier "of the United States” appears after the word "state” in the statute, all taxes paid to foreign nations are excluded from the coverage of § 255, as this Court held in Shulevitz, supra, p 658. The only question, therefore, is what the Legislature’s plan was when this modifier was removed from § 255 by the 1978 amendment, affecting the years 1979 to 1982 (until the 1982 amendment took effect, reinserting the modifier in the statute). As this Court recognized in Shulevitz, § 255 was designed to avoid the inequality of doubly taxing income earned in foreign countries and triply taxing income earned in other states of the United States. Shulevitz, supra, p 659. This is because, under the federal tax system, income, tax paid to the national government of a foreign country is credited against United States income taxes owed, IRC 901, 904, but not income tax paid in a state other than that of residence of the taxpayer. Thus, a Michigan resident who earns income in Ohio in the absence of § 255 would pay United States income tax, Ohio income tax, and Michigan income tax on the same money earned, while a resident working in a foreign country would pay only Michigan income tax and the income tax imposed by that country. This is why the § 255 modifier "of the United States” was inserted, to result in all income earned outside Michigan being subject to double taxation. Given this policy, contrary to the plaintiffs’ assertions, the most plausible analysis is that the 1978 deletion of the modifier was intended to change only the status of Michigan residents working in Canada, with any further effect being unintentional. Canada imposes a national income tax, while the provinces of Canada also impose separate taxes (similar to states in our country). To avoid the triple taxation of residents of Michigan working in that country (Canadian national, Canadian provincial, Michigan), §255 was amended in 1978 to add special consideration for those paying Canadian taxes. Section 255 was again amended in 1979 to further this same purpose. A reasonable interpretation of the 1978 amendment is that all of the changes, including the removal of the modifier "of the United States,” were intended to alleviate the Canadian tax problem. This is the only interpretation that gives full meaning to all of the words of §255 after the word "state,” for if all countries were included in the statute, the language after the word "state” would be redundant. This conclusion is also consistent with the subsequent expression of legislative intent in the 1982 amendment to § 255 and the intent as described in Shulevitz. The plaintiffs have provided no reason to believe the 1978 amendment deviated from this overall pattern of excluding foreign nations from the ambit of §255 or not to believe that the modifier was removed in 1978 for the purposes of making § 255 consistent with respect to the Canadian tax credit. Once the Legislature realized how the removal of this modifier could be misconstrued (as the plaintiffs have done), it was added back in 1982. II. RETROACTIVITY Plaintiffs argue that the 1982 amendment to § 255 of the Income Tax Act retroactively restricts the applicability of the foreign tax credit in violation of the United States and Michigan Constitutions. The basic claim is that the 1982 amendment retroactively denied a vested right of the plaintiffs, thus violating the due process clauses of US Const, Am XIV and Const 1963, art 1, § 17. See Wylie v Grand Rapids City Comm, 293 Mich 571, 586; 292 NW 668 (1940); Miller v Magline, Inc, 105 Mich App 413, 419; 306 NW2d 533 (1981), lv den 417 Mich 1038 (1984). Accordingly, the key determination is whether plaintiffs’ "right” to a § 255 tax credit was vested or not. Deciding whether or not a right is vested is a difficult determination, with policy considerations, rather than definitions, controlling. Wylie, supra, p 587. Under Michigan standards, the question almost becomes one of title: "It would seem that a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another.” [Minty v Bd of State Auditors, 336 Mich 370, 390; 58 NW2d 106 (1953).] The federal analysis is very similar, although placing more emphasis on the reliance the plaintiffs had on the preexisting law and whether they would have acted differently had the statute in question been in its retroactive form. Welch v Henry, 305 US 134, 146-148; 59 S Ct 121; 83 L Ed 87 (1938); Metro Homes, Inc v City of Warren, 19 Mich App 664, 673, n 8; 173 NW2d 230 (1969), lv den 383 Mich 761 (1970), cert den 393 US 959 (1970). Given the nature of the facts in the instant case, both tests are resolved by our determination of the intent of the Legislature in the changes made in § 255 over the past seven years. Because the Legislature never intended the plaintiffs to be eligible for a foreign tax credit, the "right” to such a credit could not have been vested. In addition, the general nature of tax statutes supports the conclusion that the plaintiffs had no vested right in a foreign tax credit. The statutes imply no contractual obligations between taxpayers and the state, James A Welch Co, Inc v State Land Office Bd, 295 Mich 85, 91; 294 NW 377 (1940); Muirhead v Sands, 111 Mich 487, 491-492; 69 NW 826 (1897), and because any "rights” that arise under a tax statute are purely a result of legislative "grace,” the Legislature is free to take such a "right” away at any time, as it did here. Rookledge v Garwood, 340 Mich 444, 457; 65 NW2d 785 (1954); Wylie, supra, pp 588-589. That is why the general rule in this area is that a taxpayer has no vested right in a tax statute or in the continuance of any tax law. See 6 Michigan Law and Practice, Constitutional Law, § 223, pp 248-249; 16A CJS, Constitutional Law, § 246, pp 49-52. There is no reason to believe that the instant case should be any different, especially since what the Legislature did here was not to create a new tax liability, but eliminate (giving the plaintiffs a very great benefit of the doubt as to legislative intent) a preexisting tax credit. In addition, because there is no indication that the plaintiffs would have acted differently in 1980 had § 255 been worded as it is presently, no great amount of prejudice to their position compels this Court to declare this statute unconstitutional. The plaintiffs make two other related constitutional claims which, while they are without merit, require brief mention. First, plaintiffs claim that the retroactive nature of the 1982 amendment to § 255 constitutes an ex post facto law, violating US Const, art I, § 10 and Const 1963, art 1, § 10. The ex post facto rule applies only to criminal cases; therefore, this claim is without merit. People v Chapman, 301 Mich 584, 600; 4 NW2d 18 (1942). Even if this rule did apply to civil cases, because of the statutory analysis above, § 255 would not be an example of such a law. Plaintiffs’ second argument is that because the 1982 amendment was not passed by a two-thirds vote of the Legislature it could not be made retroactive due to Const 1963, art 4, § 27: No act sháll take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house. The flaw in plaintiffs’ argument is that it assumes that this provision means that without a two-thirds vote of the Legislature there can be no retroactivity, because the law can only have effect on "transactions” occurring more than ninety days after its passage. This contention would give § 27 the effect of mandating a two-thirds vote of the Legislature in order to make a statute retroactive, which clearly was never the intent of the constitutional provision. Instead, the operation of this provision as it applies to the instant case is to hold the effect of this amendment for ninety days, with the amendment being in full force with full retroactive effect after that point in time. Because it has been more than ninety days since the Legislature passed the 1982 amendment, § 27 is not a bar to the retroactivity of the statute. III. EQUAL PROTECTION Plaintiffs also argue that §255 of the Income Tax Act violates the equal protection clauses of the United States and Michigan Constitutions in providing a limited tax credit to Michigan residents working in Canada but not to those working in other foreign nations. The Court of Claims was correct in holding that § 255 does not violate any equal protection guarantees. While plaintiffs claim violations of both US Const, Am XIV and Const 1963, art 1, § 2, the same analysis is used for both. Armco Steel Corp v Dep’t of Treasury, 419 Mich 582, 591; 358 NW2d 839 (1984); Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967); State Treasurer v Wilson, 132 Mich App 648, 652, n 2; 347 NW2d 770 (1984), rev’d on other grounds 423 Mich 138; 377 NW2d 703 (1985). Because a tax statute is involved which deals with no special rights or classifications, the "rational basis” test is appropriate. Allied Stores of Ohio, Inc v Bowers, 358 US 522; 79 S Ct 437; 3 L Ed 2d 480 (1959); Wilson, supra, p 651; American Amusement Co Inc v Dep’t of Treasury, 91 Mich App 573, 576; 283 NW2d 803, lv den 407 Mich 942 (1979), app dis 446 US 931 (1980). Therefore, the statute in question must bear a rational relationship to a legitimate state interest. Armco Steel Corp, supra, p 592. Further clarity is provided in Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 514; 104 NW2d 182 (1960): 1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. [Citation omitted.] See also Wilson, supra, p 652. In applying an equal protection analysis to the statute in question, or for that matter to any tax statute, two important considerations must be recognized. First, just because a tax statute draws some lines which may seem at first blush to be arbitrary or unjust, that is not enough by itself to justify striking it down on equal protection grounds: The power of exemption would seem to imply the power of discrimination, and in taxation, as in other matters of legislation, classification is within the competency of the legislature. . . . "Granting the power of classification, we must grant Government the right to select the differences upon which the classification shall be based, and they need not be great or conspicuous .... The State is not bound by any rigid equality. This is the rule; its limitation is that it must not be exercised in 'clear and hostile discriminations between particular persons and classes.’ . . . Thus defined and thus limited, it is a vital principle, giving to the Government freedom to meet its exigencies, not binding its action by rigid formulas but apportioning its burdens and permitting it to make those 'discriminations which the best interests of society require.’ ” [Banner Laundering Co v State Board of Tax Administration, 297 Mich 419, 433-434; 298 NW 73 (1941). Citations omitted.] See also Lehnhausen v Lake Shore Auto Parts, 410 US 356, 360; 93 S Ct 1001, 1004; 35 L Ed 2d 351 (1973); Covert Twp Assessor v State Tax Comm, 407 Mich 561, 597; 287 NW2d 895 (1980); W S Butterfield Theaters, Inc v Revenue Dep’t, 353 Mich 345, 353; 91 NW2d 269 (1958). Second, statutes are presumed to be constitutional, and only by the most "explicit demonstration that a classification is hostile and oppressive to a particular class” will they be struck down. Lehnhausen, supra, 410 US 364; Butcher v Dep’t of Treasury, 141 Mich App 116, 119; 366 NW2d 15 (1984), aff'd 425 Mich 262; 389 NW2d 412 (1986). This is particularly a strong presumption with respect to tax statutes, which "must clearly and palpably violate the fundamental law” to be declared unconstitutional. O'Reilly v Wayne Co, 116 Mich App 582, 591-592; 323 NW2d 493 (1982), lv den 418 Mich 904 (1984); American Amusement Co, supra, pp 576-577. Applying the "rational basis” test to § 255, it is clear that equal protection guarantees have not been violated. As discussed in Issue i, the purpose of § 255 is to avoid the triple taxation of income: An income tax credit is allowed for Michigan residents who earn income in another state. The purpose of such a credit is to avoid triple taxation of income. Without such a credit, the Michigan resident would first have his non-Michigan income taxed in the state in which it was earned. Then it would be taxed by the State of Michigan, and subsequently by the United States Government. Such a state tax credit is not necessary to avoid triple taxation when the Michigan resident earns income in a foreign country. Under such circumstances, the income is first taxed by the foreign country in which it was earned, and it is then taxed by the State of Michigan. However, the Federal Government provides a tax credit for all income taxes paid by a resident to a foreign country similar to the credit available to Michigan residents who earn income in other states. [Shulevitz, supra, p 659.] Given the existence of Canadian provincial income taxation (never disputed by the plaintiffs) which would result in income earned in Canada being triply taxed, it is not surprising that the Legisla ture amended §255 to provide specific credits for Canadian provincial taxes paid. This action fosters its intent behind § 255, which is to provide the equal tax treatment of income obtained from non-Michigan sources, be they foreign or domestic. Shulevitz, supra, p 660. The plaintiffs have failed to demonstrate that the desire to tax equally out-of-state income is not a legitimate state interest or that the wording of § 255 does not further this interest. Plaintiffs cannot overcome the presumption of constitutionality § 255 enjoys; cannot meet the "rational basis” burden as applied to tax statutes, and cannot even meet the "rational basis” burden in general terms. Moreover, plaintiffs have failed to establish that if Belgium had a tax system similar to Canada’s, then they would not receive a tax credit for the Belgian provincial taxes they would have paid. Indeed, every indication is that they would receive such a credit. In short, the plaintiffs have not provided grounds to believe that §255 violates their right to equal protection of the laws. The Court of Claims correctly held that the retroactive application of § 255 of the Income Tax Act does not violate due process, as it is apparent from the intent of the Legislature that the plaintiffs were never entitled to a tax credit for taxes paid in Belgium. Hence, their "right” to such a credit was never vested. In addition, the provision under § 255 of a tax credit for Canadian provincial taxes paid, but not for taxes paid to other foreign governments, does not violate equal protection guarantees, as this provision is rationally related to the legitimate state interest of providing equal tax treatment to all income earned outside the State of Michigan. Consequently, the decision of the Court of Claims is affirmed. Affirmed.

Per Curiam. Respondent Terri Sprite appeals as of right from the probate court’s opinion and order which terminated her parental rights to her minor children, Jennifer born November 17, 1978, and Michelle born May 4, 1981. The children’s natural father, also a respondent below, does not appeal from the termination of his parental rights. On appeal respondent challenges the probate court’s extremely comprehensive and thoughtful sixteen-page opinion that concluded that there was clear and convincing evidence to support the decision to terminate respondent’s parental rights and that termination was in the best interest of the children. We hold that the probate judge’s factual findings are amply supported by the record, and we affirm. The appropriate standard of review in cases involving termination of parental rights is whether the findings of the probate court are clearly erroneous. MCR 2.613(C); In re Cornet, 422 Mich 274, 277; 373 NW2d 536 (1985). A finding is "clearly erroneous” when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Cornet, supra; Mazur v Blendea, 413 Mich 540, 547; 321 NW2d 376 (1982); Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). The probate court made the following findings of fact: 1. That the father of the children, Leonard Paul Sprite, has been convicted of criminal sexual conduct two, concerning his daughter, Michelle; and therefore, has demonstrated his inability and unfitness to be a proper parent to have the future custody of his children. He has denied that he sexually abused them in the hearing that was held on the termination petition; but the fact remains that he pled guilty in Circuit Court to the conviction and therefore, had to give the circuit judge sufficient facts for the circuit judge to have accepted a plea to such a crime; therefore, the credibility of his testimony that the court heard today is very little, at best. 2. That from the time the Court took jurisdiction in March of 1983 until today; [sic] the status of the parents remains basically the same in that mother still has had no suitable place of residence, having moved four times within the past year; does not have a steady source of income; and father is presently residing in jail. 3. That after the" children were returned home in July of 1984, it was just several months later that the children were observed having head lice; their hygiene was extremely poor; the parents were failing to cooperate in counseling; and again, had no stable source of income. 4. That every treatment plan that was utilized during the course of the past several years involved having the parents in parenting classes and life skill classes at The Family Living Center. Their attendance, at best, was inconsistent in attending the classes, and when they were there they were, many times, disruptive and failed to cooperate in the parenting classes. It was testified that the parents did have the capabilities of gaining adequate parenting abilities; and at one time did so and. the children were returned, but they soon slid back into their old ways. 5. That from the psychological evaluations of Dr. Piersma and from his testimony, it appears that neither the father nor the mother are amenable to treatment and that regardless of how many parenting classes they attend nor how much counseling they attend this is ever going to make a great deal of difference in how they parent their children. It further seems, that they have a chronically unstable relationship in that they hold their needs above that of their children and that this is never going to change. 6. That it appears that the children have been in foster care from a period of February of 1983 through the beginning of July of 1984, which is seventeen months; and then again, have been in temporary foster care from April of 1985 through today, which is another ten months. These two together add up to twenty-seven months of being in foster care. Michelle is not quite five years old; therefore, over half of her life has been in foster care. Jennifer, in addition to these times in foster care, was in foster care in 1980 for almost a year’s period of time. So, she has for all practical purposes been in foster care for three years. The Court makes the finding that such long-term foster care is detrimental to the children and based on all of the testimony that it has heard, the parents are never going to change. 7. Lastly, the best interests of the children require that they receive permanency, now, with a permanent family wherein they can receive the love and nurturing they require and deserve, and where they can be together as siblings without further disruption in their lives; that not to terminate parental rights and free them for adoption while waiting for a parent to be released from prison or to, in effect, get their act together after being given three years is excessive. The probate court terminated respondent’s rights on the basis of three subsections within § 19a of the juvenile code: Where a child remains in foster care in the temporary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following: (d) A parent or guardian of the child is convicted of a felony of a nature as to prove the unfitness of the parent or guardian to have future custody of the child or if the parent or guardian is imprisoned for such a period that the child will be deprived of a normal home for a period of more than 2 years. (e) The parent or guardian is unable to provide a fit home for the child by reason of neglect. (f) The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months. [MCL 712A.19a; MSA 27.3178(598.19a).] Respondent argues on appeal that the court abused its discretion by terminating her parental rights on the basis of neglect. She asserts that the evidence did not establish that there was a serious threat of neglect of the children for the long-run future. She also contends that the probate court abused its discretion in terminating her parental rights because petitioner failed to show that she would be unable to establish a proper home for the children within the following twelve months. The probate court terminated the father’s parental rights pursuant to subsection (d). That subsection provides that if a parent is convicted of a felony of a nature as to prove the unfitness of the parent, the court may take permanent custody of the child. This subsection does not apply directly to respondent mother since she herself was not guilty of the sexual assault of her daughters. • However, this Court has determined that the inability of a parent to protect her children from sexual assault and the failure to support children who have been sexually assaulted by preventing further contact with their assailant are grounds for termination. In re Rinesmith, 144 Mich App 475, 483; 376 NW2d 139 (1985), lv den 424 Mich 855 (1985). There was no evidence in this case that respondent was aware that her husband was sexually abusing her daughters. However, after the sexual abuse was made known to her, she offered little or no support to her two daughters, and allowed the father to continue seeing the girls despite a court order otherwise. Now that her husband is incarcerated on sexual assault charges, she has taken a boyfriend who has a history of abusive and assaultive behaviors. He has lost his own child as a result of neglect. Respondent has demonstrated an extreme lack of sensitivity for her children’s emotional well-being, and has demonstrated her inability to provide for their emotional needs and to provide a safe environment for her children. The court concluded that as a result of her activities and actions, respondent’s parental rights should be terminated pursuant to subsections (e) and (f). Although the amount of neglect necessary to justify termination of parental rights under § 19a(e) is not capable of precise or exact definition, the entry of an order taking permanent custody due to neglect must be based upon testimony of such a nature as to establish or seriously threaten neglect of the children for the long-run future. Fritts v Krugh, 354 Mich 97, 114; 92 NW2d 604 (1958); In the Matter of Bidwell, 129 Mich App 499, 505; 342 NW2d 82 (1983). The word "neglect” as used in the statute entails some degree of culpability by way of either intentional or negligent disregard of the children’s needs. In the Matter of Tedder, 150 Mich App 688, 698; 389 NW2d 149 (1986). The evidence in this case demonstrates that respondent has both intentionally and negligently disregarded her children’s needs. The children were subjected to significant traumatic events including a very unstable home, frequent and intense parental disputes, sexual abuse by the father, observation of sexual activity in the home, limited proper stimulation in the home, chronic deprivation of a clean, consistent and protective environment, lack of food in the home and lack of significant medical attention. Respondent has demonstrated by her behavior over a significant period of time that she is unwilling to correct the deficiencies, and that she is unable to protect her children. Respondent relies heavily on the case of In the Matter of Moore, 134 Mich App 586; 351 NW2d 615 (1984), for the proposition that the evidence against her individually or collectively is insufficient to support termination. Moore is distinguishable from this case. In Moore, the mother relin quished her children voluntarily to the Department of Social Services when she was temporarily evicted from her apartment. This Court held that her failure to participate in treatment program plans and the fact that she repeatedly moved was insufficient to terminate her parental rights because no neglect had been established. In this case there is clear and convincing evidence presented that the children were neglected. The home was subject to continuing food crises because of the parents’ unwillingness to comply with various requirements of free food programs, there was limited or no income in the home, there was some deterioration of the children’s health care, there were extremely unsanitary conditions in the home, indiscriminate sexual activity between the father, his girlfriend and the mother before the children, and the children were subject to sexual abuse. While at one point respondent did voluntarily relinquish her children to the Department of Social Services, there all similarities with Moore end. Every attempt has been made by various helping agencies within the community to assist respondent. It was one expert’s opinion that counseling had been unsuccessful in the past and would continue to be unsuccessful into the future because of respondent’s own personality make-up. The conclusion of the probate court that the statutory grounds for termination were met in this case is not clearly erroneous, and the probate court’s conclusion that the best interests of the children require that respondent’s parental rights be terminated is certainly not clearly erroneous. Affirmed.

Per Curiam. Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition, apparently entered pursuant to MCR 2.116(C)(10). We affirm. The facts are not in dispute. Plaintiff was employed as a clerk for United Parcel Service. A significant part of plaintiff’s job with ups was loading packages into trailers at the ups warehouse, a task she performed approximately ten times a day. On August 9, 1982, plaintiff had just finished stacking packages inside a trailer and was moving toward the back of the trailer so that she could exit when she tripped on a loose package, fell to the trailer floor, and injured her knees. As a result of the injury plaintiff filed for and received workers’ compensation benefits. Plaintiff also applied to defendants for no-fault insurance benefits. The claim was denied and this suit followed. The narrow issue in this appeal is whether the trial court erred in concluding that plaintiff was "loading” the trailer at the time of her injury, so that the parked vehicle provision of the no-fault act, MCL 500.3106; MSA 24.13106, barred plaintiff’s claim. Subsection (2) of that statute provides in part: Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if benefits under the worker’s disability compensation act of 1969, Act No. 317 of the Public Acts of 1969, as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. Plaintiff contends that she had finished loading the vehicle and was in the process of exiting from the trailer at the time'of her accident. Defendants, on the other hand, maintain that exiting from a vehicle after stacking boxes within it is the final act in the loading process. The construction to be given to the words "loading” and "unloading” within the meaning of subsection 3106(2) of the no-fault act was recently addressed by this Court in Bell v F J Boutell Driveaway Co, 141 Mich App 802; 369 NW2d 231 (1985). In Bell, Bell drove a load of cars to a dealership and began to prepare for the unloading of the cars he was delivering. He removed chains securing one of the cars to the trailer and was walking on the trailer to another location to remove other chains when he slipped and fell. He received workers’ compensation for his resulting injury. Concluding that Bell’s claim for no-fault benefits was barred by § 3106, this Court held that the terms "loading” and "unloading” must be broadly construed so as to include activities in preparation for the actual lifting on or removal of property: [T]he general terms "loading” and "unloading” as they appear in insurance contracts have been interpreted by federal courts as meaning the complete operation of loading or unloading, or the entire process of loading and unloading. This broadf interpretation encompasses activities preparatory to the actual loading or unloading or delivery. See [Allstate Ins Co v] Valdez [190 F Supp 893 (ED Mich, 1961)]; Selective Ins Co v Hartford Accident & Indemnity Co, 213 F Supp 3 (ED Mich, 1963); St Paul Mercury Ins Co v Huitt, 215 F Supp 709 (WD Mich, 1963); aff'd 336 F2d 37 (CA 6, 1964), and Ford Motor Co v Ins Co of North America, 494 F Supp 846 (ED Mich, 1980). Although the reasoning for interpreting the terms "loading” or "unloading” in an insurance contract does not apply to the interpretation of those terms in subsection 3106(c) [sic], we nonetheless adopt the same broad meaning of the terms "loading” and "unloading” in subsection 3106(2). Those terms encompass activities preparatory to the actual lifting onto or lowering of property. The terms include the complete operation of loading or unloading. [141 Mich App 808-809.] Because Bell’s activities were part of "the complete operation of loading and unloading” during the course of his employment, he was precluded from collecting no-fault benefits for his injury. The rationale behind the Bell panel’s decision to adopt a broad construction of the terms "loading” and "unloading” was one of furthering legislative intent. As noted by another panel of this Court in Marshall v Roadway Express, Inc, 146 Mich App 753, 756; 381 NW2d 422 (1985): The current statute was primarily enacted because of complaints in the trucking industry that dock workers, warehouse workers and mechanics were collecting no-fault benefits even though they never drove in their employer’s vehicles. As stated in the House Legislative Analysis Section’s first analysis of this statute, then House Bill 4524 (February 5, 1982): "Employers argue that the no-fault act was not put into law to compensate persons injured while working in and around parked vehicles as part of their employment, either loading and unloading vehicles or doing mechanical repair work.” Thus, in enacting §3106(2), the Legislature intended to eliminate duplication of benefits for work-related injuries except where the actual driving or operation of a vehicle is involved. Bell, supra, p 810. Bell’s broad definition of "loading” and "unloading” was also applied by this Court in Gray v Liberty Mutual Ins Co, 149 Mich App 446; 386 NW2d 210 (1986). There, the plaintiff, a ups driver whose job was to pick up and deliver packages, was injured at one location while organizing packages within his truck for delivery at the next stop on his route. He received workers’ compensation benefits but was denied no-fault benefits under § 3106. This Court affirmed, finding that the plaintiff was "unloading” within the meaning of the statute: [W]e find that plaintiffs activity on March 28, 1983, was still an act preparatory to the unloading of goods. The rationale articulated in Bell, supra, in support of a broad interpretation of the terms "loading” and "unloading”, also supports a broad construction of which activities constitute activities preparatory to actual loading or unloading. The intent of subsection 3106(2) is to eliminate duplication of benefits for work-related injuries which do not arise out of the actual driving or operation of the motor vehicle. Bell, supra, pp 810- 811. In the instant case plaintiffs injuries did not arise out of the actual driving or operation of his motor vehicle, but arose from activities within the parked vehicle in preparation of unloading at the next stop. Moreover, interpreting plaintiffs activities of March 28, 1983, as activities preparatory to unloading, would further the legislative intent in eliminating the duplication of benefits which plaintiff has received for his work-related injuries. Thus we find that the activities of plaintiff on March 28, 1983, were acts preparatory to the actual unloading of packages for delivery and thus fell within subsection 3106(2) as loading or unloading activities in the course of plaintiffs employment. Plaintiff was therefore not entitled to no-fault benefits pursuant to subsection 3106(2) . . . [149 Mich App 451.] As in Bell and Gray, we apply a broad definition of the terms "load” and "unload” and hold that, like acts in preparation, acts incidental to the completion of the loading or unloading process fall within the scope of subsection 3106(2). The "complete operation of loading” certainly encompasses walking toward the exit of a trailer once the property is aboard, as the only reason plaintiff was in the trailer in the first place was to load it. It would be logically inconsistent to conclude that while activities preparatory to loading a vehicle should be broadly considered excluded from no-fault coverage, activities immediately after the last box has been stacked should not receive the same broad consideration. If, as in Gray, a truck driver who picks up a package that has fallen in the back of his truck (which will be delivered at his next scheduled stop) is considered to be engaged in the process of unloading, certainly plaintiff was still in the process of loading when she had stacked the last box and was walking to the back of the truck to exit. Plaintiff attempts to avoid the above conclusion by relying on this Court’s recent decision in Marshall, supra, where a truck driver who was unhitching a trailer from his truck at a loading dock and was subsequently injured was not considered to be in the process of unloading his truck. However, that case is distinguishable in that the plaintiff there was not a loading clerk but a truck driver, and after he unhitched the trailer he was going to drive off to pick up another trailer. Here, plaintiff’s job was to load trailers and she had just completed stacking boxes in such a trailer when her injury occurred. Unlike in Marshall, in the instant case we are confronted with exactly the situation envisioned by the Legislature — a work-related injury unrelated to the operation of a vehicle — and to permit this plaintiff to recover both workers’ compensation benefits and no-fault benefits would lead to a result which the Legislature sought to avoid. Because plaintiff must be considered to have been in the process of loading when she was injured, and no future development of the evidence will change this conclusion, the trial court correctly granted defendants summary disposition. Affirmed.

Per Curiam. On December 16, 1985, the Wexford Probate Court entered an order terminating the parental rights of Connie and Bruce Trow-bridge in two of their minor children. Only the mother (hereinafter respondent) appeals. On appeal, respondent argues that she was denied effective assistance of counsel because her attorney failed to object to the admission of certain psychological examinations. MCR 5.906(C)(2)(b) provides that counsel must be appointed to represent indigent parents at hearings to terminate parental rights. The right to appointed counsel at such proceedings is also a fundamental constitutional right guaranteed by the equal protection clauses of the United States and Michigan Constitutions. Reist v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976). It is axiomatic that the right to counsel includes the right to competent counsel. We apply by analogy the principles of ineffective assistance of counsel as they have developed in the context of criminal law. At trial, the reports of two psychological examinations of respondent were introduced without objection by respondent’s counsel. The probate court relied heavily upon these reports in arriving at the decision to terminate respondent’s parental rights. Respondent now contends her trial counsel seriously erred by failing to object to the introduction of these reports on the grounds of privilege. We do not reach the issue of whether or not these reports were shielded by respondent’s claim of privilege. Instead, we conclude that their admission was a matter of trial strategy. It was defendant’s attorney who subpoenaed and called Jo Ann Eastway, the author of one of the reports. It appears that, through her testimony, respondent’s attorney intended to show that respondent possessed the ability to learn adequate parenting skills. In closing argument, respondent’s trial counsel relied upon both reports and pointed out that both experts recommended that respondent be given time to complete psychotherapy and to prove her ability to be a successful parent. Accordingly, respondent’s attorney argued that such time had not been afforded. This Court will not substitute its judgment for that of a respondent’s counsel in matters of trial strategy. See People v Carr, 141 Mich App 442, 452; 367 NW2d 407 (1985). Respondent also argues that her attorney seriously erred by failing to object to the admission of psychological evaluations of the two children on the grounds that the Department of Social Services arranged for the examinations without court authorization. At the time that the examinations were performed, the children were under the supervision of the dss as temporary wards of the court. The dss had authority "to secure routine, non-surgical, medical care and emergency medical or surgical treatment for the children.” Given the fact that the children were emotionally disturbed at the time of their placement with the dss, we decline to find that the dss was unreasonable in seeking immediate psychological evaluation. Such evaluation fell within the dss’s authority to provide routine medical care. In so holding, we do not reach the issue whether lack of such authority would have required the exclusion of the reports. Affirmed. US Const, Am XIV; Const 1963, art 1, § 17.

Per Curiam. Defendant Charles Holmes appeals as of right from his May 17, 1984, conviction following a jury trial of armed robbery, MCL 750.529; MSA 28.797. Defendant Scott Sovoda appeals as of right from his June 19, 1984, conviction following a jury trial of armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2). Holmes was sentenced to eight to twenty years imprisonment. Sovoda was sentenced to thirteen to thirty years on the armed robbery conviction and to the mandatory two-year consecutive prison term for the felony-firearm conviction. These cases have been submitted together on appeal to this Court. The convictions arise out of an armed robbery which occurred on November 18, 1983, at approximately 9:00 p.m. at a convenience store in Vanderbilt, Michigan. The store was owned and operated by Lee Worley, who was present along with his wife and daughter when the robbery took place. According to the Worleys, two men entered the building through a side door located in the living quarters which were attached to the store. The men demanded money. Both men wore blue ski masks. One had a gun and the other had a knife. The man with the gun forced the victims into the living quarters while the man with the knife emptied the cash register. The victims estimated that $570 was taken. Defendants Holmes and Sovoda were subsequently stopped in an automobile by police officers approximately fifty minutes later. Following defendants’ arrest, a search of their vehicle resulted in the seizure of a handgun, a knife and a quantity of money. Prior to trial, defendants moved to suppress the evidence seized on the grounds that their arrest was invalid. The trial court denied defendants’ motions. We first address defendants’ claim on appeal that the trial court erred in denying their motions to suppress the evidence obtained from the automobile. We note first of all that this Court will not disturb a trial court’s ruling at a suppression hearing unless it is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). If, upon review of the record, this Court does not possess a definite and firm conviction that a mistake has been made, the trial court’s ruling will be affirmed. People v White, 401 Mich 482, 494; 257 NW2d 912 (1977); MCR 2.613. Defendants contend that the trial court erred in failing to suppress evidence obtained from an invalid search after an illegal arrest. In our judgment, the trial court was correct in finding the initial stop of defendants permissible. The initial stop of defendants in their automobile was an investigatory stop which lasted for approximately ten minutes. After this brief period of time, the record indicates that probable cause existed on which to base defendants’ arrest. The subsequent search of defendants’ automobile was therefore valid. The Fourth Amendment to the United States Constitution proscribes seizures which are not justified by probable cause. Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979). In Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the Supreme Court noted that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized” that person. Id. However, not all seizures of a person must be sustained by probable cause. Terry created a limited exception to the require ment of probable cause in a "seizure” of a person if the police officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime. This Court in People v Lillis, 64 Mich App 64; 235 NW2d 65 (1975), quoting Terry, noted that the actions of police officers in making a stop would be measured by an objective standard, namely: [W]ould the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief’ that the action taken was appropriate? [Lillis, supra, p 69. Citations omitted.] Further, in Lillis this Court noted: The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response[64 Mich App 70-71, quoting People v Whalen, 390 Mich 672, 680; 213 NW2d 116 (1973), and Adams v Williams, 707 US 143, 145; 92 S Ct 1921; 32 L Ed 2d 612 (1972). Emphasis supplied.] The trial court was correct in determining that the initial stop was permissible. The police officers were aware that an armed robbery had been committed at the convenience store. The record indicates that Deputy Gettel of the Charlevoix County Sheriffs Department observed a car with two young male occupants heading west on Thumb Lake Road, directly west of the scene of the robbery, approximately thirty minutes after hearing the first radio report of the crime. Although at the time Deputy Gettel did not have reason to stop the car, his suspicions were sufficiently aroused so as to turn and follow the car and run a check on the license number. Minutes later Gettel met with State Troopers French and Robertson. Gettel informed the troopers of the vehicle heading west away from the scene of the robbery and that it belonged to defendant Holmes. Robertson informed Gettel that Holmes was a suspect in an earlier armed robbery in Gaylord and the officers agreed that the car should be stopped. Judging these facts by an objective standard pursuant to People v Lillis, supra, we find that these facts indicate that the stop of defendants was reasonable. Having concluded that the initial stop by the Charlevoix County deputies was reasonable and lawful, the circuit court found that the subsequent detention of the suspects for investigation was permissible. The court noted that the scope of the detention was tailored to its underlying justification, i.e., to allow officers with disparate pieces of knowledge, who were in the area, to arrive at the scene and pool their information in order to verify that the detained suspects were the perpetrators of the armed robbery. We agree with the court that the detention was permissible, however, we affirm the actions of the police officers on a different basis. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v Royer, 460 US 491, 500; 103 S Ct 1319; 75 L Ed 2d 229 (1983). We find that subsequent to the ten- to fifteen-minute investigative detention, the suspects were under arrest, and the arrest was supported by probable cause. Probable cause for an arrest without a warrant has been defined as the existence of any facts which would induce a fair-minded person of aver age intelligence and judgment to believe that the suspected person had committed a felony. People v Cumbus, 143 Mich App 115; 371 NW2d 493 (1985); Michigan v Summers, 452 US 692; 101 S Ct 2587; 69 L Ed 2d 340 (1981). Here, the state troopers arrived at the scene of the arrest within approximately five minutes after the stop. At that time, Trooper French examined the tires on the stopped car and observed that they "appeared similar” to the tire tracks he had seen near the store which had been robbed. The troopers also observed that defendants, who were in the back seat of the patrol car, met the general description of the robbers taken from the victims. Further, a dnr conservation officer was also present at the scene of the stop within approximately ten to fifteen minutes. At the scene, he observed that the car stopped was the same car he had seen earlier traveling at a high rate of speed on a nearby road. The conservation officer indicated that he had seen only two other cars in the vicinity of Thumb Lake and the nearby road around the time of the armed robbery, and that a man and a woman were riding in the other cars. From these facts, we find that probable cause existed sufficient to arrest the suspects within fifteen minutes of the initial stop. The detention was therefore long enough to effectuate the purpose of the stop, i.e., to investigate the facts surrounding the armed robbery and the suspects’ possible connection therewith. The case cited by defendant Holmes in his supplemental brief on appeal, United States v Sharpe, 470 US 675; 105 S Ct 1568, 84 L Ed 2d 605 (1985), in no way alters the above conclusions. Defendant Holmes is incorrect in stating that the initial investigatory stop was not predicated on anything more than the fact that Holmes was a suspect in a prior armed robbery which had taken place in Gaylord, Michigan. As stated above, there were numerous other bases for the investigatory stop and the subsequent arrest. We therefore find no basis for reversal of defendants’ convictions on this first claim. Defendant Holmes next argues on appeal that the trial court erred in overruling his objection to the admission of evidence regarding "hollow-point” bullets. We initially note that this issue is not properly on appeal because defendant Holmes has failed to state any authority for his contention that the court’s ruling was error. A party may not leave it to this Court to search for authority to sustain or reject a position. Cramer v Metropolitan Savings Ass’n (Amended Opinion), 136 Mich App 387, 400; 357 NW2d 51 (1984). However, we will briefly address this issue. Defendant Holmes contends that the testimony that the gun found in his car contained "hollow-point” bullets was more prejudicial than probative and that the trial court erred in admitting this evidence. MRE 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The determination of whether the probative value of largely relevant evidence is substantially outweighed by its unfairly prejudicial effect rests within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978). MCL 750.529; MSA 28.797 defines armed robbery as follows: Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison. [Emphasis supplied.] The fact that the gun found in defendants’ car was loaded is relevant to the fact that defendant was armed "with a dangerous weapon.” Defendant Holmes does not dispute the relevancy of evidence bearing on the issue of whether the gun was loaded. With respect to evidence that the gun was loaded with hollow-point bullets, the circuit court found that the evidence was more probative than prejudicial. The court adequately indicated that it considered the evidence probative in "illuminating the transaction.” The court determined that there was no unfair prejudice which outweighed the probative value of the evidence. We find no error requiring reversal on this ground. See People v Eggleston, 148 Mich App 494, 502-503; 384 NW2d 811 (1986). Finally, defendant Holmes argues that the sentencing judge abused his discretion in sentencing him to a minimum sentence in excess of that recommended in the sentencing guidelines. The Sentencing Guidelines Manual recommends a minimum of forty-eight to eighty-four months (four to seven years) imprisonment for armed robbery. Defendant received a minimum of eight years. The trial court’s departure from the recommended minimum range was based on the circumstances of the offense: In order to comply with People v Coles, Waits and Gonzales, the Court considered all the information in the presentence report. It gave special emphasis to the circumstances of the offense in which a twelve-year-old child and a family’s lives and wellbeing were threatened by two individuals, one with a knife and one with a gun. The Court did recognize, and does accept, that this individual carried the knife, although it was his gun. The Court recognizes that the Defendant has no prior felonies. The Court has given special emphasis to the fact that Mr. Holmes has, of recent date, been cooperative in an attempt to perhaps recompense for the harm he has done. The Court, then, chose the instant sentence to protect the community and to deter the Defendant. Thank you. Defendant Holmes contends that because the guidelines already take into account the factors the court considered in departing from the guidelines, the sentence was not justified. This Court has already considered and rejected an identical argument in People v Ridley, 142 Mich App 129; 369 NW2d 274 (1985). We find that the minimum sentence of eight years was appropriate. We do not find that the sentence imposed shocks our judicial conscience. People v Coles, 417 Mich App 523, 550; 339 NW2d 440 (1983). Affirmed.

Per Curiam. Defendants, William and Wanda Murdoch and their son, Douglas Murdoch, appeal as of right from an opinion and order entered in the Oakland Circuit Court affirming the decision of the Zoning Board of Appeals of plaintiff Township of Independence (hereinafter board). The board’s decision interpreted the township’s zoning ordinance as excluding defendants’ Siberian tiger and bobcat from those classifications of animals allowed to be maintained on their premises and denied defendants’ request for a variance from the ordinance. We affirm. This action was commenced on November 14, 1984, when the township filed a complaint seeking an injunction to prevent defendants from keeping the animals on their premises. Defendants reside in a district zoned R-1R, rural residential. Section 5.19 of the township’s zoning ordinance authorizes all classes of animals, as defined in § 3.01 of the ordinance, to be maintained in that district. The classes of animals, as specified in § 3.01, are: 1. Class I Animal: Domesticated household pets weighing less than 150 pounds. 2. Class II Animal: An animal which is normally part of the livestock maintained on a farm, including: a) Bovine and like animals, such as the cow. b) Equine and like animals, such as the horse. c) Swine and like animals, such as the pig and hog. d) Ovis (ovine) and like animals, such as the sheep and goat. Other animals weighing in excess of 75 pounds, and not otherwise specifically classified herein. 3. Class III Animal: Rabbits (which are not maintained or kept as domesticated household pets); animals considered as poultry, and other animals weighing less than 75 pounds not specifically classified herein. An open hearing was held before the board on January 16, 1985, after which it was to decide whether defendants were allowed to keep the ani mals on their premises and, if not, whether defendants were entitled to a variance from the ordinance. Defendants stipulated at the hearing that their animals did not fall within the Class m animal. Further testimony was taken that neither the tiger nor the bobcat could be included in Class i because neither animal would typically be considered a domesticated household pet and that neither animal should be allowed to be kept in a residential zoned district because of the inherent danger involved. Further, neither animal could be included within the Class n definition because that classification included only those animals which are "normally part of livestock maintained on a farm.” Following the public hearing, the board unanimously voted that the tiger and bobcat were excluded under § 3.01 and therefore were not to be kept on the premises. The board reconvened a week later and denied the variance request on the basis that a variance could be granted only upon a showing of undue hardship or difficulty pertaining to the land. The only undue hardship presented was self-induced which had no effect upon the use of the land. Further, the board concluded that the variance sought was a use variance which was not within the board’s power to grant. The board’s decision was affirmed on appeal to the circuit court. On appeal to this Court, defendants raise several issues, not all of which merit discussion. First, defendants contend that § 3.01 of the Independence Township zoning ordinance violates state and federal constitutional guarantees of due process because it is impermissibly vague. Defendants argue that Class i of § 3.01 allowing domesticated household pets weighing less than 150 pounds is unclear because the bobcat at issue would fall under the definition of "domesticated.” Further, defendants argue that the provision under Class ii allowing "other animals weighing in excess of 75 pounds not otherwise specifically classified herein” is a catch-all provision lacking sufficient definition to allow residents to determine what types of animals are allowed. The circuit court found the ordinance clear enough to give the township residents notice of which animals are allowed. Before embarking on this review we note that decisions of a zoning board of appeals are largely discretionary. Szluha v Avon Charter Twp, 128 Mich App 402, 410; 340 NW2d 105 (1983). The Township Rural Zoning Act sets forth the standard of review for appeals from zoning board decisions: (1) The decision of the board of appeals rendered pursuant to section 23 shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the circuit court. Upon appeal the circuit court shall review the record and decision of the board of appeals to insure that the decision: (a) Complies with the constitution and laws of the state. (b) Is based upon proper procedure. (c) Is supported by competent, material, and substantial evidence on the record. (d) Represents the reasonable exercise of discretion granted by law to the board of appeals. [MCL 125.293a(l); MSA 5.2963(23a)(l).] The "void for vaguepess” doctrine is derived from the constitutional guarantee that a state may not deprive a person of life, liberty or property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17. A statute may be challenged for vagueness on the ground that it: (1) is overbroad, impinging on First Amendment freedoms; (2) does not provide fair notice of the conduct proscribed; or (3) is so indefinite that it confers unstructured and unlimited discretion on a trier of fact to determine whether an offense has been committed. Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980); Oakland Co Prosecutor v 46th Dist Judge, 76 Mich App 318, 329; 256 NW2d 776 (1977). State Treasurer v Wilson (On Remand), 150 Mich App 78, 80-81; 388 NW2d 312 (1986). Plaintiff presumably challenges the instant ordinance on the second ground. The ordinance at issue is a "permissive” ordinance which states the permissive uses under the classifications and necessarily implies the exclusion of any other nonlisted use. Independence Twp v Skibowski, 136 Mich App 178, 184; 355 NW2d 903 (1984), lv den 422 Mich 853 (1985). Class i clearly provides notice to township residents that only domesticated household pets under 150 pounds are allowed. This necessarily excludes animals under 150 pounds that are not domesticated and animals over 150 pounds whether domesticated or not. We do not find this language to be unconstitutionally vague and uncertain. Similarly, the language describing the types of animals allowed under Class ii is sufficient to give residents notice of the types of animals allowed thereunder. As noted by the circuit judge, the portion "Other animals ...” could have been more artfully drawn. However, the beginning of the class description limits the whole class to include only those animals which are "normally part of the livestock maintained on a farm.” We find this language to clearly indicate that the animals allowed under the catch-all provision of Class ii are livestock farm animals weighing in excess of seventy-five pounds. This language is not so vague and uncertain as to render the ordinance unconstitutional. Defendants next contend that the lower court’s interpretation of § 3.01, as it relates to the definition of animals, is not supported by competent, material and substantial evidence on the record. Defendants fail to support their argument with citation to any authority. A party may not leave it to this Court to search for authority to sustain or reject its position. A statement of position without supporting citation is insufficient to bring an issue before this Court. Butler v DAIIE, 121 Mich App 727, 737; 329 NW2d 781 (1982). Accordingly, we choose not to review this argument. The same holds true for defendants’ argument that the board’s interpretation of § 3.01 constitutes an abuse of discretion. Although defendants have cited authority to define "abuse of discretion” they have failed to cite authority for the proposition that the board’s interpretation of the ordinance is contrary to statutory and case law rules for construction of legislative enactments. Accordingly, we decline to review this issue. Butler, supra. Similarly, defendants’ argument that the board did not follow proper procedure in denying defendants’ request for a variance from the zoning ordinance is unsupported by citation to authority. Accordingly, this Court declines to review this issue as well. Butler, supra. Finally, defendants argue that the board’s decision to deny the variance is not supported by competent, material and substantial evidence on the record and constituted an abuse of discretion. We disagree. Section 23 of the Township Rural Zoning Act, MCL 125.293; MSA 5.2963(23), allows a township board of appeals to modify a zoning ordinance where practical difficulties or unnecessary hardships are involved: Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance, the board of appeals in passing upon appeals may vary or modify any of its rules or provisions so that the spirit of the ordinance is observed, public safety secured, and substantial justice done. Although defendant Douglas Murdoch testified that he would suffer emotional and economic hardship if he were forced to give up the bobcat and tiger, we agree with the board and the circuit court that these hardships were self-induced. This Court further agrees with both the board and the circuit court that defendants were, in effect, seeking a special land use variance. The authority to grant a special land use variance is vested in the township’s planning commission under § 5.15 of the zoning ordinance. Accordingly, the board had no power to grant such a request without it first being ruled upon by the planning commission. In any event, the hardships testified to by Murdoch were personal and did not relate to the land. Hence the request for a variance did not meet the statutory requirement. Accordingly, we find competent, material and substantial evidence on the whole record to support the board’s denial of defendants’ request for a zoning variance. We further find that the denial did not constitute an abuse of discretion. Affirmed.

J. C. Kingsley, J. Plaintiff appeals as of right from an October 3, 1984, judgment of the circuit court awarding plaintiff $230.51, following a bench trial. The record discloses that plaintiff, Patrick, J. McReavy, and Keith Davis consolidated three partnerships owned by the various men into one corporation in 1978. The three partnerships consisted of the Panel Center, Kitchens, Etc., and Mr. Ed’s Carpet Center, which were all consolidated into WMcD, Ltd. WMcD, Ltd., did business under the three partnership names following the incorporation. Plaintiff was president of the corporation and Davis was the treasurer. On July 30, 1979, Davis, who had been a partner in Kitchens, Etc., prior to the incorporation, opened a bank account at the Alden State Bank in Alden, Michigan, under the name of Kitchens, Etc. ii, by endorsing three checks totaling $8,464.56 made payable to Kitchens, Etc. The teller who assisted Davis in opening the account was called as a witness by the plaintiff and testified that the transaction was routine. She did not state whether she had assumed that the account Davis was opening was a sole proprietorship, but provided him with a noncorporate signature card upon which Davis recorded his name, the name Kitchens, Etc. ii, the business address, and his social security number. The teller testified that the information on the signature card was the only information she received from Davis. She did not inquire as to whether the checks were corporate or noncorporate checks, or as to Davis’ authority to endorse and deposit the checks. Defense counsel did not ask any questions of her on cross-examination. Davis routinely deposited checks made payable to Kitchens, Etc., into the Kitchens, Etc. n account, and wrote various checks on that account. The total amount deposited into the Kitchens, Etc. ii account which had been made payable to Kitchens, Etc., was $50,627.13. Concerned about the cash flow of WMcD, plaintiff demanded an explanation from Davis at the board of directors meet ing held in February, 1980. Not satisfied with Davis’ explanation, plaintiff mailed a letter on March 26 and March 27, 1980, warning all banks in the Traverse City area of a possible embezzlement scheme. Defendant bank received the letter, but did not contact plaintiff. Plaintiff visited defendant bank in April, 1980. The vice-president of the bank informed plaintiff that Davis had opened an account, and admitted receiving the letter, but stated that he had made inquiries of Davis and was satisfied with the responses he received. When WMcD, Ltd., fell into bankruptcy, plaintiff instituted suit against defendant on behalf of himself and WMcD, Ltd., on the theory that defendant had converted $50,627.13 of WMcD, Ltd., assets by paying checks over a forged endorsement. See MCL 440.3419(1)(c); MSA 19.3419(1)(c). Defendant raised the defense that it had acted in accordance with reasonable commercial standards in opening the Davis accounts. In an opinion rendered from the bench, the trial court entered a verdict for plaintiff in the amount of $452.51, which represented the amount of WMcD’s funds deposited in defendant bank after the bank had received plaintiff’s letter. This amount was reduced by the amount defendant had remitted to the bankruptcy trustee, leaving a balance of $230.51. Further facts will be related where relevant to the discussion of issues addressed herein. i We address plaintiff’s legal claim first, since disposition of that claim in plaintiff’s favor would render unnecessary a review of his factual claim. Plaintiff contends that the defense that a bank acted in accordance with reasonable commercial standards is not available to a depositary bank in an action for conversion. We disagree. The relevant statute, MCL 440.3419; MSA 19.3419, provides: (1) An instrument is converted when * * * (c) it is paid on a forged indorsement. (2) In an action against a drawee under subsection (1) the measure of the drawee’s liability is the face amount of the instrument. In any other action under subsection (1) the measure of liability is presumed to be the face amount of the instrument. (3) Subject to the provisions of this act concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands. Where a statute is unambiguous on its face, reviewing courts must avoid further interpretation or construction of its terms. Detroit v Redford Twp, 253 Mich 453; 235 NW 217 (1931). MCL 440.3419(3); MSA 19.3419(3) is unambiguous on its face and provides a depositary bank a defense when it has acted in good faith and in accordance with the reasonable commercial standards applicable to the business of the depositary bank. Plaintiff cites Sherriff-Goslin Co v Cawood, 91 Mich App 204; 283 NW2d 691 (1979), lv den 407 Mich 919 (1979), in which this Court held that the above-quoted statute provides no defense for a collecting bank in a suit for conversion by the true owner of the instrument. In Sherriff-Goslin, checks were endorsed by a Sherriff-Goslin Co. corporate rubber stamp and deposited in an account in the name of Society Products, from which only Cawood was authorized to make withdrawals. We believe that Sherriff-Goslin is distinguishable on its facts. However, to the extent that the holding in Sherriff-Goslin is contrary to the plain language of the statute at issue, we decline to follow it. n Plaintiff contends that, even if the defense of "good faith” and "reasonable commercial standards” was available to defendant, the trial court’s finding that defendant bank acted in good faith and in compliance with reasonable commercial standards finds no support in the record. Plaintiff concedes that the bank acted in good faith. In reviewing findings of fact by a judge sitting without a jury, this Court will substitute its own appraisal of the record when, even though some evidence supports a finding of fact, a review of the whole record leaves this Court with a definite and firm conviction that the judge made a mistake. MCR 2.613(C); Precopio v Detroit, 415 Mich 457, 466; 330 NW2d 802 (1982). With this standard of review in mind, we examine the expert testimony presented at trial. Two expert witnesses, Robert L. Jones and Raymond Nelson, testified at trial as witnesses for the defense. Nelson first testified that the teller’s actions in opening the Davis account were within reasonable commercial standards. However, upon being informed that Davis was a stranger to everyone at the Alden State Bank, Nelson testified that he would probably have asked about Davis’ relationship to Kitchens, Etc., but would not have done an independent investigation upon receiving a satisfactory answer. Jones testified that, when opening a corporate account, the person opening the account should be required to show a corporate resolution authorizing him to sign and deposit corporate checks. If the account was a sole proprietorship, banks in general would not investigate whether a "doing business as” certificate had been filed. Jones indicated that Davis’ endorsement on Kitchens, Etc., checks would have been proper if he had been the sole proprietor. Notwithstanding that fact, Jones testified that it was not within reasonable commercial standards for the teller to fail to ask whether the checks being deposited were corporate or sole proprietorship checks. Our review of the testimony leaves us with a definite and firm conviction that the trial court made a mistake in its findings of fact. Defendant had the burden of proof in establishing that it acted in accordance with reasonable commercial standards, and we believe that it failed to meet that burden of proof. Although the teller testified that she provided Davis with a noncorporate signature card, there was no testimony by anyone that the card was selected because she had inquired whether the account was a corporate account or a sole proprietorship account. Rather, she testified that the only information she was given when opening the account was the information contained on the signature card filled out by Davis. She further testified that she reviewed the checks used for the deposit, but made no investigation regarding the status of those checks. There was no evidence that Davis was known by anyone at the bank prior to opening the account. The testimony indicates that the teller did not ask what type of account Davis was opening or his connection with Kitchens, Etc. n, even though he was a stranger to her and the bank. Defendant made no effort to elicit more information from her regarding the questions she asked Davis. The only witnesses called by defendant were the two experts. Both testified on direct examination that the actions of the teller in opening the accounts had been within acceptable banking standards. However, both expert witnesses testified that, if a teller failed to inquire, when assisting a customer in opening a commercial account, whether the checks to be deposited therein were sole proprietorship or corporate checks, the bank failed to act within reasonable commercial standards. Applying these opinions to the teller’s testimony, it is apparent that defendant failed to meet its burden of proof. hi We find it unnecessary to remand to the trial court for a determination of the damages flowing from defendant’s failure to act in accordance with reasonable commercial standards. MCL 440.3419(2); MSA 19.3419(2) provides that the measure of damages in an action against a defendant other than a drawee bank "is presumed to be the face amount of the instrument.” In this case, the evidence presented indicated that the face amounts of the instruments converted totaled $50,-627.13. Although defendant alleged that some of the Kitchens, Etc. ii funds were used to pay WMcD, Ltd., debts, this allegation was not substantiated. Further, the Uniform Commercial Code does not provide for reduction of liability in the manner asserted. Unless displaced by the particular provisions of the Uniform Commercial Code, principles of law and equity shall supplement its provisions. MCL 440.1103; MSA 19.1103. At common law, a defendant who converts may not claim mitigation of damages by showing that he has applied the converted property or its proceeds to a debt owed by a plaintiff to a third party unless a plaintiff assents to that application as a credit. Northrup v McGill, 27 Mich 234 (1873). The trial court erred in granting judgment only for amounts paid subsequent to plaintiff’s notification of possible embezzlement, and should have granted judgment for the face value of all checks made out to Kitchens, Etc. deposited in the Kitchens, Etc. n account, less any amounts remitted to the trustee in bankruptcy. Reversed and remanded for entry of judgment for plaintiff. Costs to plaintiff-appellant. The checks in Sherriff-Goslin were endorsed by a corporation to a third party, and deposited into an account with another name, while the checks in the present case were made payable to a corporation with a name nearly identical to the name of the account in which the checks were deposited. In fact, expert testimony in the instant case revealed that the deposit of "Kitchens, Etc.” checks in the "Kitchens, Etc. n" account was not so anomalous as to require inquiry in order to comply with reasonable commercial standards. See White & Summers, Uniform Commercial Code (2d ed), § 15-4, pp 585-597, in which the authors state that UCC 3-419(3) clearly exempts depositary banks from liabilty for conversion when acting in good faith and in accordance with reasonable commercial standards. The authors note several policy considerations favoring an opposite result, pp 589-591, but state that what state courts have done to the clear language of the statute "shouldn’t happen to a dog.” Id., p 591. It is beyond the province of this Court to quarrel with legislative deteminations of policy dealing with commercial transactions, as expressed by the plain language of the statute. Q. Is it then your testimony that given this situation, if you were sitting in the place of Mrs. Peal, which is the easiest way for me to ask you the question — you would have — at a minimum you would have asked for his connection with Kitchens, Etc., which was the payee’s name on the checks that were presented, is that right? A. Yes. Q. Is it your testimony that that question would be a minimum question to be asked in order to conform to reasonable commercial standards? A. I would say so.

Moore, J. Defendant wanted to buy a home in March, 1921, and employed Loeffler-Casenhiser, a real estate firm, to obtain such property. This firm had no property listed that would meet defendant’s requirements and Mr. Casenhiser, who had formerly worked for plaintiffs, called upon them to ascertain if they had such property. The plaintiffs had listed for sale property located in the Palmer Woods district of Detroit, which defendant afterwards bought. In his contract of purchase defendant agreed, we quote: “The undersigned purchaser agrees to pay Loeffler- & Casenhiser three per cent, commission on eighty thousand dollars.” It was the understanding between the two real estate firms that! this commission should be divided between them “fifty-fifty.” Later Mr. Casenhiser procured from the defendant two notes of $1,200 each in lieu of the cash which it was expected would be paid for the commission when the deal was closed. One of these notes reads: “Detroit, Mich., April 23, 192L “Ninety days after date for value received I promise to pay to the order of Stebbings and Taylor Twelve Hundred and no/00. .Dollars. At the Detroit Sav inga Bank with interest at seven per cent, per annum after maturity. “$1,200.00. Walter E. Klein.” This note was delivered by Mr. Casenhiser to the plaintiffs in the expectation that it would adjust the division of the commission between the two real estate firms. The note was not paid when it became due and suit was brought upon it. The declaration also contained the common counts in assumpsit. The defendant pleaded the general issue and gave notice of recoupment and set-off. The defense was based upon the claim that Mr. Leighton, who was a salesman of the plaintiffs and had taken an active part in the sale transaction, had become a tenant of defendant in a furnished house on Philadelphia avenue, and had agreed to pay rent at the rate of $90 a month, which agreement he had not carried out. We quote from the testimony of Mr. Klein: “Q. When Leighton called upon you to pay this note presented to you, what did you say to him? “A. Why, I was willing to pay the amount, but I never figured that I owed them anything. “Q. What did you say to him in reference to the amount due upon the Philadelphia— “A. I requested him for payment. I asked him to pay me the amount of the rent. I was willing to pay, but I wanted to be paid. I couldn’t get it. I asked him for the payment of rent the same time the note was due. “Q. I didn’t understand that. “A. I couldn’t get the payment from him. “Q. You were willing to pay, if you were paid? “A. Yes, that is it.” Mr. Leighton denied that he had ever agreed to pay rent and claimed that he simply occupied the house, while an effort was made to sell it. Upon the trial counsel for the defendant was interrogated by the court: “The Court: What is the defense? “Mr. Bane: The defense to the note is this, that this was an obligation of Loeffler & Casenhiser to Stebbings & Taylor, primarily, in the first instance, a debt of a third! party. When these notes were executed, there was no agreement, either by way of substitution or extension of time, or any agreement by which the obligation from Casenhiser to Stebbings. & Taylor was discharged. There being none, there was no discharge. There was no consideration for the note.” At the conclusion of all the testimony both parties asked for a directed verdict. The judge directed a verdict in favor of the plaintiffs for the full amount of the note. A judgment was entered accordingly and the case is here upon writ of error. We have already quoted the claim oi counsel for defendant. The same claim is made in this court but is greatly amplified. We quote from the brief: “The Evidence was Insufficient to Establish a Novation.' The promise of defendant was a promise to pay a sum due from Loeffler-Casenhiser to plaintiff and was, therefore, a promise to pay the debt of a third person, which must be supported by a consideration distinct from the consideration moving from plaintiff to Loeffler and Casenhiser. It must be a new consideration;” citing cases. Counsel on both sides argue the question of novation, at considerable length, but in our view of the case the question is not important. The record is clear that the defendant agreed to pay a commission of $2,400. It is also clear that to carry out that agreement the two notes were given. The consideration for the two notes was the commission defendant agreed to pay, and which was earned. After the notes were given, it is difficult to see what interest defendant had in the division of the commission between the two real estate firms. If Mr. Leighton became a tenant of defendant and owed him rent as claimed by defendant, which claim Mr. Leigh-ton denies, that is a matter which should be adjusted between them. Judgment is affirmed, with costs to the appellees. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Clark, J. On December 16, 1920, Fred Gunther, Sr., ordered, and in due course received, farm wagons from plaintiff. Important parts of the order, of conditions printed on back thereof, and of the invoice are printed in the margin. Notes were taken as indicated in the order and the invoice. The agreement was filed in the office of the township clerk on June 6, 1921. It was not filed elsewhere. On June 14, 1921, after demand, plaintiff brought replevin for four of such. wagons. They were taken on the writ and delivered to plaintiff by the officer. On June 22, 1921, an involuntary petition in bankruptcy was filed against Fred Gunther, Sr., in the district court of the United States for the western district of Michigan and' he was adjudged a bankrupt. He filed a plea in the case at bar. Later Frank Gunther, the trustee in bankruptcy, was substituted as defendant in the case. The cause was tried without a jury. There were findings and exceptions. Defendant had judgment. Plaintiff brings error. The wagons were sent to remain in this State in the conduct of business here. Hence the agreement is governed in all courts as to its construction by the law of this State. In re American Steel Supply Syn., 256 Fed. 876; In re Huxoll, 113 C. C. A. 637, 193 Fed. 851. The usual inconsistency of these so-called sale agreements is an attempted reservation of title in the vendor with a present right to recover the debt without passing title. This inconsistency is here. The agreement purports to reserve title in the plaintiff, vendor, and to give also the inconsistent right to require payment or settlement in full in cash or by note at any time. The rule, now well established, in such cases is that there is an absolute sale with reservation of a lien by way of security. See Atkinson v. Japink, 186 Mich. 335; Young v. Phillips, 203 Mich. 566; The Phillips-Michigan Co. v. Field Body Corp., 221 Mich. 17; Heyman Co. v. Buck, 221 Mich. 225. And a consideration of the entire agreement with the invoice and the facts leads to the same conclusion. See Luce v. Stott Realty Co., 201 Mich. 587; National Cash Register Co. v. Paul, 213 Mich. 609 (17 A. L. R. 1416). And the language and tenor of the writings as a whole and the facts are so utterly at variance with the further inconsistent claim of agency that we decline to discuss the question. The plaintiff may bring replevin. Atkinson v. Japink, supra. The agreement in this case being for security and intended to operate as a mortgage is governed as to filing by section 11988, 3 Comp. Laws 1915; Young v. Phillips, supra. . And as the property was purchased for resale at retail filing of the mortgage, or a true copy thereof, with both the township clerk and the register of deeds was required. Section 11988, su/pra. The failure to file with the register of deeds rendered the mortgage absolutely void, during the interval between the purchase and the replevin, as against creditors of the mortgagor and as against subsequent purchasers or mortgagees in good faith. Section 11988, supra. The creditors as to whom the mortgage was void were those, if any, who became such between the time of purchasing the wagons and the taking on the writ of replevin. See Baker v. Parkhurst, 119 Mich. 542; In re American Steel Supply Syn, supra. But there is no proof that the bankrupt had creditors who became such to any amount during such interval. Except for plaintiffs claim and the bare fact of bankruptcy, there is no proof on the subject. But as the case must go back for a new trial we will assume that there were such creditors and dispose of the question. There remains the question of the right of the trustee in bankruptcy to challenge plaintiffs right to possession of the wagons. The mortgage was valid between the mortgagor and the mortgagée. It was made in good faith and for a consideration and prior to the four months’ period prescribed by the national bankruptcy act (36 U. S. Stat. p. 842 [9 U. S. Comp. Stat. § 9644]). Plaintiff’s taking possession of the wagons within such period is not a voidable preference or transfer within the meaning of the act. See Kettenbach v. Walker, 32 Idaho, 544 (186 Pac. 912), and cases there cited. There is no proof of the fastening of any other lien on the wagons during the time the mortgage was unfiled. The creditors as to whom this mortgage was void, because unfiled, are given no lien under the statutes of this State which is prior to the lien of the mortgage. They had the right to proceed to-reach the property or its avails (Baker v. Parkhurst, supra, and cases cited), but if such proceeding is not taken before the bankruptcy the right is lost. No such proceeding was taken. Whether such creditors have a lien under our statutes or under the bankruptcy act as it existed in February, 1903, was fully considered in Detroit Trust Co. v. Pontiac Savings Bank, 237 U. S. 186 (35 Sup. Ct. 509), an appeal from the United States circuit court of appeals, sixth circuit, in which the opinion of the lower court (115 C. C. A. 663, 196 Fed. 29) was approved. We quote: “The circuit court of appeals declared: Tt is settled by the decisions of the Supreme Court of Michigan that the words “creditors of the mortgagor” mean subsequent creditors in good faith and without notice of the mortgage, and that the statutory invalidity of an unfiled chattel mortgage extends to all creditors who became such after the giving and before the filing of the mortgage. Recovery can be had here: on but one of two theories: First, that the bankruptcy act creates a lien in favor of the creditors under which the rights given by the Michigan statute can be enforced; or, second, that the Michigan statute creates such a lien. The bankruptcy act does not operate as an attachment of the bankrupt’s property, nor itself create a lien in favor of creditors of the class before us. York Manfg. Co. v. Cassell, 201 U. S. 344 (26 Sup. Ct. 481); Crucible Steel Co. v. Holt, 98 C. C. A. 101, 174 Fed. 127, affirmed by the Supreme Court, April 1, 1912, 224 U. S. 262 (32 Sup. Ct. 414). The controlling question, therefore, is whether the rights given by the Michigan statute to the class of creditors named amount to an actually established lien, or, on the other hand, to a mere right to create a lien. * * * Since the decision below, the case of In re Huxoll, 113 C. C. A. 637, 193 Fed. 851, has been decided by this court. We there carefully reviewed and considered the Michigan decisions, and reached the conclusion that the Michigan statute does not of itself create a lien upon the mortgaged property prior to the lien of the mortgage, but gives merely a right to a lien, requiring a proceeding of some kind for its fastening. We there held that the right to lien was lost if such proceeding was not taken before bankruptcy/ ” See, also, In re Huxoll, supra. We conclude that up to the time of the filing of the petition in bankruptcy there was no lien upon this property by law or by act of creditors which the trustee might enforce for the benefit of creditors. But our attention is called by counsel to amendments of the bankruptcy act, 36 U. S. Stat. p. 840 (9 U. S. Comp. Stat. § 9631 [47a2]): "And such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied.” The trustee upon his appointment acquired title, rights and powers fixed as of the date of the filing of the petition in bankruptcy. See Baker v. Bailey Ice Machine Co., 239 U. S. 268 (36 Sup. Ct. 50). The trustee became vested on June 22, 1921, and not before, with the rights, remedies and powers of a creditor holding.a lien by legal or equitable proceedings as to all property in the custody or coming into the custody of the bankruptcy court. But plaintiff had possession of these wagons in its replevin proceeding before that day, and the title was in the custody of the law until final determination of the cause in the courts of the State. Section 13087, 3 Comp. Laws 1915; Mannausau v. Wallace, 87 Mich. 543; 34 Cyc. p. 1458. The wagons were not therefore property in the custody or coming into the¡ custody of the bankruptcy court. But counsel urge that as to property not in custody of the bankruptcy court the trustee has the rights of a judgment creditor holding an execution duly returned unsatisfied, and they further insist that we define those rights. But we need not. The right of possession of the wagons is to be determined in this cause, not in some other proceeding. The replevin suit was not abated by the bankruptcy. The State court retained jurisdiction. 2 Remington on Bankruptcy, p. 1476; In re L. Rudnick & Co., 88 C. C. A. 85, 160 Fed. 903. It may be that congress might provide for abating a replevin suit such as this. But it has not done it. If, as contended by defendant (no creditor having fastened a lien on the property), he has acquired, subsequent to this suit, by his appointment as trustee, a lien or right of possession paramount to the claim of plaintiff, then he has accomplished in effect what the bankruptcy act does not provide, an abatement of the replevin suit. We quote from 2 Remington on Bankruptcy, pp. 1077, 1125: “But, if possession is taken by the mortgagee or conditional vendor before the bankruptcy petition is filed, such taking of possession operates as a filing and the lien will be good although bankruptcy follows within four months. * * * “It must not be forgotten, however, that the trustee gets the rights of a levying creditor only as to property in the custody, or coming into the custody, of the bankruptcy court. As to other property he'does not have the rights of a levying creditor.” * * * And from Jones v. Bank of Excelsior Springs, 201 Mo. App. 545 (213 S. W. 892): “As to the second question, it appears to have been determined that, under the Federal statute, the trustee only begins to occupy the status of a lien creditor, or judgment creditor with execution unsatisfied, as of the date the bankruptcy proceedings were begun. Bailey v. Baker Ice Machine Co., 239 U. S. 268, 275, 276 (36 Sup. Ct. 50); Martin v. Commercial National Bank, 245 U. S. 513, 517 (38 Sup. Ct. 176). In the latter case it is said (245 U. S. 519, 38 Sup. Ct. 178) that before ‘he may avoid a transfer because of the (bankruptcy) provision in question he must in fact represent or be entitled to take the place of some creditor whose claim actually stood in a superior position to the challenged transfer,’ before possession and while unrecorded and within the specified period. “In the present case we have seen that bankruptcy proceedings were begun on July 14, 1915, and at that time the mortgagee had been in possession of the merchandise for nearly three weeks, no creditor (judgment creditor, or other kind) having placed a lien thereon before he took possession, and the trustee not bringing this action for near a year thereafter. The mortgagee’s claim was therefore superior to the claims of judgment and other creditors; and, as the trustee’s claim is measured by that of the creditors whom he represented, it follows that he has no claim as against the mortgagee. This is the view taken in Bonner v. First National Bank, 160 C. C. A. 592, 248 Fed. 692, and In re Capital City Cap Co., 251 Fed. 664—decisions construing and based upon Bailey v. Baker Ice Machine Co. and Martin v. Commercial National Bank, supra.” And from In re Bosenbloom, 280 Fed. 139: “In view of the considerations hereinafter pointed out, it becomes unnecessary to determine whether the agreement involved was one of absolute sale with an attempted retention of title, operating as a chattel mortgage lien, in the petitioner, a contract of conditional sale, with title remaining in the petitioner until resale by the bankrupt, or an arrangement of pure agency. As this agreement, valid between the parties thereto and based upon a present consideration^ was mutually settled and rescinded by such parties before the filing of the petition in bankruptcy, that settlement, by which the petitioner received and accepted his own property, was also for a present consideration. The trustee, although now having the status of a creditor, armed with the rights conferred upon him by section 47 (a2) of the bankruptcy act (9 U. S. Comp. Stat. § 9631), did not acquire such status until the filing of said bankruptcy petition, and only as of that time. Bailey v. Baker Ice Machine Co., 239 U. S. 268 (36 Sup. Ct. 50). The effect of the settlement mentioned was to release both the petitioner and the bankrupt from their respective obligations under such agreement, and to restore them to the positions occupied by them before the making thereof.” See, also, In re P. J. Sullivan Co., 247 Fed. 139; Anderson v. Chenault, 125 C. C. A. 616, 208 Fed. 400; Fairbanks Steam Shovel Co. v. Wills, 240 U. S. 642 (36 Sup. Ct. 466); In re Johnson, 282 Fed. 273; Collier on Bankruptcy (12th Ed.), p. 732; 7 C. J. p. 179. In the rights, powers and remedies vesting in the trustee by his appointment we find no defense to this action. As between plaintiff and its mortgagor it was entitled to possession of the wagons. It is not. urged that the trustee has any thought of paying the debt to plaintiff and thus to attempt to have the property, so that question will not be considered. Plaintiff should have had judgment. Judgment reversed, with costs to plaintiff. New trial granted. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred. ORDER. Petek Schuttuer Company, Chicago, 111. Dated at Carson City, Mich. Dec. 16, 1920. Please ship to the undersigned, as your agent, at Carson City, Mich., on or about! at once or before Feb. 1st, 1921, or as soon thereafter as possible (or earlier at your option) to Carson City, Mich., the following described goods on the terms and conditions on back hereof, to which reference is hereby made, and for which you are to receive the net prices named below, f. o. b. factory, Chicago, 111., for which the undersigned agrees to hold, sell and dispose, of as your agent subject to your right to demand settlement as per the terms specified on back hereof, payable at Chicago, 111., with exchange, and collection charges and interest at 7 per cent, per annum after due days from (Detailed description of 6 wagons) Teems: — Said goods to be sold or settled for in cash or note as demanded by Petek Schutteer Company, as follows: 2 — 4—6—Months from July 1st, 1921, or 5 per cent. Dis. for cash 30 days. (Signed by parties) Conditions. The Party Ordering Agrees: 1. To receive, hold, sell and dispose of all property named in this órder as the sole property of Peter Schuttler Company, of Chicago, Illinois. If so demanded by said Peter Schuttler Company, to settle by note or cash on receipt of invoice, or at any time thereafter for all goods shipped on this contract as per terms named herein. 2. To pay all freight, drayage, and charges from point of shipping or from factory. 3. Prom the time said goods are delivered to the transportation company and receipted for in good order, the consignee herein shall look to said transportation company for all losses occasioned by damage in transit or failure to deliver any such goods. 5. It Is agreed that the title to, and ownership of, and right to exclusive and immediate possession, upon demand either oral or written to all goods which may he shipped as herein provided, or during the current season shall remain in Peter Schuttler Company, of Chicago, 111., and subject to their order until full payment shall have been made for the same by the undersigned in money. It is further agreed that the proceeds of all sales of such goods under this contract, or any other or subsequent order given to said Peter Schuttler Company (and each and all of which orders shall be subject to all the terms and provisions hereof), whether cash, notes, book accounts, or any other property, are to be held in trust for and subject to the order of Peter Schuttler Company until received by said company and until it has been paid in full for all of such, goods. All notes, book accounts, or other obligations taken for any of said goods shall be endorsed and payment thereof, In full, guaranteed by consignee within such time as said Peter Schuttler Company may demand, and said Peter Schuttler Company shall have the right to demand payment in full for all of such goods, wares, and merchandise at any time after shipment thereof. Giving notes or other settlement for such goods shall not divest the title of said Peter Schuttler Company until the full invoice price thereof has actually been paid in cash. 6. It is understood and agreed that the prices named herein are ,the net prices to be received by the Peter Schuttler Company, the consignee to receive the amounts above such prices for which said goods are sold to cover his profit, freight, dray-age, storage, insurance, taxes and other charges, but consignee shall not be entitled to any such profits until the Peter Schuttler Company has been paid In full for all of said goods. 8. No agreements, conditions, or stipulations, verbal or otherwise, save those mentioned in this contract will be claimed. No claim for damages for delay in shipment of goods' herein ordered, or any other cause, excepting for shortage, will be made, unless notice is given Immediately on receipt of invoice, and all other claims, except for repairs under warranty, will be made- within five days of receipt of goods. No claims for breakages will be made unless for manifest defects in material, all defective parts to be held subject to the order of Peter Schuttler Company, of Chicago, 111., who shall have the option of either substituting the broken parts free in Chicago, 111., or paying an amount not exceeding the net price of such part per their list and discount. 9. To keep insured at his expense, for the benefit of Peter Schuttler Company, all goods received on consignment, or otherwise, for account of Peter Schuttler Company, and pay all State, county and municipal taxes assessed thereon. 10. If, in. case of fire, strikes, lockouts, or other unavoidable cause( Peter Schuttler Company are delayed or prevented entirely from filling this order, they shall not be held for damages. All not due obligations arising from this contract or on account of goods sold and disposed of shall become immediately due and payable in the event the consignee herein suspends payment, becomes insolvent, makes an assignment, removes to another place, has a loss by fire, executes a chattel mortgage or other lien upon his property, or closes out his business, or in case of the death of any member of the consignee firm. Invoice. Peter Schuttler Company Manufacturers of The Old Reliable Peter Schuttler Wagon. Sold to ' Chicago, 12-22-20. Mr. Fred Gunther, Sr., Carson City, Michigan. Terms: 7 — 1—21 dating. 2 — 4—6 mos. notes, or 5% for cash in 30 days, 7% interest after maturity. Copy. Payable in Chicago or Par Exchange. 6 — Farm Wagons ......................................$707.64 Guaranteed Prices. Attach to Contract. The prices on goods shipped on this order are guaranteed to October 1, 1921, against any general decline in Peter Schuttler Company prices on similar goods.

McDonald, J. This action is brought to recover the balance of the purchase price of plaintiff’s rights to extra compensation in a contract which he had with the Owosso Sugar Company. On March 3, 1920, the plaintiff entered into a contract with the Owosso Sugar Company by the terms of which he was to grow beets and deliver them to the company for which he was to be paid $10 per ton and an additional compensation per ton depending on the price of sugar. That part of the contract relating to the additional compensation is as follows: “If the average price of beet sugar exceeds $9 per hundred pounds, then the company shall pay to the grower, as additional compensation per ton of beets for all the beets he may deliver under this contract, the difference between $9 per hundred pounds of beet sugar and the average price thereof, which average price shall be determined as hereinafter provided. “Illustration — If the average price of beet sugar should be $9.50 per hundred pounds, the additional compensation would be 50 cents per ton of beets. * * * “Payment of the additional compensation shall be made by the company on February 15, 1921, and the grower will be given a report showing the computation of the average price.” On July 24, 1920, the plaintiff claims that he made an agreement with the defendant to sell his rights to extra compensation for $5 per ton, and that on an estimate of 1,000 tons of beets to be grown and delivered the defendant agreed to pay him $5,000. The agreement was not in writing but the defendant paid $25 as earnest money and agreed to pay the balance on the following Saturday night. At the time specified he refused to make any further payment, and this suit was begun in November, 1920, to collect the balance of the purchase price. The defendant claims that at the time he agreed to purchase plaintiff’s rights and paid the $25 to bind the bargain, the contract was not completed; that the details were to be worked out and arranged at their next meeting on Saturday night; that on Saturday night he insisted that if he paid the $5,000 the plaintiff should furnish him security that he would carry out his contract with the company by growing and delivering the beets; that the plaintiff was unable to give any security and said that they would have to call the contract off, and agreed to pay back the $25 which defendant had deposited as earnest money. It is the defendant’s claim that there was never any completed or definite contract between them, and that it was so regarded by both parties, but that in December the price of sugar declined very rapidly and that the plaintiff, realizing that the extra compensation provided in the contract would be very small, gave the company an order to pay it to the defendant. After the suit was begun the company sent defendant a check for $62, which he returned. The declaration contains a special count on the contract and the common counts in assumpsit. The defendant’s plea was the general issue with notice that no completed contract was made between the parties, and that if it had been completed it was a gambling contract and therefore illegal and void. When the proofs were closed the defendant moved for a directed verdict against the plaintiff for the reasons set up in his plea. The motion was denied and the case submitted to the jury. Plaintiff received a verdict for the full amount of his claim. The defendant has brought the case here by writ of error. The principal questions involved are: First. Did the minds of the parties meet on a completed contract. Second. If a completed contract were made, is it a gambling contract and therefore void and unenforceable. Third. Improper instructions to the jury as to the necessity for a formal assignment of the contract and the consideration to be given to the order by plaintiff on the company for the payment of the extra compensation. Was there a .completed contract? It is the contention of the defendant that at their first .conversation it was contemplated by the parties that further arrangements would be necessary to provide security for carrying out the contract by the plaintiff and to come to an understanding in regard to other details; that at the second conference on Saturday night these matters were discussed; that they were unable to agree in regard to them and that therefore the contract was not completed. The plaintiff denies this second .conversation and claims that at their first meeting all of the terms of the sale were agreed upon and nothing was left open for subsequent consideration. The trial court took the view that whether the contract was completed was a question of fact for the' jury. In this we think he was right. What took place at the first meeting is not in dispute. It was there definitely agreed that defendant should purchase all of the plaintiff’s interest in the extra compensation which he might receive under his contract with the company, that he should pay therefor $5 a ton on an estimated crop of 1,000 tons, that he paid to the plaintiff $25 on the agreed purchase price and was to pay the balance on the following Saturday evening. If this were all, the contract was complete and the court could have so held as a matter of law, but defendant’s claim that something further remained to be done at the subsequent meeting made it a question for the jury under proper instructions from the court. It is next urged by counsel for the defendant that the contract was nothing more than a wager on the future price of sugar, and was therefore a gambling transaction, illegal and void. In support of this claim our attention is called to many cases mostly involving the sale of stock on margins where the stock is not intended to be delivered nor paid for, but where the contract is to be settled on a basis of the difference between the contract price and the market price. If the price declines below that of the contract the buyer pays the difference; if it advances the seller pays the difference. Such a contract is a gambling contract and the law will not permit an action to be maintained upon it. These cases are all distinguishable in their facts from the instant case. In this case the property-sold was an interest in a valid contract, and the price paid by the defendant did not depend upon the future price of sugar. The plaintiff took no risk. Only the •defendant speculated. What he had to pay was definitely specified, but what he might receive was speculative. The plaintiff’s interests were unaffected by the rise or fall in the price of sugar. The consideration moving to him was fixed at $5,000. He was not to gain or lose anything. In a wager con-bract both parties take a risk; if one gains the other loses. Both jeopardize something. - If the unlawful intent is entertained by only one of the parties the transaction is not illegal. Donovan v. Daiber, 124 Mich. 49; Gregory v. Wendell, 40 Mich. 432. If both parties were contracting in reference to the rise or fall in the price of sugar at some future time with no other interest involved, a different question might be presented. That, however, is not this case. The extra compensation or what the parties have called “bonus money,” represented an interest in the beet contract which was a valid contract. It was something that could be sold and assigned. It was of some value to the plaintiff. At the least it was a possibility •coupled with an interest. There was a consideration if Wilkie sold to Weller an interest which was of some value to him, however slight that value might be. Whether it turned out to be valuable to Weller is not material. The adequacy of the consideration is a matter solely between the parties, and is no concern of the courts in a case of this character. That the benefit to be derived by the defendant was contingent or uncertain and speculative does not make the agreement a wagering contract. “A valid assignment may be made of the expected, though contingent, avails of future transactions under an existing contract, * * * although subject to a contingency whether it will ever be earned.” Greene v. Bartholomew, 84 Ind. 235, and cases cited. Counsel for the defendant cite First National Bank v. Carroll, 8 L. R. A. 275 (80 Iowa, 11, 45 N. W. 304), as controlling of this question. In that case two parties each owned a half interest in certain cattle; one of the parties in consideration of $30 guaranteed that the cattle would sell for four cents a pound on the Chicago market. If they sold for less he would pay the other the difference; if they sold for more the other party would pay him the difference. No sale of the cattle from one to the other was involved. This was simply a speculation by both parties on the price of cattle. One of the parties was to lose, the other was to get something for nothing. Both took a risk. Neither sold anything. It was held to be a wagering contract. In the instant case the facts are quite different. Here the plaintiff sold something for a definite price. He took no risk. He gained or lost nothing if the price of sugar advanced or declined. That the defendant intended to speculate on future prices and risked the loss of his $5,000 did not make the contract illegal. “Since the element of risk is present in all executory transactions, the presence of a risk does not make a contract a wager, as long as the risk is found in the outcome of an event which is not arbitrarily selected by the parties, but which, in the ordinary course of things, affects the transaction into which the parties have entered, so as to give them an interest therein. “If the risk is one which is inherent in the nature of the transaction and which is not arbitrarily selected by the parties, the contract is not illegal.” 2 Paige on Contracts (2d Ed.), pp. 1463, 1464. ' “It is not considered a wager where there is a real and inherent relation between'the contingency and the gain or loss to the parties.” 12 R. C. L. p. 748. In this case the sale was of a property right in a valid existing contract; the risk which the defendant assumed did not depend upon an event arbitrarily selected by the parties, but arose out of the subject-matter of the contract; the consideration did not depend upon the rise or fall in the price of sugar; the dealings were not against public policy, and though the contract was speculative it was not gambling or wagering. The third question discussed in the briefs of counsel relates to the charge of the court. It is first claimed that the circuit judge erred in instructing thé jury that a written assignment of the contract to defendant was not necessary. This claim has no merit. Without formal assignment, the defendant became, by reason of his purchase, assignee of the plaintiff’s interest in the additional compensation part of the beet sugar contract. No writing was necessary. There was a valid assignment. The court did not- err in so charging the jury. The plaintiff gave the company a written order to pay the additional compensation to the defendant. The date of the order and the time of its delivery were disputed by the defendant. Referring to this order in his charge the court instructed the jury as follows: “Upon the question of this order you have the right and should take that into consideration as bearing upon the question of the contract between these people, whatever effect you might find or believe that.it has upon the question as to what the bargain was between these parties, as to what the contract was between them, whether they made a'completed, .valid, binding contract between them. You have the right to and should take it into consideration as bearing upon the credibility of the witnesses here; Mr. Wilkie and his son, it is claimed, made that and delivered it at Owosso — you should take that into consideration, the question of time when it was actually delivered, when you find it was delivered there, what effect that had, what was his purpose if any in delivering it at that time. Take all of those facts into consideration.” Counsel for the defendant complain of this instruction that, “it allowed the jury to determine from a self-serving act of the plaintiff whether or not he was telling the truth in regard to what took place between the parties at the time of their talks.” According to the testimony of the defendant the matter of an order on the company was discussed at their second meeting. He testifies that he said to the plaintiff: “ ‘Rob, if I put up the money, you will have to fix to secure me some way,’ and he says, ‘All I could give you would be an order on the company for the bonus, and if you are not satisfied with that we will just have to call the deal off,’ and I said, ‘All right, Rob, that is up to you,’ and he said, ‘Well, we will call it off, then,’ and I said, ‘All right;’ stood there a minute and he said, ‘Well, I suppose you will want your $25 back,’ and I said, ‘Why, I sure will,’ and he says, ‘Well, I haven’t got it with me, but I will hand it to you sometime when I see you,’ and he went away.” If the defendant has correctly related the conversation the contract failed of completion because he would not agree to accept an order on the company in lieu of security and the plaintiff would not agree to give the security. The plaintiff denied this and claimed that the matter of giving an order on the company was not discussed between them. Thus, there was presented a question of fact for the jury to determine. Their determination of these facts would settle the question as to the completion of the contract. The effect of the instruction complained of was to inform them that they might consider the giving of the order as evidence of a completed contract. The defendant had no knowledge that the company had received such an order until some time in March, several months after the suit was commenced. The delivery of the order to the company was a self-serving act on the part of the plaintiff. It cannot be regarded as evidence that the parties had agreed upon all of the terms of the contract. The completion of the contract did not depend upon the giving of the order. Under the instruction the jury was at liberty to consider it as supporting the plaintiff’s testimony on a very important disputed question of fact. This is reversible error. The judgment is reversed and a new trial granted. Defendant will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Clark, J. On October 27, 1914, plaintiff, an experienced woodworker,, was operating, in defendant’s shop, a machine commonly known as a jointer. In an opening in its table was a metal head into which were set knives, over which head, when revolving, the timber to be machined was passed. In the operation, plaintiff’s hand came in contact with the revolving head and he was injured. The most serious negligence charged, in substance, is that the machine was dangerously out of repair. The claimed lack of repair is set forth at great length'and relates to nearly all parts of the machine and to its bed. Plaintiff’s most significant testimony in this regard, stated generally, is to the effect that the belt from the power shaft to the pulley of the machine was old, weak and of insufficient width, resulting in an uncertain and irregular motion of the head when in operation, that this motion was aggravated by a lack of babbitting of the shaft of the machine and that further difficulty and danger were added to plaintiff’s work by vibration due to weak and worn bed to which the machine was poorly and insecurely fastened. He also testified that the metal head used was square and that it should have been round and that the use of an unsuitable square head added to the danger and increased the opening into which his hand went. A lack of a suitable guard is also averred. The declaration also avers that neither plaintiff nor defendant, at the time in question, had signified acceptance of the workmen’s compensation act, and during the trial plaintiff sought to amend by striking out this averment, but leave was not given, and to support this averment plaintiff testified that no notice, as required by the act, had been posted in the shop at the time of the accident. A purported certificate by the secretary of the department of labor and industry that defendant had not accepted the provisions of this act was offered in evidence and excluded. Defendant’s plea contained no notice that it had elected to pay compensation under the act. On motion, a verdict was directed in favor of defendant and judgment entered on the ground that plaintiff had offered no proof in support of his averment that the parties were not under the workmen’s compensation act. Plaintiff brings error. We think it unnecessary to review the various proceedings, mistrials, and orders permitting plaintiff to amend, by which the present declaration was finally produced, being of the opinion that the permitting of the several amendments, though latterly somewhat indulgent, was not an abuse of discretion, and that at the instant trial plaintiff was rightfully in court with a declaration stating a case of actionable negligence. Plaintiff need not have inserted in his declaration the averment that the parties were not under the workmen’s compensation act. The statement was surplusage. He was not required to negative an anticipated defense. ■ In this State an employer may elect to pay compensation. If he so elects such election is a matter of affirmative defense in a common-law action by an employee for an injury arising out of and in the course of the employment. Employers, except of household domestic servants and farm laborers, if they do not so elect are deprived of certain defenses in such common-law actions (2 Comp. Laws 1915, § 5423 et seq.). But there is no presumption that an employer has so elected. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8. We think the rule applicable under our statute is stated in Salvuca v. Ryan & Reilly Co., 129 Md. 235 (98 Atl. 675): “The real question properly before us is whether the employee, if he sues, must set out in his declaration the failure of the employer to comply with the requirements of the act, or that he is not subject to its provisions, or whether the defendant should plead the facts he claims protect him from suit, or rely on them in his defense. We are of opinion that the burden should be and is on the defendant to show that he has complied with the act and is subject to its provisions. If he has complied, he can easily plead and prove the fact, and the plaintiff ought not to be required to allege in his declaration and prove the negative — that the defendant has not complied.” And see Kampmann v. Cross (Tex. Civ. App.), 194 S. W. 437. Counsel for defendant cites Krisman v. Mining Co., 190 Ill. App. 612, and Hodges v. Swastika Oil Co. (Tex. Civ. App.), 185 S. W. 369. A reading of those cases will show that they are clearly distinguishable on statutory grounds. And this may be said of Beveridge v. Illinois Fuel Co., 283 Ill. 31 (119 N. E. 46), 206 Ill. App. 145. Plaintiff because of such negative and unnecessary averment did not assume the burden of proof as to the matter. It is said in 2 Abbott’s Trial Brief (2d Ed.), p. 902: “Plaintiff by inserting in the complaint matter not essential to his cause of action, but intended to negative an anticipated defense, does not assume the burden of proof as to that matter. But if the answer sets up that defense, the defendant must prove’ it;” citing Murray v. Insurance Co., 9 Abb. N. C. 309, 85 N. Y. 236; Coburn v. Insurance Co., 145 Mass. 226 (13 N. E. 604). And see Lewson, Plead. & Prac. p. 152; Lesher v. Guaranty Co., 239 Ill. 502 (88 N. E. 208). Plaintiff seeks a ruling upon the admissibility of certain testimony. He sought to prove knowledge of and notice to defendant of the dangerous condition of this machine as operated without repair. Meeting objections of counsel and adverse rulings by the court he made, not in the presence of the jury, the following offer which was refused: “Mr. Nelson: I want to show that April 28, 1914, on the same machine for the same reason and without any change in the condition of the machine intervening, that John Hilts who is here as a witness suffered the same or a more serious injury to the same hand on this machine; that prior to that, a few months, another man had a similar accident under similar circumstances, no change in the condition of the machine. About the same nature for the same reason. ' I want to show that by Mr. Scrimger when we produce him. We will produce a man who knew about this head at the time Mr. Hilts was injured; that it was taken out of the machine by order of the superintendent and foreman and was not used until the time of this injury, on the order of Mr. Scrimger after he knew that it had injured two other men in the same year. We want to show that the company knew of the danger of operating that machine as it stood; knew it should not be operated without repairs and a different kind of a head and a guard. * * * I will concede we could not show similar accidents on a different machine— after the accident, but we offered to show accidents and the condition prior to this accident; we will show that six months prior to this time an accident happened on the same machine and that the head was taken out of the machine at that time and had never been in the machine from the time of that accident six months before until this time; that there has been no change in the condition of the machine except to take out and put it back in.” Of what Mr. Scrimger, defendant’s manager, said to him, plaintiff testified: “We have to do something to hurry this work out. He wanted me to take that machine and run it and get this work out. I told him there was no head in the machine.” And: “Q. Do you know why it was not in there? “A. Why, yes. “Q. How did that happen? “Objection that this was immaterial, incompetent and irrelevant was sustained though Mr. Nelson called attention to the fact that the answer anticipated would bring home to the defendant notice of the condition of the machine. “Q. Were there many changes in the condition of the machine between the time the head was taken out and the time that Mr. Scrimger told out (you) to operate the jointer? i “A. No, sir. “Objected to. “The Court: I will sustain the objection. “Q. How long had this head been out of the machine, if you know? “Objected to. “The Court: I will sustain, the objection. “Mr. Nelson: I want to show-that the company knew the condition of the machine. I want to bring home notice.” It will be noted that plaintiff offered such testimony to show notice and knowledge of the dangerous condition of the machine, not to show negligence. We think these rulings erroneous. If plaintiff had testimony of similar accidents on the same machine, for the same reason, without change in conditions, it ¡should have been received. And if defendant removed the head from the machine at the time of an injury to another employee in the manner claimed by plaintiff and, keeping the head out of the machine for months, returned it in the manner and under the •conditions claimed and directed plaintiff to operate ¡such machine, evidence to that effect should have been received. In Branch v. Klatt, 178 Mich. 31, it was said: *** * * and it now stands as the law in this State that evidence of prior similar accidents in the same place, the conditions being shown to remain unchanged, is admissible to prove both notice of the defect and negligence.” And in 10 R. C. L. p. 940: “It has been said that there is no better evidence of negligence than the frequency of accidents. To show the dangerous character of a machine and the owner’s .knowledge thereof, in an action to recover damages '.for injuries from its use, evidence is admissible of accidents to others under like circumstances.” And see 29 Cyc. p. 612; 22 C. J. p. 753; 32 L. R. A. (N. S.) 1096; Woodworth v. Railway, 153 Mich. 108; Mayer v. Railway, 142 Mich. 459; Van Doorn v. Heap, 160 Mich. 199. Defendant suggests a variance between averment and proof. Plaintiff’s declaration states that his hand was; drawn into the head. He testified on direct-examination that “it grabbed my fingers.” Though on cross-examination he described how his hand came to be -near and in contact with the head in somewhat different language, in view of the testimony quoted we find no fatal variance. We think the testimony of the lack of babbitting of the shaft of the machine was admissible and that plaintiff should have been permitted to testify fully in that regard. Whether testimony relative to a lack of a guard would be material, we are unable to say on this record. Other questions suggested are not likely to arise on a new trial, but in any event are not difficult and are fully covered by cases easily accessible. Plaintiff made a case of actionable negligence for the jury, and it was error to direct a verdict for defendant. Judgment reversed with costs to plaintiff. New trial granted. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. The purpose of this bill is to secure an accounting in a partnership business. On the 16th of August, 1918, the Minnesota Mutual Life Insurance Company of St. Paul entered into a contract with, defendant Maurice L. Chertok of the city of Detroit,, whereby Chertok was to represent the company within certain territory, which included the city of Detroit. On the 31st of August, 1918, the plaintiff and defendant Chertok formed a partnership to operate a general' agency in the underwriting of life insurance policies. ' In the partnership agreement, it was pro vided that the plaintiff "shall not be entitled to participate in any renewal commissions earned under this agreement or any policy unless he shall have been a partner for at least one year from the date such policy was written.” The parties continued in business together until the latter part of May, 1919. On May 1, 1919, the Minnesota Mutual Life Insurance Company canceled its agency contract with Chertok to become effective in 30 days. At the expiration of that time the company appointed plaintiff its agent. Late in March or April, 1919, the plaintiff solicited the four Cronin brothers, then engaged together in the coal business, to take insurance with the Minnesota company. Their medical examination was had on April 4th and April 5, 1919, but the applications were not signed until June 16, 1919, and the policies were not issued until June 23d. The plaintiff claims that this insurance did not belong to the partnership business. The defendant claims that it was actually obtained before the expiration of this agency, but was wrongfully withheld until after the partnership was dissolved. On the hearing the circuit judge found that the Cronin insurance was not partnership business, and, therefore, defendant Chertok had no interest in it. The decree entered denied the plaintiff’s interest in renewal commissions, denied the defendant renewal commission in policies issued on the life of plaintiff, and ordered an accounting. The defendant Chertok is here on appeal asking for a modification of that part of the decree which denies his interest in the Cronin insurance. As the case is presented by the record it seems to depend on a simple question of fact as to whether applications for insurance were signed by the Cronins at the time they took their medical examinations on April 4th and 5th, and withheld by plaintiff. The plaintiff and the two Cronins, who were sworn as witnesses, say that no applications were signed until June 16th, after the copartnership was dissolved. The defendant and Mr. Goodman, who prepared his case for trial, testified that they saw applications dated April 4th and 5th in plaintiff’s possession. In explaining why the medical examinations were taken in April and the applications not made until June, Arthur D. Cronin testified as follows: “Q. Now, why — have you any explanation to make for the lapse of time between the medical application and the date of signing the application? “A. Why, I was stalling; we had considerable coal on hand, and I didn’t take the insurance from him until I knew he would continue buying coal. That was the only reason. “I made the agreement with him when the policy was issued in June. He was to buy a certain amount of coal. I told him that in June. I made that arrangement in June because we had considerable coal on hand. We were converting it into cash, and figuring the premium was worth so much, the insurance was worth so much. We decided, perhaps sometime in May. I am not sure when I decided I would take it. I talked it over with Fred. “Jacobson came in the following day. Prior to that I was stalling along with him to induce him to buy coal. We were figuring on insurance, too, with Sam Frank. He was also buying coal. The one that bought the most coal was the one that got the policy.” This testimony furnishes a reasonable explanation of the one circumstance indicating that plaintiff had withheld the Cronin insurance until the partnership was dissolved. It is impossible to harmonize the testimony of the other parties, but we see no reason for discrediting that of the Cronins. They were disinterested witnesses. They were in no way impeached. Their testimony causes a preponderance of the evidence in plaintiff’s favor. Conceding to that testimony the credit to which we think it is entitled, and having in mind the presumption in favor of the conclusions of a trial judge on questions of fact, we are constrained to hold that the Cronin insurance was not a part of the partnership business. The decree will be affirmed. Plaintiff will have costs in this court. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and, Steere, JJ., concurred.

Wiest, C. J. The above actions are practically identical in their material facts. The plaintiffs are farmers of Lenawee county, Michigan. The defendant is engaged, in the business of discounting acceptances and similar commercial paper in Detroit, Michigan. In the summer of 1921, one John Edwards came to the General Discount Corporation, representing that he was engaged in the cattle business, and wished to borrow about $17,500 for about ten days to move a train of cattle from Chicago to Monroe, Michigan,- where he said he had arrangements to put them on feed with farmers of that vicinity. Finally it was arranged that the General Discount Corporation should, through ‘its Chicago correspondent, pay that amount and take a bill of sale of the steers, and have them shipped in its name, care of Mr. Edwards, to Monroe as security for the loan, which was done. The cattle were purchased in Chicago in the name of the General Discount Corporation and shipped in its name, care of Mr. Edwards, to Monroe, Michigan, where they were parceled out by _ Edwards among farmers, including the plaintiffs in these three cases. These plaintiffs sued the General Discount Corporation on a special contract for feeding the cattle, claimed a lien on the cattle under section 14831, 3 Comp. Laws 1915, and also declared on the common counts; and the court below gave judgments for the plaintiffs, on the theory that Mr. Edwards was agent for the defendant or was engaged in a joint enterprise with defendant. The three cases were tried together before the circuit judge without a jury, it being stipulated by the parties that the facts shown in the case of Mills v. General Discount Corporation should apply to and be used in the other two cases in so far as they were applicable. The court, in deciding these cases, filed findings of fact and conclusions of law in each case on April 20, 1922. The brief of the defendant was filed in this court December 21, 1922. The case is brought into this court by writ of error. Defendant filed nos exceptions to either the findings of fact or law. On January 11, 1923, a motion was made on its behalf in this court to amend the record so as to show that exceptions were taken, and counsel cite in support of such, motion section 12632, 3 Comp. Laws 1915. Counsel say this statute makes it unnecessary to take exceptions to findings of fact and law, and that, if Circuit Court Rule No. 45 is in conflict with the statute, the statute supersedes the rule. The recent case of Curry v. Shears, 216 Mich. 699, is in conflict with the contention of counsel, and, we think, is controlling of the instant case, and the only question open to us to review is whether the findings of fact support the judgment. See Rameau v. Valley, 168 Mich. 569, and Simon v. Zarevich, 213 Mich. 662. It would profit no one to incorporate the findings in this opinion, and we content ourselves with saying they support the judgment. The judgment is affirmed, with costs to the appellee. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Wiest, C. J. Plaintiff owned a saw mill at Goodar, Ogemaw county, and the run of sawing there having ended, and learning that defendants had considerable holdings of timber on the Au Sable river division of the Detroit & Mackinac railroad and the Au’ Sable river and its tributaries, he entered into a contract with them, on August 23, 1916, to move his mill to Au Sable or Oscoda and locate it on a site to be provided by defendants, and saw the logs of defendants into lumber during the logging season of 1916-17, and following seasons, at agreed prices. The contract contained the following: “It is mutually agreed that delivery of logs under this contract by first parties in any one year shall be subject to any material slump in the market price of lumber, labor conditions, strikes and lockouts and to any- unavoidable casualty, and the manufacture of logs into lumber by second party shall also be subject to strikes, labor conditions and lockouts and any unavoidable casualty.” Finding his finances would not enable him to move the mill, plaintiff,, on December 7, 1916, gave defendants a bill of sale of his mill, as security, and they indorsed three of his notes amounting to $5,000. The same day an agreement was also signed by the parties relative to such indorsements and the purpose thereof, and the prospective release of the bill of sale. Plaintiff was still unable, financially, to move the mill and was also unwell and, on February 8, 1917, he entered into an agreement with defendants, giving them full supervision over the moving of the mill and requiring them to pay the expense thereof, but with power to operate the mill when reconstructed and apply the net earnings arising from the carrying out of plaintiff’s sawing contract to repayment of the moneys advanced for the removal, reconstruction and operation of the mill. Plaintiff agreed to reimburse defendants for all moneys so advanced and allow the net profits from the operation of the mill and the sale of byproducts, determined under the terms of the contract of August 23, 1916, to apply upon such advances, and if in two years from May 1, 1917, defendants should- not be reimbursed, then all earnings to be applied on the depreciation or deterioration of the mill, machinery, etc., and the earnings to belong to defendants without any rights remaining to plaintiff under the agreement of February 8th, or the first agreement or the bill of sale. This left the original contract, under which plaintiff was to move his mill and saw lumber for defendants, in full force, at least up to May 1, 1919, but gave the management and the financing of operations into defendants’ hands, with security looking toward their reimbursement. At the time this last agreement was executed plain tiff was sick and discouraged and had made but small progress in moving the mill, and he offered to turn the mill over to defendants if they would release him from his obligations. His obligations at that time consisted of the contract for sawing and the $5,000 obtained on defendants’ indorsements. On that date the mill was worth only its scrap value of possibly $5,000, unless its removal was completed and it was reconstructed and employed in sawing logs. Instead of accepting such offer defendants proposed the arrangement made. The moving of the mill was completed by defendants and they paid plaintiff a salary thereafter for his assistance in the removal and reconstruction of the mill and paid all expenses of such removal and reconstruction, and the expenses of operating the mill. Defendants operated the mill, commencing in June, 1917, and furnished plaintiff with statements of expenses and income. The cost of moving, reconstructing and operating the mill up to May 1, 1919, after crediting plaintiff, under his contract for sawing, amounted to $54,971.63, according to defendants’ claim. Defendants offered to throw off $20,000 of this and let plaintiff take his mill if he would pay the balance. Plaintiff declined and filed the bill herein to have the contract of February 8, 1917, adjudged void for fraud, in inducing him to sign it, and defendants made to account for the use of the mill. The trial judge set aside the contract of February 8, 1917, decreed the bill of sale, dated December 7t, 1916, a mortgage, and defendants mortgagees in possession, with the title to the mill and its appurtenances and to the lease of the milling and piling grounds in the plaintiff. The court also found: “That the compound word, ‘labor-conditions,’ in the contract of August 23d, 1916, means the price which plaintiff would find it necessary to pay for labor in the manufacture of defendants’ logs into lumber and lath and that it is not an ambiguous term.” The court directed further testimony to be taken relative to an accounting between the parties. It is stated in the brief of counsel: “The plaintiff claims, in respect to the contract of February 8, 1917, that it is so unconscionable in its terms and was executed under such circumstances of imposition, circumvention, fraud, undue influence and gross inequality, and at a time when the plaintiff was placing confidence in the defendants, and was suffering from a nervous breakdown and was worried to the point of distraction over his wife’s health, and his own financial business matters and when, as a result thereof, and of the urgings and importunities of the defendants, he was in such a condition of mind that he could not and did not comprehend the full import of the contract and was willing to make any kind of a sacrifice, even to the point of giving "away his mill property, valued at $40,000, in order to gain what, to his then weakened mind, appeared to be relief from his worries and troubles; all of which was well known to the defendants, and of which they took advantage to induce him to execute the contract; that it does not represent that full and free meeting of minds necessary to the validity of a contract, and that the same is therefore void.” This is a formidable arraignment and would entitle plaintiff to relief if established by the proofs. What was there unconscionable about the contract of February 8, 1917? Subsequent events have demonstrated that it was an unfortunate engagement for plaintiff but this does not warrant the charge that it was unconscionable, and loses sight entirely of the fact that the loss came through operation of the mill according to the terms of the . first contract. But, it is said, the first contract did not require plaintiff to saw any given quantity of logs in a given time. This begs the question. Plaintiff was of the opinion that the first contract was of value to him, and it bound defendants to supply him with a run of logs to keep his mill busy. The circuit judge was of the opinion: “That the plaintiff was not bound by the contracts of August 23, 1916, and December 7, 1916, to manufacture any amount of lumber within any specified time; that in neither of these contracts was time made as of the essence of it; that therefore, in so far as his obligations under them were concerned, there was no peace for him to buy, however much, he, in his over wrought condition, may have imagined that there was. “For, in so far as these contracts bound him, he could have ceased his rebuilding operations before February 8, 1917, and could have refused to resume operations until the arrival of a more propitious time, without insuring liability to the defendants.” Aiding plaintiff to keep his legitimate contract and insisting upon performance warrants no charge of making plaintiff buy peace. The learned circuit judge seemed to be of the opinion that this bore directly upon the charge that the contract of February 8th was unconscionable and fraudulent. We do not agree with the inference so drawn. The facts and circumstances negative the charges made. No one knew at the time of the contract of February, 1917, what it would cost to move and reconstruct the mill, and plaintiff knew best whether it could be operated under the first contract prices at a profit. Having entered into the contract with plaintiff, under which he was to move his mill and saw the logs, defendants wanted that contract performed, and they had a right to ask and plan that it be carried out. Plaintiff was under obligation to perform that contract. Performance was arranged by the last contract under which the expense of performance was to be met, in the first instance, by defendants and they to be repaid out of plaintiff’s returns under the first contract. This was legitimate. When the parties agreed upon the contract of February 8th, defendants had a right to insist upon performance of the first contract. They wanted their logs cut into lumber. The fact that defendants did not accept plaintiff’s offer to turn his mill over to them, if they would release him from his sawing contract and' the indorsement obligation, warrants no deduction that they fraudulently induced him to enter into such contract. The so-called unconscionable contract was. merely one to carry out and to assist plaintiff in carrying out the first contract. Plaintiff appears to have been rather slow in discovering the fraud he now claims. Upon entering into the contract he immediately gave his attention to the carrying out of its provisions; he took part in moving the mill and reconstructing it and was placed on the pay-roll of defendants and received $30 per week for his services. He was furnished statements from month to month of the expenses of operation and of the returns. If advantage was taken of his weakened physical condition, on account of sickness and his distress of mind over the sickness of his wife, to get him to enter into this contract, certainly he was fully conscious of what the contract was when he actively engaged in carrying it out and received pay for his work. He could not enter into such a contract, assist in carrying it out, and let it proceed along for two years, and then come in and claim it was procured by fraud and have it wholly vacated. We have gone over this record and find no fraud perpetrated in obtaining the contract of February, 1917. The question of the effect of the contract will be taken up later in the opinion. The term “labor conditions” does not constitute a compound word, but each word carries its own sense and as here employed they relate solely to ability to obtain workmen. The term relates to an excuse for temporary suspension on account of a plight, and not to increased compensation for performance. The term “labor conditions” is sandwiched between the terms “strikes” and “lockouts,” and clearly refers to the scarcity of labor and for that reason, justification for a temporary suspension, and bears no relation to the cost of labor. Upon the meaning of the term “labor conditions” the testimony of the plaintiff was wholly inadmissible. Plaintiff has not established the fraud charged and, therefore, is not entitled to have the contract of February, 1917, vacated. We are of opinion that this contract was for security for advances to move, reconstruct and operate the mill, to saw lumber in accordance with plaintiff’s first contract, and, being for security, defendants cannot insist upon forfeiture of plaintiff’s rights and ownership without foreclosure proceedings. Equity will not permit a breach of conditions, such as in this contract, to operate as a foreclosure. There should be an accounting between the parties in accordance with their engagements and, if there is an amount due the defendants, they should be awarded a decree of foreclosure. This accounting should cover the whole period of their dealings up to the time of taking it. The decree entered in the court below is set aside and the case is remanded for an accounting and decree thereon, in harmony with this opinion, with costs to defendants. Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred. Clark, J., concurred in the result.

Moore, J. On the 14th day of August, 1916, the plaintiffs entered into a contract for the purchase of a house and lot in the city of Detroit, with John Mnialkowski. In the contract is the following: “This property is situated on the east side of Roby place and known as 24 Roby place, between Ferry and Medbury avenues, for the sum of four thousand one hundred fifty dollars, which the said parties of the second part hereby agree to pay the parties of the first part, as follows: Four hundred dollars, at the date hereof, and the remaining three thousand seven hundred fifty dollars in quarterly payments of fifty dollars or more, payable on the 14th day of the follow ing months: November, February, May and August, in five years from date, with interest on all sums at any time unpaid hereon at the rate of six per cent, per annum till due, and thereafter at the rate of 6 per cent, per annum till paid, payable quarterly from the date hereof. Said parties of the second part also agree to pay all taxes and assessments, extraordinary as well as ordinary, that shall be taxed or assessed on said premises from the date hereof until said sum shall be fully paid as aforesaid.” Later the contract was assigned to the defendant and thé. property deeded to her. The plaintiffs made the payments for five years, except the last one, and tendered that one, and they also paid interest and all taxes and assessments. Later they received the following letter: “Leonard F. Kowalski, “Attorney at Law, “666 Forest Ave., East, “Detroit, Michigan. “To Stefan Sidorski, and Ewa Sidorski: You will please take notice that on the 14th day of August, 1921, I, the undersigned, will demand the payment of the balance becoming due upon the land contract executed between John and Elizabeth Mnialkowski, and yourselves on the 14th day of August, 1916, for the premises which you now occupy; the balance becoming due on said date is the sum of twenty eight hundred dollars. “This demand is made in accordance with the provision in said land contract contained. “June 8, 1921. Mary Leppak, “Assignee of John and Elizabeth Mnialkowski.” The plaintiffs attempted to make further quarterly payments of $50 each, and interest, but these were refused and the bill of complaint in the case was filed. After the case was put at issue there was a trial upon the merits, and a decree was entered; the material parts, omitting the formal part, read: “And which said land contract was afterwards assigned by said grantors to Mary Leppak is hereby corrected and reformed to read as follows: ‘And the remaining three thousand seven hundred and fifty dollars in quarterly payments of fifty dollars or more, payable on the 14th day of the following months: November, February, May and August, to be extended and renewed in five years from date/ “And it is further ordered, adjudged and decreed that the injunction heretofore granted in this cause-,, commanding Mary Leppak, her counselors, attorneys and agents, to desist and refrain from forfeiting or attempt to forfeit the land contract existing between the said Mary Leppak and the said Stefan and Ewa Sidorski in regard to the property located at No. 5546 Roby place in the city of Detroit in the county of Wayne and State of Michigan, so long as they, the said Stefan and Ewa Sidorski, are not in default in the quarterly payments of fifty dollars and such other terms and stipulations as they are required to perform under the said land contract, is made permanent!” The case is brought into this court by appeal. We quote from the brief filed on behalf of the appellant : “(1) That the plaintiffs have not sustained the burden of proof cast upon them in actions of this kind. . “ (2) That plaintiffs, by their inaction, waived their right to insist upon a reformation of the contract. “(3) The defendant is a bona fide purchaser for value without notice and a mistake in a written instrument will not be corrected against such party.” As to the second of these propositions it is an answer to say that the bill of complaint was filed July 18, 1921. It is very clear that, if $3,750 of principal was to be paid in quarterly payments of $50, payable on the 14th day of November, February, May, and August, the entire sum would not be paid in five years from date; but it is said the quarterly payments were to be $50 or more. How much more, and which, of them must be for a larger amount? Does the contract say? The answer must be in the negative. It will be observed also that it is provided, we-quote: “In five years from date with interest on all •sums at any time unpaid hereon at the rate of six .per cent, per annum, till due, and thereafter at the rate of six per cent, till paid, payable quarterly from 'the date hereof,” indicating, we think, that it was. not expected that the full amount of the principal would be paid in five years. We think the contract as written is ambiguous. In Borden v. Fletcher’s Estate, 131 Mich. 220, Chief Justice Hooker, speaking for the court, said: “Among the cases supporting the rule permitting the interpretation of language, susceptible to two "constructions, in the light of surrounding circumstances, is Facey v. Otis, 11 Mich. 213, where parol proof of such circumstances was resorted to, to determine whether the contract was made by one party for himself or as agent for another. The case, of North American Fire Ins. Co. v. Throop, 22 Mich. 146 (7 Am. Rep. 638), is. another case where parol proof of surrounding circumstances was received to explain the sense in which equivocal language was used. In Waldron v. Waldron, 45 Mich. 350, the identity of land devised turned upon such evidence of surrounding circumstances; while in the case of Moran v. Lezotte, 54 Mich. 83, the words "running to the rear’ were made to read ‘running towards the rear,’ through the force of surrounding circumstances. See, also, Cook v. Brown, 62 Mich. 479 (4 Am. St. Rep. 870), and Home Savings Bank v. Hosie, 119 Mich. 123. We have a number of cases which hold that it is competent to show that a name written upon the back of a note was placed there before uttering the note, thereby making one a joint maker who might otherwise be an indorser, and perhaps would be understood to be such from the writing unexplained. Rothschild v. Grix, 31 Mich. 150 (18 Am. Rep. 171); Herbage v. McEntee, 40 Mich. 337 (29 Am. Rep. 536); Greusel v. Hubbard, 51 Mich. 97 (47 Am. Rep. 549) ; Farwell v. Ensign, 66 Mich. 600; Sibley v. Bank, 41 Mich. 196. See, also, Eckford v. Berry, 87 Tex. 415 (28 S. W. 937). In Kendrick v. Beard, 81 Mich. 182, parol evidence was used to determine whether an instrument was intende*d as a mortgage or conditional sale. For cases permitting evidence of the acts of the, parties under the contract as aids to construction, see 2 Am. & Eng. Enc. Law (2d Ed.), p. 293; Kendrick v. Beard, supra. Again it is stated in 2 Am. & Eng. Enc. Law (2d Ed.), p. 303, that parol evidence may be admitted where it appears from extrinsic evidence that there are two persons or objects or modes of performance corresponding to the terms of the contractand the doctrine is illustrated by cases cited in the note. See, also, Id. 297, 298.” In French v. Sparrow-Kroll Lumber Co., 135 Mich. 424, Justice Carpenter, speaking for the court, said: “We are referred to Martin v. Bell, 18 N. J. Law, 167. There a certain note was received from a partnership, ‘as collateral security for certain notes we held of theirs/ In speaking of this language the court said: ‘The words * * * would, in sound legal and grammatical construction, apply to all such notes then held/ But it was held competent in that case to show by extrinsic evidence precisely what notes it was intended should be secured. * » * * “We are thereby furnished with evidence which enables us to ascribe to' the words of this exception their natural and appropriate meaning. “ ‘It is a fundamental rule that, in the construction of contracts, the courts may look not only to the language employed, hut' to the suhject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.’ Merriam v. United States, 107 U. S. at page 441 (2 Sup. Ct. 540). “We are bound, therefore, to construe the language under consideration by the aid of this extrinsic evidence.” See Saginaw Milling Co. v. Schram, 186 Mich. 52; Mullreed v. Thumb, 116 Mich. 444. Mrs. Sidorski testified in part: “You knew that you were to pay this contract up in five years at the time you signed this contract, didn’t you? “A: Supposed to be signed for another five years. “Q. At the time you signed it, you knew that it was to be paid up in five years? “A. No. “Q. Well, wasn’t this contract read to you, and explained to you before you signed it? “A. It was read and explained, and we are supposed to have this contract renewed over again for the next five years, if we want. “Q. After the expiration of the first contract? “A. Yes, sir. “Q. Who told you that you would get five years more after the expiration of this five years? “A. The man that read the first contract off for us. “Q. Who told you that, the man you were buying from, or the party who drew this contract; up? “A. Mnialkowski told me.' “Q. Mnialkowski is the man who sold to you? “A. Yes, that is the man that sold the house to us. “Q. This contract was explained to you in Polish, wasn’t it, before you signed it? “A. Yes, sir. “Q. Have you made any attempt in the last three years to pay up «this contract? “A. I don’t want to, because I could not.” Mr. Mnialkowski was sworn as a witness for the defendant. His recollection did not seem to be very clear. We quote some of his testimony: “Before I and these people signed the contract, we have spoken of the payments and they told me that it will probably be hard to pay in five years, but I told them they could draw a mortgage out to the bank, and they could pay in full. “Q. Did they then agree to take this house on those conditions, that you suggested, to pay the contract up in five years? “A. Yes, sir. “Q. Was there any talk between you and these parties as to an additional five years, after this five years expired? “A. I just told them that after five years, the bank will pay them off, or someone else. “Q. Was there any talk between you and them- as to an additional five years, after this first five years? Answer that yes or no. “A. I told them after five years, the bank will pay them off, or something else.. . I don’t remember five years ago. “Q. Do you remember having said that five years, that within five years they could draw a mortgage? “A. Yes, sir; they could get a loan. “Q. Would you have sold this house to them if you were to give them ten years to pay the contract? “A. No, sir. “Q. Why not? “A. Because it was a small payment down, it was only $400. “Q. Being that they agreed to pay up this contract in five years, was that an inducement for you to sell them this property at the small payment of $400 down? “A. They told me they will pay more — not $50 only. “Q. Well, was that one of the inducements? “A. Yes, sir; because they said they will pay as much as they can.” The man who drew the contract was called as a witness by the defendant. He did not remember the plaintiffs. We quote from his testimony: “That is the land contract made by me and witnessed by me. There was no talk in my office when this contract was entered into of an additional five years. It might have been said that they could not get it down, that they would assume the mortgage, if there would be a mortgage. Thére was talk about a mortgage in my office. I made a number of these contracts for five years and when it was impossible for people to pay in five years, it was suggested that they could take a mortgage so they were willing to take this contract at five years and if you can’t pay the entire balance then take out a mortgage, and it was talked so in this case before these people signed the contract, nothing was said by Sidorskis that they wanted any additional five years. When I put the phrase, Tn five years from date/ it meant the contract should be paid up in five years.” There is nothing said in the contract that at the end of five years, if the quarterly payments were made, as provided therein, that a deed would be given and a mortgage would be taken, either running to the seller of the house and lot, or to a bank, if the money was obtained from a bank. The plaintiffs in this case are illiterate Polish people, who signed the contract by making their mark. They also signed the bill of complaint in this case in the same way. It is clear in any view of the testimony that the understanding of the parties was not put into the contract. No one expected the house and lot would be paid for in full in five years. The trial judge had the great advantage of hearing and seeing the witnesses, and he believed the version given by Mrs. Sidorski. It is urged that defendant is a bona fide purchaser without notice and for that reason a decree should be granted in her favor. If we are right in our interpretation of the contract that defense is not available to her and a reading of the contract by her would show the-times and amounts of payment were not definitely stated in the contract. The decree is affirmed, with costs to the appellees. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Moore, J. The supply of water in Saginaw was thought to be impure. To get water of a better quality the Fordney Hotel put down an artesian well on its own property and piped the water therefrom throughout the hotel except in the pool room. On January 15, 1922, the plaintiff entered the employ of the hotel company as head waitress; she roomed and boarded in the hotel until the 23d of February when she was taken down with typhoid fever, which she •claims was the result of drinking the water from the artesian well. Soon after she was taken sick she was removed to a hospital. It was some time before she could resume work. She made a claim for compensation,, which found its way in due course of time to the department of labor and industry, where an order was made granting her an award of $14 per week during the period of disability, and the sum of $675.54 for medical attention. From this award the defendants have appealed. The appellants discuss the case under two heads: “1. Is the contraction of typhoid fever an accident within the meaning of the workmen’s compensation act? “2. Did the applicant contract typhoid fever in the course of her employment — or is the award based upon guess, speculation and conjecture?” We quote from the brief: “1. To justify recovery under this statute, there must be a personal injury accidentally sustained, which injury is approximately caused by accident. If the taking of typhoid germs into the system is a personal injury and an accident within the meaning of the law, and further if there is sufficient proof as to the source of the germs, then the award of the department of labor and industry might be correct. * * * “We are familiar with the decision in Dunwoody v. Indemnity Co., 218 Mich. 358, which is relied, upon by the department of labor and industry in their finding of facts. Further, it is not surprising that the board is not familiar with the vast gulf which exists between the avenue of approach to the consideration and construction placed upon provisions in insurance policies and the consideration and construction placed upon provisions in a statute. “The Dunwoody Case is not applicable to the facts herein involved, as in that case the court was considering an interpretation of an insurance contract which was drawn by an insurance company, and which, in accordance with all precedent, was interpreted strictly against the insurance company by this court, and properly so, under all existing authority.” So far as we know there is no Michigan case directly in point. In Adams v. Lead & Color Works, 182 Mich. 157 (L. R. A. 1916A, 283, Ann. Cas. 1916D, 689), it was held there could be no recovery for occupational diseases like lead poisoning, but it is evident that the occupation of head waitress in a hotel does not subject one to the liability of acquiring an occupational disease, and that typhoid fever is not an occupational disease. The word “accident” is defined in Black’s Law Dictionary as follows: “Accident. An unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual or undesigned occurrence; the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it; a casualty.” How could Miss Frankamp foresee that if she drank the water supplied to her in the hotel she would be attacked with “typhoid fever?” I think the language used in Johnson v. Casualty Co., 184 Mich. 406 (L. R. A. 1916A, 475), is pertinent here: “It is said death as the result of ptomaine poisoning does not create liability under this policy, counsel citing American Accident Co. v. Reigart, 92 Ky. 142 (17 S. W. 280), and Bacon v. Accident Ass’n, 123 N. Y. 304 (25 N. E. 399, 9 L. R. A. 617, 20 Am. St. Rep. 748). The first of these citations relates to the improper taking of an appeal and is not in point. The second case is distinguishable and is not controlling. The instant case is more like Paul v. Insurance Co., 112 N. Y. 472 (20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758), where the liability of the company was sustained. No question would be raised here, I take it,_ if the assured by mistake had taken carbolic acid, when he intended to take a helpful medicine. Travelers Insurance Co. v. Dunlap, 160 Ill. 642 (43 N. E. 765, 52 Am. St. Rep. 355). Why, then, should it be said there is no liability when the assured, intending to take nourishing food, in fact took tainted food, which resulted in ptomaine poisoning and death? See Vance on Insurance, p. 570, and notes; Richards on Insurance Law, § 386, and notes; 1 Am. & Eng. Enc. Law (2d Ed.), p. 272, and p. 294; Freeman v. Accident Ass’n, 156 Mass. 351 (30 N. E. 1013, 17 L. R. A. 753); Jiroch v. Insurance Co., 145 Mich. 375.” Why is not the same principle involved when, as in the instant case, one drinks contaminated water, when it was supposed they were drinking pure water. In Dove v. Alpena Hide & Leather Co., 198 Mich. 132, it was held that a case of septic poisoning entitled the claimant to an award. Justice Bird said in part: “Counsel inquire where the accident is which led to liis death. The accidental feature of the case is that by chance the septic germ or germs were taken up by the respiratory organs and carried into his system, an occurrence which the testimony shows probably did happen, but which was unusual in the work at which he was engaged.” See, also, Dunwoody v. Indemnity Co., 218 Mich. 358. “2. Did the applicant contract typhoid fever in the course of her employment — or is the award based upon guess, speculation and conjecture?” Counsel say that where the typhoid germs came from is a matter of conjecture. Miss Frankamp’s hours of work were from 7 o’clock in the morning to 9:30 in the morning, from 12 o’clock until 2 o’clock p. m., and from 6 o’clock until 8 o’clock p. m. She testified on cross-examination that between those hours she was out of the hotel making calls, and that occasionally she took an automobile ride, and it is said by counsel that it might as well be urged that she got the typhoid germs from something outside of the hotel, and that it all rests in conjecture. After the cross-examination was over the plaintiff was examined further. We quote: “Q. Have you any knowledge of the plumbing? “A. The only way they get the water is from the deep well. “Mr. Foster: That is what someone else told you? “A. No, I have seen that with my own eyes. “Q. That is the only water you drank, that you claim, from the deep) well? “A. Yes.” After the plaintiff was taken sick her attending physician caused a sample of the water to be sent to Lansing for analysis, and it developed the water was contaminated. We quote from the record: “The Commissioner: Did you investigate this case when you found out this was typhoid fever? “A. I immediately reported it to the health officer, and asked the health department to make an investigation. “The Commissioner: Did you hear Miss Frankamp’s testimony? “A. Yes, sir. “The Commissioner: If it was proved there were typhoid germs in this water she claims she daily drank at the Hotel Fordney, where would be your opinion she contracted the disease? “A. Not being able to determine any other source of infection, it would seem plausible that infection' was caused through contaminated drinking water. “Q. What would be your opinion? “A. I would say then from the drinking water.” Another doctor, who was health officer of Saginaw when the plaintiff was taken sick, had his attention called to the drinking water at the hotel. A specimen was analyzed and a report returned to the health office from the State laboratory where the analysis was made. We quote: “The Commissioner: What is your opinion as to where Miss Frankamp contracted typhoid? “A. My opinion was she contracted it in the Fordney Hotel?” In Blaess v. Dolph, 195 Mich, at p. 144, Justice Stone said: “We are of the opinion that an inference favorable to the claimant can be arrived at from the evidence in the case, without indulging in any guess or speculation. Germs cannot be traced in their individual wanderings, like persons. No one ever saw a germ go from a source of infection to its victim’s body. Means and sources of infection are, as a general rule, based on observed conditions.” In Dunwoody v. Indemnity Co., 218 Mich, at p. 361, it is said: “We find no difficulty in following the contention of defendant’s counsel that verdicts may not rest on conjecture, guesses or speculation. We do not follow him in his contention that the verdict in this case so rests. Plaintiff’s medical testimony, if believed, makes as certain as medical testimony can make certain that deceased had influenza followed by pneumonia, that it was septic in its nature, of a most virulent type, and that it was contracted from the sputum, septic matter, which the patient accidentally threw into his mouth. * * . * “Defendant’s médical testimony was in conflict with that produced by the plaintiff. The credit to be given the medical testimony, as well as the other testimony, was for the jury.” ■ The award is affirmed, with costs to the plaintiff. Wiest, C.' J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Wiest, C. J. This suit was commenced by capias ad respondendum. In the affidavit for the writ plaintiff alleged: “That on the 31st day of July, A. D. 1920, and the 30th day of August, A. D. 1920, Charles B. Gildemeister by his agent, John Gildemeister, and who is his brother, represented that said Charles B. Gildemeister is the owner of a lease for the Montcalm hotel, 127 West Montcalm avenue, and the Clayton hotel, High and Clifford streets, Detroit, Michigan, and that affiant relied upon that representation that Charles B.. Gildemeister was the owner of a lease covering the Montcalm hotel and the Clayton hotel and it was further represented to affiant that she was to be paid eight per cent. (8%) per month as profits upon any sum of money she desired to invest in these leases. That affiant expressed a desire to invest the sum of five hundred ($500.00) dollars in the lease for the Montcalm hotel and seven hundred and fifty ($750.00) dollars in the lease for the Clayton hotel and, accordingly, a written contract was prepared in each case and signed by Charles B. Gildemeister and affiant, and witnessed by John Gildemeister, and a copy of such contracts secured are attached to the declaration with this affidavit. Relying upon representations incorporated in the written agreement that Charles B. Gildemeister was the owner of a lease covering the Montcalm hotel and a lease covering the Clayton hotel, affiant was induced to pay to John Gildemeister, agent of Charles B. Gildemeister, the sum of twelve hundred and fifty ($1,250.00) dollars. “That thereafter this affiant learned that said Charles B. Gildemeister was not the owner of a lease covering the Montcalm hotel nor the owner of a lease covering the Clayton hotel, and that affiant had been defrauded and deceived.” At the beginning of the trial plaintiff was granted leave to amend the declaration by alleging that defendant acted through his agent, John Gildemeister. Defendant insists that this amendment “changed plaintiff’s cause of action,” and cites Musselman Grocer Co. v. Casler, 138 Mich. 24. In that case the proposed amendment stated a different cause of action from the one in the affidavit for the capias. In the case at bar the amendment brought the declaration to the allegation in the affidavit for the writ, laid no new cause of action and did not at all enlarge or change the identity of the action declared on. Besides, this amendment was whblly unnecessary even under the claim of agency as it was but a statement of the evidence to be given against defendant. “It is a maxim of the law of agency that he who acts through another acts of himself.” 16 Enc. Pl. & Pr. p. 890. Under the evidence, plaintiff was not required to show agency in order to hold defendant, for the agreements with plaintiff, signed by defendant, constituted complete proof of the statements claimed ' to have been made, for in them he stated he was the owner of the leases of the hotels. The wrong complained of, under the evidence, was accomplished through the joint action of defendant and his brother, and the matter of agency of John for* Charles was of little or no importance, for, in torts like this, the law does not consider agency at all but permits the wrongdoers to be sued jointly or severally. Defendant claims there was no evidence establishing the agency of John Gildemeister. What we have just said probably renders it unnecessary to pass upon this point. We will, however, consider it. The negotiations conducted by John Gildemeister culminated in the written agreements signed by defendant. November 25, 1920, defendant wrote plaintiff’s attorney: “Dear Sir: You have been entirely misinformed about Miss Charvat’s seven hundred and fifty ($750.00) dollars. I am not personally acquainted with Miss Charvat. Some time ago my brother suggested that he had several friends who had money they wanted to invest in a hotel lease. I told him to get the money and I would find a hotel. In the meantime I found the Clayton and put a deposit on it. He wasn’t able to raise the full amount and the deal fell through and the deposit was lost.” The brother got the money from plaintiff. The agency was established. Plaintiff called the lessees of the Clayton and Montcalm hotels, who testified to their leases, and that defendant had no lease, without producing the writings. Defendant claims this was error, the leases being the best evidence. The testimony was admissible to negative leases held by defendant. Rayner v. Lee, 20 Mich. 384. There was no error in permitting a witness who had seen de fendant write his name, and claimed he was able to identify his signature, to testify, that certain signatures were those of defendant. Vinton v. Peck, 14 Mich. 287; Empire Manfg. Co, v. Stuart, 46 Mich. 482; Stretch v. Stretch, 191 Mich. 416. Counsel seem to be of the opinion that section 12589, 3 Comp. Laws 1915, was enacted for the purpose of settling the method of proving handwriting and signatures. That statute merely extends one method of evidence by permitting specimens of handwriting or the signature of a person, made before suit is brought, and admitted to be. genuine, or so proved to the satisfaction of the court, to be used for the purpose of comparison. The statute does not at all disturb the rule permitting a signature to be proved by the testimony of any one who has seen the person write and is familiar with his signature and testifies he can identify the same. Here the witness testified .that he had seen the defendant write, and .could identify his signature, and that defendant’s signature was on all three exhibits. Defendant offered no proof at the trial. The trial judge denied defendant’s motion for a directed verdict and instructed the jury to find a verdict for plaintiff for $1,250. ' In a motion for a new trial defendant claimed the verdict was against the great weight of the evidence. With all the evidence in the case directly supporting plaintiff’s claim, and no evidence on the part of defendant, we do not understand that in such a case the question of the weight of evidence arises. Counsel evidently have • confused the question of weight of evidence with that of want of evidence. There is no merit in the contention. It was also urged in the motion for a new trial: “That plaintiff relied upon an agency relating to real property and failed to prove said agency in writing.” As we understand the case plaintiff sued for fraud practiced upon her and not to establish any interest in real property. The point raised does not fit the case. It is urged: “That the agreement relied, upon by plaintiff was void for láck of consideration.” Plaintiff did not sue upon an agreement but" to recover money obtained from her by false representations. The action in such a case is not upon contract, and the contract, if one is made, only enters the issue as part of the evidence of the fraud. The rule of law-Relative to consideration of contracts cuts no figure in an action for money procured by false and fraudulent representations. We find no error. The judgment is affirmed, with costs to plaintiff. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Bird, J. In June, 1920, plaintiff filed her bill for divorce, praying a separate maintenance on the ground of non-support. Defendant answered; denying, the material allegations. Hearing was had and the chancellor granted plaintiff’s prayer for separate maintenance and awarded her money and property aggregating about $5,000. The decree was filed January 16, 1922. While the appeal to this court was pending, and on December 16, 1922, plaintiff died. The defendant contends: (1) The death of the plaintiff terminated the case, and the bill of complaint should be dismissed. (2) The court should not have decreed the plaintiff a lump sum payment. Defendant assumes that this bill was filed under the provisions of 3 Comp. Laws 1915, § 11479 et seq. In this we think he is in error. The bill stated that “separate maintenance was sought,” and the decree provides that said “petitioner, Ellen E. Hagerty, is entitled to a separate maintenance from the defend ant, James Hagerty.” This would appear to bring the case within the provisions of section 11398, which provide for a divorce from bed and board. Cole v. Cole, 193 Mich. 655. The record also gives evidence that at the time of the hearing the parties understood they were proceeding under this statute. The issue was tried out and the plaintiff presented a’ very meritorious case, and the defendant was shown to be worth between $12,000 and $15,000. The court announced his conclusions. They were embodied in a decree, signed and filed. Then the parties began to perfect an appeal, and during this time plaintiff died. Inasmuch as the hearing was concluded and plaintiff’s rights were embodied in a decree, which was signed and filed before her death, we discover no cause for an abatement of the suit. Downer v. Howard, 44 Wis. 82. The next contention is that the court should not have decreed plaintiff alimony in gross. This perhaps would be true under the statute which defendant’s counsel assumed controlled the case. We are of the opinion that section 11414 is controlling of this question. This section provides that: “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.” Our attention'is called to Wagner v. Wagner, 132 Mich. 343, which holds that where alimony was granted under a decree for separate maintenance by the payment of monthly allowances, that upon the death of the husband the allowances should cease. If alimony had been granted in the present case by monthly allowance we should, doubtless, be of the same opinion, but the allowance was made in the present case in gross, and was expressly stated to be in lieu of plaintiff’s dower in defendant’s property and all of her interest therein. Under these circumstances we do not think the provisions of alimony as fixed by the court would be affected by the death of either party. We are of the opinion that both of the questions raised should be ruled against the contention of the defendant, and that the decree should be affirmed, but the decree will not be formally affirmed and filed until plaintiff’s death is suggested of record in this court. The records of this court should show that when the matter was determined there was someone representing the estate of the plaintiff. Plaintiff’s intestate will recover plaintiff’s costs in this case together with an attorney fee of $250. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.

Fellows, J. This bill is filed to set aside a decree entered in the circuit court for the county of St. Clair, in chancery, and affirmed by this court in Watkins, v. Minor, 214 Mich. 380. The opinion in that case fully discloses the facts; the case being a chancery case was here heard de novo. As the testimony was conflicting upon material questions, it became necessary for us to weigh it and decide who was telling the truth. We there declined to accept the testimony of the present plaintiffs at par and a reading of the present record confirms us in the belief that we there correctly measured their testimony. It will be noted that we there found that the original option was signed by the present plaintiff, Clarence B. Minor, on Saturday evening and by his wife on a secular day the fore part of the following week. That option provided for a cash payment. We there held that any agreement to modify it made on Sunday was void. We also held that the purported copies which contained matters not found in the option given Saturday night — indefinite language as to the giving of a mortgage — did not constitute the contract between the parties although we there said: “We entertained no doubt that had defendants deeded the property when requested plaintiff would have acceded to any reasonable request as to the terms of payment irrespective of the precise language of the contract.” We there held that the option as executed by Clarence B. on Saturday did constitute the contract between the parties, that it was a valid contract and we affirmed the decree ordering its specific performance. Claiming that they and their counsel were deceived into believing that plaintiff in the former suit was relying on one of the purported copies instead of the option upon which the decree was based, and claiming that, therefore, they did not fully cover that question by their proofs, plaintiffs seek in this collateral suit to again try the question as to which paper constituted the contract between the parties, seek to obtain a holding that one containing indefinite language as to the mortgage was the contract between the parties, seek to obtain a holding that such indefinite language rendered the contract void, and ask for the entry of a decree in this case setting aside the decree of the circuit court and this court entered in that' case. Without denying the power of a court of equity to vacate a decree for fraud in a proper case (see Raniak v. Pokorney, 198 Mich. 567), we are persuaded that plaintiffs have not made out a case for relief. Plaintiffs and their witnesses testified fully on the hearing of the former case and their version of the entire dealings of the parties was before this court on appeal. We are confirmed in our opinion after an examination of both records that the former case was correctly decided, and that if we had there had all that appears in the present record before us, the result would have been the same. The present case is but an effort to collaterally retry that case in the hope of obtaining a different result. We are in accord with the conclusion reached by the trial judge who tersely said: “It is my conclusion as a matter of fact and law that every essential matter of fact now raised by counsel for Minor was before the court, and the objection, omission or error herein complained of, could have and should have been raised at the hearing or upon final settlement of the decree signed by Judge Law. • “It is therefore my conclusion and finding that the former decree of Judge Law, and its affirmance in the case of Watkins v. Minor, 214 Mich. 380, is res judicata upon the issue raised by pleadings and proofs in this case, and the law does not permit a retrial.” The decree dismissing plaintiffs’ bill will be affirmed, with costs to defendants. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Moore, J. This is a case brought to this court by writ of certiorari to the department of labor and industry to review the affirmance of an award to James Burt under the Michigan workmen’s compensa tion act for the loss of an eye. The Munising Wooden-ware Company is a corporation operating a factory at Munising, Michigan, for the manufacture of household utensils, butter dishes and veneers. On October 31, 1921, a contract was entered into by the Munising Woodenware Company with the Lake Superior Boiler ■& Welding Works, a partnership, for the repair of the boiler. On November 13, 1921, the Lake Superior Boiler & Welding Works sent the plaintiff, James Burt, and his brother, to Munising, Michigan, to repair the boiler. On the following morning while the plaintiff was engaged in trimming the beading off the boiler tubes, a piece of the beading flew and struck him in the right eye, resulting in its loss. The plaintiff made claim for his injury to both of the companies. Both denied liability. A hearing was had of his claim against the Munising Woodenware Company and an award was made in his favor by Commissioner Gloster. A claim for review was made and heard before the full board, which made a finding as follows: “It is the applicant’s claim that after arriving at Munising, that one Florence, the respondent employer’s chief engineer, took charge of the work and directed it. He testified that Florence not only supervised the work on the boilers but instructed him when he should come to work, and when he should quit. “We think the testimony brings this case under the rule laid down in Arnett v. Hayes Wheel Co., 201 Mich. 67. “The applicant’s testimony indicates that the respondent Munising Woodenware Company, through its chief engineer, not only had the right to control the activities of the applicant but also exercised that right. “If- the applicant was not an employee of the Munising Woodenware Company he was certainly an employee of the Lake Superior Boiler & Welding Works. “It is admitted by the respondents that the latter company had a contract with the Munising Wooden-ware Company and that the applicant was doing work pursuant to that contract. We think this admission brings the parties under the amendment of 1921, and entitles the applicant to compensation from the respondents. “Similar provisions are in the compensation laws of other States and the courts have sustained awards of compensation under them. See Butler Street Foundry & Iron Co. v. Industrial Board, 277 Ill. 70 (115 N. E. 122); White v. George A. Fuller Co., 226 Mass. 1 (114 N. E. 829); King’s Case, 220 Mass. 290 (107 N. E. 959).” And the award of the commissioner was affirmed. Counsel for the appellants say, we quote from the brief: “As will appear later in this brief, it had been assumed by counsel for both sides, prior to the filing of the findings of the commission, that no question was involved in this case except the interpretation and the constitutionality of section 10 (a) of the workmen’s compensation act as amended by Act No. 173 of the Public Acts of 1921 (Comp. Laws Supp. 1922, § 5430 [2]), which places liability upon principals for accident claims of the employees of independent contractors. It had not been contended by counsel for the applicant that James Burt was in fact an employee of the Munising Woodenware Company, their case being rested upon the theory that this company was the principal and the Lake Superior Boiler & Welding Works the independent contractor, but since nevertheless the department of labor and industry found as a fact that James Burt was an employee of the Munising Woodenware Company, this becomes the first question before the court. ' “Thereafter follow the questions of whether first of all section 10 (a.) of the workmen’s compensation act, as amended, controls the facts in this case, and secondly, whether if that act does apply to these circumstances, it is constitutional.” Counsel for the appellee insists both questions were before the department of labor and industry, and that both were rightly decided. If either question was rightly decided it would be unnecessary to decide the other. Because of the difference of opinion between counsel, above stated, we will take up the last of these questions first. A reference to Act No. 173, Pub. Acts 1921, may be helpful. Section 10 (a) provides: “Where any employer subject to the provisions of this act (in this section referred to as the principal), contracts with any other person (in this section referred to as the contractor), who is not subject to this act and who does not become subject to this act prior to the date of the accidental injury or death for which claim is made for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed: Provided, That the term-, ‘contractor’ shall be deemed to include subcontractors in all cases where the principal gives permission that the work or any part thereof be performed under subcontract.” The contention of counsel for appellants is tersely stated as follows: “Not only by implication but by its express terms, this statute is to apply to situations where the employer contracts with another ‘for the execution by or under the contractor of the whole or any part of any work undertaken by the principal,’ or, in other words, to situations where the contractor takes over a part of the very job of the principal. Unless the contractor in question has taken over some job which had been undertaken by the principal, or which normally or naturally would have been done by the principal himself, unless it thus assumes a part of the very business of the principal, the statute is not to apply. * * * “In this case, however, the contract was not for the execution of any work undertaken by the Munising Woodenware Company. That corporation was engaged in the manufacture of household utensils, butter dishes and veneers, and was at no time engaged in the business of manufacturing or repairing boilers. The very reason for the contract was that it had to do with a job which the Munising Woodenware Company could not and had not undertaken for itself.” The language of the statute “for the execution by or under the contractor of the whole or any part of any work undertaken by the principal” is very broad and very plain. The Munising Woodenware Company could not successfully make woodenware with defective boilers. It was just as much a part of its business to keep its boilers in repair as. it was to make wooden-ware. The language of the statute is broad enough to make it liable. As to the second proposition of appellants. We again quote from the brief of counsel: “Briefly stated, this contention is that, whereas, the act by its title is declared to be one regulating the relations between employers and employees, it is sought by this amendment to widen the scope of the act so as to control the relations of employees with others who are not their employers, and to place upon others than employers the scale of liabilities imposed by the act. “It is a_ fundamental principle of constitutional law that the title of an act must clearly state the purpose for which it is enacted, and that no section or subdivision of the act may embody terms which could not properly be said to come within, the scope of that title. This general principle was for the State of Michigan enacted in our Constitution in section 21 of article 5, which declares: “ ‘No law shall embrace more than one object, which shall be expressed in its title.”’ Counsel argue at length that the statutory provisions are not within the title of the act. This constitutional provision has been frequently construed by this court. Some of the cases may be found in the note on page 141, 1 Comp. Laws 1915. Justice Steere, speaking for the court, discussed at length the constitutional question of what was necessary in the title of an act, in Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8. The late Justice Stone, speaking for the court, .said: “The courts in a long series of cases have enunciated the principle that the presumption is in favor of the constitutionality of a statute. This principle has been expressed in many different forms. It has been declared that in no doubtful case should the courts pronounce legislation to be contrary to the Constitution. It has been said that every intendment is in favor of its validity, and that it must be presumed to be constitutional unless its repugnancy to the Constitution clearly appears. See collection of authorities in 6 R. C. L. p. 97; Rouse, Hazard & Co. v. Wayne Circuit Judge, 104 Mich. 234, 239 (27 L. R. A. 577, 53 Am. St. Rep. 457); Sears v. Cottrell, 5 Mich. 251, 259. The clause of the Constitution here invoked has been repeatedly before this court. In Kurtz v. People, 33 Mich. 279, Justice CAMPBELL, referring to this provision, said: “ ‘It is a very wise and wholesome provision, intended to prevent legislators from being entrapped into the careless passage of bills and matters foreign to the ostensible purpose of the statute as entitled. But it is not designed to require the body of the bill to be a mere repetition of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to secure the object indicated by the title.’ “See, also, the language of Judge Cooley in the seventh edition of Constitutional Limitations, page 205; also, Connecticut Mut. Life Ins. Co. v. State Treasurer, 31 Mich. 6; Mackin v. Detroit-Timkin Axle Co., supra.” People v. Gansley, 191 Mich. 357. We think the legislation was germane to the title. The award of the department of labor and industry is affirmed, with costs to the appellee. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

McDonald, J. This action is brought to restrain the prosecution of an ejectment suit and to have the title to the property in controversy established in the plaintiff free from all claims of dower. On the 5th of February, 1920, Marion F. Tackett died intestate in the city of Muskegon. The property in question, known as the Tackett block, was a part of his estate. The defendant, who is the widow, and William C. Tackett, her son, were appointed administrators of the estate. As such, on the 11th day of June, 1920, they entered into a written contract for the sale of the Tackett block to Isaac Rosen, the plaintiff herein. In this agreement it was stipulated that if the probate court should permit the property to be sold at private sale they would give the plaintiff “a good and sufficient administrator’s deed, also an abstract and tax history showing a good merchantable title in Marion F» Tackett, now deceased.” Nothing was said about the widow’s dower interest. Permission having been obtained to make the sale, the purchase price, $55,000, was paid, conveyance was made in accordance with the agreement, and the plaintiff went into possession. Five or six months after the transaction was closed the defendant brought an action of ejectment to recover her dower interest. Thereupon the plaintiff filed this bill. Upon the hearing a decree was entered by the circuit court permanently restraining prosecution of the ejectment suit and quieting plaintiff’s title to the premises in question. From this decree the defendant has appealed. In support of the decree counsel for the plaintiff contend that under our statute of descent the defendant was an heir, and as she signed the deed as administrator without any reservation of dower, all interest which she had in the property thereby passed to the plaintiff; that, if not, she is now estopped from asserting dower because of conduct and representations upon which plaintiff relied and by reason of which he was misled into believing that he was buying the property free from all claims and incumbrances. In seeking to establish this claim the plaintiff was permitted to introduce in evidence all of the negotiations leading up to the making of the written agreement, intending thereby to show that the defendant orally agreed to convey a title free from all liens, claims and incumbrances. In the making of the written contract there was no fraud or duress. Plaintiff’s attorney assisted in drafting it and approved it after it was drafted. It is not imperfect nor ambiguous in any of its terms. We must assume that it embraced the entire agreement of the parties. It is a familiar rule of evidence that, “All conversations and parol agreements between the parties prior to the written agreement are so merged therein that they cannot be given in evidence for the purpose of changing the contract or showing any intention or understanding different from that expressed in the written agreement.” 3 Jones on Evidence (Blue Book), § 434, p. 152. Arid this is so though the parol understandings induced the making of the written contract. Gates v. Railway Co., 147 Mich. 523. This testimony which was received over defendant’s objection was not competent and must be excluded from our consideration. The written agreement should be taken as the best evidence of the intention of the parties. It shows that it was made and executed by the defendant in her representative capacity as administratrix. It did not provide for a title free from her right of dower. The agreement was that she should show a good merchantable title in Marion F. Tackett, deceased. She furnished such a title. It further provided that she would give, “a good and sufficient administrator’s deed.” She gave such a deed, reciting the conveyance of, “all the estate, right, title and interest of the said Marion F. Tacket, deceased.” This deed vested in the plaintiff only the title which the intestate had and which upon his death descended to his heirs. It did not affect the widow’s right of dower unless she had elected to take as an heir, in which event she would have no dower and the deed would be sufficient to pass all of her interest in the property. Our statute of descent, so far as it is applicable to this question, reads as follows: “Section 1. When any person shall die seized of any lands, tenements or hereditaments, or of any right thereto, or entitled to any right therein in fee simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, in the following manner: “First. One-third to his widow, and the remaining two-thirds to his issue. * * * “Fifth. The provision hereinbefore made for the widow shall be in lieu of her dower and homestead right, unless she shall, within one year after letters of administration have been granted upon the estate of her deceased husband, begin proceedings for the assignment to her of such dower and homestead, in which, case her interest in the lands of her deceased husband, shall be limited to such dower and homestead, and the residue of such estate then descend as herein provided for the portion thereof not taken by such widow.” * * * 3 Comp. Laws 1915, § 11795. Under this statute, in a contingent sense only, was she an heir. She might elect to take a dower interest by beginning proceedings for the assignment of her dower. She had not made her election at the time of the sale and the statutory period in which she might do so had not expired. Therefore, her right of dower was not affected by the deed which conveyed only the title vested in the heirs. If, however, by her acts and conduct she impliedly represented that she was an heir or was taking an heir’s interest instead of dower, and the plaintiff relying thereon made this contract, accepted the administrator’s deed, and paid the full value of the property, we think it would be a fraud upon his rights to now permit her to maintain her dower. Counsel for the defendant contends that the rights and interest of the parties must be determined solely from the contract and deed, that, because of these writings, verbal acts which might constitute an estoppel cannot be shown. It is true that these written instruments prevent the plaintiff from showing that she verbally agreed to convey her dower, but they would not prevent him from showing that she had no dower. Such a showing could be made without contradicting, varying or adding to the terms of the written contract. It would be equally competent to show acts and declarations apart from the parol understandings, which would lead a reasonably prudent man to the conclusion that she regarded her interest in the property as that of an heir under the statute rather than as that of dower. If the testimony shows such acts and declarations they may be considered on the question of estoppel, but not as establishing a contract different from that expressed in the writing. It appears from the evidence that, previous to any negotiations for the sale of the property in question, the plaintiff called upon the defendant for the purpose of buying her home. He asked if it was for sale. “Yes, Mr. Rosen, all of my property is for sale. I want to sell all of my interests in the city and leave.” And on another occasion before he considered the purchase of the block the plaintiff was told: “We don’t want any mortgages; we don’t want any notes; we want to clean up everything in Muskegon, sell off all interests and leave the city.” This and the fact that he was given a price which was the fair value of the entire property was indicative, of her intention to elect to take her interest as an heir in lieu of dower. In all the negotiations nothing was said about dower, but other incumbrances were discussed. A further fact tending to show that defendant had decided to take as an heir appears in the arrangement she made with the tenants for a transfer to the plaintiff of all rents and income, reserving nothing for her individual benefit. Litigation was pending with one of the tenants. She entered into a written stipulation for a discontinuance in which there was the f bllowing provision: “This stipulation is entered into on the express condition that it shall be null and void and of no effect in event Isaac Rosen fails to acquire an indefeasible title in fee simple to the real estate embracing . the leased premises.” This is not a stipulation to which the plaintiff v/as a party, but it was entered into and signed by the defendant in his presence and for his benefit. It was made subsequent to the contract but more than a month before the deed was executed. It is rather convincing proof that she was not at that time claiming a dower interest, for the plaintiff could not receive an “indefeasible title in fee simple,” under the administrator’s deed unless she was conveying as an heir. Notwithstanding that there was no formal release of dower, the plaintiff believed he was getting the property free from all liens and incumbrances, and on this belief he paid full value for the property. He was misled by the acts and declarations of the défendanf. In fact, everybody connected with the transaction, including the attorneys, acted on the assumption that she was conveying her interest as heir and that the administrator’s deed was sufficient to give the plaintiff a good and merchantable title. That the defendant herself believed so, and that her intention to assert dower rights was an afterthought, is clearly established by the evidence. She testified that she thought nothing about it until some months after the transaction when her Chicago attorney advised her that she had not released her dower. It is not denied that her son, William Tackett, who signed the deed with her as executor, and who represented her in the transaction with Rosen, said to Mr. Sanford: “I have discovered that we have got Isaac Rosen in a pretty tight pinch, and I think that we can buy him out cheap on that property that we sold to him. You know there is a lot of attorneys around this town that don’t seem to know very much about their business, and we have discovered that we didn’t sell all that property to them, and we are going to take advantage of it.” Mr. Sanford said to him: “I understood that Rosen was to acquire a good title of that property,” and he said: “Well, that is the way I understood it, too, but we found out since that he didn’t get a good title and we are going to squeeze him.” As a first step in the squeezing process the defendant filed a petition in the probate court for the assignment of her dower. This was denied. She then be gan her ejectment suit. We think the defendant is estopped from now electing to take a dower interest in the property. In reaching this conclusion we have not overlooked the claim of counsel for the defendant that this is a judicial sale, that the doctrine of caveat emptor applies and the purchaser buys at his peril. This doctrine is recognized and applied to judicial sales in this State. “But although the rule of caveat emptor requires the purchaser to inform himself as to all the facts which he can ascertain by the exercise of reasonable diligence, it does not charge him with notice of that which cannot be learned from an inspection of the records. Secret defects are to him no defects at all.” 2 Woerner’s American Law of Administration (2d Ed.), § 484. Applying the principle of caveat emptor to the instant case, the plaintiff must be charged with notice of all that the records disclosed. The records showed that Marion F. Tackett- died intestate leaving a widow and three children; that the widow had made no election whether to take her interest as heir or to have her dower assigned, and that the statutory time in which she might do so had not expired. Of these arid every fact shown by the records he was bound to take notice, but the records could give him no information of her intentions as to the exercise of the election given her under the statute. In the exercise of reasonable diligence, however, it was his duty to inquire as to her dower, but we think he is excused from taking that precaution by reason of the acts and declarations of the defendant. She knew that he was paying full value for the property in the belief that he was receiving a title free from every claim and incumbrance, except such as he assumed. She says that she was selling only the interests of the heirs. Under the statute she was an heir with a third in terest in the estate, unless she elected to take dower. She led him to believe that she would not elect to take dower and thus induced him to pay the full value for the property, and to accept an administrator’s deed. In view of these facts she is now estopped from making a different election. To allow her to maintain her dower at this time would work a fraud upon the rights of the plaintiff. This a court of equity will not permit. The decree is affirmed. Plaintiff will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Wiest, C. J. The original bill herein was filed by plaintiff to enforce a lien for material furnished in the construction of three houses. Other lienors, subsequent purchasers of the property, the principal contractor and the surety on a bond to release the liens, were made defendants. May 10, 1919, Andrew J. Tarsney was the owner of three lots on Emerson avenue in the city of Detroit, and on that day made a verbal agreement with the United Home Builders, Inc., for the erection of three residences thereon at $5,300 each, and paid $1,000. July 1, 1919, the agreement was. reduced to writing and signed by the parties, and required the contractor to provide the labor and material for three new residence buildings to be erected on the lots according to certain specifications, on or before September 1, 1919. The agreement contained the provision: “It is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for the erection of said building according to specifications shall be $5,300, payable as follows: “1st. $1,000 as first payment on materials to be furnished. Remainder to be paid through loan company. “2nd. $1,000 when house is ‘under roof/ “3rd. $-when rough plumbing and heating is done and house is plastered. “Balance loan. $-when house is finished according to specifications.” The work was not completed September 1, 1919, and the contractor was urged, by the owner, after that date, to continue with the work, and lien claimant Ferrari commenced special mason work on September 20, 1919, and completed the same October 1, 1919. The contractor abandoned the work on or about the 30th of October, 1919, and the owner boarded up the buildings and they remained that way until May, 1920, when defendants Dickson and McDermand purchased the premises from Mrs. R. May Tarsney. Mr. Tarsney was not well at the time the contractor, abandoned the work and he died March 28, 1920. February 26, 1920, Mr. Tarsney deeded the premises to a third party, who immediately deeded the same to Mr. and Mrs. Tarsney, constituting them tenants by entireties. Defendants Dickson and McDermand started, on or about May 15, 1920, to complete the buildings and finished them about September 10, 1920. The original bill herein was filed on July 23, 1920, and defendants Dickson and McDermand, as subsequent purchasers, claimed recoupment for loss of rents occasioned by the failure of the contractor to complete the buildings by September 1, 1919. It seems there was a hearing previous to the one in this record, and it evidently became apparent to the defendants Dickson and McDermand that their claim of recoupment would fail because of want of assignment of such claim from Mr. Tarsney’s estate. Thereupon, on June 24, 1921, Mrs. Tarsney filed a petition in the probate court for the county of Wayne for administration of the estate of Andrew J. Tarsney, deceased. In the petition she alleged that Mr. Tarsney left a will: “which may be offered for probate,” and that his estate consisted of “an unliquidated action for breach of building contract,” and that R. May Tarsney, widow, and Jack Tarsney, a son 14 years of age, were the heirs at law of the deceased. The same day Mrs. Tarsney was appointed special administratrix of the estate, and immediately petitioned the probate court for an order directing her to sell, assign and transfer to defendants Dickson and McDermand the building contract entered into by Andrew j. Tarsney and all right of action for damages for breach thereof. The reason assigned by her for such order was that she had sold the premises to defendants Dickson and McDermand, and “At the time of said sale, it was agreed that your petitioner should assign to said purchasers all right of action resulting from the breach of a certain building contract executed by the said deceased with the United Home Builders, a Michigan corporation, for the •construction of certain buildings on said premises, which said contract had not been fulfilled by said contractor.” The same day, and upon such petition, the probate court, upon a finding that “it will be for the best interest of said estate to release said contract obligation,” authorized the special administratrix to sell, assign and transfer to defendants Dickson and McDermand the interest of the estate in the building contract and all right of action for damages for breach thereof. Mr. Tarsney never assigned to Mrs. Tarsney any right of action under the contract. The record discloses no further proceedings in the estate of Andrew J. Tarsney. The trial judge found that the delay occasioned by boarding up the buildings in the fall of 1919, and leaving them until May, 1920, by reason of the sharp advance in price of building materials made the cost of finishing the buildings 40 per cent, higher than such cost would have been had the construction followed the abandonment by the contractor. The evidence amply supports this finding. The cost of completing the buildings must be determined as of the time their completion fell upon the owner, or within a reasonable period thereafter. Had the work of completion followed within a reasonable period after the contractor left, the cost thereof would have been, at least 40 per cent, less than it was seven months later. The so-called peak of high prices of building material and labor was reached in February, 1920, and by waiting from October 30, 1919, to May, 1920, to even start to complete the buildings, bars the extra cost of construction from being set up against the liens. The owner paid the contractor $1,000 fifty days before the contract was signed, and it is claimed by the lienors that the court improperly held the owner, and those claiming under him, protected by such payment. The burden of showing that such payment was distributed according to the statute among those who might claim liens rested upon the owner or subsequent purchasers. If $1,000 could be paid in advance and protect the owner, the whole contract price could be paid and materialmen and laborers would have no remedy. We have searched the record for evidence tending to show what was done by the contractor with this $1,000, and cannot find that it was .distributed among those who might claim liens. vCounsel for the present owners contends: “This payment was specifically required to be made 'by the contract, but was made before any labor or :materials were furnished upon the premises, and for that reason is a protected payment, although no sworn statement was received at the time. This is obviously true because nothing could then be due or owing to any laborers or materialmen under the contract.” Citing Stevens v. Garland, 198 Mich. 24; J. W. McCausey & Co. v. Gittleman, 201 Mich. 8. The cases cited do not support the broad rule contended for. They are based upon the provision of the lien law protecting incumbrances existing and of record at the time material is furnished or labor services rendered, and present the element of constructive notice, sufficient to put the subcontractors on inquiry. A payment made to a contractor in advance, except by recorded mortgage, controls the rights of subsequent lienors- only so far as such payment has been distributed among the subcontractors, material-men or laborers. The statute so provides (3 Comp. Laws 1915, § 14796). This court has pointed out the two methods of payment which may be made by the owner with safety, and both are statutory (Smalley v. Gearing, 121 Mich. 190; Stevens v. Garland, supra; Sandusky Grain Co. v. Borden’s Condensed Milk Co., 214 Mich. 306, 321). This advance payment should not have been allowed as against the liens. It is conceded that the second payment of $1,000 was made without statutory affi davit and after work commenced, and was properly disallowed. The third payment of $1,000 was made upon presentation of statutory affidavit by the contractor, on July 28, 1919, but it is claimed it was paid two days in advance of the expiration of the 30 days allowed by the statute to a lien claimant to give notice that he is furnishing material or labor and, therefore, should be disallowed. The record does not disclose any notice given within the 30 days by any lien claimant. We think the point without merit. ' If notice had been given by a lien claimant within the two remaining days we would have a meritorious question to consider. If the lienors did not see fit to invoke the provision of the statute by any notice at all, they cannot come in later and, upon what they might have done but did not do, have it determined that the owner was acting contrary to their rights in making such payment. This payment was properly allowed. The subsequent purchasers contend that the trial court was in error in holding the price to be paid by the owner under his contract for the three buildings was $15,900, and insist that the full amount the owner was required to pay was the sum of $3,000 in cash and such amount should be held the contract price. The owner obligated himself to pay $3,000 in cash and to pledge his property for the purpose of paying $12,900 more. He never gave the contractor power to pledge the property for a loan and obtained no loan himself. The owner could not, and subsequent purchasers cannot, free the property of the liens by pointing to a provision in the contract requiring the pledging of the property by the owner to pay for the buildings, with no pledge or power to pledge ever given. In the meantime the lien law has stepped in at the behest of materialmen and the property is made to pay for construction of the buildings, not by way of loan but by way of liens. If the loan had been procured during the course of construction, or after completion and within the period allowed for liens, the owner would have had to comply with the lien law in paying, or permitting the money to be paid over to the contractor. The learned circuit judge held the probate proceedings void and denied the claim of recoupment for rent on that ground. We do not find it necessary to pass upon the validity of the probate proceedings. Under this record the subsequent purchasers, even if they held a valid assignment from the estate of Andrew J. Tarsney, deceased, could not recoup as against the lienors for loss of rents. Mr. Tarsney, in his lifetime, waived the time of completion of the contract by urging the contractor to continue after September 1st, and in permitting the work to continue. The record does not show any effort, on the part of Mr. Tarsney, to aid the contractor in obtaining a loan or any authority upon which the contractor might have obtained a loan. The contract required action by Mr. Tarsney in obtaining the loan. The subsequent purchasers do not deny the delivery of the material, as claimed by plaintiff, and other lienors, but insist there is no showing of the use of all thereof in the construction of the houses. The circuit judge disallowed an item for lath delivered by plaintiff, but not used. We are persuaded that the material, as found by the trial judge, entered into the construction of the buildings. The trial court found the reasonable cost to complete the work at the time of the abandonment by the contractor was the sum of $8,940.87, and he added to this sum the three payments of $1,000 each and the amount due lien claimants of $5,549.13, and found the total cost to the owner to amount to the sum of $17,490. From this amount the court deducted the $1,000 paid without a sworn statement and this left the total cost at $16,490, and decreed that: “The contract price for the construction of the buildings upon the said premises, according to the contract, was fifteen thousand nine hundred ($1-5,900) dollars; that the pro rata amount due each lien claimant is determined by taking the amount paid by the owner under the lien statute, $2,000; together with the cost of completing the buildings, $8,940.87, and the outstanding liens, $5,549.13, totaling $16,490, then dividing this into the contract price, $15,900 equalling 96.42, which is the percentage each lien claimant is entitled to receive.” We have disallowed a further item of $1,000 and this removes the necessity of awarding the lienors a percentage of their claims, as it results in allowing their claims in full, with the exception of the defendants Hiram S. Barber and Ben Ferrari, who did not appeal, and as to them the decree below must stand. The amounts found due by the circuit judge to the several lien claimants are approved. The decree entered in the circuit is modified to the extent of disallowing the $1,000 payment mentioned in this opinion, and with such modification, and the result thereof upon the rights of the appealing lien claimants, the decree is affirmed with single costs to be distributed among the several lienors appealing and against defendants Dickson and McDermand and the General Casualty & Surety Company. The plaintiff, however, will not be permitted to tax costs for the pages in the brief containing the opinion of the court below and the decree entered, for such opinion and decree appear at length in the record and should not have been reprinted in the brief. Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.

■Moore, j. The questions involved in this litigation are so clearly stated by the chancellor who heard the case in open court that we quote from his opinion: “The bill in this case is filed asking that the deed to certain lands in the township of Oakland, conveyed by plaintiff and wife to the defendant, may be set aside on the ground that there was no consideration for the making of such deed, and that the same was obtained through fraud. And for an accounting between said parties. “It appears that in December, 1916, plaintiff was the owner of a farm in the township of Oakland, consisting of about 177 acres. That defendant resided in the city of Detroit, and was engaged in the real estate business. That some time in the fall of 1916, the defendant approached plaintiff and discussed with him the proposition of exchanging his farm for property in Detroit. After some negotiations plaintiffs went to Detroit and inspected some property there, known as the Swartz property. That a written agreement was made between the parties by which August Skibowski, plaintiff, agreed to pay to the defendant the sum of $700 for exchanging his farm for Detroit income property. That for some reason the Swartz deal fell through and soon afterwards defendant suggested to plaintiff that he could trade the farm for a certain apartment building located in the city of Detroit on West Grand Boulevard, known as the Ferry Field apartments. The above facts are not seriously in dispute between the parties. “It is the contention of plaintiffs that defendant represented to them that the property in question which was not then quite finished, belonged to a wealthy young man in Detroit who was having some difficulty with a woman, and that he had transferred this property to the building contractor. “That the property would produce an income of 10 or 12% on an investment of $55,000, which defendant claimed was the price of the property.. That plaintiff inspected the property and that it was agreed that the property should be finished by completing a garage and some other small matters about the building and that plaintiffs agreed with the defendant that if he would make the deal and look after their interests, they would pay to him the sum of $1,000 as commission for his services. That negotiations were had between the parties and finally later on the deal was made. That in making the deal the plaintiffs gave defendant a check for $1,000 and subsequently assigned to him a mortgage of $21,050 on certain property located in the township of Bloomfield and afterwards signed a deed prepared by defendant conveying their farm to defendant and at the same time received from the defendant and his wife a deed of the property in Detroit. That this was the first intimation they had that the property belonged to the defendant. That they discussed the matter with the •defendant and he claimed the matter was all right, the property had been merely transferred from the owner or the building contractor -to him. That subsequently plaintiffs gave defendant a check of $1,000 as commission for the sale. That afterwards they learned that defendant after having entered into negotiations with them for the exchange of .their property, had entered into a contract or option with Mr. Parr, owner of the property in Detroit, and had paid to him, indirectly at least, the $1,000 check said to bind the ‘bargain in the first instance, and subsequently cashed the mortgage in question for $20,000 and paid the sum to Parr. That Parr held the property at a cash price of $34,000. That it was mortgaged for $13,000, making his equity therein $21,000; that defendant .'had transferred to him the above mentioned sum of $1,000 and the mortgage in question amounting in all to $21,000. That after learning the true facts they filed the bill in this case. “Defendant "claimed he was not acting as agent for plaintiffs in the exchange of the plaintiffs’ farm for the Ferry Field apartments but had bought the property in good faith and sold it to the plaintiff at an advance of $21,000 or thereabouts. That the sum of $1,000 paid him by August Skibowski was for his services, in negotiation of the mortgage and to take care of the adjustment thereon occasioned by the shortage in the acreage and not in any sense a commission. That the deal was a legitimate one, that no fraud was practiced, and that an adequate consideration was paid for the farm. “The principal question involved in this case is as to whether or not defendant was acting as agent for plaintiffs in trading their property for the property in Detroit. I do not deem it necessary to discuss the evidence in the case in detail, but after carefully considering all the testimony in the case and observing the demeanor of the witnesses upon the witness stand and their manner of giving their testimony, there is no doubt in my mind that throughout the entire transaction, defendant was acting as agent for plaintiffs in making this exchange of property and that he had agreed to accept $1,000 as commission and for his services in looking after the interests of plaintiffs in making the exchange. That after the deal was con summated, he was tendered, received' and accepted that sum as payment for such commission. I am also satisfied that defendant did not exercise good faith with plaintiffs in making this transaction. The facts are, as set forth by the testimony, that after he talked with plaintiffs about making the exchange of his farm for property in Detroit, he went to Mr. Parr, the owner of the property and obtained an option for the purchase of the property in Detroit. That as far as the proofs show he never paid a dollar of his own money on this property but he merely turned over the check for $1,000 given to him by plaintiffs as his initial payment on the property to Mr. Parr, although he went through the formality of depositing the check in his account and drawing his own check against it. That he did the same thing with the mortgage, merely cashing it and depositing it and drawing a check ♦against it. That the only possible money he put into : it was whatever sum he may have paid, if any, for the option and that amount was so small that the defendant, upon cross-examination, could not remember it. I am fully satisfied from the evidence in this case that he obtained this option from Mr. Parr for the Ferry Field apartments for the sole purpose and with the full intention of raising the price to $55,000 and then deeding it to plaintiffs in exchange for the above mentioned sum of $1,000, the assignment of the mortgage, which two items paid the full purchase price of the apartment $21,000 and in addition, the deed of their property, which he afterwards obtained. That the transfer of the farm from plaintiffs to defendant was entirely without consideration. That he concealed from the plaintiffs the true state of affairs and deceived them about the entire transaction with the purpose in mind of acquiring this farm for himself. “The law is very well settled that it is the duty of an agent in circumstances like this to deal honestly and fairly with his client, to apprise him of all the material facts and circumstances surrounding the deal and to protect his interest. None of these things were done by defendant. He was not looking out for the interests of his client but on the contrary was apparently actuated solely by a desire to obtain from the deal a profit of something like $20,000, which he did. “It seems to me that it is the duty of courts in cases of this character to put their emphatic stamp of disapproval upon such transactions. For the reasons above stated, a decree will 'be entered in this case setting aside the deed given by plaintiffs to defendant and such further proceedings may be had in the nature of an accounting between the parties as may be deemed necessary.” A decree was entered in accordance with the opinion and the case is brought here by appeal. Counsel for defendant contend: _ (1) That he was not plaintiffs’ agent in the Ferry Field apartments exchange; but was clearly a principal. (2) That Exhibit 3, the agreement of October 14, 1916, for $700 commission was executed during the, progress of the negotiations about the Dr. Swartz property; had reference to that property solely; ceased to have effect when the Dr. Swartz negotiations ended; and cannot be the basis of agency in the Ferry Field apartments negotiation, several weeks afterwards, in which the defendant is expressly and plainly in writing designated as a principal. (3) That there is no basis for holding that the defendant was plaintiffs’ agent in the alleged talk about a $1,000 commission or a $1,300 commission; that any such contract as that sought to be established for commission would be void under the statute of frauds, not being in writing; and that a void contract cannot beget or be the basis for a valid contract of agency between the parties. (4) That the undisputed written evidence, and the circumstantial evidence, incontrovertibly established the defendant’s claim that he was a principal. Each of these propositions is argued at great length. The controlling questions are, Was the defendant the agent of plaintiffs? Did he perpetrate a fraud upon them? That an agent owes to his principal the utmost good faith and loyalty to his interests is so fundamental that we quote but few authorities. 2 Mechem on Agency, § 2411; 4 Elliott on Contracts, § 2907; McNutt v. Dix, 83 Mich. 328 (10 L. R. A. 660); Hogle v. Meyering, 161 Mich. 472. We, of course, recognize the rule that plaintiffs must establish their case by a preponderance of the evidence before they are entitled to a decree. Zimmerman v. Feldman, 217 Mich. 390. There is a considerable conflict in the evidence, and it would be difficult to harmonize all of it. The plaintiffs are Polanders and Mr. Skibowski claims he cannot read English. There are some facts however that are very clearly established. Early in the relations between the parties defendant insisted upon a paper reading: “Detroit, Michigan, October 14, 1916. “Articles of agreement between J. B. McCullough and August Skibowski, in exchange of Detroit income property for farm located in Oakland county, for which August Skibowski agrees to pay J. B. McCullough $700 for services rendered in deal when complete. “J. B. McCullough. “August Skibowski.” It is true that when this paper was signed negotiations were under way for an exchange of property with Dr. Swartz, and that these negotiations failed, but this did not result in abandoning the attempt to exchange the farm property for Detroit income property. An exchange was in fact made and but one exchange was made. Mr. Skibowski claims he gave defendant a check for $1,000 to pay him for his services in this transaction. Defendant admits he got the check but claims it was to be applied very differently, and that he was at this time dealing with Mr. Skibowski at arms length. Another very significant fact is that when the writing of October 14, 1916, was signed, the plaintiffs were the owners of a farm of 177 acres, upon which there was a mortgage of $9,000, and personal property worth more than $1,600. The plaintiffs paid for the farm $100 an acre, and in their negotiations the parties, regarded it as worth $160 an acre. Two months later the defendant was the owner of this farm and personal property and had parted with nothing except the work he had done in bringing about the trade. It taxes one’s credulity when one is asked to believe this result could have been accomplished if defendant had acted in good faith toward Mr. Skibowski and had not misrepresented to him the situation. The decree is affirmed, with costs to the appellees. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Wiest, C. J. The Evangelical Lutheran St. Matthews Church, a corporation, wanted a new church edifice erected at Benton Harbor, and, under the name of the “Ev. Luth. St. Math. Congregation,” on June 24,1919, by its officers, entered into a contract with the “Singer Ch. & Con. Co.,” of Chicago, for its construction. Defendant became surety for the contractor, binding itself to “St. Matthews Evangelical Lutheran Congregation” of Benton Harbor for performance of the contract by its principal. The bond provided that the surety should not be liable for any default of the contractor unless plaintiff should promptly, and not later than 30 days after any default, deliver written notice thereof with a statement of facts to defendant’s office in the city of Baltimore. The defendant was given the right, in case of default of the contractor, to assume and complete or procure completion of the- contract and be subrogated to all the rights of the contractor. The liability of defendant was limited to $6,750, and it was stipulated that no suit on the bond could, in any event, be instituted later than March 31, 1920. The contractor commenced the work early in July, 1919, and abandoned the job about Thanksgiving time the same year, leaving a great part of the work undone. Notices of such abandonment and default were mailed defendant and the contractor by plaintiff on December 17, 1919, with the request to defendant to indicate whether it desired to assume and complete the contract. To this communication defendant replied, by letter, dated December 31, 1919, that the matter was being referred to its Chicago office, with the request to give the matter the necessary attention • and promised to communicate with plaintiff again after hearing from its Chicago manager. January 3, 1920, Eugene P. Kealy, styling himself superintendent of defendant’s claim department, wrote plaintiff from Chicago that its letter of Decembér 17, 1919, to defendant at Baltimore had been forwarded to his office for attention, and “we are investigating the matter and will take it up further with you' in a very short time.” February 3, 1920, Mr. Kealy wrote plaintiff: “One of our representatives will be at Benton Harbor to take this matter up with you further either the last part of this week or the first of next week.” About January 15, 1920, a Mr. Rattner was in Benton Harbor making inquiry as to the work done and what it would cost to complete the job, and stated he would go to the home office and would advise plain tiff, or come again, and let plaintiff know what to do. About February 9, 1920, Mr. Rattner was in Benton Harbor again, met plaintiff’s board of trustees,. and building committee and the architect, and stated that defendant would not complete the work but would let plaintiff do so.' Thereupon plaintiff completed the work, expending far more than the penalty of the bond in doing so. February 25, -1920, Mr. Kealy, by letter to Mr. Gray, attorney for plaintiff, asked to be advised what arrangements plaintiff had made for completion of the church building. February 27, Mr. Gray, by-letter, informed Mr. Kealy that the plaintiff had let a contract for the completion of the building. October-30, 1920, by letter,- Mr. Kealy asked- to be advised of the status of matters. November 9, 1920, Mr. Gray,, by letter, advised Mr. Kealy that the building had been completed, without change from the original plans, at a total cost, including the $16,557.80 paid the Singer Chimney Company, of $52,005.76, and stated: ‘‘The contract price was $26,818, leaving the excess which the local church had to pay amounting to $25,187.76, so even after your bond of $6,750 is paid, in full, the local church will sustain a very substantial loss.” November 17, 1920, Mr. Kealy, by letter, asked Mr. Gray for an itemized statement of the total amount of the work, and stated: “If you can get together all of the data on this contract and will advise us when it will be convenient for you for a representative of this office to go to Benton Harbor, we will send some one to take the matter up with you.” The statement asked for was prepared and sent to Mr. Kealy. February 7, 1921, Mr. Kealy wrote Mr. Gray the following letter: “Answering your letter of February 1st, I beg to advise that, pursuant to our agreement with the Singer Chimney Company, our principal under the bond, we referred this claim to them, and their counsel, Mr. Pio, has advised us that, in his opinion, there is no liability on the part of the surety company in this matter and therefore instructs us not to make any payment on this claim, and furthermore, that he will, on behalf of his client, undertake to defend any action which may be brought against this company under the bond. Under the circumstances, any payment by us at this time would imperil any right’ of reimbursement we might have against the principal. “I would, therefore, suggest that you take this matter up direct with Mr. James P. Pio, 39 South 'LaSalle street, Chicago, who represents the principal.” May 14, 1921, plaintiff brought this suit to recover the penalty of the bond. Defendant, under plea of the general issue, gave notice denying the corporate existence of plaintiff, claimed suit was not commenced within the period fixed in the bond sued on and that plaintiff failed to deliver to defendant, at its office in the city of Baltimore, notice of the contractor’s default, and also gave notice of certain legal defenses hereinafter discussed. At the trial defendant offered no evidence, and the court directed a verdict in favor of plaintiff for $6,750, the penalty of the bond. The case is here by writ of error. At the trial defendant admitted that the cost to plaintiff of completing the building exceeded the penalty of the bond. The corporate name of plaintiff is The Evangelical Lutheran St. Matthews Church of Benton Harbor, Michigan. We assume the correct name of the contractor to be Singer Chimney & Construction Company of Chicago, Illinois. Defendant was summoned to answer the St. Matthews Evangelical Lutheran Church, and declared against as surety on the bond given by the Singer Chimney Company to St. Matthews Evangelical Lutheran Congregation, and at the trial the declaration was amended to state plaintiff’s correct corporate name. Defendant claims that the obligee in the bond was not the one named by plaintiff in the summons and the original and amended declarations, nor the plaintiff corporation, and that the principal named in the bond was the Singer Chimney Company. The bond, by reference to the building contract, declared that contract to be a part of the bond as fully as if incorporated at large in the bond. This suit being brought upon the bond and not against the contractor, and the bond adopting, by reference, the building contract, defendant is in no position to insist that plaintiff must prove execution of the building contract and the corporate existence of defendant’s principal in the bond. The recital in the bond given by defendant, that the Singer Chimney Company is an Illinois corporation, binds defendant to such fact, and we are not bothered with the thought that the Singer Chimney Company may be a copartnership or an individual. Recitals of fact, in a bond of this character, dispense with proof of the verity thereof. But, it is said that the building contract was with the Singer Chimney & Construction Company, and defendant’s undertaking was not for any default of such a contractor but only for the Singer Chimney Company. The building contract, as stated before, and of necessity, is a part of the indemnity contract, and the defendant, at the time of giving the bond, had opportunity to object to the names employed to identify its principal and its obligee, and it is now too late to raise the objection. There is no occasion to halt justice in this case because of the careless manner in which the names of the plaintiff and the contractor appear to have been stated in the writings. Defendant, apparently, did not hesitate to go on the bond of the contractor because its name was given as the Singer Chimney Company instead of the Singer Chimney & Construction Company, or because the bond was given to St. Matthews Evangelical Lutheran Congregation instead of the Evangelical Lutheran St. Matthews Church. Defendant then knew, perfectly well, for whom and to whom it engaged its suretyship and it is too late now to insist there is a want of identity arising out of variance in names. The identity of plaintiff and that of defendant’s principal in the bond could not possibly have been in doubt at any time by any of the parties, and such identity is not in doubt now. It is an old rule, and a sensible one, that the misnomer of a person or corporation in a written instrument will not defeat a recovery thereon, if the identity sufficiently appears from the name employed in the writing or is satisfactorily established by proof. In the case of Mayor and Burgesses of Lynne Regis, concerning misnomer of corporations, 10 Coke, p. 471, the cases at that time were reviewed and the rule laid down that: “The name of a corporation in grants or conveyances need not be idem syllabis seu verbis, but it is sufficient if it be idem re et sensu.” In 7 R. C. L. p. 130, it is stated: “The name of a corporation frequently consists of several descriptive words, and the transposition of them, or any interpolation, or omission, or alteration of some of them, may make no essential difference in their sense. And it is the general rule that in case of the misnomer of a corporation in a grant, obligation or written contract, if there is enough expressed to show that there is such an artificial being, and to distinguish it from all others, the body corporate is well named, although there is a variation of words and syllables.” See, also, Culpeper Agricultural & Manufacturing Society v. Digges, 6 Rand. (Va.) 165 (18 Am. Dec. 708); Medway Cotton Manufactory v. Adams, 10 Mass. 360; Hoboken Building Ass’n v. Martin, 13 N. J. Eg. 427; Marmet Co. v. Archibald, 37 W. Va. 778; Thatcher v. National Bank, 19 Mich. 196; Walrath v. Campbell, 28 Mich. 111. To pay heed to the objection here made would constitute no compliment to defendant’s business acumen. The court was clearly right in all rulings upon the subject. Was the time fixed for suit on the bond waived by acts of the parties? There is nothing sacred about such a stipulation in private contracts, and the party for whose benefit it was inserted may invoke or may waive it. Here it was waived by the acts of the defendant, if Kealy and Rattner were acting by authority of defendant in the premises. McPharlin v. Fidelity & Deposit Co., 162 Mich. 141. Circuit Court Rule No. 23 relates to affirmative defenses and not to a waiver saving plaintiff’s right to bring suit. Had plaintiff a right to rely upon the acts of Kealy and Rattner? Business would come to a standstill if agency and authority, as apparent and as direct as here disclosed, could be defeated. Defendant’s letter of December 31, 1919, acknowledged receipt of notice of default, advised plaintiff that the matter was referred to defendant’s Chicago office with the request to give it necessary attention, and ended with: “As soon as we hear from our manager at Chicago, we will communicate with you in the premises.” It is claimed that this reserved all authority to the home office and defendant was not bound by any action Taken by its agents located at Chicago. We are not so impressed. The whole correspondence so clearly established the right of plaintiff to accept and rely and to act upon the authority of the Chicago office in the premises and to treat with Mr. Rattner that it would do violence to first principles to hold otherwise. It is said in the brief for defendant: “But for Kealy’s authority they content themselves with erecting an ‘aerial/ in the hope that such authority will somehow come down from the heavens and save their case, and it didn’t come.” The authority of Mr. Kealy did not come from the heavens; it came from Baltimore’. Mr. Rattner’s authority did not rest upon what he said about it. His advent in Benton Harbor was foretold and arranged for by Mr. Kealy. We need spend no time upon the claim that: “Authority to make a contract does not carry with it authority to cancel, release, or modify it.” The agency here involved wholly related to the rights and remedies of plaintiff and defendant under an indemnity bond, after default of defendant’s principal. It is claimed the notice of default of the contractor, given, by plaintiff to defendant, omitted to specify the date of the default, as required in the bond, and that this was fatal. It might have been a good point had defendant cared to raise it at the time of notice of default, but it lost all force when defendant acted upon the notice and, through its agents, brought into play the right of plaintiff to complete the' contract and look to the bond for indemnity. The errors assigned upon the admission of evidence disclose no reversible error. The judgment is affirmed, with costs to plaintiff. Fellow's, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. The plaintiff appeals from a dis-allowance of its claim against the defendant estate. Marion F. Tackett was a resident of the city of Muskegon.' At the time of his death he was the owner of a gristmill at Sherwood, Ohio. The claimant is a farmers co-operative company. The Sherwood mills were operated by one George A. Smith. The Sherwood Co-operative Company sold grain to the Sherwood mills on account. The plaintiff claims that Smith did not own the business but operated the mills for Tackett, as his agent. During the course of their dealings the plaintiff refused to extend further credit unless it secured some written memorandum from Mr. Tackett guaranteeing the account. Mr. Smith notified Tackett, who sent the following letter, which was delivered to the plaintiff: “Muskegon, Mich., 11-8-18. “Farmers Co-operative Co., “Sherwood, Ohio. “Gentlemen: I will indorse Mr. Smith’s plan and any favors shown him certainly will be appreciated by me and I will stand good for the accommodation. “Yours truly, “M. F. Tackett, “Owner of the mill.” At the time of Tackett’s death there was a balance due on this account which constitutes the claim in question. The sole question in the case as it was submitted to the jury was as to the ownership of the business. “Was the business of operating the Sherwood mills the business of George A. Smith or was it the business of Marion F. Tackett?” The plaintiff contends that even though it was Smith’s business the estate is liable because the letter of November 8th was a continuing guaranty on the part of the decedent to pay the debt contracted by Smith, but the court held, as a matter of law, that there was no liability on the part of the estate under the guaranty because the payments made on account subsequent to the guaranty fully paid for all the goods delivered thereafter. At the close of the proofs the plaintiff made a motion for a directed verdict, which the court denied. At the defendant’s request the court submitted the following special question to the jury: “Q. Was the business conducted by the Sherwood mills the business of George A. Smith and not the business of Marion F. Tackett? “A. Yes. It was the business of George A. Smith.” The general verdict was a verdict of no cause of action. The plaintiff made a motion for a judgment notwithstanding the verdict which the court denied and entered a judgment on the verdict. The plaintiff also made a motion for a new trial on the ground that it was error for the court to submit the case to the jury; that the verdict is against the great weight of the evidence; and that he should have directed a verdict, as requested, for the reason that there was no disputed question of fact for the jury to consider. He did not ask the court to file reasons for denying the motion. None were filed. Therefore, whether the verdict is against the great weight of the evidence is not open to the plaintiff here. This court has held that where reasons are not requested and none filed, the verdict in relation to the weight of the evidence will not be considered. See Zeilman v. Fry, 213 Mich. 509. So that the only questions in the case are, ‘first, is there any evidence that Smith was the sole owner of the business and, second, is there liability on the part of the defendant because of the written guaranty embodied in the letter of November 8th. Is there any evidence tending to show that Smith was the sole owner of the business? Mr. Smith testified on the subject as follows: “Mr. Tackett represented that he owned it. He said that he wanted to put it in operation and wanted me to run it for him. He said he would furnish all the money that was necessary to repair the mill and to furnish money to carry at least one carload of flour. After the mill was in condition to run, he was to furnish money to buy wheat to keep- the mill going. I was to operate the mill for him with the understanding that I was to have my living out of the mill and one-half of the profits, until my half of the mill was paid for. That was what he said to me, in substance. After this conversation with Mr. Tackett I took possession of the mill for him, March the 10th, 1917.” Mr. Miller, vice-president of the Sherwood Savings Bank, testified that Tackett came to him and made inquiries,— “If I knew of any competent-person or could recommend any one to take charge of the mill. I recommended George A. Smith as a man in whom I had perfect confidence as to integrity and honesty and efficiency, and I gave him his address. I understood Mr. Tackett to say that he owned the mill and wanted to put some one in there to run it.” Mr. Wilder, at one time cashier of the Sherwood Savings* Bank, testified that Tackett came to him and wanted to borrow $2,500 for use in the Sherwood mills, and that Tackett represented to him that he was to furnish the capital with which to run the business, and that Smith was to take care of it for a percentage of the profits. Statements by Mr. Tackett in his letters to Smith show that Smith was not the sole owner of the business. In his letter of February 2, 1917, referring to the mill, he said: “But I have it in such shape that I can get hold of it myself and then you will be my partner.” And in his letter of February 26th, he said: “I have said, that I would go in with you on half interest and back you, and this is tied up so that I know what I am doing.” Again, in a letter of April 7th, he says: “Now as to the $200, whenever you are in shape to run let me know, and I will come and we will put up the money for the business and also arrange a credit at the bank. Yes, we are both interested just the same. I have paid 6 months’ rent to hold this mill and have the option on same and I hope some day you and I will own the mill. He wanted us to buy the mill at once, but as we were not in shape to do so, I paid him cash 6 months’ rent at your figure and I may be able to trade him out of the mill by time we are making money.” Other letters from Mr. Tackett show that he put up money to operate the mill and urged Smith to borrow of his friends $500 or $600 and send a note to him to sign, and he would see that it was paid. We have quoted the greater part of plaintiff’s evidence on the subject of the ownership of the business. The defendant estate offered no testimony and did not cross-examine the witnesses from whose testimony we have quoted. We have searched the record in vain for any evidence that Smith owned the business. Unless there is some evidence that he was the sole owner, the verdict cannot be sustained. We find no such evidence in the record. The testimony is undisputed that it was either Tackett’s sole business or that it was a partnership business. Smith’s testimony and Tackett’s letters clearly show that they both understood it to be the latter. In this view of the case the court’s ruling as to defendant’s liability on account of the guaranty becomes unimportant. On the undisputed evidence the court should have directed a verdict for the plaintiff and, failing in this, should have granted plaintiff’s motion to enter judgment notwithstanding the verdict. The judgment is reversed. The case will be remanded to the circuit court where a judgment will be entered for the plaintiff. Plaintiff' will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Steere, J. This is an action in assumpsit brought by plaintiff to recover of defendant wages for work and labor while in her employ from April 2, 1918, to December 6th of the same year. The action was begun in December, 1920, and personal service had upon defendant. She appeared and demanded a copy of the declaration. Plaintiff filed a bill of particulars and on July 13, 1921, defendant filed a plea of general issue. Before the case was brought to trial defendant died. Her death was thereafter suggested to the court and duly entered of record with an order that her administrator with will annexed be admitted to defend the action. Upon the trial plaintiff was confronted with an objection against his testifying to mattersi equally within the knowledge of the deceased defendant, which was sustained by the court. This limited his proofs to the testimony of third parties who saw him working or going to work for defendant during that summer, and the value of the kind of work he did for her. Plaintiff claimed and the testimony tended to show that he was employed by defendant during that season as a “handy man,” doing various kinds of work as -she directed around her home on Cadillac avenue, and at a house belonging to her on ■McClellan avenue which she was repairing and remodeling. In that undertaking she let a contract for doing the so-called “new work” to a carpenter contractor named Limberg who testified that he began his contract the last of June and finished the last of September, 1918, working there daily with his men; that he only did the new work, for which she was to and did prepare the building by tearing down and removing the old material as the remodeling required; that plaintiff did the most of such labor under her directions, working there steadily every day during the time Limberg was carrying on his contract work; that when he first went up there to see defendant about making the contract plaintiff was on the premises tearing out and down some additions, old buildings and sheds, and after he finished his contract in September he saw plaintiff yet working there at different times when he went over to see defendant about getting his pay, as to which there was some delay. Plaintiff’s bill of particulars was for work and labor as a handy man, at $5 per day from April 2d to December 6, 1918, inclusive, concluding, “or 213 days’ work at $5 per day, amounting to the sum— including interest at five per cent, from January 1, 1919, to date, of $1,065, principal and interest and payments.” Testimony produced by him as to the value of such service tended to show that during the time he was so engaged common laborers were paid as high as from 90 cents to $1.10 per hour, owing to the great scarcity of labor resulting from war conditions. When plaintiff rested his counsel moved the court for permission to amend his bill of particulars to $1 per hour. This was objected to by counsel for the defense on the ground of surprise and the objection sustained, on which ruling plaintiff assigns error. Unden the circumstances shown the ruling was clearly within the discretion of the court. Defendant offered, no testimony but moved for a directed verdict, which was denied. After some discussion between court and counsel the court announced that there was evidence plaintiff had worked for decedent three months which at the rate of 26 days per month would be 78 days, amounting at $5 per day to $390., that Limberg’s testimony was the only evidence in the record as to definite time and “any other would be mere speculation.” To this defendant’s counsel assented, while plaintiff’s counsel protested and claimed the issues involved were for the jury. The court then directed a verdict in favor of plaintiff for $390 with costs. Omission of interest was evidently an oversight which, as defendant’s counsel suggest, might be corrected without a new trial, but the case is essentially one of facts upon which plaintiff was entitled to take the verdict of the jury. In positively limiting the time of plaintiff’s service to the three months while Limberg was performing his contract the court rejected all testimony as to his services before and after that time. Limberg himself testified he saw plaintiff working for deceased before he had made his contract with her to do the new work on the house he remodeled and also after he finished, at different times during several weeks. Other witnesses testified to seeing him working for her at other places. The parties to this action were cousins. Plaintiff was a laboring man well along in years but yet active and able to work. He lived with another cousin named Mrs. Healey who kept boarders. Defendant was a married woman in apparently better circumstances, who owned several houses in Detroit. Mrs. Healey occasionally visited defendant at her home and testified that the latter had requested her to send plaintiff there to work for her, saying she would pay her (Mrs. Healey) for his board and plaintiff for his work; that she was overhauling and remodeling her house on McClellan avenue and wanted him to do some work there. Mrs. Healey said she did not see him working at the McClellan avenue house, but he left, mornings to go to work and came back in the evening, often quite late. She did, however, see him working for deceased at her own house, moving lumber, helping to build a garage and doing other work while he was boarding with her, and during that time defendant had told her of plaintiff’s working there, that he was going before the painters and burning old paint from the building, picking up the stuff, looking after the men, putting things away for safety evenings, etc. Mrs. Sophie Strudley testified in part: “I live 100 feet from deceased’s house. She was remodeling. From my side window is 105 feet to the side of her house. * * * I saw Mr. Buckley there, and I seen him burning off the paint with a torch, day in and day out; scraping also. I also saw Buckley picking up around the place. Always evenings. Doing odd jobs. I seen him going back and forth. Mrs. Kelly would be with him sometimes. They would have their premises filled. She seemed to be giving directions, Mrs. Kelly did. I remember the contractor, Limberg, being there. I don’t know the date Limberg and Buckley began. It was early in the spring that I noticed these gentlemen. But I noticed Mr. Buckley there the first of the two. * * * I think they were tearing out something, sheds, or something in the rear. * * “Q. And what is the fact about how early this man Buckley started to work in the morning. The ordinary time? “A. Well, not real early. Usually it was about 8 or 9. Something like that. Not early. “Q. Not as early as 7 o'clock? “A. Oh, yes. But he would work late till dark. He was there until we could not see. That was as far as I could say. He was working there faithfully, as long as he was working. Steadily to dark all the time, from his beginning to work.” In directing a verdict for the amount stated against the protest of plaintiff’s counsel the court invaded the province of the jury. Plaintiff was entitled to have ♦the issues of employment, time and wages submitted to the jury under proper instructions. The judgment is reversed, with costs, and a new trial granted. Fellows, . McDonald, Clark, Bird, Sharpe, and Moore, <JJ., concurred. WlEST, C. J., did not sit.

Claek, J. From the denial of his motion that a decree for divorce be set aside and the cause dismissed or reopened and retried, defendant has appealed. The trial judge filed an opinion which we adopt: “Mary Madden, on March 23,1912, filed her petition for separate maintenance, charging extreme cruelty and adultery. This petition was in form and, as to charges made, a divorce bill, and the prayer was for separate maintenance and for an order to turn over household goods, attorney fees and expense, support during the pendency of this proceeding, and a prayer for general relief. Subpoena issued March 23, 1912, was served on defendant and filed March 29, 1912. On March 29, 1912, defendant’s appearance was entered by Charles A. Shepard as his solicitor,. such appearance being entered in the order-book for appearances.- On April 20, 1912, defendant filed an answer and cross-bill praying for a divorce, the answer and cross-bill being indorsed, ‘F. A. Lyon and C. A. Shepard, solicitors for respondent and cross-complainant.’ In due time petitioner filed her answer to the cross-bill. Respondent noticed the case for hearing and filed note of issue for the October, 1912, term of court. Petitioner noticed the case for hearing and filed notes of issue for the terms of court as follows: March term, 1913; May term, 1913; January term, 1915; and May term, 1915. So far as the business of this court is concerned, this case could have been heard at any term of court from the time it was at issue to the time it was heard. The case was on the calendar under the judicature act at the January, March and May terms, 1916. The case was heard in: the May term, 1916. * “The case was called with the balance .of the chancery calendar each term that it was on the calendar, and by agreement of counsel it was to await the convenience of counsel on both sides for trial. July 28,1916, a stipulation was entered into by Frankhauser & Cornell, solicitors for complainant, and C. A. Shepard, solicitor for defendant, as follows: That complainant may amend her petition without further or any notice so that she asks for a divorce from the bonds of matrimony and temporary and permanent alimony instead of separate maintenance. That the petition be considered and treated as above set forth in the further progress of said cause by inserting or adding to the prayer for relief already therein, ‘And that a decree from the bonds of matrimony be granted her, said complainant, from him, said William Madden, defendant, and that she have such other and further relief. * * * That said petition stand in all things as and for a bill of complaint for divorce, and that said cause may be brought on for hearing * * * without other or further notice at any time after the 15th day of August, 1916.’ The stipulation was filed September 9, 1916. “On September 9, 1916, the case was heard, divorce granted complainant, and an order for the payment of $3 per week from the date of the decree forward and from July 6, 1912, to the date of the decree. November 29, 1921, defendant was brought in on an attachment and ordered to show cause why he should not be adjudged guilty of contempt for nonpayment of alimony. “Defendant and cross-complainant filed his petition on January 3,1922, and served notice of a motion that petitioner would move that a certain decree for divorce (the decree in this case) be declared null and void, and for a further order dismissing said cause and for such other and further relief as may appear just and equitable. Upon the argument and in the petition counsel for petitioner, Will Madden, asks that he, cross-complainant, should be allowed to present his evidence in the case if said cause is not dismissed. “Several grounds are assigned in the petition why this decree should be set aside: “First. That Mr. Shepard had no authority to enter his appearance in the case as solicitor for defendant, and was employed only to assist Mr. Lyon. The proofs show that Mr. Shepard was attorney for Will Madden in other matters, and was acting for him; that he interviewed and took statements of witnesses in this case, that an answer without a cross-bill was prepared to the petition, and in Mr. Shepard’s handwriting suggestions are made on the answer regarding the answer. That his appearance was entered in the appearance order-book March 29, 1912, and an order for a copy of the petition was entered. That Mr. Lyon’s name does not appear in the records and files of this case until the answer and cross-bill is filed. It is well known to the profession that Mr. Lyon was a close, careful practitioner, and if he had understood that he was to enter his appearance in the cause he would have done so according to the rules and practice of this court. It is apparent from the records and testimony taken on this hearing that Mr. Shepard had authority from Will Madden to appear for him in this cause. “Second. Defendant and cross-complainant claims that he instructed Mr. Lyon that if anything was to be done in the case or if he was needed that he (Lyon) should notify Henry Madden, father of this defendant, and that his father would notify him. Defendant claims he did not receive any notice from Mr. Lyon. Very soon after this decree was granted Henry Madden, the father, knew of it and had a copy of the decree. He also wrote Will and asked him if he knew about his (Will’s) wife getting a bill. About a year and a half after the decree, Henry Madden secured a transcript of the testimony taken on the hearing. According to defendant’s testimony, he was home a number of times between the date of the decree and this proceeding. It also appears that Will and his father talked about Mary getting her bill soon after the decree was granted. It seems unnatural and against all probabilities that the father and Will did not talk over this decree or the testimony; especially so when it was understood that the father was to notify him. The fact that Mr. Lyon did not notify the father is hardly consistent with silence. Attorneys Mr. Lyon and Mr. Frankhauser are both dead, and we are deprived of their explanation of the circumstances in connection with this case. Plaintiff Mary Madden’s main witness is now dead. “Defendant and cross-complainant, Will Madden, had sufficient information regarding this decree nearly five years ago to have put him upon inquiry. He claims he was here in the city frequently. If so, he could have called on his attorneys and found out what the situation was. A delay of nearly five years, under the circumstances of this case, is an unreasonable delay in asking to set aside this decree. The delay is so long and the lack of diligence so great that the court does not feel justified in setting aside the decree on the grounds of lack of notice to him by his attorneys. Under the circumstances of this case, it seems to me this would be true regardless of the stipulation filed in this case. Even if this had been a so-called ‘snap judgment,’ and there is no claim that it was, the defendant and cross-complainant should have moved promptly after receiving the information he did. Hart v. Lindsay, Walk. Ch. 72; Benedict v. Thompson, Walk. Ch. 446. Bearing on this question, see Long v. Long, 59 Mich. 296. “Third. Petitioner herein claims Shepard was not employed by him as his principal attorney. Counsel for Mary Madden had no way of knowing who represented her husband except by the record. Any secret or private agreement between Will Madden and his attorneys or either of them could have no binding force on plaintiff or her solicitors. Mr. Shepard having entered his appearance on March 29, 1912, and there being no order substituting any other attorney or attorneys, counsel, for plaintiff had a right and it became their duty to recognize him as the solicitor for defendant and cross-complainant. Mr. Lyon did not enter his appearance in the order-book for defendant as his solicitor, nor was there any stipulation or order of substitution making Frank A. Lyon and Charles A. Shepard solicitors for defendant in the place of Charles A. Shepard. The first time Frank A. Lyon’s name appears in this case is the indorsement on the answer and cross-bill of ‘Frank A. Lyon and Charles A. Shepard, solicitors for defendant and cross-complainant.’ Under the records of this case, defendant and cross-complainant should not now be permitted to say that Mr. Shepard had no authority to represent him and that he was not the attorney of record in this case. Bearing on this question, see Graham v. Elmore, Har. Ch., 265. “Fourth. Defendant and cross-complainant contends that under the laws governing the relationship of attorney and client, that his attorney exceeded his authority in making the stipulation in this case. The petition in this case was filed under the statute praying for a decree of separate maintenance (3 Comp. Laws 1915, § 11398). The charges in the bill are such as constitute grounds or cause for an absolute divorce. It was within the discretion of the court to grant an absolute decree under the original petition in this case (3 Comp. Laws 1915, § 11399). The charges contained in the petition or the cause of action is not changed by the amendments or stipulation. The amendments stipulated and the stipulation only have reference to the relief to be granted, and not to the charges or cause of action. I think the attorney had the power to make this stipulation. Brown v. Spiegel, 156 Mich. 138. “The fifth proposition presented is that the court had no jurisdiction to proceed in this case because of the ‘no progress’ provision of the judicature act. The so-called judicature act, being Act No. 314, Pub. Acts 1915, was approved May 18, 1915, and by its own provisions did not go into effect until January 1, 1916. By the provisions of this act, all cases at issue January 1, 1916, or at the time of making up the term calendar, were required to be placed on the term ■calendar by the clerk of the court without notice of trial or notice of hearing or note of issue being filed (3 Comp. Laws 1915, § 12573). “Section 12574 provides as follows: “‘All causes in wfricb no action has been taken or progress made for more than one year unless by reason of the business of the court the same shall not have been reached, shall be placed upon said calendar separate and apart from all other causes, under the following heading: “Causes in which no progress has been made for more than one year;” and on the first day of each term, any cause appearing under this heading shall be dismissed by the court for want of prosecution, hut without prejudice, at the cost of the party by whom it was brought into court, unless cause be then and there shown to the contrary.’ • “Calendars shall be printed and served five days before the first day of term (3 Comp. Laws 1915, § 12576). “Prior to January 1, 1916, causes at issue were placed on the calendar by filing with the clerk notes of issue. To entitle a case to be and remain on the calendar, there should be served in the cause a notice of trial or hearing. This case was on the January term and May term, 1915, calendar, having been noticed for hearing by the plaintiff’s attorneys. This statute went into effect January 1, 1916: Query: When does the one year begin to count, from January 1, 1916, or January 1, 1915? Does it reach back one year from January L 1916, the time the act became the law? I am impressed that this is a statute of repose in the nature of a statute of limitations, and should be construed liberally.' It should not take from a suitor rights he has had under the law. To state it differently: If a suitor lost no rights under the law by not making‘progress in his ease in 1915, and during all that year he was well within his rights, that is, up to January 1, 1916, the time this law went into effect, can this statute which went into effect January 1, 1916, penalize him because he did not make progress in 1915 during the time when there was no such law? I am impressed that the legislature did not intend this law to be retroactive. “It might well be said that noticing the case for hearing and filing, notes of issue and placing the cause on the January term and May term calendar, 1915, was progress under the law as it then existed. If such proceedings in May, 1915, were progress, then the cause could not be placed on the ‘no progress’ calendar for one year after the beginning of the May term in 1915. Nor would the year have expired in time to print it on the ‘no progress’ calendar of the May, 1916, term of court. It was printed on the live calendar of the May, 1916, term of court, and was heard in that term. Defendant and cross-complainant should not now be permitted to deny jurisdiction in this case because the court had not placed his cause on the ‘no progress’ calendar, and dismissed it, when he stands in the position of plaintiff in his cross-bill and could have moved in the cause and had the case disposed of by a hearing or by demanding a dismissal of the case under the statute. This he did not do, but stipulated that it be heard. The effect of the contention of the defendant’s counsel is that the court failed in its duty because it had not dismissed both plaintiff’s petition and defendant’s cross-bill. The case was on the live calendar and not on the ‘no progress’ calendar, and neither complainant nor defendant, who is cross-complainant, moved or took steps to have it brought to the attention of the court and placed on the ‘no progress’ calendar. “It is further claimed that the clerk failed in his duty in not placing the cause on the ‘no progress’ calendar, and that such failure deprived the court of jurisdiction. If defendant and cross-complainant desired to avail himself of the statute in question, he could have moved to have the cause transferred to the ‘no progress’ calendar, and not having done so can not now avail himself of such defense. Before January 1, 1916, this cause was noticed for hearing and placed on the calendar five times — four times by the complainant and once by the defendant. The cause was never continued by order of the court, or a showing made by either party, and the court does not see wherein either party can complain of the non-action of the other party. “Sixth. Petitioner herein claims that he has a meritorious defense to this action, and that the decree should be set aside, the case reopened, and he be permitted to defend and present his cause of action. The records show that the defendant and cross-complainant has known since 1912 the charges made against him, and since the latter part of 1916 has known that a decree had been rendered against him, and with all that knowledge has never pressed his meritorious defense until called upon to respond in money according to the terms of the decree. Such circumstances do not present a situation that can or should appeal to the discretion of the court, nor does it present such equities as entitles the relief asked for.” Affirmed, with costs to plaintiff. Wiest, C. J., and Fellows, McDonald, Bied, Shaepe, Mooee, and Steeee, JJ., concurred.

Bird, J. This case had its beginning in justice’s court. Plaintiff declared on all the common counts in assumpsit, and especially on a promissory note, reading as follows: “No. A-1013. Croswell, Michigan, 12-28-1914. “On or before the first day of October, 1915, I promise to pay H. R. Rice, Croswell, Michigan, or order, two hundred and thirty dollars, payable at Croswell, with exchange, with interest at the rate of seven per cent, if paid at maturity. If not paid within thirty days after maturity, then I agree to pay interest at the rate of seven per cent, from this date until paid. (Then follows the collateral agreement whereby plaintiff retains the title to certain-property until the .promissory note is paid.) “James Daeby. P. O. Croswell. Witness H.- R. Rice. $230.00. (On the back of the note were the following indorse•jneixts) • December 15, 1915 — By Mrs. J. E. D. $1.00. January 8, 1916 — Sleighs, $15.00.” Defendant pleaded the general issue and gave notice of the statute of limitations. Plaintiff was sworn and testified that the indorsement of $1 was made by defendant’s mother. He explained the $15-indorsement by saying that defendant instructed him to go and get the sleighs and credit them on the note. On January 8, 1916, plaintiff got the sleighs and credited them on the note. Plaintiff testified that defendant gave him this instruction some time between the due date of the note and Christmas time following. Defendant did not offer any testimony in justice’s court. Defendant requested the justice to strike out all the testimony of plaintiff on the ground that he had not shown that the promise of defendant was made within the statutory period. This was refused and judgment was rendered for plaintiff. Defendant removed the proceedings to the circuit court by writ of certiorari and contended that the testimony of plaintiff was not a sufficient basis for the judgment rendered. Defendant contended in the circuit court that plaintiff’s testimony did not show with certainty whether the promise was made within the statutory period of six years. His precise point is that the note was due October 1, 1915, and suit was not begun until October 24, 1921, that the testimony shows that plaintiff had the conversation with defendant some time between October 1st, when the note was due, and Christmas time. He then argues that if the conversation took place between October 1st and October 24th, the promise would not be within the statutory period of six years; that if made between October 24th and January 8th, when they were credited, it would be within six years and the note would not be outlawed; that there is no way of determining by the proofs in which period the promise was made; that the burden was on plaintiff to show with reasonable certainty that he commenced the suit within the statutory period (Ayres v. Hubbard, 71 Mich. 594; Offley v. Garlinger, 161 Mich. 351); and, having failed to discharge this burden, he cannot recover. We should be inclined to follow this reasoning as the trial court did, were it not for the conclusion reached in the case of Sutton v. Lamb, 72 Mich. 340. In that case defendant had given plaintiff three notes, dated" April 9, 1879. One note for $100 was due in one year. One $200 note, payable in one year, and one $200 note, payable in two years. On the 30th day of August, 1880, plaintiff, who resided in New York, made an arrangement with defendant whereby defendant was to purchase some agricultural tools in Kalamazoo and send them to him at Scruple, New York. It was further agreed that plaintiff should pay the freight and indorse $50 on the notes. The tools were sent on September 9th and 20th and arrived in New York on October 5, 1880, and the indorsement was then made on the notes. Suit was begun on the notes on September 22, 1886. The trial court held the notes were barred by the statute. The same question arose there as here. If a new promise arose on September 9th and '20th, when the tools were shipped, the notes were barred by the statute. If the new promise was made when the tools were received, then the suit was begun in season. The court reversed the ruling of the trial court and held the notes valid because the indorsement on October 5th was the date on which the arrangement was completed. In view of this holding we must hold that when plaintiff went and got the sleighs and made the indorsement on January 8, 1916, the payment was made. Defendant made the suggestion to plaintiff between October 1st and Christmas time. There is nothing in the record to show what reply plaintiff made to that suggestion. The fact is he did not go and get the sleighs until January 8th, and on that date made the indorsement of $15. Of course, during that interim, plaintiff was at liberty to accept or reject the proposition, and if he did not accept until the date on which he went and secured the sleighs, then the indorsement was properly made as of that time. Until plaintiff acted on defendant’s suggestion, it cannot be said he consented until he actually went and got the sleighs in pursuance of defendant’s instruction. If the indorsement was made January 8, 1916, then it must be conceded the recognition of. the date was made within the statutory period. The judgment of the circuit court will be reversed and set aside and the judgment of the justice’s court will be affirmed. Plaintiff will recover costs in both courts. Wiest, C. J., and Fellows, McDonald, Claek, Shabpe, Moobe, and Steeee, JJ., concurred.

Bird, J. Defendant was charged with the offense of gross indecency in the recorder’s court in the city of Detroit. The matter came on for trial on March 24, 1922. The testimony offered by the people tended to show that the indecent act was committed in the men’s toilet at the Grand Trunk passenger station. Nicholas Klee, a Grand Trunk Railway employee, testified that he observed defendant through the skylight commit an act of gross indecency upon the person of one Annis, who was in the adjoining apartment, and that it was accomplished by means of a hole in the partition separating the two apartments. The inference was that defendant committed the act while seated on the stool in his apartment. Other testimony was introduced in corroboration of this testimony. Defendant’s counsel, Mr. Nichols, offered himself as a witness on behalf of his client. It appeared from his testimony that he had gone down to the station and looked over the situation. He evidently did not agree with the testimony of Klee as to the relative position of the seat and the hole in the partition. The material part of Mr. Nichols’ testimony was as follows: “Q. Before going down there you read over the testimony given by Mr. Klee in the examination? “A. I read the testimony and wanted to see for myself. * * * Stool number 2 and number 3 — there was a man in number 4. I didn’t go in that one, but I went into the other stools to see exactly the situation there, and looked up at the skylight over stool 4, where this man was. There was a skylight which you •..could see someone had been erasing off a little hole about that. The rest of them were covered with soot,, because I went on the outside and looked at them.. It looked as though they had never been cleaned.. As I sat in those stools, number 2 and number 3, as it came out in the examination, there is a partition between them, and there is a hole, but you had to get away to the edge of the stool, like that (indicating), get away up here to look through, and your head would nearly touch the door. “The Court: You were stretching your neck as far as you could? “A. I did. I was much interested in this pase, and very much so, your honor, because it is a serious case. I looked and stretched my neck as far as I could without falling off the stool, and then only looked through it slanting — I could not get right straight opposite, like that, but I could see through that way (indicating) , and the door was right there (indicating). “The Court: And you were unable to get your mouth up to the hole?' “A. I think that remark is uncalled — I did not, sir — and I resent your remark. I did not try to put, my mouth to the hole, and I think your remark is, uncalled for. “The Court: What? “A. I did not try to put my mouth to the hole— that remark was uncalled for. “The Court: What do you mean, sir? I am trying to determine whether it is physically possible for that act to be committed? “A. I did not put my mouth to that hole there. “The Court: What do you mean by making that statement, Mr. Nichols ? “A. I mean this. I did not put my mouth to that hole — I did not. “The Court: Are you in á position to apologize for that statement? “A. I apologize for that? I think the remark was uncalled for. “The Court: You are fined $25 for contempt. “A. All right, sir. “The Court: Or spend ten days in the county jail. That is all. “The Court: I think in view of what has taken place it will be necessary to call this case a mistrial. “Mr. Kent: At this time, your honor, I move to call this case a mistrial. “Mr. Healy: And at this time I move for a separate trial for the defendants. “The Court: Very well.” The jury was then dismissed from further duty in the case. The matter came on for trial again on April 24th and defendant’s counsel asked permission for defendant to withdraw his plea for the purpose of making a motion. This was granted. Counsel then moved to quash the information on the ground that defendant had been formerly in jeopardy on the same charge. This motion was overruled by the court. The proofs proceeded and defendant was convicted as charged. The sole question raised is whether the episode at the first trial was adequate cause for dismissing the jury. With reference to the power of courts to dismiss juries, it is observed by Ruling Case Law: “American authorities generally announce the rule that the power to discharge the jury is within the sound discretion of the trial judge, and that his exercise of such discretion will not be reviewed by the appellate "courts unless its. clear abuse appears. The power ought, of course, to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” 16 R. C. L. p. 321. In the case of People v. Parker, 145 Mich. 488, the rule was announced that under our Constitution (1850), art. 6, § 29, a jury empaneled, accepted and sworn cannot be discharged except for inability to agree, or for some other overruling necessity which courts hold necessary to constitute' a mistrial. The question then arises as to whether the episode between court and counsel created such an overruling necessity as to justify the action of the trial court in dismissing the jury. In determining whether an overruling necessity existed in the present case we must consider the probable effect the episode had on the minds of the jurors. It is not uncommon in the course of trials, and especially in criminal trials, for opposing counsel to engage in heated arguments, and at times to get caustic and acrimonious, and it is not uncommon for the trial court to reprimand counsel and sometimes to discipline them in the presence and hearing of the jury. And occasionally counsel are'fined for transgressing the rules of court or refusing to obey the orders of the presiding judge. Neither is it uncommon for counsel at times to engage in a colloquy with the court, and by reason of their zeal be guilty of unbecoming conduct or insulting language, but because these things occur it has not suggested itself to courts to dismiss juries on account of them. Jurors expect clashes between counsel and the court. They look for spirited contests between counsel. They anticipate that court proceedings are going to be more or less tempestuous, and it is these incidents that put a keen edge on court proceedings and make them interesting to the average juror. Because bitter things are sometimes said by counsel and because the court finds it necessary to discipline counsel for improper language is no sufficient reason why the jurors should be so prejudiced against the client of either attorney as to make it necessary to dismiss them. While an orderly and courteous disposition of court matters is to be desired, the profession know, and laymen know, that where large interests are at stake and strong and earnest men are handling them, the rules of court and the proprieties are not always observed, but because this is so it would be absurd to follow every such occurrence in court with a dismissal of the jury, on the theory that they were thereby prejudiced against either one of the clients. The circumstances under which these occurrences arise are so varied that it is difficult to lay down any definite rule to be followed. While much is necessarily left in such cases to the discretion of the court, we think something should appear upon the record to make it probable that a fair trial cannot be had. Before a jury is dismissed under circumstances like those in the present case some effort should be made by the trial court to ascertain what effect the episode had upon the minds of the jurors. In the present case there was no effort made to do this. In view of the constitutional rights of defendant we are persuaded that we should hold that the trial court abused its discretion in dismissing the jury. The judgment of conviction will be reversed and the defendant discharged. Wiest, C. J., and Fellows, McDonald, Moore, and Steere, JJ., concurred with Bird, J. Clark, J. A mistrial was properly ordered. Judgment should be affirmed. Sharpe, J., concurred with Clark, J.

Bird, J. Plaintiffs owned a small tract of land near Phoenix, Arizona, which they claimed was worth $25,000, and upon which they had paid $12,000. Defendant owned a farm of 85 acres situate in Long Lake township, in Grand Traverse county, which he estimated was worth $10,000. The personal property thereon he thought was worth $2,000. Through real estate brokers in Phoenix he offered it for sale. The brokers got the parties together, and the result was that plaintiffs exchanged their ranch (as they called it), subject to the incumbrance, for defendant’s Grand Traverse farm. Defendant inspected the Arizona ranch, but plaintiffs closed the deal without seeing the Grand Traverse farm. When plaintiffs came to Michigan and inspected their newly-acquired farm they were disappointed, and claimed that defendant’s representations as to the value of the land, the fertility of the soil, its accessibility by good roads, its production of fruit, and the amount and value of personal property, were not true. They did not attempt to rescind the sale, but brought this action to recover the difference between what the Grand Traverse farm was actually worth and its value if it had been as represented. The result was a verdict for plaintiffs of $6,500. Defendant complains that the trial court was in error in stating to the jury the measure of damages. The trial court, in the first instance, instructed the jury as follows: _ “Now, what loss have the plaintiffs sustained, provided you find they have been defrauded? The rule is, they will be entitled to recover the difference between the farm in Grand Traverse county as it was represented to be, and the value of the farm as it was at the date of the transfer. This includes also the personal property.” It is conceded that this was the proper rule of damages to apply to the case as is pointed out in Smith v. Construction Co., 175 Mich. 607. After giving this rule the trial court called both.counsel to the bar and, after a whispered conference with them, he resumed his charge and modified this rule. Perhaps it would be better to let the record state just what was done: “I want now to say something to counsel on both sides. (Here counsel on both sides came to the bench and conversed with the court in a low tone of voice.) “At Mr. Tweddle’s request, after conferring with counsel as to whether the facts and the law had been fully covered by the charge of the court the following statement as to the rule of damages was given: “The Court: There was a question — and I desired the benefit of counsel’s view as to the law. “I have charged you that it is the rule generally, that the difference .between the value of the property as it actually existed at the time of the transfer and what it was represented to be worth by the party would determine the amount of your verdict. I want to modify the rule that I gave you, to this extent. “It is undisputed that there was a <¡>13,000 obligation against the place of the plaintiff, in other words, that the plaintiff had paid $12,000. If that property was fairly worth $25,000, if there was no dispute upon that point, then $12,000 would represent the value of the plaintiffs’ interest in the premises. The Arizona property cannot be considered by you as worth more than $25,000, but there is some testimony that the ranch property in Arizona had' depreciated in value, that it was not worth the full sum of $25,000 and that $13,000 deducted would not represent the actual value of the plaintiffs’ interest in the Arizona property. The rule as stated is the law in this case; but under the claim of the parties, the plaintiff can recover, only the difference between the actual value of the plaintiffs’ interest in the ranch in Arizona, and the value of the property in Grand Traverse county, ■Michigan, and your verdict should represent this actual difference in value. For instance, you are to determine if you find that the plaintiff was defrauded, the value of the Arizona property, deduct from it the $13,000 remaining unpaid and that will represent, for the purpose of this case, the value of the property and if you find for the plaintiff, subtract from that the value which you find the Grand Traverse county property to be, and the difference will represent your verdict, the amount which you will return as a verdict plus 5 per cent, interest from the date of' the transfer. This sum cannot exceed the difference between the value of the Grand Traverse county property as represented by the defendant and its actual value on the date of the transfer as provided under the general rule. The amount of your verdict might be less than, such difference in value.” We are left to infer from this record that defendant’s counsel, who is now complaining of the modification, was responsible for its being made. Plaintiffs’* counsel openly charges in his brief that defendant’s, counsel was responsible for the modification, and that-he ought not now to be permitted to complain of it-in the appellate court. Plaintiffs’ counsel further-argues that no injury was done to defendant by the: modification, inasmuch as the proofs fully justify the; verdict. We are inclined to take this view of the matter, inasmuch as defendant’s counsel has in no way refuted the charge that he requested the modification. If defendant’s counsel invited the court to make the error it would be manifestly unjust to reverse the case in the appellate court on account of it. Waddingham, v. Waddingham, 27 Mo. App. 596. In this view we are constrained to affirm the judgment. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, and Steeee, JJ., concurred. Moore, J., did not sit.

Sharpe, J. On October 9, 1920, plaintiff recovered judgment against Frank E. Hager, defendant, in the sum of $3,500. On October 12th, a writ of fieri facias was issued. This writ was returned unsatisfied on November 16th. On September 15, 1922, a writ, of capias ad satisfaciendum was issued on the judgment, on which Hager was arrested. He was released by the defendant circuit judge on a writ of supersedeas on September 21st. Mandamus is here asked to vacate the order for such writ. It is conceded that the cause of action was such as entitled plaintiff to issue an execution against the body. The question presented involves a construction of the following sections of our laws as compiled in 1915: “(12838) Sec. 23. When any defendant at the time judgment shall' be rendered against him, in any court of record, shall be in the custody of the sheriff or other officer, either upon process in the suit in which such judgment shall have been- rendered, or upon being surrendered in discharge of his bail in such suit, the plaintiff in such judgment shall charge, such defendant in execution thereon, within twenty days after such judgment shall have been obtained. “(12839) Sec. 24. When any defendant shall be in custody upon a surrender in discharge of his bail, made after a judgment obtained against him, and such bail shall be thereupon exonerated, the plaintiff in such judgment shall charge such defendant in execution thereon, within twenty days after such surrender, or if an execution against the property of such defendant shall have been issued, within ;twenty days after the return day of such execution. “(12840) Sec. 25. If any plaintiff shall neglect so to charge any defendant in execution, as> required by the two last preceding sections, such defendant may be discharged from custody by a supersedeas, to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown; and after being so discharged, such defendant shall not be liable to be arrested upon any execution which shall be issued upon such judgment. “ (12841) Sec. 26. In those cases in which bail shall have been taken on the arrest of a defendant, and the bail bond shall have been assigned to the plaintiff; and in those cases in which special bail shall have been filed, no execution shall issue against the body of the defendant in such action, until an execution against the goods and chattels, lands and tenements of such defendant, shall have issued to the sheriff or other proper officer of the county in which such defendant was arrested, and shall have been returned unsatisfied, in whole or In part.” The defendant, circuit judge, held that the writ of capias ad satisfaciendum not having been issued within 20 days after the return day of the execution against the property of the defendant, as required by section 12839, and no “good cause” having been shown for the delay, the defendant was entitled to be discharged. In view of the conclusion we have reached as to the effect of the decisions of this court hereafter referred to, the question is a new one in this State. Plaintiff contends that the sections quoted are only applicable in cases wherein the defendant has been arrested on a writ of capias ad respondendum at the time of the commencement of suit. After mature deliberation, we feel constrained to so conclude. Section 12816 provides for the issue of an execution after judgment. Section 12818 reads: “Such execution may be either: “1. Against the goods and chattels, lands and tenements of the party against whom such judgment, was recovered; or “2. Against the body of such party, in the cases authorized by law.” The “cases authorized by law” are actions which might have been commenced by capias ad respondendum and the defendant held to bail. (See cases in annotation to this section.) On such judgments executions may issue at any time before enforcement is barred by the statute of limitations (Parsons v. Wayne Circuit Judge, 37 Mich. 287), unless regulated by the provisions of the sections first quoted. Section 12838 applies when the defendant, at the time the judgment is rendered, is in custody, either upon the capias ad respondendum or by reason of his having been surrendered in discharge of his bail. In such case, executions against the body must issue within 20 days after the date of the judgment. Section 12839 applies when the defendant is not in custody at the time the judgment is rendered but is thereafter surrendered to the custody of the officer and his bail exonerated. In such case, execution against the body must issue within 20 days after such surrender,— “or if an execution against the property of such defendant shall have been issued, within twenty days after the return day of such execution.” The reason for the insertion of this provision is apparent from a consideration of section 12841, which prohibits the issue of an execution against the body in cases where the defendant has furnished a bail bond or special bail has been filed until an execution against the property of the defendant shall have been returned unsatisfied. If such execution has been issued before defendant has been surrendered to the custody of the officer, it stays the time at which an execution against the body can be issued until after its return day. The manifest purpose of these sections is to compel a plaintiff who has procured the incarceration of a de fendant to move with promptness in the enforcement of his rights. If the defendant be actually in custody when the judgment is rendered, the plaintiff must cause an execution against the body to be issued within 20 days thereafter. If not in custody by reason of his compliance with the provisions as to bail, plaintiff must issue an execution against his property and have it returned before he can secure an execution against his body. These several provisions are consistent with each other, workable and easily understood. Section 12840 provides for his discharge if these provisions have not been complied with. The reason therefor is the neglect of the plaintiff to cause the execution against the body to be issued during the time limited. The word “discharge” in itself clearly indicates that it can only apply when a defendant is in custody. The language employed is “may be discharged from custody.” It clearly follows that the “custody” referred to is that arising from arrest under the capias ad respondendum, issued at the time of the commencement of suit or that due to his surrender in discharge of his bail. By any fair interpretation of the language used, it cannot apply to his arrest under an execution against his body because the right thereto is based on the neglect to issue such an execution within the time limited therefor. In our opinion, these sections apply only to proceedings after judgment in cases where the action was commenced by a writ of capias ad respondendum and the defendant apprehended thereunder. When a judgment is obtained without the issue of such a writ, as in the case before us, no reason appears for the application of such statutory rules. The liberty of the debtor has not been interfered with. Plaintiff is entitled to either a writ of execution against his property or one against his person. His rights are in no way prejudiced by delay. He may avoid proceedings by making payment. His property may be levied on and sold to satisfy the judgment. His person may be taken into custody and after a time and in the manner provided by law he may secure his discharge. In the efforts thus taken by plaintiff to secure payment, we can sea no way in which a defendant needs the protection of these sections of the statute to safeguard his rights. In the opinion filed and in the return to the order to show cause, the defendant, circuit judge, treated the question here discussed as having been decided by this court. Whether there was “good cause” for the delay in issuing the writ was the question considered by him at length. The decisions referred to and now relied on by defendant’s counsel are Douglass v. Manistee Circuit Judge, 42 Mich. 495; Metcalf v. Moore, 128 Mich. 138; Lapham v. Oakland Circuit Judge, 170 Mich. 564; and In re Lauer's Estate, 184 Mich. 497. In the Douglass, and Metcalf Cases, this court affirmed the action of the circuit judges in discharging the defendants when it appeared that the execution against the body had not been issued within the time limited therefor by the statute after the return day of the property execution. While there is nothing in the opinions filed to so indicate, an examination of the records shows that in both of these cases the action was begun by a writ of capias ad respondendum and the defendants were in custody at the time the executions against the body were issued. In the Lapharn and Lauer Cases they were not, but this fact was not stressed. Counsel in the briefs filed conceded that the statute limiting the time for issuing the executions against the body was applicable. The question here presented, therefore, was not considered or decided by this court. The language in the early New York statute (sections 36 and 37, part 3, chapter 8, title 17, Revised Statutes of 1875) was quite similar to that under con sideration here. In construing that part of it corresponding to our section 12838, in Bostwick v. Wildey, 42 How. Prac. (N. Y.) 245, the court said, at page 250: °“The purpose of the statute is, to enable an imprisoned debtor to avail himself of the provisions of the statute concerning voluntary assignments by a debtor imprisoned on execution in civil cases (2 R. S. 31), whereby he may be discharged from imprisonment, by compelling the creditor, within a fixed term, to sue out an execution against the person of his debtor; or if he fail to do so, to have his right taken away by a supersedeas, at the instance of the debtor.” This case apparently reached the court of appeals of that State (Bostwick v. Goetzel, 57 N. Y. 582), but the opinion sheds no light on the question here considered. Imprisonment under an execution against the body is not intended as a punishment for failure to pay the judgment. It is permitted by the law for the purpose of compelling the debtor to reveal property presumably withheld by him in fraud of his creditor from which the judgment may be satisfied. Herman on Executions, p. 573. If he is in custody, the statute provides a time limit within which the writ must issue. If not in custody either under the writ issued at the time of commencement of suit or by reason of his surrender by his bail, these sections of the statute do not apply and writs may issue for the collection of the judgment uncontrolled thereby. It follows that the writ of mandamus must issue as prayed, with costs against the defendant in the original action. McDonald, Clark, Bird, and Moore, JJ., concurred with Sharpe, J.

Wiest, C. J. This is an action of slander. It is claimed defendant charged plaintiff with the crime of incest with his sister. The specific language is not necessary to decision and is, therefore, omitted. At the trial testimony was permitted to be given of the general reputation of the wealth of defendant. The court instructed the jury that: “The wealth or property possessed by this defendant is permitted in here only as bearing on the weight and credence that the community in hearing these things might give to his utterances.” Counsel for defendant claims it was error to per-, mit such testimony of reputed wealth. It would not have been competent to show defendant’s actual wealth. McCloy v. Vaughan, 185 Mich. 189. It was proper to show his reputed financial standing for the purpose stated in the instruction. McCloy v. Vaughan, supra; Brown v. Barnes, 39 Mich. 211 (33 Am. Rep. 375); Botsford v. Chase, 108 Mich. 432; Sanford v. Houghton, 184 Mich. 44. Under the plea of the generál issue defendant gave notice that one Preston, of the township of Dayton, Newaygo county, came to defendant in the interest and behalf of the Odd Fellows lodge, of which organization plaintiff and defendant were members, and asked him in confidence about the matter in suit and he informed him of what he had heard. At the trial witnesses were permitted to testify to their membership in the order of Odd Fellows, and that plaintiff had made some progress in joining the order. Most of such testimony was given to show why the witnesses visited and talked with defendant about the alleged slanderous utterances. We are not persuaded of any harmful error in this. Complaint is made because a witness was asked whether the mother of plaintiff was a “Sister Rebecca.” The question was not answered. Counsel for defendant offered to show common report of plaintiff’s improper relations with his sister, by statements claimed to have been made by the sister to schoolmates four or five years before the trial, and the spread of the story; that it was considered by him and others as idle gossip and as such repeated by him without malice. The court held such defense inadmissible and that the slanderous statements made by defendant were actionable per se and limited defendant to justification of his utterances. Thereupon defendant rested his case without any testimony. Defendant’s requests to charge also bring up the question of the right of defendant to show that he repeated common rumor. Was defendant entitled to show, in mitigation of damages and to rebut malice, that he was not the originator of the slander but only repeated long-standing, common rumor or gossip? It is no defense and cannot mitigate damages to show that others uttered the same slander or that it was common talk. It may be shown in mitigation of damages, however, that the common talk came to the knowledge of defendant before he uttered the slander and he believed it and did no more than repeat what he had heard. It cannot, however, constitute justification; it may mitigate damages; it may rebut the legal presumption attending a charge actionable per se, but it cannot affect malice in fact. We find in counsel’s statement to the jury of what he expected to prove, the following: “We will show you that as far back as four or five years ago that Mr. Mansfield had heard it the same as all the other neighbors in that vicinity.” It is not quite clear, but we assume that this related to what, it is claimed, had been stated by Mike Donohue and the incident of plaintiff’s father seeking explanation from Mr. Donohue, but, be that as it may, defendant’s claim was that he only repeated the Donohue statement and that such statement was common rumor of long standing to his knowledge. If the alleged slanderous matter was current in that community before the utterance thereof by defendant, and had come to his knowledge, and he believed the same true, and he only repeated the same as gossip or rumor, then he had a right to make such a showing in mitigation of damages, but for no other purpose. Farr v. Rasco, 9 Mich. 353 (80 Am. Dec. 88); Wolff v. Smith, 112 Mich. 359; Brewer v. Chase, 121 Mich. 526 (46 L. R. A. 397, 80 Am. St. Rep. 527). Defendant should have been permitted to show, in mitigation of damages and to rebut the presumption of malice, what he had heard by way of common rumor before he uttered the slander and that, if such be the case, he believed the charge he so made to be true. For the error pointed out the judgment is reversed and a new trial granted, with costs to defendant. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Steere, J. Prior to the year 1914 members of a colony of Russians in the northeasterly part of Detroit formed an organization in the nature of a voluntary unincorporated religious association. They were all members of the Orthodox Greek Church and most of them spoke only the Russian language. They were unfamiliar with or indifferent to procedure in this country for legal organization and incorporation of church entities and pursued their own peculiar practice'. It appears to be conceded that they organized as a parish of the Russian Orthodox Greek Church according to its recognized methods, under the auspices of the American hierarchy, and submitted themselves to its jurisdiction in matters of religious faith and ecclesiastical discipline. They later procured a place of worship and home for a pastor by purchasing from the Asbury Methodist Episcopal Church of Detroit two, lots located at the southeastern corner of Joseph Campau and Hendrie avenues upon which was a church building. Although the purchasing society was unincorporated the deed to the property, dated March 16, 1917, runs from the grantor named to the “Russian Orthodox All Saints Church, a corporation created by the laws of Michigan, of the same place.” Some time following their organization a committee representing them asked of the proper church authorities and were given a priest to minister to their spiritual wants. After this property was thus secured, services were regularly held in their church, according to the doctrines and liturgy of the Russian Orthodox Greek Catholic Church, and the customary church activities were conducted there under an ordained resident priest of the faith who was installed in the pastor’s residence adjoining. Church records were kept, written by the secretary of the society in the Russian language in books procured for that purpose and usually deposited in the church building. In them were entered minutes of business meetings of the parish, committee meetings, baptisms, marriages, funerals, etc. Amongst the records was also kept a book containing a list of the members of the church, or parish. Father Isidore Salko was, the first priest assigned to and accepted by this parish. He was not entirely in accord with some of the regulations of the local organization relative to its temporal affairs, including his compensation, and left in about a year. He was followed by three others in succession, the last being Father Dimitri Darin, one of the defendants in this case, who became pastor of the church in August, 1918, and continued to act in that capacity up to the time of the hearing, though plaintiffs contend he was deposed by action of the majority of the church members some time before. The members of this association increased and it apparently prospered harmoniously until after outbreak of the revolutions in Russia which overthrew the empire and resulted in the assassination of its czar, who was recognized as the head of the Russian church, with the American hierarchy of which this congregation was affiliated. Thereafter discussions and dissensions arose amongst the members which gave rise to a division resulting in this and other litigation. So closely were the institutions and interests of the Russian church interwoven with those of the Russian empire, that the fall of the latter left the affairs of the former in a sadly disturbed and chaotic condition, which apparently yet prevails. Those matters, which are stressed at length in the conflicting contentions of the parties, throw more light on the causes than or the solution of this litigation, though perhaps helpful to the extent they may indicate the political views of the contending parties on Russian governmental} affairs and the consequential effect on their attitude towards submission to the temporal if not spiritual government of the Russian Greek church, to which, however, in its religious aspect, plaintiff’s members claim spiritual loyalty as faithful members in full harmony with the confession of faith, discipline and rules of said church under the “jurisdiction of the administration of the hierarchy of the Russian Orthodox Church of North America.” The differences in this congregation were in their inception over Russian political matters as to which they were first aroused by the so-called Kerensky revolution in 1917. So far as shown this revolution was not directly antagonistic to the religious tenets of the church, as such, although it deposed the czar who was its temporal head. The majority of the members of this organization were in sympathy with the revolution, while the clergy of the Russian church generally and naturally remained loyal to the czar, the fall of whose empire destroyed all governmental relations of state and church. Although it is indicated the czar was regarded by the mass of lay members and even some of the clergy as also the spiritual head of the church, his connection with it according to its catechism was only as “administrator and protector,” confined to administering its temporal affairs as a state church, without clerical rank or control over ecclesiastical questions of faith, dogma, or discipline. Whatever his influence and aid in the temporal affairs might have been, he seems to have only ranked at the altar with the laity. But, be that as it may, the troubles in-this parish, originating in extreme differences over governmental disturbances in Russia, had become so acute that certain of its members were led by their sympathies with the revolution to become, for the time being, at least, followers of an atheistic revolutionary leader of that country called Lenine, whose picture with that of a socialist agitator named Debs adorned the walls of a building not far from the church in which that cult was accustomed to gather, called the “Russian National Home.” This national home was procured by the Russians in that community in 1916 before any of these church dissensions arose, and apparently was harmoniously used by people of that nationality as a social center and general place of meeting. There is evidence that it was favorably looked upon and patronized by members of the church who, from the beginning, held some of their general congregational business meetings of the parish there, because the basement of the church was too small to accommodate the entire membership. After the revolution broke out in Russia it seems to have become a place of assembly for discussion of Russian political issues and activities. At the time of this trial Father Darin described it as. a “Bolsheviki hall” or place where the “radical element” gathered. When the United States entered the World War and took steps to register alien enemies, the attitude and propaganda against this government of many of the Russians who met in that building attracted the attention of Federal authorities to it, and, amongst others, some 40 or more members of the church were arrested with a view to their deportation, but after-wards released under bonds. While the records do not make clear that any of them were deported by the government, it does appear that quite a number of them deported themselves. Father Darin came to this church as its priest in troublous times. Though evidently conscientious and faithful in his priestly duties, it is obvious that he was not in sympathy with the political views on Russian affairs of the majority of his parishioners. Raised and educated in this country, he spoke both the English and Russian languages fluently. Finding him a competent and reliable interpreter, the Federal authorities at times employed him as such. His services to the government in that capacity seem to have inspired the accusation by some of his parishioners that he furnished the information which led to their arrest, of which, there is no evidence and which he positively denied. The records of the parish show numerous more or less inharmonious meetings of its members were held in the latter part of 1918 and early in 1919, the last in which the unquestioned officers of the church organization and both factions participated being the annual meeting held on January 5, 1919. The record of that meeting shows the election of a. president, treasurer, secretary and eleven “members of the committee.” ■ Makari Skurko, a former secretary, but not during the preceding year, was unanimously elected secretary for the succeeding year. Amongst other entries in the minutes of the meeting it is recorded as decided that: “To take part in the decisions of the church meetings the names of the parishioners must be entered in the parish book. The names entered in the parish book should be those who have any need in the church.” . » The contentions between these factions for control of the church property reached a point of physical activity in which the police interfered for preservation of order, following which defendants remained in possession and those represented by plaintiff, claiming to compose the great majority of the original’ religious association which bought the church from which they had been excluded by force, thereafter held their meetings in the Russian National Home and assumed, so far as possible, continuation of the business management of the parish. Skurko, who as secretary of the parish kept its records and had access to the archives of the church, went with the majority faction, taking along the church books and thereafter as secretary recorded in them the minutes of their proceedings as a continuation of the church records. Other books were procured by the faction in possession of the church in which its meetings were recorded by a chosen secretary. Of the disturbances in and around the church which ended in the two organizations, it is claimed for plaintiff that the majority did no more than attempt to conduct or participate in the bhsiness meetings of the parish as customarily held according to their rights under the rules of procedure, which the minority forcibly prevented and expelled them from the church with police assistance; while it is claimed by defendants that none of the opposing faction who conducted himself in an orderly manner was ever excluded from the building or denied the privilege of worship and participation in the affairs of the church at proper times and in a proper way, all they did on those occasions being in suppression, of boisterous conduct and contentions by certain leaders of the opposing faction which disturbed the religious services, and in resistance of a hostile attempt of the claimed majority with show of force to unlawfully take possession of the property and control the affairs of the church. It is shown by the pleadings and testimony that this is the third suit commenced by or on behalf of plaintiff since these differences arose. No copy of any of the files or records of the two preceding cases appears in the printed record of this case. Of one it is conceded that the bill was dismissed on June 30, 1919. Defendants’ counsel asserted it was between the same parties and involved the same matter, while plaintiff’s counsel replied that it was the same parties but a different bill, and what the court did was to dismiss it in the absence of counsel for defendants. Of the other suit preceding this, it is alleged in plaintiff’s bill that during its pendency the judge of the Wayne circuit court ordered an election to be held by the parishioners of the church on May 25, 1919; that such election was held, participated, in by both factions and conducted by an election committee, one member of which was appointed by the court and one by each of the parties to this suit, and that a report of such election committee was filed in the cause from which it appeared certain named parties were elected. In their answer defendants admit that such an election was ordered by the court but allege that— “instead of being held in the church as ordered, was held_ instead in a Bolsheviki hall, which election was dominated by signers of said bill of complaint, and was a travesty on justice, and was just what could be expected from the signers of said bill of complaint and their associates.” The only testimony we discover in the record regarding this election is by Father Darin, who said there was an election committee of three appointed for that election, in which he represented the defense while an attorney by the name of Dorge represented the other side and he thought a report was sent in, but on its actual contents he throws little light. Who, if any one, represented the court is not disclosed. What the pleadings were in that case, why the rights of the parties were not adjudicated by it, or how it was disposed of, are left in this record to conjecture. It does appear, however, that before the instant suit was begun both the opposing factions incorporated under State laws as religious organizations. Those composing plaintiff moved first. On April 9, 1919, they filed their articles of association and incorporated as the “Russian Orthodox All Saints Church” of Detroit, being the name of the grantee in the deed to the church property given by the Asbury Methodist Episcopal church when the voluntary association composing this parish bought the property of it. Defendants’ organization filed its articles of association and incorporated on May 14, 1919, as the “All Saints Russian Orthodox Greek Catholic Church.” The trial court found that the various church books put in evidence by plaintiff contained the authentic records of the original voluntary association which organized for religious purposes and purchased this church property, and sustained as authentic the minutes of meetings recorded in them after the separation by Skurko, who had been unanimously elected as secretary for the year during which the' factional division took definite form. Finding that the records showed plaintiff was first duly incorporated as successor and composed a majority of the voluntary association, the court held it to be the owner of the property in question, entitled to its possession and control for the use and benefit of the parish pursuant to the purpose of its organization and incorporation; an accounting as prayed for was granted, and a “meeting of the parishioners and congregation” was directed to be called, by specified notice, “for the purpose of selecting a treasurer and members of said church committee to serve until the next regular annual meeting of said parish and congregation.” Defendants ask reversal on numerous claimed errors both in findings of fact and conclusions of law. Broadly speaking, their claim appears to be that under the rules and regulations of the Russian church the majority of this voluntary association lost membership in the church as organized by refusing submission to its constituted government, declaring themselves an independent organization subject to no hierarchical jurisdiction, followed by their withdrawing from the church and leaving it in possession of that portion of the congregation yet faithful to its original purpose and doctrines. This extreme view is not well sustained by convincing evidence. Plaintiff’s members insist they have remained loyal adherents to the tenets and confession of faith of the Russian Orthodox Greek Church in all matters of religious belief and discipline, and only the temporalities of the church are the subject of dispute by reason of the minority members excluding the majority and denying them the right to possession, use, and management of the church property in which, by the rules of the organization, they have a controlling beneficial interest. There is little proof beyond assertion by defendants of any religious schism-or division by reason of diversity of-opinion, on matters of faith and doctrine. While abundance: of ill-feeling and intolerance is manifested, both, parties strenuously claim adherence to the tenets and. doctrines of the church. The situation seems to disclose a bitter factional fight in the church over its’ temporal affairs, rather than a secession of either party from it. This voluntary association seems to have originally organized its temporal affairs as an independent parish or congregation, submitting thereafter in matters of faith or religious affiliation to the hierarchy of the United States diocese of the Russian Church of North. America. It is undisputed that the North American branch* or hierarchy, of the Russian church was divided into two dioceses, one including the United States and the other Canada, or the British provinces of North America, with an archbishop as the ecclesiastical head in authority over each. In 1909 “The Normal Statutes of the North American Orthodox Diocese” of the Russian church were promulgated under the approval of Archbishop Platon, then archbishop of the United States diocese. After this voluntary association was formed as a congregation and applied for a parish priest, it was furnished with a copy of these statutes* or by-laws of the diocese, which were accepted and kept amongst its archives for guidance in religious organization and management of the parish by those in charge of its affairs. The association apparently conformed to its essential requirements, with some added provisions and by-laws not in conflict, to an extent then satisfactory to the church authorities. The provisions of these “normal statutes” relate largely to matters of ecclesiastical government, though running through them rules for guidance in temporal affairs are also provided. Independent parishes and congregational ownership of church property seem to be recognized. Some of its provisions run in part as follows: Of “parishes” it is said: "Each parish has territorial limits, which are established and amended in conformity with and according to the demands of circumstances, on the -conclusions of the District Ecclesiastical Superintendents’ Council and upon the approval of the Supreme Diocesan Authority. * * * “Newly established parishes may be of two kinds, independent and dependent, (a) If for some reason, for instance, for failure to comply with the obligations, mentioned in (4) the further existence of an independent parish is considered undesirable, the archbishop may inscribe the parish with its church as dependent on another parish.” Of the “parishioners” it is said: “11. All persons of the Orthodox confession living within the boundaries of the parish shall be considered inembers.” Of “church and parish property” it provides in part: “The church property is divided into two parts: (1) Property belonging to the church proper as such which is deeded to the Archbishop of the Diocese in trust for the congregation and the insurance policies are taken out in his name. (2) Property belonging to the parish. The right of ownership in the first im stance belongs to the church proper and in the second instance to the parish. * * * “The managing and disposition of church property of the first class belongs to the church officials with the participation of the parishioners, in the established order. The managing and disposition of church property of the second class belongs to the parish. * * * “The church property may be disposed of as circumstances require in compliance with the resolutions of the parish meeting.” Paragraphs 27 to 39, inclusive, of the normal statutes relate to “parish meetings.” They are too lengthy to be quoted in full but among them appear the following excerpts: “Parish meetings are ordinary, called by the Parish Council not less than once a year, and extraordinary, called in case of need on the initiative of the priest of the parish, the parishioners themselves, numbering at least twenty-five members, the parish council and the consistorial authorities. “All full members of the parish may take part in the parish meetings, that is to say, adult members who pay on their own account all the fees the parish statute, prescribes not less than six months and who have fulfilled at certain periods the duties of penance and communion. * * * “If balloting is necessary, it is done either openly or by secret voting, if but a single member requires it. The resolution is established by the simple majority of the votes. * * * “The resolutions of the parish meetings are recorded by the parish secretary in a special book of protocols kept in the church archives without any delays and are signed by the chairman and all present either personally or through a representative. * * * “The parish members dissatisfied with the resolutions approved by the parish meeting, may within 30 days protest to the Rural Dean (blagochinni), who in turn will consider the protest and make his report within thirty days.” Not only do ownership and control of church property by a majority of the members of the parish organization which furnished it appear to be recognized by these normal statutes, but it is conceded that the acceptance or rejection of a priest for the parish rests with the majority of its members. Rules were adopted by the organization as to residence, assistants, compensation, etc., of the various priests it had and agreed upon before they were accepted and entered upon their pastorates. When Father Darin became pastor of the church it was a fully organized society owning a church building, parish house with the usual furnishings and equipment. It was managing its business and temporal affairs through elected officers under by-laws or rules duly adopted by a majority of members of the organization. On August 1, 1918, shortly before Father Darin was accepted as pastor and at a time when no dissensions over church matters are shown, by-laws of the church were adopted at a meeting of the parishioners providing that the church committee should advise the new priest and assistant of their salaries and other conditions which' the meeting determined. Salaries were specified, provision made for residence, heat, light, telephone and other household necessities, and it was specified they should “perform sermons and all church duties promptly on time,” with various other somewhat singular details, it being also stated in the by-law that “They may be removed from office by the parishioners at any time if they fail to live up to the rules.” Of this right of the congregation Father Darin replied on cross-examination : “If they were members in good standing of the church, and law abiding members of the church and held meetings decently, after announcement in the church, and in the church property, they would have a right to tell me to go, and I would go.” We think it clearly shown that the parish was organized by this voluntary association under a congregational form of government for its temporal affairs and so recognized by the ecclesiastical authorities with which it affiliated and to which it submitted in matters of faith and form of worship. The record discloses no attempt by plaintiff, constituting the majority members of the. organization, to at any time change the ritual, discipline, or confession of faith or deny in spiritual matters the jurisdiction of the Russian Orthodox Greek Church of North America, as promulgated in the protocol or “normal statutes” recognized in the organization of this congregation. A civil court cannot undertake to determine the Sincerity with which a religious creed is professed. So long as the property purchased and owned by this society is not diverted from the religious and moral purpose for which it was procured, we find nothing in the rules or by-laws of the ecclesiastical jurisdiction to which it submitted precluding the society in its civil capacity from managing its temporal affairs according to the will of the majority. The records make clear that congregational government in temporal affairs was not vested in either its pastor or in the minority, who seem to have assumed it. The indicated position of defendants is that those of plaintiff’s organization, even though, constituting a majority of members up to the time of the division, had seceded and become “anti-church men, applying all efforts to destroy the same,” and therefore, as minuted in the minority records,— “in order to enforce order in church affairs and to gather on the meeting only true church members it was necessary to organize a church protecting society for the remaining true members. Because the usual announcement of the meeting as it was practiced till this time did not lead to good results but to the worst. It was noticed lately that church meetings were attended not only by anti-church members and bolshevists but also by outsiders, such as Polish and Jews.” This “church protecting society” was organized under leadership of Father Darin about the time differences between the factions became most aggressive and it thereafter, without notice or trial so far as shown, excommunicated, or expelled from membership, the so-called “anti-church members,” held possession of the church building and assumed exclusive management of temporal affairs, with Father Darin in charge as pastor. As a church militant it appears to have furnished the protection its name implies, for in the record of one meeting which “ended with singing and prayer” it is recorded, “The meeting did not pass without any incidents, some of the anti-church men managed to get in and tried to break it up, but did not succeed, police were on hand who put them out.” Of its attitude towards the erring brothers, most of whom were conceded to have been acceptable members of the church before the overthrow of the Russian empire, it was recorded: “The church protecting society does not close the church doors to anybody, even not to anti-church men, but all those that are known to be agitating against the church will not be permitted to participate in settling of the affairs of the church.” An apparent list of members of the church protecting society in the record shows the names of 50 members, though it is stated more were present at the meeting “but not all signed their name on account of the late hour and some were illiterate.” That they composed but a small minority of the membership before the enforced hegira is conclusively shown. However belligerent the so-called anti-church members might have been at the start, they abandoned the struggle when confronted with the church protecting society backed by the police, and no longer tried to participate in or conduct business meetings at the church, Put still claiming loyalty to the tenets of the church and as majority members of the congregation entitled to control its temporal affairs, they thereafter held meetings in the Russian home and assumed to continue the organization as before related. Their first formal congregational meeting was held on March 23, 1919, and is stated in the record of it entered by Secretary Skurko, which the trial court found authentic, to have been conducted “according to the announcement of the priest of the church for the parishioners to assemble at this meeting on the 23d day of March.” Defendants deny any such notice was given. Plaintiff’s testimony is that a written notice was handed Darin at a previous meeting in the church with request to announce it. He denied making the announcement. A witness of plaintiff named Ribko testified he passed up the notice and requested him to make the announcement; that: “He turned around and said: ‘Well, I was just given a notice to announce the meeting. I will not be present there.’ * * * He took it out from his sleeve pocket, read notice, and he added he would not be present there.” In any event a general notice of the meeting is indicated by the record which shows 400 members attending and voting. Plaintiff’s counsel states that a list of members of the society shows 513 names, and the then congregational strength of the parish is given as about 450. Defendants contend plaintiff’s meeting of March 23d and others which followed were void because held elsewhere than in the church. It is shown that prior to the dissensions congregational meetings for business were held at times in the Russian National Home. Even if the rules of the association required such meetings to be held in the church, which is not clearly shown, the majority could not be deprived of their civil rights in the business affairs of the congregation through their forcible exclusion from the church by the minority with police assistance. So far as the temporal affairs of this congregation are concerned they are subject to that sound principle which underlies all our civic institutions, that in every organized society the controlling power rests with the majority. Neither can the wholesale expulsion, or excommunication, by the minority constituting the opposing faction, without notice or hearing, be sustained. “While the civil courts will studiously give full effect to the judgment of an ecclesiastical court when matters ecclesiastical only are involved, when civil rights as to property are involved the civil courts will insist that an accusation be made, that notice be given, and an opportunity to produce witnesses and defend be afforded, before they will give effect to an expulsion or suspension of the kind here attempted. Hoffman Ecclesiastical Law, 276, 277.” West Koshkonong Congregation v. Ottesen, 80 Wis. 62 (49 N. W. 24). Not only did the division result in both factions being short of officials as elected at the meeting of January 5, 1919, but vacancies were often occurring during those turbulent times owing to members leaving for Russia or elsewhere, a frequent answer to inquiry as to the whereabouts of an officer or member being: “In the old country.” Plaintiff’s counsel do not deny the validity of the annual meeting of January 5, 1919, but state certain mistakes were made there in electing disqualified persons to the church soviet or committee which constituted its advising or managing body, apparently analogous to the customary board of church trustees, and claim that at the congregational meeting of March 23d held in the Russian people’s home “the congregation, with more than two-thirds present, added to and confirmed the election of January 5th, and corrected certain errors on that election, as it had the power to do according to its laws.” For this authority the following relative to members of the committee is quoted: “1. * * * (If the above should not be qualified they may be subject to*change or dismissal on every meeting.) * * * . “It was decided that the members of the committee should immediately be present on the meetings of the committee. Those that will not be present will be dropped as members of the committee. The members agreed to it.” At the March 23d meeting, after a report by a member of the church committee, and a member of the auditing committee, Secretary Skurko as a member of said committee reported that the title to the church property was recorded as that of a corporation, and the present committee having “violated the decision of the meeting assembled January 5, 1919, it could not file articles of association.” This hazy elucidation was followed by “many debates,” after which it was unanimously decided to add some more members to the existing church committee, and also, like the opposition, to expel some former members, or remove them “from all church affairs.” Having filled up and readjusted its complement of officers, action was taken at subsequent meetings for incorporating the association, and favorable action to that end was unanimously taken at a meeting held April 13, 1919, attended by “over four hundred good standing members of the above church.” The church protecting society in possession of the property followed along lines less indicative of contin nation of the original voluntary association. They met on March 8th with Father Darin in preliminary organization and again on March 22d “to prepare for a congregational meeting of the members of the newly organized organization for the protection of our church.” Postal card notices were afterwards sent to 76 selected persons, 70 of whom are said to have attended. It is contended by plaintiff that most of these were not former members of the parish. If they all were members they composed a comparatively small minority of the members according to the records at the time of the division. So starting they took and later incorporated under the name “All Saints Russian Orthodox Greek Catholic Church.” The majority had then incorporated as the “Russian Orthodox All Saints Church,” being the name under which the property was deeded to the original voluntary association. As an unincorporated voluntary society could not hold title to real estate in its own name without complying with enabling legislation, the society which each claims to represent could hold no legal title to its church realty while it remained unincorporated, whatever its equitable interest might have been. But by our enabling act confirming defective conveyances it is provided: “No conveyance of land or instrument intended to operate as such conveyance, made in good faith and upon a valuable consideration, whether heretofore made or hereafter to be made, shall be wholly void by reason of any defect in any statutory requisite in the sealing, signing, * * *; nor shall any deed or conveyance, heretofore or hereafter to be made, designed and intended to operate as a conveyance to any religious or benevolent society or corporation, be wholly void by reason of any mistake in the name or description of the grantee, nor because of any failure of such society or corporation to comply with any statutory provisions concerning the organization of such society or corporation: Provided, Such society or corporation shall hereafter comply with the provisions of the statute touching the organization or incorporation of such societies.” * * * 3 Comp. Laws 1915, § 11784. Measuring the legal rights and obligations of members belonging to this voluntary association by civil laws, or even its own by-laws and rules, the proceedings under which the minority members assumed to transfer themselves into a majority in order to control its temporal affairs cannot be recognized as of any legal validity. The majority members first took legal steps in the society’s name and as its successor to, and did, comply with the provisions of the statute authorizing incorporation of unincorporated voluntary religious societies. There could be but one valid incorporation of the society. As we view the rift between the two factions there was no actual secession on doctrinal or other grounds by either faction from the church, or society, but a contest for supremacy within it amongst its members for control of its temporalities. The incorporation by plaintiff was a valid incorporation by the majority of and for the entire voluntary association, including both factions. It thereby succeeded to the temporalities of the society, but in trust for the religious purposes and uses for which they had been procured and dedicated by that society, and in which each member has a beneficial interest. The majority have not, and could not because of this factional dispute for control, read out of the association those belonging to the opposing faction, if valid members at the time of the division, any more than could the minority. The faithful exercise by plaintiff of this trust, by whomsoever controlled, remains a subject of equity cognizance. So long as that trust is not violated the unquestioned right of control is with the majority. While equity control over corporate elections is most commonly exercised by injunctive process, the trial court’s order directing an election to be held by plaintiff finds a measure of support in 14A C. J. p. 54, § 1805, and certain of the cases there cited. Owing to the factional contentions and disturbed conditions in this association, with shifting members and change of officers, the reasons for requiring an honest election open for and confined to all actual members of this association when the division arose are persuasive. Amongst other things it appeared as the court found, “that the former treasurer, Grigori (Harry) Trusko, and certain members of the church committee, have left this country and are no longer in the United States.” Interrogated relative to such changes, secretary Gurko testified: “We were filling out, as members were dropped out, leaving for the old country, or leaving the city, filling in when they went.” It was said in the opinion of the trial court that at the election to be held “only members whose names are on the book of membership will be allowed to vote.” Not only the fact that their names are on the book of membership but when they were put there should be taken into consideration. The book containing a list of the members of the parish kept in the archives of the -church was emphasized by this association as a test of right to participate in its affairs at various times before these dissensions arose. On March 5, 1916, it was decided at a parishioners’ meeting that every orthodox person desiring to become.an actual member should enter in the membership book, “his name and address, and only then shall he have a right to vote at the election of members of the board or while deciding important questions at the parishioners’ meetings.” On March 4, 1917, it was decided at a parishioners’ meeting that only after a person wishing to become an actual member had entered his name on the parish book “shall he have acquired the right to vote on the elections of the board, or have the right to vote on decisions of church affairs at the parishioners’ meetings, or to possess any of the property of the Russian people’s home.” Which also suggests a somewhat close relation between the church. and the Russian people’s home at that time. And, again, at the parishioners’ meeting of January 5, 1919, shortly before the factional division took distinct form, it was decided as before quoted that entry of a member’s name in the parish book should be a prerequisite to taking part “in the decisions of the church meetings.” It may fairly be assumed that the members whose names were so entered in the parish book up to that time had been accepted by the undivided association as members of the parish and church agreeable to its doctrinal and other requirements, and had participated to some degree while harmony prevailed in maintenance of the church and procuring the temporalities which are the subject of this litigation. Not alone, as the trial court determined, should “only members whose names are on the book of membership” be allowed to vote at the election to be held, but the test should be only those members whose names were on the book of membership at the time of the last undivided meeting of January 5, 1919, and who at the time of the election are “living within the boundaries of the parish.” So far as these temporalities are concerned, which is all the court can consider, factional attempts to expel old members or add new ones thereafter cannot be recognized. While the extent to which a court of equity may direct or supervise such corporate election might in certain respects be questioned, it is clearly within the power of the court to withhold the relief asked, under the conditions shown here, until an honest election has been held on that basis. Delivery of possession and accounting ordered by the trial court should be deferred until after such election is held and a new church committee, or board of directors, duly chosen to transact the business of the corporation. Modified as herein indicated, the decree will stand affirmed, and the case remanded to the Wayne county circuit court, in chancery, for such further proceedings in harmony with this opinion as that court may determine, without costs of this court to either party. Wiest, C. J., and Fellows, McDonald, Bird, and Sharpe, JJ., concurred. Clark and Moore, JJ., did not sit.

Clark, J. Plaintiff owned and occupied lot 8, block 328, city of Muskegon. She held by adverse possession a strip about 1.35 feet in width, of lot length, from adjoining lot 9. On August 25, 1917, she purchased lot 9 from the Grand Rapids Trust Company, the quitclaim deed describing the lot: “Lot number nine (9) of block three hundred twenty-eight (328) of the revised plat of the city of Muskegon, as approved by the common council of said city April 9, 1903,” etc. Later she conveyed by quitclaim deed to Frank Trott the following: “All of lot nine of block three hundred twenty-eight (328) of the revised plat of said city, dated in the year 1903, being the property purchased by me from the Grand Rapids Trust Company for the sole use and benefit of Frank Trott and assigns, the grantee named herein, which deed is dated August 25, 1917,” etc. Later Frank Trott and wife conveyed by warranty deed lot 9 to defendant Lola Joslyn who took possession of all of the lot. Tony H. Joslyn, the other defendant, is the husband of Lola Joslyn. Plaintiff brought ejectment for the strip and had judgment in a trial without a jury in which findings of fact and conclusions of law were made and to which due exceptions were taken. Defendants bring, error. The findings do not support the judgment. The deed of the Grand Rapids Trust Company to plaintiff was for all of lot 9. She deeded all of lot 9 to Frank Trott. The language “being the property purchased by me from the Grand Rapids Trust Company” used in her deed to Trott cannot be construed to reduce the quantity conveyed. It can serve no purpose but that of further identification and to show source of title. 18 C. J. p. 281, and cases cited. The language of both deeds is plain and unambiguous and it must control. If plaintiff intended to convey to Trott but a part of lot 9 such intention must be held here to have been secret and unexpressed and of no force as against the plain expressions of the deeds. See 18 C. J. pp. 254, 257, 281; 8 R. C. L. pp. 1039-1071. The cases of Jones v. Pashby, 62 Mich. 614, and Mullreed v. Thumb, 116 Mich. 440, cited by coun sel, are clearly distinguishable as having uncertainty and ambiguity of description requiring construction. Reversed without new trial, and with costs of this court to defendants. Wiest, C. J., arid Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Clark, J. Plaintiff was employed as a fireman by the city of Brown City. It was his duty to operate the electric light and water plant a part of each day. At 5:15 a. m. on February 7, 1922, he reached the plant which was located on the outskirts of the city near a railroad track. It was cold and dark. He carried a lantern. The plant was locked and dark and was not to be lighted until the engines were started. Another employee had banked the boiler fires the evening previous. A person within the plant could have observed plaintiff’s approach the distance of about one block. When plaintiff unlocked and. opened the door and was entering he was struck on the head by an unidentified assailant and rendered unconscious. When he regained consciousness the-assailant had fled. A hammer was missing from the-plant. Plaintiff had no enemies. He had about $60-in his pocket. He was not robbed. Nothing but the hammer was taken from the plant. . The assailant had entered by a coal chute. Plaintiff claimed compensation under the workmen’s compensation act. The department of labor and industry found for him and made an award. Defendants on certiorari contend that the accident did not arise out of and in the course of the employment and deny liability. The evidence negatives an inference that the assault was due to such personal animosity or intent against the plaintiff himself, apart from the employment, as would relieve defendants of liability. See Little v. Atlas Drop Forge Co., 221 Mich. 604; Marshall v. Baker-Vawter Co., 206 Mich. 466. Rather, we think it is capable of the inferences drawn by the commission: “This record indicates to us that the assailant was a trespasser in the building and that he was surprised in his illegal act by the applicant, and he assaulted the applicant so as to make his escape. “We think the character of the duties of the applicant, the place and hour when those duties were to be performed, all tended to expose the applicant to contact with trespassers and were such as likely to cause him to have to deal with persons who in the nature of things were liable to attack him. “In view of all the circumstances surrounding his (employment and the hour of the assault, we think that ■the risk which he incurred was pecular to his employ:ment. Being in sole charge of the plant during the early hoursi of the morning the applicant’s duties were akin to those of a watchman.” * * * The finding an accidental personal injury arising out of and in the course of the employment is sustained ‘by the weight of authority. See Mechanics Furniture Co. v. Industrial Board, 281 Ill. 530 (117 N. E. 986); Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96 (115 N. E. 149, 14 N. C. C. A. 224); Heidemann v. Telegraph Co., 230 N. Y. 305 (130 N. E. 302, 20 N. C. C. A. 586); Smith v Kaw Boiler Works Co., 104 Kan. 591 (180 Pac. 259, 18 N. C. C. A. 1050); Western Grain & Sugar Products Co. v. Pillsbury, 173 Cal. 135 (159 Pac. 423); Jaquemin v. Manufacturing Co., 92 Conn. 382 (103 Atl. 115, L. R. A. 1918E, 496). And see note 6 N. C. C. A. 1010; 3 N. C. C. A. 275; 21 N. C. C. A. 660. The award is affirmed. Wiest, C. J., and. Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Bird, J. Plaintiff’s salesman took defendant’s order over the telephone for two cars of cottonseed meal. The salesman, soon thereafter, mailed to defendant a memorandum of the same and sent a copy thereof to plaintiff at Jackson. Upon receipt of. the order plaintiff signed a confirmation of the order and mailed it to defendant, requesting defendant to sign, and return one copy. Defendant did not comply with this request. Later, and on October 4th, defendant wrote to plaintiff: “Please cancel our order dated July 21st for two 80-ton cars, 86% cottonseed meal.” Plaintiff answered, refusing to accept cancellation of the order. Defendant refused to accept and pay for the cars, and they were resold, and the difference between the price made to defendant and the resold price is the amount plaintiff is "attempting to recover in this suit. The defense was that no valid contract was made because of that section of the statute of frauds which provides that: “A contract to sell or a sale of any goods or choses in action of the value of one hundred dollars or upwards shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agent in that behalf.” 3 Comp. Laws 1915, § 11835, subd. 1. ' The sole question is whether the note or memorandum is sufficient to satisfy the statute. This court, quite early in its history, declared that a memorandum to be sufficient under the statute of frauds must be complete in itself and leave nothing to rest in parol. Hall v. Soule, 11 Mich. 494; James v. Muir, 33 Mich. 223; McElroy v. Buck, 35 Mich. 434; Gault v. Stormont, 51 Mich. 636; Paul v. Graham, 193 Mich. 449; Sheley v. Whitman, 67 Mich. 397. In the last case cited the situation appears to be quite similar to that in the present case. Whitman called at Sheley’s store in Detroit and looked at cer tain gas fixtures and pipe. Afterwards he wrote Sheiey as follows: “You may place the gas fixtures I selected today. The dining room fixtures may as well be changed as talked over with the salesman who showed me the goods. Please put them up in fine shape, promptly as possible.” A few days after receiving this letter Sheiey sent his foreman to learn when and where he should install the fixtures. Whitman then countermanded the order. Suit followed, and, in due time, it reached this court. Chief Justice Campbell, in considering the case, said in part: “If a verbal contract was valid defendant made one. But here the purchaser never accepted or received any article. He never paid anything. The letter, which is the only writing, does not show what the contract was. It conveys no information except by reference to the verbal agreement, and has none of the requisites of a definite agreement. It comes within the principle of James v. Muir, 33 Mich. 223, and of cases decided since, some of which are referred to in the notes of the last edition. The case is so plain that it need not be dwelled upon. The judgment must be reversed.” This holding is in accord with the rule of construction stated in Cyc.: “Accordingly if an oral contract falling within the scope of the statute has terms not stated in the memorandum,' or if the memorandum contains a reference to such terms or imports their existence by fair inference without clearly stating them, or if the memorandum merely refers to the contract without stating its terms, the case falls within the statute.” 20 Cyc. p. 258. The only memorandum made by defendant was its letter of October 4th canceling the oral contract. While that letter discloses the subject-matter of the purchase, and the quantity purchased, it does not dis close the consideration, nor when it was to be paid. This was an important element in the contract. James v. Muir, supra. It does not set forth where or when the cars are to be delivered. It does*not-appear who is to pay the freight charges or the Federal revenue on the freight charges. These are important omissions, and by reason thereof the memorandum is not sufficient. Plaintiffs counsel concede that the October letter alone does not satisfy the statute, but they argue that the letter refers to “our order dated. July 21st” and by reference makes it a part of the letter, and that both, letter and order, taken together, furnish a sufficient memorandum to satisfy the statute. It is not clear whether defendant referred to its oral order or to plaintiff’s written confirmation of it. The letter refers to “our order” and it appears that that order was oral, and it is just as probable, and perhaps more so, that defendant meant its oral order rather than plaintiff’s written confirmation of it. But, be that as it may, the memorandum mentioned in the statute is to be made by the party to be charged. The party to be charged in this transaction is the defendant. It is conceded the defendant has made no memorandum except the letter of October 4th. To say that plaintiff’s memorandum can be annexed to defendant’s memorandum in order to satisfy the statute is to practically nullify the statute. Plaintiff’s memorandum of the order would have no more force than .the oral statement of the order, unless defendant had in some way acknowledged or approved it. There is no proof in this case that defendant acknowledged or approved plaintiff’s written confirmation. In fact, it made no answer at all. If this were to be the rule recoveries could nearly always be had by plaintiff supplementing defendant’s memorandum by his own. An added reason why the confirmation of the order cannot be used to supplement defendant’s memorandum is the finding of the trial court that the confirmation of the order contained terms not included in the oral order. We have examined the testimony and think this point is well supported. Counsel cite two cases, Louisville Asphalt Varnish Co. v. Lorick, reported in 2 L. R. A. 212 (29 S. C. 533, 8 S. E. 8), and Woodruff Oil & Fertilizer Co. v. Refining Co., 246 Fed. 375, in support of their contention. Both are South Carolina cases. Their facts differ somewhat from those in the present case, but in the main support counsel’s contention. In the Lorick Case the Chief Justice dissented on grounds similar to those herein set forth. What the statute of South Carolina is upon which they are based does not appear in the opinions. But whatever the statute may be upon which those cases are based this court will be unable to follow them by reason of its oft-repeated holding on the sufficiency of memorandum. The trial court reached the right conclusion, and the judgment is affirmed. Wiest, C. J., and Fellows, McDonald, Clark, and Steere, JJ., concurred. Sharpe and Moore, JJ., did not sit.

Bird, J. Plaintiff, on behalf of creditors of the Pierce-Hinsch Company, in his bill of complaint, charges fraud in the organization of the PierceHinsch Company, and also in its subsequent management. This company was the outgrowth of a previous corporation, known as the Pierce-Hinsch Realty Com pany, which was formed in 1911 by defendants Pierce and Hinsch. The old company was engaged in buying and selling real estate and constructing houses. After it had been in operation about 18 months, more capital was needed and the defendants arranged to •reincorpórate with a larger capital. To bring this about they incorporated a new company called the Allen Realty Company, with capital stock fixed at $60,000, of which defendants subscribed for $35,000 of the stock in the following proportions: Mr. Pierce .1,628 shares, Mr. Hinsch 1,627 shares, Mr. Luce 245 shares. These three parties became the directors of the new company. Mr. Pierce was elected president, Mr. Luce vice-president and Mr. Hinsch secretary and treasurer. They paid for their stock in the new company with assets of the old company which were represented to be of the value of $35,000. In order to bring this about the old company passed the following resolution: “Whereas, the Pierce-Hinsch Realty Company,- a corporation existing under the laws of Michigan and in business at the city of Detroit has successfully conducted its business since its organization, and “Whereas, said Pierce-Hinsch Realty Company is possessed of certain real estate, land contracts, mortgages, merchandise, office furniture and fixtures, bills receivable, accounts receivable and other property, real and personal, both useful and necessary to the contemplated business and purposes of this corporation; and “Whereas, each of the shareholders of this corporation is personally familiar with the property of said Pierce-Hinsch Realty Company and is acquainted with the value and earning power of said property and business as a going concern, and “Whereas, said property and business thus established is of the reasonable value of thirty-five thousand (35,000) dollars, and “Whereas, sundry individual residents of Detroit and vicinity have recently subscribed the sum of twenty thousand (20,000) dollars and upwards as an investment in the stock of this corporation on condition and with the express understanding that the entire property of the said Pierce-Hinsch Realty Company both real, personal and mixed, should be purchased by this, the Allen Realty Company, at the valuation of thirty-five thousand (35,000) dollars, and “Whereas, the said Pierce-Hinsch Realty Company has offered to sell, assign, deed, convey, transfer and set-over unto this corporation all its property consisting of real estate, land contracts, mortgages, furniture, fixtures, bills receivable, accounts receivable and all property and effects of every kind and description belonging to said Pierce-Hinsch Realty Company, a true and correct inventory of which showing description of each piece or parcel of property with incumbrance thereon, if any, and a true statement of the bills and accounts receivable and payable and other details of said business, is presented at this meeting marked Document A, all of which said assets including good will and trade name, the said Pierce-Hinsch Realty Company offers to assign and convey to this corporation, at the price of thirty-five thousand (35,000) dollars payable in ‘fully paid non-assessable’ capital stock of this corporation at par value, therefore, “Resolved, that the stockholders of this corporation recommend that the board of directors thereof negotiate for and purchase from said Pierce-Hinsch Realty Company, the property so offered at the price and upon the terms above set forth, provided said boárd of directors shall deem said purchase proper and expedient. “The foregoing resolution was put to vote and unanimously adopted, all stockholders present voting in the affirmative.” In pursuance of this resolution the entire assets of the old company were transferred to the new, for the consideration of $35,000, which paid for the stock subscribed by the defendants. Defendants then induced their business friends and acquaintances to subscribe several thousand dollars of the remaining $25,000. Soon after the formation of the new com pany its name was changed to the Pierce-Hinsch Company. The new company commenced business in March, 1913, and continued the business of the old company until some time in 1914, when it became financially unsteady, and as a result thereof an involuntary petition in bankruptcy was filed against the company in November, 1914. The company was subsequently adjudged a bankrupt. The claims filed and allowed exceeded $80,000, and the assets, when reduced to cash, amounted to only $1,320.83. An order was entered by the referee calling upon defendants to pay up their subscriptions on the stock they subscribed, and in the event of their failure to comply the trustee was authorized to bring suit to recover it. By virtue of this authority plaintiff instituted this suit. The trustee contends that defendants committed a fraud upon the Allen Realty Company in issuing to themselves $35,000 in stock of the company without paying for the same, either in cash or property, and, therefore, they should now be compelled to pay for their stock. Defendant Pierce answers this by saying that the defendants employed Adolph W. Ehrman, an accountant, to audit the books of the old company before its assets were turned over to the new company, and that this audit by him was relied upon. That it showed $19,000 in assets, an4 this, together with the item of $16,000 for good will, made up the $35,000, which was paid for the stock. It is further insisted that the entire proceedings were in good faith so far as he was concerned or knew. 1. The record shows that both Pierce and Hinsch were actively engaged in the affairs of the old company as well as the new. Mr. Hinsch was employed in keeping the books of the new company. Mr. Pierce was engaged in the real estate business. Both men were familiar with the assets of both companies. They consulted together frequently about the affairs of the company, and dominated the business of the company. When the assets of the old company were turned over to the new company in payment of their stock, they should have been, and doubtless were., familiar with the assets and their value. We are persuaded that the pretended assets of $35,000 turned over to the new company was really a liability of $6,000 and upwards, and that nothing of value was paid by either Pierce or Hinsch for his stock. Mr. Wray, the auditor, who examined the books of the old and new companies, came to this conclusion, and his conclusion does not appear to be seriously denied. In view of this conclusion we are forced to believe that Pierce and Hinsch either deliberately and intentionally made the affidavit required by the statute, in which the value of the property was set forth under oath, or their management of the company’s affairs had been so negligent and reckless that they did not know the true state of its affairs. Upon either theory they would be liable for the par value of the stock for which they had subscribed. The argument of counsel that Pierce had acted in good faith throughout cannot be accepted. There is some evidence of this, and it was shown by his later efforts to aid the company financially, but notwithstanding these efforts we cannot escape the conclusion that his sworn estimate of value was something more than mere error of judgment. It is improbable that two men who were as close to the business affairs of the company as; these men were could err so in matters of judgment. Had both been engaged in other business and unacquainted with the business of the company, and given no time to its affair?, it might be plausibly urged that they were misled. We are aware that persons may differ as to value of property turned into a corporation. This is not. such a-case. No property of value was turned in, nothing but a liability. If, under these circumstances, we are to say that organizers of a company may turn in a liability of $6,000 to a corporation for $35,000 in value, and escape the consequences of théir fraudulent conduct on the plea of good faith, then the statute, which was enacted to be a protection to the public, may as well be abrogated, as it would no longer be of any force. It is also urged they were deceived by erroneous bookkeeping. It will be sufficient to say that we are not impressed by this claim.’ Under any view of the case thei conduct of these men was a fraud upon those dealing with it and they should be held liable for the par value of their stock. Dieterle v. Paint & Enamel Co., 143 Mich. 416; McBryan v. Universal Elevator Co., 130 Mich. 111, 123 (97 Am. St. Rep. 453). As was said in the last case cited: . “It would be a disgrace to the law if creditors, dealing with a corporation in reliance upon these statements, which they examine in the public offices, where they are on file, had no remedy. Justice and good morals require that they who make such false statements, whether they make them intentionally or, as in this case, recklessly, should respond in damages therefor.” Our conclusion is that both Hinsch and Pierce should be compelled, by order of the court, to pay par for the stock for which they subscribed or, at least, such a percentage as will satisfy the creditors. No decree will be made against defendant Luce, as he was not served with process. Plaintiff will recover his costs -in both courts. Wiest, C. J., and Fellows, Clark, Sharpe, and Steere, JJ., concurred. McDonald and Moore, JJ., did not sit.

Bird, J. Plaintiff is engaged in the manufacture of artificial leather at Marysville, in St. Clair county, and its office is in Athol, Massachusetts. Defendant, in 1920, was engaged in manufacturing automobiles in the city of Jackson. In January, 1920, defendant placed an order with plaintiff for 37,000 yards of artificial leather. This was followed by another order in February for 35,500 yards. Subsequently 13,122 yards were canceled by consent of the parties. The first order was to be delivered to defendant in May, June, and July, 1920. The second order was to be delivered in June, July, August, September, and October, 1920. Defendant refused to. receive more than a small portion of the yardage called for by these contracts, and this suit was begun to recover damages for a breach of them. A jury awarded plaintiff nearly all, if not its entire claim. Defendant’s first complaint is on account of the ruling of the trial court as to what papers constituted the contract between the parties. In making these orders it appears defendant used its regular order blanks for purchasing materials, which contains some reservations as to cancellation of the contract. The first order was signed and forwarded to plaintiff for its signature. Plaintiff did not sign it, but made up a sales note on its own forms, embodying the essentials of defendant’s order, signed it and sent it to defendant, in duplicate, requesting it to sign and return one copy. Defendant, after some hesitation, did this and returned one copy to plaintiff, as requested. The same course, substantially, was followed in the second contract. Upon the trial defendant offered its orders in evidence, claiming that they constituted parts of the contracts, but the trial court refused to admit them and held, as a matter of law, that plaintiff’s sales notes constituted the sole contracts. Defendant contends this was error. Its position is that plaintiff really embodied the essential elements of its order in its sales notes, and annexed certain conditions and reservations, and that the contract must be gathered from both, defendant’s order and plaintiffs sales note, and in support of this contention counsel cites the following cases: Hubbell v. Palmer, 76 Mich. 446; Stuart v. Telephone Co., 161 Mich. 127; Bollenbacher v. Reid, 155 Mich. 282; Butler v. Foley, 211 Mich. 668; Robinson v. Telegraph Co., 169 Mich. 514. Plaintiff’s counsel point out that the cases cited do not apply to this situation because in each one of them the order was first unqualifiedly accepted, and then the offeree added a precatory statement in the form of a warning or a request or a suggested modification. Plaintiff calls attention to the fact that these orders in suit were not accepted, but their receipt was acknowledged and a counter proposal in the form of a sales note was prepared by plaintiff, and when this was signed by both parties it constituted the sole contract. We think this distinction is well taken. It is quite manifest from the conduct of plaintiff that it did not intend to acquiesce in the conditions and reservations of defendant’s order. It did not accept, neither did it sign, defendant’s order, but prepared its own contract with different reservations and conditions, and requested defendant to sign, which it did. .We think this conduct on the part of plaintiff indicates that it did not intend to be bound by the conditions and reservations in defendant’s order. If it had it would not have taken the trouble to have substituted its own. It does not appear to us that the trial court was in error when it instructed the jury, as a matter of law, that plaintiff’s sales notes constituted the sole contracts between the parties. Were the contracts breached by plaintiff and were the breaches waived by defendant? The time fixed by the first contract for delivery was one-third in May, one-third in June, and one-third in July, 1920. The second contract was to be delivered in equal quantities in June, July, August, September, and October, 1920. On October 1, 1920, only a small amount of the yardage had been delivered. Plaintiff' was clearly in default in making its deliveries at the' time specified in the contracts. We infer from the briefs that this is conceded by plaintiff. But plaintiff.' says defendant did not rescind the contracts on this account, but continued to deal with it as though the-contracts were in force, and while defendant asked it on several occasions to defer deliveries, it did so on the theory that the obligations were still in force.. In view of this it is claimed defendant is estopped now* to claim that the contracts were rescinded on account of the breaches. The testimony shows that at the time plaintiff was in default in making deliveries defendant commenced to request plaintiff to slow down in making deliveries,. and gave as a reason therefor that it had cut down production. This excuse was given in several of defendant’s letters. We do not find that defendant, from September 1, 1920, to March 14, 1921, when the contracts were rescinded, ever exercised its right to rescind. But defendant replies it did not accept deliveries after September 1st, except a portion of the 5,000 yards, about which there was a. special arrangement, and it was not bound to assign any reason for refusing to.accept the leather. The weakness of defendant’s position is that at no time, from the day. of default in October up to March 14th, did it ever claim a rescission. It did not make it clear to plaintiff that it had, or intended to rescind. We are not disposed to hold that defendant was obliged to assign the right reason, or any reason at all, for rescinding, but it was bound to make it clear to plaintiff that it relied upon a rescission of the contracts and, for that reason refused to accept deliveries. 6 R. C. L. p. 932, § 315; Carney v. Newberry, 24 Ill. 203; Higby v. Whittaker, 8 Ohio, 201; Bryant v. Isburgh, 13 Gray (Mass.), 607 (74 Am. Dec. 655, note). Defendant did not, directly or indirectly, in the correspondence with plaintiff (of which there was much), indicate that it did. not further intend to be bound by the contracts. In all of the correspondence defendant’s letters carried with them the inference that it was willing to be bound by the contract but wanted plaintiff to slow down in making deliveries. Defendant, finally, on March 14th, rescinded the contracts by letter, assigning as a reason therefor the depression in business, but making no reference to plaintiff’s default in making deliveries. A failure on defendant’s part for upwards of six months after default to rescind these contracts estopped it, as a matter of law, from making that defense. No error was committed by the trial court by its instruction to the jury that defendant could not rely on this defense. The only remaining question we shall consider is the one of damages. The trial court instructed the jury that plaintiff was entitled to recover the difference between the contract price and the market value on March 14th of the manufactured leather, which was ready for delivery. This amounted to upwards of 6,000 yards. They were further instructed that plaintiff was entitled to recover the difference between the price paid for the cloth, and the price that the cloth was worth on March 14th, and the same rule was applied to the chemicals purchased by plaintiff to manufacture the leather. No serious objection is taken, to these rules of damage, but defendant’s counsel claims some restrictions should have been placed upon the right of recovery under the rule applicable to the unmanufactured materials. It appeared in the testimony that plaintiff purchased from J. H. Lane & Company of New York, on January 17th, 100,000 yards of cloth at the price of $1.10 per yard, with which to manufacture defendant’s order. This contract required monthly deliveries, commencing with July, 1920. It further appeared that only the July delivery was made, and the inference is .very strong from the testimony that only one delivery was ever made on the 100,000 yards. The record, at least, shows that about 80,000 yards were not delivered and that J. H. Lane & Company were in default on its contract with plaintiff. It is defendant’s counsel’s view that, unless J. H. Lane & Company delivered plaintiff yardage to cover the 46.000 yards that defendant refused to take, plaintiff is not entitled to recover from defendant the loss on the undelivered portion. This contention appears to be sound and in conformity with the law of compensation. Balcom v. Tribbett, 197 Mich. 620. Plaintiff is entitled to be compensated for what it has lost. If J. H. Lane & Company defaulted its contract with plaintiff and delivered to it only half as much as it would require to manufacture the 46.000 yards going to defendant, then plaintiff would not be entitled to collect damages on the other half from defendant, for the very good reason that it did not lose on the undelivered portion. Any other rule would permit plaintiff to speculate on the misfortune of its customers. We are also of the opinion that if plaintiff was able to, and did, use that part of the cloth delivered by J. EL Lane & Company on other jobs, then defendant would not be liable for the loss on it. And, if J. H. Lane & Company were in de fault on its contract with, plaintiff on March 14, 1921, when defendant canceled its contracts with plaintiff, it was the duty of plaintiff to take advantage of the default in the Lane contract, so as to lessen, as far as possible, the damages which defendant would be called upon to pay. 13 Cyc. p. 72. Some question is raised that plaintiff ordered the 100,000 yards of cloth nearly a month before the contracts in suit were made. This does not appear to us as material. * If sufficient of this order was held by plaintiff to manufacture defendant’s order, it would not matter the precise time it was purchased, provided it was worth $1.10 per yard when plaintiff received defendant’s order. It is further said that it did not appear that J. H. Lane & Company had been paid for the cloth. This would not be important if plaintiff was obligated to pay for it. It is the theory that plaintiff was obligated to pay for it that supports the instruction that if plaintiff paid for the cloth or obligated itself to pay for it, it could recover from defendant. But it is also true that if plaintiff had been relieved of that obligation to pay, in whole or in part, then to the extent it had been relieved it could not recover from defendant. It is analogous to the rule that where the loss for which an action has been brought has been subsequently repaired, plaintiff is entitled to nominal damages only upon proof that the legal right of the plaintiff had been invaded. 13 Cyc. p. 16, and cases cited. The proofs, as they stood at the close of the case, showed that not to exceed 20,000 yards of cloth had been delivered to plaintiff on the 100,000-yard order. If this is the true situation, then plaintiff’s recovery should be limited to plaintiff’s loss on the 20,000 yards. On a retrial this question should be cleared up and plaintiff’s recovery should be limited to what it has lost. In view of this error, the judgment must be reversed and a new trial granted. Defendant will recover its costs. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

Smith, J. These actions were brought originally by husband and wife against defendant retailer to recover for injury and damages allegedly caused by chemical irritants in a ladies undergarment, a cotton slip, purchased and worn by plaintiff-wife and charged to the account of her husband. It is claimed that immediately upon wearing the garment, plaintiff-wife began to suffer severe dermatitis, with attendant pain, disfigurement, and emotional stress. The emotional stress is alleged to have triggered a heart attack. At the close of plaintiffs’ proofs, defendant moved for a directed verdict which the trial court granted. Plaintiffs’ proofs showed that Mrs. Berke purchased the white cotton slip from defendant December 8, 1959. She wore it the next day, new and without prior washing. Other clothes worn at the time were said to be the same as were constantly worn. Breakfast consumed that morning was an “ordi nary” one consisting of orange juice, coffee and toast. Mrs.. Berke made a visit to a friend’s home that day and upon the return trip, riding on a bus, she felt something like pinpricks upon her back. She started to itch and. by evening her skin had broken out into a rash and her eyes and tongue had swollen markedly. A doctor was summoned. He observed the itching, swelling, and also noted Mrs. Berke’s complaint of chest pains. He diagnosed the ailment as severe dermatitis and prescribed treatment. Another doctor, an allergist, testified that the wearing of such a cotton garment containing an irritant “could cause a severe dermatitis condition.” Mrs. Berke testified that she had never experienced such a rash before, nor had she ever been treated for any kind of an allergy. Her regular treating physician outlined her medical history from 1943, forward. No indication of rash, dermatitis, or allergy appeared in her history. Several weeks after the onset of illness, plaintiff-husband returned the slip to defendant and made a complaint giving details of the purchase and claimed injury. Upon the record made, was defendant entitled to a directed verdict? In Weisenberg v. Village of Beulah, 352 Mich 172, 184, this Court said: “that the testimony and all legitimate inferences that may be drawn therefrom must be viewed in the light most favorable to the plaintiff in determining whether he has established a prima facie case when weighed against defendant’s motion for a peremptory verdict in his favor at the close of plaintiff’s proofs.” In the instant case, there was no competent direct proof of what specific irritant, if any, was present in the slip cloth. Upon favorable view, did the facts, along with legitimate inferences to be drawn therefrom, constitute a prima facie case sufficient in law to prevail against defendant’s motion for directed verdict? More specifically, was there evidence from which it might he legitimately inferred that an irritant was present in the cloth at time of purchase, which irritant was a proximate cause of injury? We are aware that in the typical products-liability case, plaintiff’s counsel is usually able to produce some direct proof of defect and causal relationship between that proof and injury. Here, the trial court found no competent direct evidence and, without detailing what was presented, we agree. However, we are moved to disagree with the trial court’s direction of verdict at the close of plaintiffs’ proofs. We cannot say that reasonable minds could not differ as to what might be legitimately inferred therefrom, so that we find it error to have concluded, as a matter of law, that plaintiff did not establish a prima facie case. Our opinion is that under the circumstances, upon favorable view, a legitimate inference from plaintiffs’ proofs was that an irritant was present in the cloth, which irritant caused Mrs. Berke’s injury. In this regard, the case does not differ from some food poisoning cases: you eat and you get sick and what made you sick was something in the food. What the poison was may be impossible to identify. In this case, the favorable view of plaintiffs’ proofs is that the new, unwashed slip (that is unchanged from time of purchase) bought and immediately worn close to the body with a nearly immediate skin reaction contained an irritant which caused Mrs. Berke’s dermatitis. Defense proofs may well explode the inference, but standing alone it is neither fanciful nor conjectural. Add to the hypothesis, of course, plaintiffs’ other proofs: clothes worn that day (other than the slip) were ones usually worn; diet and habits on the day in question were usual and ordinary; no previous history of rash, dermatitis, or allergy. Upon such proofs, the rea sonable mind could legitimately infer that the one new element in Mrs. Berke’s life at that time, the new slip, was directly linked with her injury. The reasonable mind now demands explanation. This is the task of defendant. In view of the disposition above, we find it unnecessary to discuss the issue of spoliation of evidence. We add that under the facts so far adduced, we would find no error in the judge’s ruling. Reversed and remanded. Costs to appellants. T. M. Kavanagi-i, C. J., and Souris and Adams, JJ., concurred with Smith, J. Black, J., concurred in result. Sara Berke, plaintiff-wife, died September 3, 1962. December 4, 1962, Dorothy Bronson, administratrix of the estate of Sara Berke, was substituted as party-plaintiff. Trial was commenced on March 25, 1963.

Souris, J. (for reversal). Four times in the published reports of this Court we have directly or indirectly denied the right of one spouse to sue the other for recovery of damages for injuries resulting from an interspousal negligent tort. We said that at common law such a suit could not be maintained, and we found no statute which we thought would authorize such a suit. That the time has come for a reconsideration of this area of the law is indicated by the fact that we now are called upon to decide these three cases, each originating in a different circuit court and each involving the successful assertion of the doctrine of interspousal tort immunity as a defense. In view of the importance of the legal principles involved, we requested the negligence law section of the State bar association to submit a brief amicus. Indicative of the present ambivalence of thought upon this question is the fact that two briefs were in fact submitted by the bar, one advocating and the other opposing the repudiation of the defensive doctrine of interspousal tort immunity. We acknowledge their assistance in our resolution of the issue as presented by the three cases before us for decision. At the outset we note that the felt need for reexamination of the common law defense of inter-spousal tort immunity has not been confined to Michigan. Indeed, at least 32 jurisdictions either have completely, or at least in certain fact situations, abolished the defense. A sampling of such cases is collected in the appendix which follows this opinion. We note also that the common-law doctrine has received virtually universal excoriation from the legal scholars who have given consideration to it. See the selective bibliography included in the appendix. While most of the cases cited in the appendix which have rejected the common-law doctrine pur-, port to base their holdings upon so-called married women’s acts, it is evident from many of the opinions that the courts had concluded that the immunity defense no longer had any valid basis in logic, fact, or policy. The fact that virtually the same statutory language is subject to varying interpretations by these courts suggests strongly that the actual basis for many of their decisions is a reappraisal of the common law and its rejection because no longer applicable to the facts of modern civilization. We shall pursue a more forthright course in our disposition of the cases at bar. Since the doctrine of interspousal tort immunity is a creation of the common law and since such doctrine has never been codified in this State, it is our duty to re-examine it and, if necessary to avoid continuing injustice, to change it. We shall analyze our four pertinent precedents and, in our effort to understand them, we shall examine in the process other earlier decisions of onr own and other courts. “To the reader my advice is, that in reading of these or any new reports, he neglect not in any case the reading of the old boots of years reported in former ages, for assuredly out of the old fields must spring and grow the new corn.” I. In Bandfield v. Bandfield (1898), 117 Mich 80 (40 LRA 757, 72 Am St Rep 550), the first of our four precedents, plaintiff married defendant in 1879, obtaining a divorce from him in 1897. Thereafter she began suit to recover damages from defendant for infecting her with a venereal disease in 1893. In affirming dismissal of her suit on demurrer, this Court briefly considered and rejected as inapplicable the legislature’s modifications of the legal consequences of the marital relation as embodied in the married women’s acts. The Court based its decision upon the following expressed considerations: “The result of plaintiff’s contention would be another step to destroy the sacred relation of man and wife, and to open the door to lawsuits between them for every real and fancied wrong, — suits which the common law has refused on the ground of public policy. This Court has gone no further than to support the wife, under the married woman’s act, in protecting her in the management and control of her property. It has sustained her right to an action for assault and battery, for slander, and for alienation of her husband’s affections against others than her husband. Berger v. Jacobs, 21 Mich 215; Leonard v. Pope, 27 Mich 145; Rice v. Rice, 104 Mich 371. At the same time, it has held that the wife could not enter into a partnership or other business with her husband, and thus become responsible for the contracts and debts of her husband. Artman v. Ferguson, 73 Mich 146 (2 LRA 343, 16 Am St Rep 572); Edwards v. McEnhill, 51 Mich 160. Personal wrongs inflicted upon her give her the right to a decree of separation or divorce from her husband, and our statutes have given the court of chancery-exclusive jurisdiction over that subject. This court, clothed with the broad powers of equity, can do justice to her for the wrongs of her husband, so far as courts can do justice, and, in providing for her, will give her such amount of her husband’s property as the circumstances of both will justify, and, in so doing, may take into account the cruel and outrageous conduct inflicted upon her by him, and its effect upon her health and ability to labor. 2 Am & Eng Enc Law (2d ed), 120; How Stat § 6245. In the absence of an express statute, there is no right to maintain an action at law for such wrong. We are cited to no authority holding the contrary. We cite a few sustaining the rule: Abbott v. Abbott, 67 Me 304 (24 Am Rep 27); Freethy v. Freethy, 42 Barb (NY) 641; Peters v. Peters, 42 Iowa 182; Schultz v. Schultz, 89 NY 644; Cooley, Torts, p 228; Schouler, Domestic Relations (4th ed), § 52; Newell, Defamation, Slander and Libel, p 366; Townshend, Slander and Libel (2d, 3d, and 4th ed), § 300.” 117 Mich 80, 82, 83. The Court’s fear of frivolous suits hardly seems to be a realistic one. Thus, with regard to torts based upon an allegation of negligent conduct during marriage, the fact finder would be quite justified in taking into account the fact that the alleged negligent conduct occurred during marriage. Negligence is, after all, basically a question of reasonable behavior in the circumstances, and it may well be that conduct which would be actionably negligent as between strangers would not be so as between spouses. “It must be true that when a man and woman marry their reciprocal rights and duties are different toward each other than toward third persons. The extent of the difference under the existing law must be developed by time and experience.” Wait v. Pierce (1926), 191 Wis 202, 217 (209 NW 475, 480, 48 ALR 276, 285). “Undoubtedly there is conduct tortious when engaged in by a third person, which would not be tortious between husband and wife because of the mutual concessions attending their relationship and implied in the marriage contract.” Courtney v. Courtney (1938), 184 Okla 385, 403 (87 P2d 660, 669). We shall not comment upon-Bandfield’s somewhat ludicrous juxtaposition of the argument that inter-spousal tort suits should not be permitted because of their potential for disruption of marital harmony with the helpful hint that, while one who has been tortiously injured by his spouse should not'be permitted to disrupt the marriage relation by suing for damages, he may nonetheless achieve redress by means of a divorce. Not only is that argument absurd, but also it is patently legally faulty, insofar as it suggests that alimony may be awarded to compensate for a tortious personal injury which has not impaired the injured spouse’s ability to labor. How Stat, § 6245 specifically provided that “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.” Alimony was at the time of Bandfield, and is today (CLS 1961, § 552-.23, as last amended by PA 1964, No 11 [Stat Ann 1965 Cum Supp § 25.103]), a device whereby a spouse was obliged to discharge an obligation of support, and not a means of recompensing one spouse for tortious injuries endured during marc riage. See Cummings v. Cummings (1883), 50 Mich 305; Johnson v. Johnson (1956), 346 Mich 418. It is also of interest to note that two of the three jurisdictions cited by Band field in support of its holding have since modified their positions. New York now permits by statute interspousal suits, while Maine permits the defendant in a negligence suit by a wife to implead the husband for purposes of contribution. See appendix. Thus, the Maine court’s current attitude (see Bedell v. Reagan [1963], 159 Me 292 [192 A2d 24]) is somewhat different from that which existed in 1877 at the time of Abbott v. Abbott, 67 Me 304 (24 Am Rep 27), wherein the court dismissed an interspousal suit in these terms: “As said by Settle, J., in State v. Oliver, 70 NC 60, ‘it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.’ ” 67 Me 304, 307. Subsequently, even North. Carolina renounced its former rule in favor of one permitting a wife to maintain a tort suit against her husband. Roberts v. Roberts (1923), 185 NC 566 (118 SE 9, 29 ALR 1479). We do not consider it necessary, in the context of the cases we are here called upon to decide, in two of which the marriage relation was already ended before suit was commenced and in the third the marriage was contracted notwithstanding the pendency of the litigation, to consider further the a priori argument that to permit interspousal personal tort suits would rend the gossamer fabric of marital felicity. In Harvey v. Harvey (1927), 239 Mich 142, the second case in which our Court considered inter-spousal tort immunity, a wife passenger sought to recover against her husband driver for injuries incurred in an automobile accident. Plaintiff argued that an amendment to the married women's act should be construed to permit such suits, but this Court rejected the argument. It is evident from the Court’s opinion that aside from its narrow interpretation of the statute the Court believed that no such right of action based solely upon the common law should exist either, primarily for two reasons: First, the Court observed that “we can conceive of circumstances where liability insurance, carried by the husband, might prove the moving factor [in the initiation of a suit]”, 239 Mich 142, 146. Implicit in the Court’s speculation is the assumption that to permit such suits would be to promote collusion between spouses in the bringing of suit. We are not persuaded that the possibility of such collusion justifies the judicial concern expressed for it. For over half a century, in an increasing number of States and in the United Kingdom, intersponsal tort suits have been permitted in varying degrees and no evidence yet has been adduced to show that the administration of justice has been perverted thereby. The possibility of collusion exists in any lawsuit, and while conceivably it might be somewhat greater when the opposite parties are husband and wife and an insurer lurks in the background, skilled cross-examination and the perceptivity of our triers of fact make its success unlikely. To suggest otherwise is to reject the effectiveness of our adversary system for making fact determinations, a radically extreme position we are not yet ready to take. The shibboleth of collusion between spouses, to which there was direct allusion in Harvey v. Harvey, has been raised often as an obstacle to suits between spouses and, as well, in other suits in which the marriage relation is involved. Thus, in Glover v. Alcott (1863), 11 Mich 470, the Court stated that a wife could not carry on a general trade or business on credit. Mr. Justice Christiancy noted that while the object of the married women’s act was benevolent, and “while it should be fairly and liberally construed for these purposes, the greatest care and circumspection are required to guard, as far as possible, against its being made a mere cloak for the frauds of the husband upon his creditors, of which it is peculiarly susceptible; and which it was no part of the legislative design to facilitate.” 11 Mich 470, 485, 486. In his dissent, Mr. Justice Campbell expressed more confidence in our trial system: “Fraud, in such cases, is a question of fact, and not of law. I think in the case before us the court below presented the whole case to the jury with great fairness. The peculiar character of the transaction was fully commented on, and their attention was called to every thing which could throw light on the case. * * * The real facts are such as to require from a jury a much sharper scrutiny, and are much more suspicious, than if the married relation did not exist. This, however, was fairly laid before them, and we must presume their deliberate conclusion was arrived at by regarding it.” 11 Mich 470, 494. The correctness of Justice Campbell’s views is borne out by subsequent decisions of this Court, vitiating Justice Christiancy’s holding, and the resultant absence of the forewarned economic chaos predicted to accompany such collusive suits. See, e.g., Mr. Justice Cooley’s opinion in Tillman v. Shackleton (1867), 15 Mich 447 (93 Am Dec 198). Second, in addition to decrying the dangers of collusion, the Court in Harvey v. Harvey based its decision upon the thesis that a married woman has no legal existence during coverture. In support of this thesis, it turned to the common and statutory law of Virginia, as construed by its court: “In Keister’s Administrator v. Keister [123 Va 157, 160, 161, 96 SE 315, 1 ALR 439], supra, the court stated that the statute of Virginia provides: * * * “ ‘A married woman may contract and be contracted with, sue * * * in the same manner and with the same consequences as if she were unmarried, whether the right or liability asserted by * * * her, shall have accrued before or after the passage of this act,’ * * * and, in holding the statute does not confer upon a married woman a right of action against her husband for a personal tort, so well considered the subject involved in the case at bar that we make liberal quotation therefrom: * * * “ ‘The primary inquiry confronting us in the instant case, therefore, is whether the married women’s statute in Virginia, the portion of which relied on by the plaintiff in error is quoted above, confers- upon married women during coverture the substantive civil right essential to support a cause of action in a suit at law for damages instituted during the coverture by a wife against her husband, for an assault upon her committed by the husband during the coverture? “ ‘The substantive civil right in question is a legal existence — a legal personality — of a married woman, separate and apart from the legal personality of her husband, during coverture. Such a right a married woman had not and has not at common law.’ ” 239 Mich 142, 147, 148. The assertion that at common law a married woman had no legal existence during coverture is one to which any perceptive analysis of the cases gives lie, and yet it has been made by jurists of some notoriety: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. * * * Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.” 1 Blackstone, Commentaries on the Laws of England, ch 15, p 442 (1 Cooley [4th ed 1899], p 387). Illustrative of the attitude of many nineteenth century American courts is the case of Ritter v. Ritter (1858), 31 Pa 396: “One of the favourite maxims of the common law is, that marriage makes the man and woman one person in law, and of course it excludes the possibility of a civil suit between them. Now this characteristic of the contract may be considered a fiction, an absurdity, a fossil, or whatever else the necessities of the new era may denominate it, but it is in exact accordance with the revealed will of God, was de signed for the protection of the woman, and leads to that identification of sympathies and interests, which secures to families and neighbourhoods the blessings of harmony and good order. “It is doubtless competent for the legislative power to change and modify the qualities of the marriage relation, perhaps to abolish it altogether; but if the history of the human race teaches any lesson whatever, it is, that concubinage is the alternative of marriage. In just so far as you impair the one, you encourage the other. In just so far as you sever the material interests of husband and wife, you destroy the sympathies which constitute the oneness of the relation, and degrade the divine institution to mere concubinage. “Nothing could so complete that severance and degradation, as to throw open litigation to the parties. The maddest advocate for woman’s rights, and for the abolition on earth of all divine institutions, could wish for no more decisive blow from the courts than this. The flames which litigation would kindle on the domestic hearth would consume in an instant the conjugal bond, and bring on a new era indeed — an era of universal discord, of unchastity, of bastardy, of dissoluteness, of violence, cruelty, and murders. “But will the courts expose this fundamental relation to the consequences of unbridled litigation? Never.” 31 Pa 396, 398. Notwithstanding such bold proclamations, we have examined the status of married women at common law to determine whether there was indeed such a legal unity of husband and wife at the common law. It cannot be doubted that superficially, at least, the common-law treatment of torts involving a married woman can be explained upon the basis that during coverture the wife had no legal personality. Thus, procedurally the husband had to join or be joined in tort suits by or against his wife. If, however, the wife were legally extinct in such circumstances, it would be logically inappropriate to speak of her committing a tort since, her personality being-extinct, she should be viewed as but the alter ego of her husband. Despite the esoteric talk of “unity” the common law in practice has been quite realistic and very early recognized that a wife can commit a tort: “ * * * Si brief de trespas de batery soit port envs le baron et la femme, supposant que eux deux duissent auer bate le pi’, et le baron appiert et la femme nemy, le baron respond sans la feme, pur ceo q lact est port auxibien de son tort, come de la torte de la feme.” Y.B. 36 Hy VI p I pl I (Wight ed, 1601). Similarly, when a tort was committed against a wife, although the common law procedurally required that the husband join in the suit, it in fact recognized that the cause of action inhered in the wife and not in the husband, which would be the case if the wife’s personality were not legally cognizable. This certainly is the purport of Weller v. Baker (1769), 2 Wils KB 414 (95 Eng Rep 892): “Lastly, it was objected that the husbands and wives ought not to have joined in this action. In answer to this, it is very difficult to reconcile all the cases in the books touching this matter of joinder in action; at present it is sufficient for us to say that this action is not grounded on any contract express or implied, but the husbands are joined to assert the right and interest of their wives, which has been disturbed and injured by the defendant; whatever be the nature of this right, interest, or employment, it is her own, the husband hath nothing at all to do with it, he only joins for conformity; * * * Wherever the wife is the meritorious cause she may join in action: a very strong case to this purpose is 2 Sid 128, and so is Oro Jac 77 which was case by baron and feme upon an assumpsit for curing a wound by the wife, and alleged in facto that she cured it, resolved she was the cause of the action, and so the action brought in both their names was well enough. The case, of Holmes and Wife v. Wood * * * was an action upon the case wherein the plaintiffs declared upon a quantum meruit for a cure done by the plaintiff’s wife; and upon another count for medicines and plasters found and provided for the defendant; upon a general demurrer it was objected that the wife could not join, for that she was not; the sole cause of the action, because the medicines and plasters were the husband’s own property, and the damages could not be severed; and of that opinion was the Court; but they said that if the action had been brought for the labour of the wife only, she might well have joined.” 2 Wils KB 414, 423, 424. If an action sounding in tort were brought against husband and wife, predicated upon an act of the wife, the substantive superfluity of the husband is shown further by the fact that the action would not abate upon the husband’s death. “Ejectment. After verdict for the plaintiff, it was moved, that the husband was dead since the Nisi Prius and before the day in banco. The question was, whether the bill should abate in all, or should stand against the wife ?—And because it is in nature of an action of trespass, and the wife is charged for her own fact, it was adjudged, that the action continued against the wife, and judgment should be entered against her sole, because the husband was dead.” Rigley v. Lee and His Wife (1614), Cro Jac 356 (79 Eng Rep 304). When a woman married, her personal property became the property of her husband. The choses in action possessed by an unmarried woman were, of course, personalty, and among such choses in action might be included a cause of action in tort. The choses in action which a woman took with her into marriage became her husband’s only if he reduced them to possession during coverture. If he did not do so, they remained the woman’s when she was released from coverture. The rights inhered in the woman, and although during coverture the husband could bring suit, his suit properly viewed would be derivative depending for its vitality upon subsistence of the marital relationship. Thus, it was indeed an egregious error for this Court in Harvey to embrace so heartily the Virginia court’s statement that a married woman (p 148) “had not and has not at common law” a legal personality or existence apart from that of her husband. In the context of the issue we here consider, it would be proper to say that a married woman was under a judicially created personal disability to maintain suit in her own name, but it is ignoring legal reality to say that a married woman had no legal existence. Pollock and Maitland’s considered conclusions are of value: “In particular we must be on our guard against the common belief that the ruling principle is that which sees an ‘unity of person’ between husband and wife. * * * We do not treat the wife as a thing or as .somewhat that is neither thing nor person; we treat her as a person. Thus Bracton tells us that if either the husband without the wife, or the wife without the husband, brings an action for the wife’s land, the defendant can take exception to this ‘for they are quasi one person, for they are one flesh and one blood.’ But this impracticable proposition is followed by a real working principle: ‘for the thing is the wife’s own and the husband is guardian as being the head of the wife.’ The husband is the wife’s guardian: — that we believe to be the fundamental principle; and it explains a great deal, when we remember that guardianship is a profitable right.” 2 History of English Law Before the Time of Edward I (2d ed 1899), pp 405, 406. The third case to present the issue of interspousal tort immunity to this Court was Riser v. Riser (1927), 240 Mich 402 (27 NOCA 518). Defendants, husband and wife, invited plaintiff and her husband to accompany them in defendant's’ vehicle on a short automobile jaunt. Plaintiff’s husband drove on the return leg of the journey and while he was driving an accident occurred in which plaintiff was injured. Plaintiff brought suit against defendants, and this Court held that defendants’ motion for dismissal should have been granted: “Plaintiff might not recover in tort damages against her husband for her injuries occasioned by his negligence. See Harvey v. Harvey, 239 Mich. 142, where the matter is considered at length. As plaintiff may not recover against her husband, the driver of the car, she cannot recover against the owners, defendants, for whom he drove. “ ‘The liability of the owner of a motor vehicle for damages caused by the negligent operation thereof by another person, rests upon the doctrine of agency, express or implied. “ ‘The liability is based upon the doctrine of respondeat superior. If the servant is not liable the master is not liable. Hence the master may not be liable for injuries sustained by the wife of the driv er.’ Maine v. James Maine & Sons Co., 198 Iowa, 1278 (201 NW 20, 37 ALR 161).” 240 Mich 402, 404. But for subsequent developments, the case would be of little interest since it does not discuss inter-spousal suits except for its citation to Harvey. The Court in Riser reasoned that since plaintiff could not sue her husband for his negligence, she could not sue defendants either, as whose agent plaintiff’s husband was acting in driving, despite the existence even then of the owner liability act, PA 1915, No 302, § 29. However, in Moore v. Palmer (1957), 350 Mich 363, four members of the Court (and subsequently a majority, see e.g., Kiefer v. Gosso [1958], 353 Mich 19) held that liability under the owner liability act is not predicated upon the doctrine of respondeat superior. “We hold that the language referred to in Geib v. Slater [320 Mich 316] and Riser v. Riser [240 Mich 402], holding the Michigan owner liability act to be based upon the doctrine of respondeat superior is expressly overruled.” 350 Mich 363, 394. Thus, since the decisions in Moore and Kiefer, defendants in a suit like Riser could not take advantage of the husband’s immunity from suit to escape liability under our statute. As we have noted, see appendix, such a result is not unusual in States which claim continuing adherence to the immunity doctrine as applied to suits between spouses. Thus, the law in Michigan presently presents the anomaly that while a wife may not allege and prove the negligence of her husband in a suit against him, she may do just that in a suit against the owner of a vehicle her husband was driving. The similar illogic of railing against suits by wife against husband as disruptive of marital tranquillity (or conducive to interspousal collusion) and at the same time permitting the wife to sue the husband’s employer upon the basis of the husband’s negligent injury of the wife, was commented upon in 1 Harper and James, Torts (1956), pp 646, 647: “The problem has been raised from time to time in jurisdictions which do not allow tort actions between spouses whether the wife is also precluded from a recovery from the husband’s employer when the injury was caused by the husband in the course of his employment. The logic of the situation would call for a denial of recovery because the husband would be liable to indemnify his employer. Presumably domestic harmony would be impaired if the wife recovered from him in this circuitous manner quite as much as if she had sued him directly. And if the employer were insured, the insurance company would be subrogated to the employer’s claim against the husband. Some cases so hold. But an impressive array of authority has rejected the logic and allowed the wife to recover. ‘A trespass, negligent or willful, upon the person of the wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity.’ In the Schubert Case [Schubert v. August Schubert Wagon Co. (1928), 249 NY 253, 256, 257 (164 NE 42; 64 ALR 293)], Judge Cardozo met the problem of indemnity in the following way: “ ‘The master who recovers over against the servant does not need to build his right upon any theory of subrogation to a cause of action once belonging to the victim of the injury. A sufficient basis of [for his] recovery is the breach of an independent duty owing to himself. The servant owes the duty to the master to render faithful service, and must an swer for the damage if the quality of the service is below [lower than] the standard.’ ” Finally, this Court last considered the issue of interspousal tort immunity in Kircher v. Kircher (1939), 288 Mich 669 (7 NCCA NS 72). There plaintiff sought to recover against her husband for injuries caused by his alleged negligence in the State of Colorado, which State then already permitted interspousal tort suits. This Court denied such relief in a brief opinion referring to the precedent cases just discussed and noting that such suits are “contrary to public policy in this State”. II. The time has come to turn to the facts of the cases now before us, for it is to facts and not abstractions to which ultimately we must direct our attention. In Smith v. King plaintiff wife sought to recover against the estate of her husband for injuries incurred when an automobile operated by her husband and in which she was riding was involved in an accident, allegedly as a result of the deceased husband’s gross negligence. From the trial court’s grant of defendant’s motion to dismiss, plaintiff has appealed. In such circumstances, we can see no reason why suit should not be permitted. Collusion between the spouses is impossible and death has already destroyed “the sacred relation of man and wife”, so that “public policy” does not enter as a bar. In Dood v. Mosher, plaintiff Bernard Dood was residing as a boarder in the home of defendant Dorothy Mosher when, on May 16, 1962, he was injured by stepping on a rusty nail while walking around an outbuilding at defendant’s home. On July 16, 1962 plaintiff gave written notice to defendant of this injury, which required hospitalization and resulted in plaintiff’s loss of work for six months. On April 3, 1963 plaintiff filed suit against defendant, she was served on April 4th, and the parties were married on April 5th. Plaintiff appeals from a summary judgment in favor of defendant. Here again, we can conceive of no public policy which should bar such a suit. The parties, aware of the pendency of the suit, nonetheless chose to be married. How, then, could it be said that permitting such suit to be maintained would disrupt the marriage? Indeed, were we to require dismissal of such suits upon the marriage of the parties, would we not discourage a relationship we are told it is the law’s policy to encourage? Perhaps more pertinent is the allusion in Harvey v. Harvey, 239 Mich 142, 146, to the possibility of collusion in such circumstances. Like Justice Campbell in Glover v. Alcott, 11 Mich 470, discussed supra, we are content to leave to the adversary proceedings and the triers of fact the detection of such untoward, and, indeed, criminal, conduct on the part of the parties litigant. Finally, we turn to Mosier v. Carney. There, plaintiff is administrator of the estate of Maxine Carney. She was killed, while a passenger in a car driven by her husband, when that car collided with a vehicle driven by John Akers. Suit was brought under the wrongful death act (CL 1948, §§ 691.581-691.583 [Stat Ann 1959 Cum Supp §§ 27.711-27.713], now CLS 1961, § 600.2922 [Stat Ann 1962 Rev § 27 A.2922]) on behalf of Mrs. Carney’s minor children alleging negligence on the part of defendant Akers and gross negligence on the part of defendant husband. Plaintiff appeals from the trial court’s order granting defendant husband’s motion to dismiss as to him. It is argued that this action was improperly brought under the wrongful death act which permits an action “Whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof.” CL 1948, § 691.581 (Stat Ann 1959 Cum Supp § 27.711). CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27 A.2922) eliminated the parentheses and substituted a coma after “would”. Defendant reasons that Mrs. Carney could not have sued her husband had she lived and that, therefore, her estate may not do so after her death. We must remember that the wrongful death act is a remedial statute and thus should be and has been liberally construed by us. See Merkle v. Township of Bennington (1885), 58 Mich 156 (55 Am Rep 666). The purpose of the statute is, of course, obvious: it was intended to remedy unconscionable results reached in litigation under the common law whereby it was financially less burdensome to tortfeasors to kill than merely to maim their victims. One who sues under the wrongful death act is not suing solely for a wrong done to the decedent but rather, as well, upon a new cause of action specifically created as a remedy for those who suffer loss because of decedent’s death. Ford v. Money’s Estate (1930), 251 Mich 461 (70 ALR 1315); and see In re Olney’s Estate (1944), 309 Mich 65, which reaffirmed Ford after the 1939 amendment (PA 1939, No 297) to the wrongful death act. In certain instances wo have held that a plaintiff could not recover under the wrongful death act because his decedent could not have maintained an action and recovered damages had he lived. However, an examination of those cases discloses that there would have been ¡pme substantive defect inherent in the decedent’s hypothetical cause of action. We have never held that because a purely personal immunity might have barred suit by decedent, those injured by his death would also he barred from suit. Thus, we have said that the contributory negligence of a deceased, the presence of which would be a substantive defect in a suit by him, would bar recovery under the wrongful death act. See e.g., Baader v. Detroit, J. & C. R. Co. (1924), 228 Mich 104. Other cases, however, demonstrate that this Court has avoided construing the legislative language so technically as to defeat the manifest purpose of the act, namely, to give a cause of action for the benefit of certain designated classes of surviving relatives of a wrongfully killed decedent. For example, in Lincoln v. Detroit & M. R. Co. (1914), 179 Mich 189 (51 LRA NS 710), defendant sought to defeat plaintiff’s cause of action for recovery of the earnings potential of his deceased minor son by arguing that had the son survived he “could not have sued the defendant for the recovery of his earning power, for that belonged to his parents”. 179 Mich 189, 194. Such an interpretation was, strictly speaking, open to the Court, but it rejected it, considering the act in these terms: “1. We summarize the following from the American authorities: The death loss act of the English statute of 1846 (St 9 & 10 Vict No 93), commonly called ‘Lord Campbell’s act,’ and the various laws of a similar kind that have been modeled after it, gave a new cause of action unknown to the common law, for the benefit of certain designated classes of surviving relatives. Such relatives do not take the cause of action for damages to the deceased by transfer to them by operation of law, or otherwise, but are enabled by the statute to recover the pecuniary loss to themselves caused by the wrongful taking off of the decedent, the continuation of whose life would have been beneficial to them. The action accrues to the surviving beneficiary mentioned in the statute by reason of the death of the injured person caused by the wrongful act of another. It is strictly not proper to say that it is a cause of action which survives; it is rather a new action given by CL 1897, §§ 10427 and 10428 (5 How Stat [2d ed], §§ 13702, 13703), which can be brought, not for the benefit of the estate but solely for the benefit of the beneficiaries named in the statute. The above sections, when compared with CL 1897, § 10117 (5 How Stat [2d ed], § 12761), are made plain. They refer to entirely distinct losses recoverable in different rights. Section 10117 refers to the right of the deceased for the loss and injury occasioned to him. Sections 10427 and 10428 refer to the right of the surviving relatives as beneficiaries for the loss to them. Both are dependent on the injury. The language of one provision is that ‘actions for personal injuries shall survive,’ and of the other ‘in case of the death of a person by the wrongful act of another.’ Section 10117 creates no new liability, but prevents the lapsing by death of an old one, while sections 10427 and 10428 create a new liability, one not known to the common law.” 179 Mich 189, 195, 196. The Court held that since the minor could have recovered damages for wrongful injury had he survived, his parents could recover damages of a different nature for loss of his earning power. The Court’s discussion of the fateful words “if death had not ensued” persuades us that it interpreted them as barring suit on a decedent’s death only if there were some substantive defect in de cedent’s case. Thus, the Court discussed contributory negligence and the fellow servant rule as instances when suit by surviving relatives would be barred. We must never lose sight of the fact that the legislature under the wrongful death act sought to impose liability in case of the death of a person by the-wrongful act of another. None of the Michigan interspousal tort cases we have considered challenges the apodictic fact that one spouse may injure another wrongfully and fatally. Indeed, they all admit that one spouse may injure another tortiously, but bar the suits on other grounds. We do not believe the legislature intended that in such cases as Mosier, the administrator’s suit, any recovery upon which will inure to the benefit of decedent’s minor children, should be defeated merely because earlier cases in this Court indicated that had decedent survived she would have been barred from suing her husband. There have been pleaded wrongful acts of defendant resulting in decedent’s death. Nowhere in his pleadings does defendant aver any fault on the part of his deceased wife which might have constituted a substantive defect to suit by her. Rather he relies entirely upon the bar raised by his alleged personal immunity from suit by her. In this regard, we are in accord with the supreme court of Minnesota which, although acknowledging that interspousal suits are forbidden there, held, in the face of an asserted defense of interspousal tort immunity, that under a wrongful death act similar to Michigan’s a suit might be brought against the estate of a husband for damages sustained by the wife. Poepping v. Lindemann (1964), 268 Minn 30 (127 NW2d 512). In concluding that the language of the Minnesota wrongful death act giving an action “if the decedent might have maintained an action, had he lived” did not bar plaintiff’s action, the Minnesota court relied upon and quoted from its earlier decision in Shumway v. Nelson (1961), 259 Minn 319, 322, 323 (107 NW2d 531): “ ‘This clause refers to the facts and circumstances giving rise to the cause of action, as well as any facts or circumstances pertaining to any permissible defenses such as contributory negligence, rather than to the person by whom the action could be maintained. “ ‘This conclusion is strengthened by the fact that upon death of one spouse the rationale of the marital-immunity doctrine loses whatever force it might otherwise have had. Where the marriage has been terminated by death any danger of domestic discord arising from the enforcement of the action has, likewise, terminated. We do not believe that we should ascribe to the legislature an intent to extend the intrafamily immunity doctrine to situations where its existence is without any reasonable justification.’ ” Emphasis added by Poepping, 268 Minn 30, footnote, 35 (127 NW2d 512, footnote, 515, 516). Summary. We have examined the Michigan precedents and have found nothing in them which logically militates against permitting prosecution of the suits here involved. Indeed, as we have seen the “reasoning”, if it may be called that, of those cases, has no applicability in the fact circumstances of these instant cases of first impression. It is appropriate to add that what we have said here concerning the doctrine of interspousal tort immunity must be considered in light of these same fact circumstances. "We this day hold: (1) that a suit may be maintained predicated upon injuries to one spouse during marriage arising out of an allegedly wrongful act of the marital partner, when the allegedly wrongful act resulted in termination of the marriage by death; (2) that a suit commenced before marriage of the parties thereto may be maintained by one spouse against the other for an alleged ante-nuptial tort. These cases are reversed and remanded to the trial courts for further proceedings. No costs, a question of public importance being involved. Appendix. The jurisdictions which have abolished the defense of interspousal tort immunity in whole or in part may be classified as follows: (1) Those in which the courts have permitted interspousal suits in general; e.g., Williamson v. Massachusetts Bonding & Insurance Co. (1955), 142 Conn 573, 579 (116 A2d 169, 172), “It is, and for many years has been, the law of Connecticut that a wife may bring and maintain an action against her husband to recover for personal injuries caused by his negligent act or acts in this State”; Gilman v. Gilman (1915), 78 NH 4 (95 A 657, LRA 1916B, 907), “If a married woman is either injured or damaged by another’s illegal act, the statute gives her a remedy even though that other is her husband”; Brandt v. Keller (1953), 413 Ill 503 (109 NE2d 729), holding that in all cases a married woman may sue and be sued as if she wore unmarried; the legislature subsequently added to the Illinois married women’s act the proviso “that neither husband nor wife may sue the other for a tort to the person committed during coverture.” Nonetheless in Calvert v. Morgan (1963), 41 Ill App 2d 23 (190 NE2d 1), the Illinois appellate court permitted the administrator of a deceased wife’s estate to sue, for the benefit of the wife’s children, the estate of her husband, who had murdered her and killed himself. Accord, Deposit Guaranty Bank & Trust Co. v. Nelson (1951), 212 Miss 335 (54 So 2d 476); Fitzmaurice v. Fitzmaurice (1932), 62 ND 191 (242 NW 526), wife may sue husband for personal tort; reserved question of whether husband has like right; Scotvold v. Scotvold (1941), 68 SD 53, 66 (298 NW 266, 272), “a civil action is maintainable in this jurisdiction between husband and wife for damages for personal tort committed by one against the other”; Prosser v. Prosser (1920), 114 SC 45, 47 (102 SE 787, 788), “by a liberal and not by a strict construction the code of procedure was enacted to give to a wife every remedy against her husband for any wrong she might suffer at his hands”; Penton v. Penton (1931), 223 Ala 282, 285 (135 So 481, 483), an action “may be maintained by the wife against the husband for his actionable simple negligence”; Katzenberg v. Katzenberg (1931), 183 Ark 626 (37 SW2d 696), and Leach v. Leach (1957), 227 Ark 599 (300 SW2d 15), wife may sue husband, and husband may sue wife, for negligent injuries; Rains v. Rains (1935), 97 Colo 19, 25 (46 P2d 740, 743), “We hold that in this State a wife may sue her husband for personal injuries caused by the negligence of her husband”; Courtney v. Courtney (1938), 184 Okla 395, 404 (87 P2d 660, 670), “one spouse may sue the other for the recovery of damages for personal injury resulting from the negligence of the latter”; Self v. Self (1962), 58 Cal 2d 683 (26 Cal Rptr 97, 376 P2d 65), and Klein v. Klein (1962), 58 Cal 2d 692 (26 Cal Rptr 102, 376 P2d 70), abolishing the doctrine of interspousal tort immunity as to intentional and negligent torts, respectively; Cramer v. Cramer (Alaska, 1963), 379 P2d 95, 97, wife may “bring an action against her husband, during coverture or thereafter, for a tort to her person caused by his negligent conduct while the parties were married to each other”; Damm v. Elyria Lodge No 465 (1952), 158 Ohio St 107, 116 (107 NE2d 337, 342), court held that wife might maintain negligence action against voluntary unincorporated association of which deceased husband had been member, noting that, “No statute expressly prohibits actions by a wife to recover damages from her husband for personal injuries inflicted upon her by him.” See, also, Jaeger v. Jaeger (1952), 262 Wis 14 (53 NW2d 740), where the Wisconsin supreme court interpreted the laws of Arizona as permitting interspousal negligent tort suits. (2) Those which permit interspousal suits when the marital relation has been, or is in the process of being, dissolved or permit suits against a third party even though the suit is predicated upon a spouse’s negligence, e.g., Johnson v. Peoples First National Bank & Trust Co. (1958), 394 Pa 116, 119 (145 A2d 716, 717), although interspousal tort suits may not be maintained during coverture, widow may maintain negligent tort suit against husband’s personal representative, since, husband being dead, public policy of “preserving domestic peace and felicity” could not be subverted thereby; Long v. Landy (1961), 35 NJ 44 (171 A2d 1), essentially similar to Johnson, supra; Pelowski v. Frederickson (1962), 263 Minn 371, 375 (116 NW2d 701, 704), sustaining third party action by defendant, in suit by widow, against estate of widow’s husband, for contribution or indemnity, general immunity doctrine inapplicable where “death has intervened to forever circumvent all possibility of marital discord”; Poepping v. Lindemann (1964), 268 Minn 30 (127 NW2d 512, 516), notes that Minnesota has in past applied immunity doctrine, but finds it inapplicable on the facts since “the cause of action which arises when one spouse sustains personal injury by reason of the conduct of the other can be asserted against the estate of the latter”; Ennis v. Truhitte (Mo 1957), 306 SW2d 549, wife may sue administrator of husband’s estate for negligent injuries inflicted by husband; Lorang v. Hays (1949), 69 Idaho 440 (209 P2d 733), wife may maintain action against divorced husband even though tort complained of was committed during coverture, tenor of opinion is that actions should also be permitted during coverture; Kowaleski v. Kowaleski (1961), 227 Or 45, 61 (361 P2d 64, 71), wife may sue husband’s employer for husband’s negligence since “husband’s personal immunity should not extend to his employer”; see 227 Or 51 (361 P2d 67) for citations of cases in Florida, Georgia, Massachusetts, Mississippi, Ohio, and Vermont with similar holdings; Johnson v. Ottomeier (1954), 45 Wash 2d 419 (275 P2d 723), immunity rule does not operate to abate suit for benefit of wife’s children by wife’s personal representative against husband’s estate under wrongful death act; Goode v. Martinis (1961), 58 Wash 2d 229, 236 (361 P2d 941, 945), tenor of general discussion is critical of immunity doctrine, but court limits holding to availability of suit in case of “an alleged intentional tort committed by one spouse against the other during the pendency of previously initiated divorce proceedings when the parties are legally separated”; Gremillion v. Caffey (La App 1954), 71 So 2d 670, while wife could not sue husband in tort during marriage, she could do so after divorce for tort committed during marriage but after a legal separation; Bedell v. Reagan (1963), 159 Me 292 (192 A2d 24), forbids suits between husband and wife but permits defendant in suit by wife to implead husband for contribution, wife’s injuries having been received- in automobile accident wherein conceivably both husband and defendant were negligent; Taylor v. Patten (1954), 2 Utah 2d 404 (275 P2d 696), wife may recover damages from husband for injuries intentionally inflicted upon, her during interlocutory period of divorce action. (3) Those which permit suits for antenuptial torts: Brown v. Gosser (Ky, 1953), 262 SW2d 480 (43 ALR2d 626), permits suit by wife against husband for antenuptial tort, suit having been begun prior to marriage, tenor of opinion is wholly to reject common-law immunity rule; Hamilton v. Fulkerson (Mo 1955), 285 SW2d 642, wife not barred from continuing to maintain suit against husband for antenuptial tort; dictum (p 647) that Mullally v. Langenberg Bros. Grain Co. (1936), 339 Mo 582 (98 SW2d 645), which held that while wife could not sue husband, she could sue his employer for injuries done her as result of husband’s negligence during scope of his employment, “clearly indicates that this court must have recognized that there were no considerations of public policy weighty enough to prohibit a wife’s suit against her husband for a personal tort even though committed during marriage.”; O’Grady v. Potts (1964), 193 Kan 644 (396 P2d 285), existence of common-law immunity rule does not bar action by wife against husband for alleged antenuptial tort; Curtis v. Wilcox, [1948] 2 KB 474, overruling Gottliffe v. Edelston, [1930] 2 KB 378, permitted suit by wife on antenuptial tort, but Baylis v. Blackwell, [1952] 1 KB 154, denied right of husband to maintain similar suit. (4) Those which anomalously permit wives hut not husbands to sue: Roberts v. Roberts (1923), 185 NC 566 (118 SE 9, 29 ALR 1479), and Scholtens v. Scholtens (1949), 230 NC 149 (52 SE2d 350); Wait v. Pierce (1926), 191 Wis 202 (209 NW 475, 48 ALR 276), and Fehr v. General Accident Fire & Life Assur. Corp. (1944), 246 Wis 228 (16 NW2d 787, 160 ALR 1402). (5) In New York, inter spousal tort suits are authorized by statute, but not if the defendant is insured unless the policy so states. # * * This passage in 1 Harper and James, Torts (1956), pp 645, 646, is representative of the scholarly consensus on the subject of the doctrine of interspousal tort immunity: “The rule denying recovery has been applied literally and blindly in many cases where the reason for the rule could not possibly apply inasmuch as there was no home to disrupt and no domestic harmony to disturb. The divorce cases are typical examples. So, too, are cases in which the wife’s administrator seeks to recover for her wrongful death. This rule has been applied even when the wife was murdered by her husband and where the wife’s administrator sued the husband’s administrator. “But a strong and probably increasing minority view permits the wife to sue her husband for such harms, especially if they are intended wrongs. A few liberal decisions have permitted the action for the husband’s negligence. This result seems eminently desirable. The metaphysical and practical reasons which prevented such actions at common law are no longer applicable. The danger to the family peace and tranquillity here, as in the case of suits by an infant against his parent, has been grossly over-emphasized. Sound policy and ordinary fairness commend the right of the wife to recover for tortious invasions of her interests in personality by her husband. While as much might be said to favor an action by the husband for a harm to his person by his wife, he did not have such an action at common law and no statutes purport to enlarge his rights against his wife. But the statutes under which a married woman is liable generally for her tort are not likely to be interpreted to make her immune to her husband, and liability to him should no doubt accompany the converse rule of liability on his part for bodily harm inflicted by him on her.” See, also, Prosser, A Handbook of the Law of Torts (3d ed 1964), pp 879-885; McCurdy, Torts Between Persons in Domestic Relation, 43 Harv L Rev 1030 (1930); McCurdy, Personal Injury Torts Between Spouses, 4 Villanova L Rev 303 (1959); Albertsworth, Recognition of New Interests in the Law of Torts, 10 Cal L Rev 461 (1922); Morris, What Price Marriage?, 1946 Insurance LJ 911; Haglund, Tort Actions Between Husband and Wife, 27 Georgetown LJ 697 and 893 (1939); Farage, Recovery for Torts Between Spouses, 10 Ind LJ 290 (1935); Sanford, Personal Torts Within the Family, 9 Vanderbilt L Rev 823 (1956); Comment, 23 Yale LJ 613 (1914); Comment, 33 Yale LJ 315 (1924); Comment, 26 Ill L Rev 88 (1931); Comment, Tort Liability Within the Family Area—A Suggested Approach, 51 NW UL Rev 610 (1956); Notes: 34 Harv L Rev 676 (1921); 48 Harv L Rev 849 (1935); 26 Colum L Rev 895 (1926); 35 Colum L Rev 781 (1935); 48 Colum L Rev 961 (1948); 27 Yale LJ 1081 (1918); 28 NCL Rev 109 (1949); 22 Cornell LQ 274 (1937); 24 Mich L Rev 618 (1926); 37 Wash L Rev 233 (1962). T. M. Kavanagh, C. J., and Dethmers and Adams, JJ., concurred with Souris, J. Bandfield v. Bandfield (1898), 117 Mich 80 (40 LRA 757, 72 Am St Rep 550); Harvey v. Harvey (1927), 239 Mich 142; Riser v. Riser (1927), 240 Mich 402 (27 NCCA 518); and Kircher v. Kircher (1939), 288 Mich 669 (7 NCCA NS 72). Article 3, § 7, Constitution of 1963: “The common law and the statute laws now in force, not repugnant to tbis Constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” See Schedule, § 1 of the Constitution of 1908 for the predecessor of the foregoing. Preface to the First Part of the Reports of Sir Edward Coke (Browne’s Eng ed in 13 parts), pp 1727-1738; (seven volumes). Dean Prosser was not so charitable: “The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peaee and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy — and this even though she has left him or divorced him for that very ground, and although the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. ' If this reasoning appeals to the reader, lot him by. all means adopt it. * * * “The devastating attack on the old rule found in a number of recent decisions seems to leave no possible justification for it except that of historical survival.” Handbook of the Law of Torts (3d ed, 1964), § 116, pp 883, 885. In the judicature act of 1915. See CL 1948, § 612.6 (Stat Ann § 27.658), the provisions of which are now incorporated in CLS 1961, § 600.2001 (Stat Ann 1962 Rev § 27A.2001).—Reporter. See, generally, the definitive discussion of “The Married Woman” in 3 Holdsworth, A History of English Law (1st ed, 1909), pp 404-416. If a writ of trespass for battery be brought against the husband and the wife, supposing that they both might have beaten the plaintiff, and the husband appears and the wife not, the husband answers without the wife, inasmuch as the action is brought as well for his tort, as for the tort of the wife. (Translation furnished.)—Reporter. Manby v. Scott, 2 Sid 109, 128 (82 Eng Rep 1000, 1011), and Bradford v. Budsingham, Cro Jac 77 (79 Eng Rep 65).—Reporter, The Riser Court purported to quote from the cited Maine ease. An examination of that ease discloses that the allegedly quoted material is not to be found therein. The provisions of section 29 are incorporated in the present Michigan vehicle code, PA 1949, No 300, § 401 (CLS 1961, § 257.401 [Stat Ann 1960 Rev § 9.2101]).—Reporter. “ ‘You are to be in all things regulated and governed,' said the gentleman, ‘by fact. We hope to have, before long, a board of faet, composed of commissioners of fact, who will force the people to be a people of fact, and of nothing but fact.’ ” Dielcens, Hard Times (Oxford Univ Press ed, 1955), ch 2, p 7. CL 1948, § 750.422 (Stat Ann 1954 Rev § 28.664). See, also, Johnson v. People’s First National Bank & Trust Co. (1958), 394 Pa 116, 121 (145 A2d 716, 718); Long v. Landy (1961), 35 NJ 44, 50, 51 (171 A2d 1, 4); Germillion v. Caffey (La App 1954), 71 So 2d 670, 672. See, also, Johnson v. Ottomeier (1954), 45 Wash 2d 419 (275 P2d 723); Welch v. Davis (1951), 410 Ill 130 (101 NE2d 547, 28 ALR2d 656); Deposit Guaranty Bank & Trust Co. v. Nelson (1951), 212 Miss 335 (54 So 2d 476); Fitzpatrick v. Owens (1916), 124 Ark 167 (186 SW 832, 187 SW 460, LRA 1917B, 774). Ill Anno Stat, c 68, § 1.—Reporter. See 23A McKinney’s Consol Laws of NY, General Obligations Law, § 3-313; and 27 McKinney’s Consol Laws of NY, Insurance Law, § 167, subd (3).

Smith, J. This is the second suit between the parties about the same property. - In the first suit, through misdescription, the decree did not contain all of the property awarded. That this was a mistake of plaintiff’s counsel is acknowledged by defendants and confirmed by the trial judge. This, the second suit, was brought to correct the mistake, and defendants raised the defense of res- judicata. The chronicle of unfortunate events appears in the trial court’s opinion in the instant case: “This matter, was previously before the court and after the trial an opinion was rendered therein, which is presently on file. During the course of the former proceedings, the court inspected the premises and was of the opinion that the proofs, as tvell as the tangible evidence, clearly preponderated in the plaintiff’s favor.. Due to an error in the bill o,f. complaint 'which was included in the decree, .the plaintiff was not awarded all of the land covered by the proofs and testimony. The error involved a'faulty legal'description of the premises rather than a misunderstanding as to the iand to be included.; “Thereafter, plaintiff filed a motion to amend the' decree to which objection was made.by the defendants. Arguments were heard on the motion and the parties were to file briefs. A brief was filed on behalf of the defendants, although one was not filed for the plaintiff. After some considerable delay, an order was entered dismissing the motion. “Thereafter, plaintiff again instituted a suit to quiet title, correctly describing the premises to which defendants filed a motion to dismiss. This motion was overruled for reasons set forth in an opinion also on file and the parties proceeded to trial upon the merits. * * * “In the instant case, plaintiff is seeking relief which the court had decided they were entitled to and had awarded him in its original opinion. The error consists in this court’s denial of plaintiff’s petition to amend the decree in accordance with that opinion.” (Emphasis supplied.) Under circumstances in this case, there is no question of res judicata but of simple procedural justice, of how to correct the mistake made in the decree in the first suit. Neither is this Court nor the trial court lacking in authority. By the common law of Michigan, by statute and by court rule, the authority is ample. By earliest authority, a court of chancery has had the power to direct the alteration or correction of a decree. Bates v. Garrison, Harr Ch p 221. See, also, Cole v. Auditor General, 132 Mich 262. As to statutory authority, see Stat Ann 1962 Rev § 27 A.2321 (CLS 1961, § 600.2321), and cases annotated under notes 17 et seq. As to authority under court rules, see GCR 1963, 528.1. The trial court was not lacking in authority to correct the mistake in the court’s decree. The question before us now is what to do in this, the second suit, about a mistake occurring in the decree in the first suit, technically not before us. The answer, we think, is found in GCR 1963, 865-.1(7): ■ “The Supreme Court may, at any time, in addition to its general powers, in its discretion and on such terms as it deems just: * * *■ “(7) Grive any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, whether mentioned in the notice of appeal or not, as the case may require.” Here, the mistake is professed and conceded. Both parties had knowledge of the mistake, and the party against whom the mistake was made tried to have it corrected. The trial judge has acknowledged his error in refusing to correct the decree when first moved by plaintiff. There appearing to be no reason why the mistake should not be corrected, this Court treats both first and second suits as one proceeding. The second suit is treated as no more than a second and delayed motion to correct the mistake in the decree entered in the first suit. It is hereby ordered that the decree and the judgment appearing-in said suits in the files of the Lake county circuit be corrected by the entry of one judgment accurately and adequately describing the property in question. Obviously, the record and briefs before us do not permit resolution of the question alluded to by defendants, as to whether the trial court was factually and legally correct in deciding for plaintiff on the adverse possession claim. It is clear that defendants have contested plaintiff’s position throughout the proceedings and, therefore, have not waived their essential defense against the claim of adverse possession. Such defense shall be considered as having been saved in the event defendants seek review in accordance with the court rules. The record in both suits shall be considered as one, in the event of appeal. Time shall run from the date of entry of the amended judgment. Remanded for further proceedings in accordance with this opinion. No costs; neither party having prevailed. T. M. Kavanagh, C. J., and Dethmers, Kelly, Souris, O’Hara, and Adams, JJ., concurred with Smith, J. Black, J., concurred in result.

Campbell, C. J. Burton brought ejectment for the undivided three-fourths of lot 19 of the subdivision of outlot 183 of the Rivard farm in the city of Detroit, and showed title from three of the four heirs of Yictoire Gagnier deceased, who had once owned said outlot 183. The defendants purchased a title which was conveyed by her surviving husband Janvier Gagnier, who was heir-at-law of the fourth child of Yictoire, dying intestate without issue, but who undertook to convey the entire land as owner in fee, and not merely said undivided fourth. Yietoire Gagnier never conveyed the property to any one, and it went to her heirs at law, unless her husband became entitled to own and convey it by. her signature and acknowledgment of a plat of- the outlot, in which he was set forth as owner. On the 30th of March, 1858, Janvier Gagnier executed and acknowledged a plat of outlot 183 in manner following. On the back of the plat is this endorsement: “Whereas I, Janvier Gagnier, am the owner of the lots described in the within plat; Now therefore, know all men by this instrument, that I have made the within plat, or subdivision of said property, and I have renumbered the lots from 1 to 82 inclusive. Witness my hand and seal, this 30th day of March, 1858.” Signed “Janvier Gagnier, [l. s.]” “'In presence of E. N. Lacroix, H. F. Knapp, L. De Braux.” Below Gagnier’s name on the original plat and on the plat as now appearing 'of record, is signed the name of Victoire Gagnier with her mark, and seal, she not ■ being able to write her name, as may be inferred. On the 30th day of March, 1858, Janvier Gagnier’s acknowledgment appears on the paper to have been taken before Edward N. Lacroix, notary public. Below this is the certificate of the city clerk of Detroit, as follows: “Filed and approved by the commissioners on plats, April 2d, 1858. Francis W. Hughes, City Clerk” On the face of the plat is the approval by the commissioners, E. A. Brush and H. P. Baldwin, dated April 2d, 1858. The plat was recorded in the county registry of Wayne county April 3, 1858. On the 4th day of October, 1858, Yietoire Gagnier appears to have acknowledged the plat before the same notary, and the registry of deeds was ..altered so as to conform to the instrument as it now appears, making it impossible to determine how many changes were made. ' It is admitted that the only question is whether ths record is sufficient to entitle purchasers from Janvier Gagnier to hold Yictoire Gagnier or her heirs as having conveyed to her husband, or as having in any responsible way recognized his title. No other conveyance or claim is set up. This record was made before the present town plat law was adopted in 1859, and is governed by the law as published in the Compiled Laws of 1857, p. 380-1. Under all of these statutes the acknowledgment is the essential act of deification, and without it a plat has no force in itself for any purpose, and can only be made efficient by some other adoption or recognition. The only object of the record is to show the platting and dedication, and it is not declared to be valid or to be notice for anything else. Whoever makes and acknowledges it is to be regarded as making and acknowledging a dedication or grant to the public, whose representatives are the only parties. Such persons, executing and acknowledging the plat convey whatever right they have in the lands dedicated, but they do not affect any other lands. The statute of frauds will not permit any conveyance to private parties except by a deed which contains the proper words to show an intention to grant. Janvier Gagnier is not the grantee in this plat. It does not purport to be a grant to him, and if it did it would not be record evidence for any purpose which is not declared by statute. A record is not notice when not made so. Columbia Bank v. Jacobs, 10 Mich., 349; Brown v. Cady, 11 Mich., 535; Brown v. McCormick, 28 Mich., 215. In the present case the record is not valid against Yictoire Gagnier and her heirs or grantees at all. As. already stated the acknowledgment is the only effective act to validate the plat. ■ It appears affirmatively on the face of the record that the acknowledgment of Mrs. Gagnier was not made at the date of the record. The record itself, therefore, must have been changed, and there is nothing to show when the change was made. If it was proper (which we do not decide upon), to add to the original record the subsequent acknowledgment of Mrs. Gagnier, it could only be done by entering it as a further record as of the date of its actual registry. There is no legal process whereby an original entry can be made prospective so as to include the subsequent record of matters not upon the paper when first recorded. As these papers stand this is an altered record, showing the alteration on its face, and furnishing no means of knowing what was in the original entry, and what was the change. The record showed Mrs. Gagnier’s title, and did not-in any lawful way show any change in it. Purchasers under it cannot claim to be bona fide purchasers without notice. On the contrary they had notice by the record itself of her rights. There was nothing in the case to impugn plaintiff’s title, and the jury should have been directed to find a verdict in his favor. The other questions do not become material. Judgment must. ■ be reversed with costs, and a new trial granted. The other Justices concurred.

Campbell, C. J. In this case suit was brought on the covenants of a warranty deed made by Vaughn to plaintiff June 13, 1853, of certain lands in Lapeer county, upon which, as it afterwards turned out, Vaughn had certain illegal tax-titles and nothing more. He had never been in possession, and Matteson never went into possession. The legal title had passed from the United States in 1838 to Eodney D. Hill; from Hill to Bostwick and Sterling in 1851; from Sterling and Bostwick’s administrator to Adam Van Allen in 1855; from Van Allen to Stephen Clark in April, 1858, and from Clark to Hamilton Littlefield in November, 1865. The court found that the Bostwick title was not legally conveyed, so that Bostwick’s heirs and Littlefield held each an undivided half. Some time in 1868 or 1869, as Matteson testified, he was preparing to enter on the land and lumber on it (the land having always been vacant), but was informed by Little-field that he was owner and would prosecute him if he did. A similar warning was given by Littlefield’s agent, all the conversations taking place at the city of Lapeer, at a distance from the land. The court below held the action on the covenants of seizin and against encumbrances barred by the statute of limitations, but allowed a recovery for Littlefield’s eviction, as it was held to be of one undivided half, and allowed damages to the extent of half the consideration and interest from the date of the supposed eviction. Matteson brings error, claiming that none of the causes of action are barred, and that the damages should have included all the consideration, with interest from the date of the deed. Some questions are raised by defendant in error concerning the sufficiency of the pleadings, but he has not brought error, and the view we take of the case renders this matter unimportant. As the covenants of seizin and against encumbrance were at once broken, the statute of limitations at once began to run against them, as against all other personal actions, and they were barred many years since. No reason has been suggested upon which they can be taken out of the statute, and we do not perceive how they can be without entirely disregarding its terms. So far as the covenant of warranty is concerned, the situation is peculiar. Yaughn never had either title or possession. His void deeds could not draw possession after them by construction. The constructive possession, if anywhere, was in the grantees of the United States from the beginning. And, inasmuch as Matteson was never in possession actually or constructively, it is difficult to' see what difference there is between his original' and his present position. He is no more excluded now than ho has always been. We do not comprehend how he can b& said to have been evicted. An eviction, according to all the best authorities, means; some change in the possession of the party by the disturbance of an actual or constructive possession, which has been displaced by a paramount title to which the party has been compelled by law or by satisfactory proof of genuineness to submit. Some of the authorities hold that there can be no eviction of one who is not in actual possession. Others more liberally extend the rule to a constructive possession. But it would be going to an absurd length to hold that a person can be said to have been disturbed or evicted, when he has never had either kind of possession. As very well remarked by the Supreme Court of New York in St. John v. Palmer, 5 Hill, 599, “ The mere fact of a superior title in a third person can never amount to a breach of the covenant of quiet enjoyment. ‘ The possession of the covenantee must be disturbed — he must be evicted — -by the person having the-better title.” In that case the plaintiffs were held to be in by constructive possession, and therefore capable of being ousted under a mortgage derived from the same source of title. But the necessity of some real or constructive possession was plainly asserted and recognized. The authorities are fully considered in Bawle on Covenants, chapter 7. The doctrine of the case in 5 Hill is quite as liberal as justice or good sense will warrant. The substantial remedy in such cases as this, is on the covenants of seizin and those against encumbrance. If a party does not choose to investigate his title or enforce his possession within the period of limitation, he must take the consequences of his own neglect. If land is vacant it is a very easy thing to assume possession, and possession may ripen into a good title, while if disturbed there is no doubt of the remedy, for eviction. If land is occupied adversely, the policy of the law requires the purchaser to inquire into the possessor’s title. And in all cases prudence and the usual course of business will dictate the propriety of some examination into the title. If a purchaser examines into neither title nor possession, and does not see fit to protect himself by proper covenants, it is his own fault. As in' our opinion the plaintiff in error has a larger judgment than he could lawfully obtain under the facts set out in the record, he has no cause of complaint, and we need not examine into the specific errors not above alluded to. The judgment should be affirmed with costs. The other Justices concurred.

Campbell, C. J. Gore brought ejectment and recovered a strip of land forty-four and a half feet wide, as-included in a grant to himself of a tract of four acres, which by a surveyor’s error had been laid out that much narrower than was correct. The proof showed a purchase by Gore of David Stewart in November, 1865, of four acres, described as follows: “Beginning at the southwest corner of said west half of the southeast quarter of section twenty (20), running thence north on the quarter line to south line of land owned and occupied by the Detroit & Milwaukee Bail-road Company, thence easterly along the south line of said railroad company’s line far enough to make four acres, thence south parallel to the said quarter line to the south line of said section twenty (20), thence west along said south line of said section to place of beginning.” Immediately on the execution of this deed the land was surveyed by Mr. Coffinberry, who found the quarter post from the government surveys and ran the line northward to the fence maintained by the railroad, which is now claimed to have been set between twelve and thirteen feet too far north. Gore set' his east fence on the line as surveyed by Coffinberry. In May, 1866, one Sullivan, purchased two acres from Stewart, with boundaries. beginning “ at the southeast corner of the land lately sold to John Gore,” and running north to the railroad line, following his east line. Sullivan employed a surveyor named Pettibone to survey his tract. Pettibone’s survey is not produced or described. and Pettibone himself was not sworn. The only testimony found is in Gore’s cross-examination, which states that Pettibone, not knowing the description of Gore’s land, the latter gave him his deed to guide him, which he professed to follow, and that Gore showed Pettibone where Coffinberry had set his line, which Pettibone appeared to accept as correct, and made his survey, as Gore supposed, on that assumption. Just how he set Sullivan’s other lines is not shown. Subsequently, in 1869, Sullivan sold the south quarter of his two acres to Mrs. Cronin, one of the plaintiffs in error, who has since occupied and graded and planted her land with trees. She also set a drain, which has since been taken up by her, and built a house which she has removed. Her improvements were estimated and allowed her by the jury. There were never any dealings between Gore and either of the other parties except in regard to keeping the fence in repair, Sullivan taking the north half and Gore. the rest. Just before the beginning of this suit, some one connected with Mr. Skeels, the county surveyor, who was running some lines in the neighborhood, told Gore there had been a mistake in his original survey. The testimony is blind on this subject, but the result was that Skeels made a survey which assumed the railroad fence was too far north, and by moving Gore’s north line southward, he made the easterly boundary run over forty-four and a half feet upon Mrs. Cronin’s occupancy. Hence this litigation. Assuming for the present that Skeels is right, the question was presented whether Gore was not estopped from disputing the old boundary. A charge was asked and refused which asserted “that when the division line of lands has been located and agreed upon, or when the plaintiff has silently looked on and seen the defendant doing acts, making improvements, and subjecting himself to expense in relation to the land on the opposite side of the line, which he would not have done had the line not been so located, and which would be a damage to him, the plaintiff is not entitled to recover.” The court held that the testimony showed no case of estoppel. Upon this point both parties as well as the court relied on certain decisions of this court in Smith v. Hamilton, 20 Mich., 433; Joyce v. Williams, 26 Mich., 332; and Stewart v. Carleton, 31 Mich., 270. In each one of these cases the line of division between the adjoining owners was distinctly fixed on the grounds under deliberate mutual action had for the express purpose of fixing it. Neither of them rested on mere acquiescence. The parties were acting with particular reference to determining their respective lines and for that specific purpose. And it was held that where such deliberate dealings were had between the parties, the ease rested on grounds similar to those which authorize the specific performance of parol agreements actually executed. It was held also that unless the transaction amounted to an honest attempt in case of question, to settle a doubtful line, the statute of frauds would apply to prevent the enforcement of an estoppel. In the present case the location of Gore’s eastern line, in the first place, if wrong, was a surveyor’s mistake, which certainly could not in any way estop either Gore or Stewart, his grantor, who had sold him four acres, and would have no right to withhold any portion of his grant. This is not pretended. Gore and Sullivan had no dealings whatever to fix the boundary. Sullivan, so far as the testimony shows, had no purpose of doing anything more than hiring a surveyor to locate his lands in the usual way. The surveyor took Gore’s deed, which Gore himself on request, gave him as a guide. If Pettibone, the surveyor, made an error, it was in not using the means which he was bound and expected to use, and in saying himself trouble by assuming the correctness of another surveyor’s line which Gore simply pointed out in good faith, but the correctness of which he was not asked to vouch, and did not vouch. No other act was done by anybody beyond continuing in possession in the usual way and keeping up the division fences. There is no difference between this ease and most cases where parties occupy and define their possession under mutual mistake, neither doubting his own or Ms neighbor’s rights, and neither attempting to either fix or disturb a line as either a probable or possible ground of controversy. In a great proportion of ejectment suits parties have acted under similar errors. In such cases improvements not interfered with operate no estoppel, but when the possession has been kept up long enough, the statutes require them to be paid for as they were adjudged to be in this case. Estoppels when allowed must be based on something else than the silent permission of improvements by a party who has not acted in bad faith, or done any act which the other party had a right to regard as meant to govern his conduct. In this case Sullivan acted' on Pettibone’s survey, which he himself procured to be made, and which he was willing to rely on. There is nothing in the record to show that Sullivan ever knew that Pettibone acted on any one’s survey but his own, and as Pettibone’s survey is not produced, there is no satisfactory evidence, if there is any evidence at all, to determine what it really was, beyond such inferences as Gore drew, which may or may not have been correct. If the ease rested on this supposed estoppel, the judgment below could not be disturbed. But upon a careful review of the record, we think it erroneous on other grounds. The case was put to the jury on a very distinct assumption that Coffinberry’s survey was wrong. We have found nothing in the record to warrant this assumption. The deed from Stewart to Gore adopts for its northern boundary the south line of lands owned and occupied by the railroad, thus making the occupancy a material part of the description. This occupancy had continued for several years, and still continued as Go&nbeny found it, marked by a fence. Stewart delivered the land and •had it surveyed in accordance with this occupancy. Whether this would be conclusive or not we need not consider, because the record shows nothing to impeach its correctness, and it does show that the railroad authorities upon a question arising, distinctly recognized Gore’s right up to the fence. It was admitted on the opening of the trial that if the fence was the true line, Gore had all the land belonging to him; and we are inclined to think he had. We have had occasion before, as we have now, to say that surveyors have no more authority than other men to determine boundaries on their own notions. All bounds and starting points are questions of fact, to be determined by testimony. Surveyors may or may not have in certain kinds of cases means of judgment not possessed by others. But the law cannot and does not make them arbiters of private rights. If the folly of permitting such assumptions needed any showing, it is abundantly supplied by this record, where Coffinberry seems to have been the only surveyor who followed the deed to Gore, and verified his points of departure. Pettibone, if the theory of the defense is true, acted on the faith of another man’s survey, and Skeels has given no means of judging his data beyond the fact that he has not followed the line of fence of the railroad. . The diagram of his survey put in evidence does not show the position of Gore’s southwest corner at all, and does not show whether it is bounded by the section line or corner at all. There is some reason to suspect that his measurements are from the road-sides, and not from the proper boundaries. It is difficult to believe that a variance of two rods independent of the strip south of the railroad fence could have existed between the measurements of the two surveyors in so short a distance on the ground, if they both started from the same point. The evidence shows that half of the width of two roads, one west and one south, is to be deducted from Gore’s four acres. If these roads are of the usual width, each of the strips is two rods wide, and if either was excluded by Skeels, the variance would probably about make up the difference between him and Coffin-berry. The lines of Skeel’s survey are therefore left in great uncertainty. But as there is no evidence in the record showing any legal reason for rejecting the railroad fence as a boundary, the case was improperly presented on any theory. The circuit judge pointed out the existence of some error as evident, but neither party took any steps to explain it. Inasmuch as all parties claim title through Stewart, and Sullivan’s deed refers to that of Gore for boundaries, it was not necessary to show title back of the common grantor. Judgment must be reversed and a new trial granted. The other Justices concurred.

Marston, J. An information in the nature of a quo warranto was filed to inquire by virtue of what warrant or right the respondents claim to use, exercise and enjoy the powers, liberties and franchises of a certain school district board. Issue was joined, a trial had in the circuit court and judgment rendered in favor of the defendants, and the case comes here on writ of error. Although no finding of facts was requested by either party, yet the court in a very clear and concise manner, in giving judgment, stated the material facts in the case. It appears that the district in question wras organized May 17th, 1873; that in July, 1874, an application was made to this court for a certiorari to review the proceedings and refused, and that these proceedings were commenced in August of the same year, but not determined in the court below until January, 1877, and have not reached this court until the present time. The electors dissatisfied with the action of the inspectors had the right at any time within sixty days from the time of such action to appeal from their decision to the township boards, who were empowered to entertain the appeal, and review, confirm, set aside or amend the action, order or decision of the inspectors thus appealed from. § 3734. If an appeal is taken, the school inspectors are to make and file with the town clerk a full transcript of all their proceedings within ten days, and the township board within ten days thereafter are to proceed and dispose of the matter. § 3736. The statute also limits the time within which a writ of certiorari shall be allowed to review the proceedings of the inspectors, and another section provides that a legal organization shall be presumed when the district shall have exercised the franchises and privileges of a district for the term of two years. All these various provisions show an evident intention and policy on the part of the legislature to have all questions concerning the legality of the organization of a new school district determined at as early a date as possible. The danger and difficulties resulting from delay in such cases has frequently been pointed out by this court. The present case is a very good illustration of the delay which must almost necessarily arise where proceedings by quo warranto are resorted to. Had an appeal been taken as the statute contemplated, the entire question could have been disposed of within a few months in all probability from the time the district was organized, while tinder the present proceedings some five years have elapsed during all of which time the district organization has remained in full force and in the enjoyment of its privileges and franchises. If the proceedings are now held invalid at this late day, the decision will relate back to the time of the organization, a result disastrous in many respects. The statute having provided a summary manner by appeal to review the proceedings, where the same has not been resorted to there should be some special and extraordinary reasons appearing to justify a resort to the present method of procedure. ‘ No such reasons appear in this case, and the errors assigned are rather technical than substantial. The district has existed in fact for years, and we see nothing in the record to justify further interference with it. Other reasons might be referred to, but the above are sufficient. The judgment must stand affirmed with costs» The other Justices concurred.

Marston, J. In this case a writ of replevin was issued out of the circuit court which contained no description of the property to be seized by the officer. An affidavit was attached thereto as required by the statute, which fully described the property. The defendant moved the court to quash the proceedings, and the plaintiff moved to amend the writ by inserting therein the items of property contained in the affidavit annexed thereto. The motion to amend was denied and the writ quashed. It would seem on first view that as the writ could not be executed until an affidavit as required by the statute should be annexed thereto, that when the latter contained a description of the property, it might be resorted to in aid of the writ. An examination of the statute, however, satisfies us that this view cannot prevail. The statute requires the goods and chattels to be replevied to be described in the writ, but provides that the officer shall not execute the same until an affidavit shall be annexed thereto. The property need not be described in the affidavit, but it is to refer to the writ for a description. §§ 6731, 6732, and in various sections the statute speaks of the property specified in the writ, but in no instance is there any reference to the affidavit for a description. For all purposes referred to in these provisions it might be claimed that a description in the affidavit attached to the writ would answer the same purpose. There is however one very essential particular in which no such claim can be made. See. 6737 provides how the defendant shall be summoned, viz.: “by delivering to him personally a certified copy of such writ,” and section 6739 requires the sheriff to “ return the writ, at or before the return day thereof, with the affidavit thereto annexed.” It will thus be seen that he is not required to summon the defendant by delivering to him a copy of the writ and affidavit, but of the writ only. So that where no description of the property was contained in the writ, the defendant would have no means of knowing what property the sheriff was authorized to seize, and would not have such information as the statute contemplated or as would seem essential to enable him'to protect his rights in the premises. We are of opinion therefore that the writ issued in this case was absolutely void. This being so there was nothing to amend under the statute. The order of the court below must be affirmed with costs. The other Justices concurred.

Marston, J. The questions raised in this case depend upon the construction to be given the written contract in view of the advances made thereunder. Under this contract Sanford & Peck were to procure from certain lands owned by them, during the winter and spring of 1870 and 1871 not less than four million, and from that up to six million of pine saw logs. Hopkins & Co. were to “advance in cash from time to time as called for, to the amount of three dollars per thousand feet, say twelve thousand dollars upon four million feet of logs, and relatively the same for a greater number of thousand feet.” Certain other advances were to be made but no question arises concerning them. The referee found “that during the time said logging job was going on, the defendants, Hopkins & Co., advanced money to the plaintiffs, to the amount of fifteen thousand dollars,” and also made the other advances according to the contract. The referee also-found as a conclusion of law, that under the circumstances Sanford & Peck were not bound to furnish over four million, and consequently were not liable in damages for a failure to deliver beyond that quantity. In this view of the case we are of opinion the referee erred. It certainly was optional with Sanford & Peek in the first instance under them contract to put in any beyond the four million, but when from time to time they called for and received the advance of three dollars per thousand feet, they thereby obligated themselves to put in to the extent of such advances, — noi> exceeding the six million, — as under this clause of the contract they could only call for an advance of three dollars upon each thousand feet put in by them. When they had received this advance upon four million feet, and afterwards called for and received three thousand dollars more, the only reasonable construction that could be placed thereon, under the contract, would be that they intended and thereby undertook to put in an additional million feet of logs. Under the contract they were entitled to this advance of fifteen thousand dollars, for the sole reason that they had or would put in, within the time fixed by the contract, five million feet, and they could not call for and receive this money under the contract, and then say that it was nothing but a loan. If they did not intend to bind themselves to put in over four million feet, they should have acted consistently with that intention, and not have called for advances which they were not entitled to, except upon the theory that they would put in to .exceed that quantity. The case of Davis v. Bush, 28 Mich., 432, is decisive upon this question. The judgment must therefore be reversed and a new trial ordered, but should we not direct attention to another question, it might be claimed that we approved of the measure of damages, adopted by the referee for non-delivery of the contract quantity of logs, viz.: f 1.50 per thousand feet, that being the profits on manufacturing under the contract. The rule laid down by the court of exchequer in Hadley v. Baxendale, 9 Exch., 341, has frequently been recognized and followed in this State. 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.” Was it according to the usual course of things from the breach of the contract in this case, that the'mill of Hopkins & Co. should lie idle? Or could they have obtained a sufficient supply of logs for that season, after the breach, from other sources, at the same or a less saw-bill? Or in case they could not, would such failure be a usual one, — something that might naturally and reasonably have been expected, — or was it owing to special and peculiar circumstances existing at that time? Or under the other theory, could the parties at the time the agreement was made, or at the time the advances over and above for the four million were made, reasonably be supposed to have contemplated the fact that the mill would have to lie idle, as the probable result of the failure to put in the five million feet or any part thereof ? As the case now stands under the finding of the referee, these questions may not be free from doubt, but as the showing upon a new trial may assume a somewhat different aspect, we express no opinion upon these questions. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

Marston, J. The commissioner of highways caused a notice to be served on Platt December 31st, 1875, that a meeting would be held at a certain place on January 10th, 1876, to ascertain and determine the necessity of laying out a certain highway. The statute, Public Laws of 1875, p. 92, § 1253, required the notice to be served “at least ten days before the time of said meeting.” This language excludes the day on which the meeting is to be held, and requires ten full days’ notice, and under the well settled rule in this State, under such a requirement the day of service is also excluded. Sallee v. Ireland, 9 Mich., 157; Warren v. Slade, 23 Mich., 1. The commissioner had no jurisdiction, and the proceedings must be reversed and quashed, with costs. The other Justices concurred.

Per Curiam. Relator purchased on execution a mining lease in an undivided half of certain lands in Marquette county, and after he obtained his deed the defendants refused to surrender possession, whereupon he brought ejectment. He then applied to the circuit court on a showing of various facts to grant an order to stay waste. This motion the court refused, and we are asked to grant a mandamus to compel it. The form of the lease is not given, and therefore we cannot consider it. If the action of ejectment lies on such a peculiar title, and if it was liable to sale on execution, both of which questions are understood to be involved, still the application was one of discretion and not of right, and we cannot review that discretion. If the party is entitled to a stay of waste and chooses to seek it in this form and not in some affirmative suit at law or in equity, there is no remedy for the refusal to grant the relief. We need not, therefore, consider the nature of his rights. Order refused.

Graves, J. Rose was riding along the public road in his sulky. With one hand he was guiding the animal attached to the sulky and with the other was leading a mare. She was followed by her colt which was about three months old, and also by a mule which Eose owned and was taking to another place. A dog alleged to belong to ..Monroe, or at least to be in his keeping, approached from his house and suddenly started up and bit the colt when it was near the sulky. The colt being thus suddenly assailed jumped towards the sulky, thrust one foot through the wheel, and overturned the vehicle. The sulky was broken, the colt hurt and damaged, and Rose received personal injuries as a consequence of the overturn. Rose estimated the damages to the colt at $50. The injury to the sulky was slight. He brought his action on Comp. L., § 2065, and the jury having found $400 as his damage, the court doubled the amount and entered judgment for $800 damages and $5 costs. Monroe complains of rulings which authorized this recovery. This statute does not supersede common law actions. It was intended to give a liberal remedy to the • injured party in a few special cases and to authorize a recovery in its nature penal. It confers a right of action without requiring proof of knowledge in the defendant of the dog’s habit to “do such damage or mischief,” and the right cannot be extended by construction without doing violence to settled maxims and going counter to the will of the Legislature. First. The right is given where a dog kills or assists in killing, wounding or worrying any sheep, lamb, swine, cattle or other domestic animal. Second. It is also given when a dog assaults or bites or otherwise injures any person while traveling the highway, or out of the inclosure of the owner or keeper of such dog. The only charge in the declaration of the commission by the dog of any of the enumerated mischiefs against a “domestic animal” is the allegation that he “bit’’the colt; and there is no averment that he “assaulted or bit” Eose, or “otherwise injured” him. The allegation that he “bit” the colt may perhaps be considered as a distinct charge of one hind of “wounding.” Yet this is not certain. It is not admitted that the personal injury of Eose was so caused as to present a ground of charge under this statute even if so pleaded. But it is not needful .to inquire into the actionable quality of that injury under statutes or the common law. It is sufficient that it is not set forth as a cause of action on the statute. .It is not averred to have been caused by the dog. On the contrary, a fair construction of the declaration would represent it as the effect of another cause. Now it distinctly appears that notwithstanding the want of legal claim on this ground, Eose was allowed to give considerable evidence to show his personal injury, and influence the verdict on that account, and further that the court expressly submitted the case as one where damages might be found for such personal hurts as were' shown and likewise for all future suffering to flow from them. This was manifest error. The issue did not authorize recovery on such ground, and it is not to be implied that any form of pleading on this statute under such a state of facts could authorize it. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

Marston, J. The court was right in charging the jury that plaintiff had not shown such a performance of the agreement to collect the judgment as would entitle him to recover. The plaintiff testified “that in January, 1875, I spoke to the defendant James Dewey about his collections, and he said he had a judgment in their favor against one Mackey, and spoke to me ■ about collecting it, and said that if I would collect it they would give $50. I agreed to do it. I thereupon had an execution issued on said judgment, and gave it to William W. Witherspoon, a constable, and directed him to collect it; that Witherspoon reported to me that he had called upon Mackey two or three times, and I instructed him what to do. I afterwards had a conversation with Mr. Dewey about making a levy on Mackey’s interest when he was in partnership with a Mr. <Dee, in which I understood that Mackey would pay the judgment in the fall, and we came to the conclusion to let the matter rest there.” In the fall defendants, by letter addressed to the justice before whom the judgment had been rendered, directed him to accept the judgment debtor’s notes payable in three, six and nine months in satisfaction of the judgment and costs. The justice handed this letter to plaintiff, who was a clerk in his office, and he procured the notes and delivered them to defendants. It did not even appear that these notes had been paid. Clearly this evidence fell short of showing a performance of the contract. The plaintiff had not succeeded in collecting the judgment when he agreed with defendants that no farther steps should be taken before a certain time. And before any farther or other proceedings had been taken, another person was instructed to accept of the judgment debtor’s notes in satisfaction of the judgment. The fact that the plaintiff in this case, instead of the person to whom the letter was addressed, procured and delivered over the notes could give him no greater rights than though he had been ignorant of such a settlement, or had taken no part therein. Such a settlement was not a collection of the judgment within the meaning of the agreement entered into between the parties. The judgment must be affirmed with costs. The other Justices concurred.

Campbell, C. J. Complainant filed her bill to set aside certain deeds, with a life lease and bill of sale, made by her deceased father, Nathan Udell, in December, 1875, on the grounds of non-delivery, incompetency, fraud and undue influence. Nathan Udell died in May, 1876, from the effects of a cancer in the face, which had afflicted him for a considerable time, and which by degrees had eaten away a part of his face so as to seriously interfere with his speech, and ultimately with his sight. On the 24th of December, 1876, he made a life lease to his wife of his real estate, with a bill of sale of most of the household effects, and also made deeds to his children, Henry, Daniel and Cordelia, three of the defendants, of 50, 80, and 30 acres respectively, the three parcels constituting his entire farm of 160 acres. The deed of 80 acres to Daniel provided for the payment to his eldest daughter, Mrs. Latham, the complainant, of $200 within two years after her mother’s death. These deeds ' were subject to Mrs. Udell’s life lease. These papers were all duly executed and acknowledged at their date and delivered to Mrs. Udell by her husband with directions to have them handed over to the grantees immediately after his death. It is stated to us by counsel that the case was decided in the court below on the ground that there was no effectual delivery. The testimony shows very plainly that these deeds and other papers were given to Mrs. Udell with explicit directions as to what should be done with them. Mr. Udell beyond doubt meant and ordered that they should be delivered to the grantees at his death, and have complete effect. In Ellis v. Secor, 31 Mich., 185, and Wallace v. Harris, 32 Mich., 380, this subject was fully considered, and such deeds under the' rules there recognized, and under the authorities there cited, must be held operative to carry out the grantor’s intent, concerning which there is no uncertainty in the testimony. They are not void for non-delivery. The objection of want of capacity is without any support. The disease under which Mr. Udell was suffering, though very painful, did not impair his understanding or affect his capacity to comprehend the act which he engaged in. It was done deliberately as a substitute for a former imperfect arrangement. He understood it fully, and it expressed his purposes completely. There is no foundation whatever for any claim that rests on his unfitness to dispose of his property as he chose. Much stress is laid on the fact that one child is practically disinherited, and the mother made sole possessor of the estate for life. If the law required property to be disposed of equally among those who would be heirs in case of intestacy, then such an objection might deserve some consideration. But where the law leaves every one to dispose of his property as he chooses, the fact that he prefers one to another can have no bearing on the validity of his voluntary and intelligent action. It concerns no one what his reasons may be for doing what he has a right to do. Courts have no right to substitute their judgment for his, or to determine upon the wisdom or justice of his reasons. Whether wise or unwise, just or unjust, they are for him and for no one else to determine. In this ease he understood what he was doing, and evidently had reasons which we are bound to assume were satis factory. There is nothing in his course which has the least tendency to indicate any such extravagance as to suggest an absence of legal capacity or mental control. The provision for his wife was one which was perfectly natural, and commends itself to approbation. The discrimination between his children is not unprecedented and was certainly not unlawful. He might lawfully have given his wife the entire estate, or made any other disposition of it at his pleasure. But as before stated, if it was his conscious and deliberate act, as we find it was, we have no concern with its wisdom. The claim of undue influence and fraud is one which is not very creditable to the complainant as against her parents. There is no evidence whatever that Mrs. Udell used any importunity or attempted any interference with her husband’s wishes. And we do not know of any rule of law or of morals which makes it unlawful or improper for a wife to use her wifely influence for her own benefit or for that of others, unless she acts fraudulently, or extorts benefits from her husband when he is not in a condition to exercise his faculties as a free agent. A faithful wife ought to have very great influence over her husband, and it is one of the necessary results of proper marriage relations. It would be monstrous to deny to a woman who is generally an important agent in building up domestic prosperity, the right to express her wishes concerning its disposal. And there is no legal presumption against the validity of any provision which a husband may make in his wife’s favor. In the present case the provision made for Mrs. Udell was not only very plainly desired and directed by her husband, but in no respect extravagant. The property of her husband had been chiefly obtained in the first place by her means, and its increased value from the improvement of the farm, beyond the natural rise from the settlement of the country, was probably as much due to her exertions as to his. He certainly was under no duty to deprive her of any part of its usufruct. The evidence shows that he had some reasons for discriminating among his children. But upon this question we are only concerned in inquiring whether his free agency was overcome by the fraud or wrongful conduct of his wife. There is no appearance of any misconduct or even of any interference on her part, and the charges to that effect are utterly unfounded. If we had to investigate the reasons which led Mr. Udell to make a smaller provision for complainant, we might perhaps conceive of their nature from the character of this controversy, and the course of some who are engaged in it. But it is not important to determine them. Mr. Udell was entirely able to control his own actions, and was not weak enough to be a mere instrument in any one’s hands. There can be no fatally undue influence without a person incapable of protecting himself, as well as a wrong-doer to be resisted. Neither is found here. This controversy seems to have arisen from an idea that is unfortunately too prevalent, that courts have a right to set aside family arrangements of a testamentary character, unless made in such a way as to satisfy their own notions of policy and justice. Such. notions are dangerous and destructive of all security. The decree below must be reversed, and the bill dismissed, with costs of both courts. Marston and Graves, JJ., concurred. Cooley, J., did not sit in this case.

Graves, J. Defendants in error sued on the common counts and-made claim that the plaintiff in error held and refused to pay over moneys lie had collected at their request from his servants upon debts due from the latter to defendants in error. The general issue was pleaded with notice of set-off, and August, 1876, a verdict was returned in favor of defendants in error for $3,205.10. Donkersley complains of rulings at the trial. There was evidence conducing to make out that it was agreed between the parties in contemplation of sales of goods from day to day by Levy and Asch to persons in the service of Donkersley, that Levy and Asch might at stated intervals report such sales to Donkersley, so as to show the amount to each person, and that he, Donkersley, would then hold back and retain from the wages going to such persons the amounts so due from them to Levy and Asch. There was also evidence tending to show that pursuant to this arrangement Levy and Asch proceeded for some time to sell goods to Donkersley’s workmen, and to report to him- the sales so made, and that he recognized the existence of the arrangement and to a considerable extent acted upon it; that he settled with his hands on that basis and reported the settlements back to defendants in error, and as the result of such arrangement and settlements retained and kept back the amounts going to defendants in error, — his workmen only receiving and he only paying the balances left after deducting such amounts, and that he has refused to pay over what he so reserved. The situations and relations of all the various persons concerned, together with the surrounding facts not disputed and Donkersley’s silence on the subject when on the stand, afforded ground of inference that these workmen thus settled with by Donkersley were aware of the arrangement for deducting from their wages what they owed to Levy and Asch and assented and settled on the basis of it. It is to be presumed, in the absence of evidence to the contrary, that all the parties sought to take care of their own affairs and to deal honestly and to acquit themselves of their duty and obligations, and that they acted in a reasonable way and as men usually do in like situations, and these considerations apply to these workmen, and it would violate all rules to suppose that these persons who had respectively incurred little debts to defendants in error for daily wants were in ignorance of Donkersley’s agreement to withhold from them and pay over, or if aware of it did not assent and desire him to execute the trust; and still, without making any other provision, proceeded without exception to' settle fully with him and allow him in every instance to keep back and retain the exact amount going to Levy and Asch. The supposition is incredible. It was Donkersley’s duty to inform his hands of his engagement, and it was their duty to provide for paying their debts. When on the stand he did not deny having informed them or that they acquiesced, nor even intimate that the amounts they left with him were not for Levy and Asch. The mind is forced to an opinion that they knew of the arrangement, and not only assented to it, but acted upon it. Surely there was evidence tending to show that Donkersley’s hands left the money in accordance with the agreement between the parties in this action and strictly in furtherance of it, and we think there was a ease for the jury under the count for money had and received. Beardslee v. Horton, 3 Mich., 560; Moore v. Mandlebaum, 8 Mich., 433; Spencer v. Towles, 18 Mich., 9; Heimbach v. Weinberg, id., 48; Looney v. Looney, 116 Mass., 283; Cranson v. Ockington, 118 Mass., 409; Parry v. Roberts, 3 Adol. & Ell., 118; English v. Devarro, 5 Blackf., 588. The law does not require an idle ceremony to ground an actionable right. Hosmer v. Wilson, 7 Mich., 294-304-305; Carpenter v. Holcomb, 105 Mass., 280-284. And it was quite unnecessary to observe the empty form of full payment by Donkersley to his. hands and the passing-back across the table of the amounts collectible for Levy and Asch. The end was attained in a lawful and business way, and that was sufficient. Connecticut Mutual Life Ins. Co. v. State Treasurer, 31 Mich., 6; Floyd v. Day, 3 Mass., 403; Fairbanks v. Blackington, 9 Pick., 93; Tuttle v. Mayo, 7 Johns., 132; Langley v. Warner, 3 Comst., 327, 329; Graham v. The Bank, 5 Ohio (Hammond), 265; Martin v. Farnum, 24 N. H., 191; Andrew v. Robinson, 3 Campb., 199; Beardsley v. Root, 11 Johns., 464; Wilkinson v. Clay, 6 Taunt., 110. The store where Levy and Asch sold goods was connected with large furnace works of the Morgan Iron Company and belonged to that corporation. In March, 1874, and for some time prior thereto, Donkersley was vice-president of this corporation and apparently its general agent, and at that time the corporation acting by him made a written lease of the store to Levy and Asch for three years from the 26th of February, 1874, and inserted a provision giving them an option for two years more. This instrument contained several special provisions, and it assumed to secure to Levy and Asch certain exclusive and important privileges and advantages. Among other matters it made regulations under which the company agreed to collect of its servants what the latter might owe to Levy and Asch and to be the agent of Levy and Asch in regard to that business. The specified rent and consideration was $2,500 per year, payable by Levy and Asch monthly in advance. The instrument was executed by Donkersley on behalf of the corporation. October first, 1874, or about seven months later, the company made another lease in writing. This was given to Donkersley himself, and it was for three years from its date, and accordingly for a term about seven months longer than the fixed term in the first. It embraced a large amount of property and included the store in question and other things desired and given with it. Donkersley now claims that this lease to him conveyed and entitled him to collect from Levy and Asch the rent accruing subsequently on the lease to them, and that he was hence entitled to set-off the same in this cause. Now, the lease to Donkersley contained no exception or reservation and did not purport to be subject to the prior lease. Notwithstanding his connection with the first lease, the second from the same lessor to himself, and which he accepted, was not only so shaped as not to recognize the first, but also to be in terms inconsistent with it. At the same time all the parties proceeded as though the first lease was determined. The company did so in giving the second lease and in taking no attitude implying a different view. Donkersley did so in accepting that lease, and again, he and the defendants in error did so by making a new arrangement. They at once entered into a distinct verbal agreement not compatible with the co-existence and operation according to its terms of the first lease. This transaction would seem explicable only upon the supposition that that lease was ended. It provided for a present holding by defendants in error under .verbal terms and at an annual rent of $2,000 instead of $2,500, as in the lease from the company, and laid down a very similar plan for conducting business. The oaths of the parties substantially agree upon all matters affecting the present consideration. It is true that Levy and Asch did not remove from the store when these events occurred; but it is also true that the company gave and Donkersley accepted with the assent of Levy and Asch a lease inconsistent with that which had been given to the latter, and that Donkersley at the same time made to them and they accepted his verbal lease for the time being and which was also inconsistent with the continuance in force of the first lease. Simultaneously and pursuant to the will of all, the second lease was executed to Donkersley and the first lease rendered inoperative and defendants in error were caused to be lessees of Donkersley under his verbal lease and the state of the holding and possession was changed so as to conform to such arrangements, and the result was that the lease from the Iron Company to defendants in error was surrendered by operation of law and not assigned to Donkersley by force of the lease to him. Taylor on Land. & Ten. (6 ed.), 392; Woodfall on Land. & Ten. (9 ed.), 267; Beardman v. Wilson, L. R. 4 C. P., 57; Thomas v. Cook, 2 B. & Ald., 119; Walker v. Richardson, 2 Mees. & Wels., 882; Lyon v. Reed, 13 Mees. & Wels., 285; Nickells v. Atherstone, 10 Q. B., 944; Grimman v. Legge, 8 B. & C., 324; Dodd v. Acklom, 6 Man. & Gr., 672; Walls v. Atcheson, 3 Bing., 462; Lloyd v. Langford, 2 Mod., 174; Smith & Coles v. Lovell, 1 E. L. & E., 374; Crowley v. Vitty, observations of Parke, B., 9 E. L. & E., 501; M’Donnell v. Pope, 13 E. L. & E., 11; Hesseltine v. Seavey, 16 Me., 212; Elliott v. Aiken, 45 N. H., 36; Shepard v. Spaulding, 4 Met., 416; Talbot v. Whipple, 14 Allen, 177; Amory v. Kannoffsky, 117 Mass., 351; Peters v. Newkirk, 6 Cow., 103; Van Rensselaer’s Heirs v. Penniman, 6 Wend., 569; Bailey v. Delaplaine, 1 Sandf. Sup. Ct. R., 5; Smith v. Niver, 2 Barb., 180; Whitney v. Meyers, 1 Duer, 266; Bedford v. Terhune, 30 N. Y., 453; Davison v. Gent, 38 E. L. & E., 469; Ive’s Case, 5 Co. R., 11 a; Logan v. Anderson, 2 Doug. (Mich.), 101. No other sensible construction appears admissible on the facts as shown by Levy and Donkersley. There was hence no valid ground for the claim of right to set off rent, and the result of the ruling upon the point was right. It is not material to examine the explanation given for it. But if in strictness no surrender had taken place it would be difficult for other reasons to maintain the set-off. Certain written statements were objected to as inadmissible under the bill of particulars which had been furnished by defendants in error. The objection does not appear tenable. These papers were statements of account which Donkersley had drawn up and delivered to defendants in error pursuant to the arrangement under which the business in question had been conducted, and they were 'his admissions and were offered to help make out the case particularized in the bill, and no other, and although they were not copies of the bill or of sections of it, it is not perceived that they were irrelevant as evidence to aid the claim described in it, and there is no reason to suppose the plaintiff in error was surprised by the introduction of his deliberate written admissions to prove the demand set forth in the bill of particulars. It is worthy of notice, too, that other evidence, not . reported or described, was given to prove the items in the bill of particulars, and there is 'no foundation for the assumption that it was not conclusive. One of the plaintiffs below was asked how much the defendant owed them, and an objection was interposed that the inquiry was too general. The question was not for that reason improper. The amount was a fact to be shown, and it was not unlawful to inquire of the party what it was. What weight a categorical answer to such a question standing alone should receive is a separate consideration. It would depend on the particular circumstances. In this case the amount was not left to rest on the answer given to the question. Details were gone into, and other evidence not spread upon the record was submitted to prove the demand by items. In case a similar question should call for an opinion upon matter of law or fact and be excepted to on that ground it would be needful to consider it under another aspect. We have examined the case under all the objections insisted on by the plaintiff in error, and nothing appears of which he may rightly complain. Judgment affirmed with costs. Campbell, C. J., and Graves, J., concurred. Marston, J., did not sit in this case.

Per Curiam. This case, having been before the court on exceptions, was sent back to the circuit court for the county of Ingham with directions to proceed and sentence the prisoner, who had been convicted of murder. She now desires leave to apply for a new trial, on the ground of newly discovered evidence, and for other reasons. More than one term-has expired since her trial. At common law a new trial was not granted in cases of felony, and the provisions in our State allowing it are purely statutory. Our statutes allow it to be had only in two ways: (1) on exceptions properly taken and' sustained by the Supreme Court, and (2) by the court wherein the respondent was tried, “at the same term, or at the next term thereafter.” Comp. L., ch. 262. In this instance a new trial has been refused by this court on exceptions, and by the circuit court on a motion heretofore made in season. We think the statute fixing the time for such a motion cannot be enlarged in its operation, and as there is no such remedy at the common law, the party is confined to the statutory remedy, which is now barred by lapse of time. Without discussing the affidavits, we must deny the motion, as the power of the circuit court in the matter is exhausted.

Cooley, J. The railroad company presented to the commissioners appointed to examine and adjust claims against the estate of Thomas G. Duncan, a claim to a considerable sum, which was allowed by that body. The executors thereupon petitioned the probate judge for leave to appeal, and it was allowed by the judge. The judge also made an order that'the appellants “cause a notice of said appeal, and of the hearing thereof in the circuit court for the county of Calhoun at the May term thereof next ensuing, to be served on the said Mansfield, Coldwater & Lake Michigan Railroad Company, by delivering said notice personally to the president, secretary or any director of said company, if either of them can be found in said county, and if they cannot be found in said county, then that such notice be served by depositing the same in the postoffice, the postage prepaid, directed to the secretary of said company at his last known place of residence, and that such service be made at least fourteen days prior to the first day of the next May term of said court.” The appellants thereupon proceeded to give notice of the appeal, serving it personally on Victory P. Collier, one of the directors of the railroad company at Battle Creek in the county of Calhoun, in which county the proceedings were pending. They also served notice of hearing on Mr. Collier, as well as on Mr. Pray, an attorney of this court, who had appeared for the railroad company on the hearing before the commissioners. Beturn to the appeal having been made, the appellee caused a motion to dismiss to be entered, and the court ordered the appeal dismissed. The ground of dismissal was that no such notice of the appeal had been given as was required by law. The statute provides that “ in all cases of appeal from the decision of the commissioners, the person appealing shall give notice of such appeal and of the hearing thereof, in the circuit court, in such manner as the judge of probate shall direct.” Comp. L., § 4442. In the chapter relating to “Proceedings by and against Corporations in Courts of Law,” it is provided that “suits against corporations may be commenced by original writ of summons, or by declaration, in the same manner that personal actions may be commenced against individuals, and such writ, or a copy of such declaration, in any suit against a corporation, may be served on the presiding officer, the cashier, the secretary, or the treasurer thereof; or if there be no such officer, or none can be found, such service may be made on such other officer or member of such corporation, or in such other manner, as the court in which the suit is brought may direct.” Comp. L., § 6544. Another statute permits service of “any process, notice, or writing upon any railroad company in this State,” to be made upon any conductor of a freight or passenger train of cars, or upon a weighmaster at a station or depot of the company. Comp. L., § 6559. The question which this record presents is whether it is sufficient to make service of the notice of appeal and of hearing as was directed by the order of the judge of probate, or whether, on the other hand, the statutes- which direct how process, pleadings, etc. shall or may be served on corporations generally, or on this class of corporations, are to be complied with in making this service. The counsel for the appellee insists that the statutes themselves direct upon whom the service of process, notices, etc. may be made, and that the authority of the judge of probate is limited to prescribing the :manner in which service may be made on the officers, etc. who' are named in' the statutes. If this view were correct, we should doubt the correctness of the action of the circuit court in dismissing the appeal. It has been decided in Vermont and Connecticut under statutes very similar to ours, that the failure to give notice of the appeal is not a jurisdictional defect, and that where it has failed, the appellate court may make an order for some suitable service. Woodward v. Spear, 10 Vt., 420; Donovan’s Appeal, 40 Conn., 154. The difference between removing a pending proceeding into a court of review, and commencing a new proceeding, is plain enough; in the latter case the necessity for observing any statutory regulation is of course imperative. In regard to appeals in chancery it has always been held by this court that the failure of the appellant to give notice of the appeal did not entitle the appellee to a dismissal as a matter of right. Garratt v. Litchfield, 10 Mich., 451; Shook v. Proctor, 26 Mich., 283. It is true the requirement of notice is by rule in the case of appeals in chancery, but there is much reason for holding that it is merely directory in the one case as well as in the other. Indeed the notice of appeal has no very important function in either case: it is to inform the adversary party that the appeal has been taken that he may prepare for it; but as he must also have notice of hearing, he is not likely to lose any rights by a failure in giving strict notice. But we think the notice given is in strict compliance with the statute. In other words we think the authority In the judge of probate to determine the manner in ■which notice shall be given includes the naming of the officer, agent, etc. on whom service shall be made when that service is practicable, or the prescribing of some other mode of notification when officers or agents are not within the jurisdiction. We have no doubt the whole subject is referred to his discretion; and it is very proper that this should be so. A party should not be deprived of his appeal because of any difficulty in making the ordinary service, and possibly a notice by publication might in some cases be justified. It is suggested that this is giving to the judge of probate a discretion which might be abused to the injury of the appellee. Possibly this is so; but so might the discretionary authority to direct the manner of service on officers, conductors and weighmasters, which the appellee concedes to him, be abused. When a case of manifest abuse arises, it may be dealt with: the order in this case was a very proper and suitable one. The dismissal of appeal must be set aside with costs, and the case remanded. Campbell, C. J., and Marston J. concurred. Graves, J., did not sit in this case.

Per Curiam. The only question upon this record is whether a certain draft drawn by Morton & Co., lately doing business in Detroit, upon a New York bank, was received by the plaintiff in satisfaction of a demand which the defendant had agreed to pay to him. The circuit judge found the facts relating to the giving and the acceptance of the draft, and then adds that “Prom the foregoing facts, and as an inference therefrom, without further proof I conclude that the plaintiff must be held to have received the draft in payment.” Plaintiff regards this conclusion as one of law, and has brought the case before us for review upon the finding. But the question whether certain facts make out an understanding between parties that a certain transaction shall settle a demand, is obviously one of fact, and had the judge been sitting with a jury, it would have been error in him to take it away from them. There is consequently nothing for us to review, and the judgment must be affirmed with costs.

Marston, J. The defendant in his return to the writ of certiorari in this case, after setting forth that an application was made to him for the opening of a certain ditch, a bond given, etc., says: “I immediately appointed the 15th day of May, 1877, at two o’clock in the afternoon, at the house of O. Peters, in the said township of Pittsford, as a time and place of examination on such application, and gave the notice required by statute to the parties interested in such ditch;” that he caused a survey to be made, etc. How or in what manner this notice was given, or when it was served upon the parties interested, in no way appears, except as above stated. This is wholly insufficient; the facts should be clearly set forth, so that the court would be able to ascertain and determine therefrom whether the notice which the statute requires had been given or not. This inquiry the commissioner cannot conclude by his answer. The proceedings must be set aside and held for naught. The other Justices concurred.

Cooley, J. Beach sued M'eMillen in justice’s court on a promissory note and obtained judgment. MeMillen appealed to the circuit court, and there filed a new declaration — whether by permission of the court, or by consent of defendant, or without either, does not appear. Neither does the occasion for filing it appear, as it was a declaration on the common money counts, and so also was the declaration before the justice. The only important difference between the two declarations consisted in this, that the one filed in the circuit court had appended to it a copy of the note sued upon. It does not appear that this amended declaration was ever served on the defendant or his attorney, or brought to the attention of either until the case was on trial. The plaintiff then offered the note in evidence without making any proof of its execution. The defendant objected, but the court held it admissible and the plaintiff had judgment. Circuit court rule 79 provides that upon the plea of the general issue in an action upon any written instrument, the plaintiff shall not be put to proof of the execution thereof unless the defendant or some one on his behalf shall file and serve a copy of an affidavit denying the same, with the plea. This is a substantial statement of the rule so far as it is applicable here. In this case the plea of the general issue was interposed before the justice, and there was no new plea by the defendant in the circuit court, nor do we know that he had the opportunity to plead anew. Indeed the record affirmatively shows that the circuit court was not apprised that the new declaration was brought to the attention of the defendant so that he could comply with the rule if he desired to do so. It is manifest, therefore, that the rule cannot apply to this case. The rule is one in furtherance of justice, and to save the necessity of proof where the defendant declines to dispute the execution of the contract on oath, when full opportunity is allowed him for the purpose. To apply it in a case like the present would be subversive of justice instead of being in furtherance of it. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.