Datasets:

aidos-lab

/

mich-embeddings-binary-mixed-bread-large

like 0

Follow

aidos-lab 4

Lesinski, C. J. This is an appeal from summary and accelerated judgments granted to defendant, Mayflower Congregational Church, hy the Wayne county circuit court. The action arose following a merger of the Evangelical and Reformed Churches and the Congregational Christian Churches into a new church, the United Church of Christ. Pursuant to that merger, defendant local church, Mayflower Congregational Church, by a majority (253 to 204), voted to join the United Church of Christ. Plaintiffs constitute the “faithful minority” of the Mayflower Congregational Church. They filed suit to quiet title to the realty and personalty of defendant church in themselves, on the grounds that the United Church of Christ did not conform to the existing Congregational doctrines of the Mayflower Church. In bringing this action, plaintiffs relied upon the Michigan doctrine that the membership of a congregation does not have the right to effect, by majority vote, a change in religious practice as against those who faithfully adhere to the characteristic doctrine of the church, and thereby deprive the minority of the use of church property. Davis v. Seller (1959), 356 Mich 291. Defendant church, representing the majority of the congregation, answered that defendant, by becoming part of the United Church of Christ, did not effect a departure from Congregational practice. Furthermore, defendant asserted that this Court lacks jurisdiction to decide the ecclesiastical issues presented by reason of the First and Fourteenth Amendments to the United States Constitution. The trial court granted defendant’s motion for accelerated judgment, finding as a matter of law that the court lacked jurisdiction of the subject matter by reason of the First and Fourteenth Amendments to the United States Constitution. Moreover, the court granted defendant’s motion for summary judgment, finding both no genuine issue of material fact and failure of the complaint to state' a cause of action. Regarding the summary judgment, the court found as a matter of law that the provisions of the constitution and by-laws of the United Church of Christ do not abridge the autonomy of defendant church and are neither mandatory nor regulatory, but merely recommended procedures describing a voluntary relationship. Plaintiffs appeal the decision of the trial court, contending inter alia that the trial court has jurisdiction to quiet title in the faithful minority where the church departs from Congregationalism. In Presbyterian Church in the United States v. Mary Elisabeth Blue Hull Memorial Presbyterian Church (1969), 393 US 440 (89 S Ct 601, 21 L Ed 2d 658), a case decided on January 27, 1969, after the briefs in this case were submitted but discussed in the defendant’s supplemental brief and in plaintiff’s supplemental reply brief, the United States Supreme Court held that the civil courts have “no role in determining ecclesiastical questions in the process of resolving property disputes”. (Emphasis supplied.) ■ As stated by the Supreme Court, the Mary Elizabeth Case involved: “A church property dispute ■ which arose when two local churches withdrew from a hierarchical general church organization. Under Georgia law the right to the property previously used by the local churches was made to turn on a civil court jury decision as to whether the general church abandoned or departed from the tenets of faith and practice it held at the time the local churches affiliated with it. The question presented is whether the restraints of the First Amendment, as applied to the States through the Fourteenth Amendment, permit a civil court to award church property on the basis of the interpretation and significance the civil court assigns to aspects of church doctrine.” The Supreme Court reversed the Georgia jury verdict granting church property to the local churches based upon a finding of fundamental abandonment of the original doctrines by the general church. It reasoned that: “The First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by ■civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes, Abington School District v. Schempp (1963), 374 US 203 (83 S Ct 1560, 10 L Ed 2d 844); the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.” (Emphasis supplied.) We consider the Mary Elizabeth decision to he controlling in the instant case. The fundamental inquiry in this ease was whether the majority, by voting to become a part of the United Church of Christ, departed from Congregational doctrine. Clearly, therefore, in order to grant the relief plaintiffs request, ecclesiastical issues regarding departure from doctrine must be resolved by civil courts. Such a determination was expressly prohibited by Mary Elizabeth: “The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a ‘substantial departure’ from the tenets of faith and practice existing at the time of the local churches’ affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.” In the instant case, plaintiffs allege a departure and defendant specifically counters that no changes in doctrine occurred. Thus, the case is unlike Davis v. Scher, supra, where in a property dispute both parties agreed that a change in doctrine occurred, and the court could find that no ecclesiastical questions were in dispute. Where there is no agreement that a departure occurred, the ecclesiastical conflict destroys civil court jurisdiction to resolve the property dispute. Although the Mary Elizabeth Case involved churches utilizing a hierarchical form of organization, we see no basis in that case for a distinction making Mary Elisabeth inapplicable to a congregational form of organization. The essence of the Supreme Court decision is the prohibition of civil court determination of ecclesiastical questions. Thus, in the absence of fraud, collusion, or arbitrariness, the proper ecclesiastical body, and not the civil court, must decide church doctrine. In the Mary Elizabeth Case, since Presbyterian churches were involved, the decision of Presbyterian church tribunals as to church doctrine was controlling. In the instant case, the Mayflower Congregational Church is autonomous with all ecclesiastical power vested in its assembled brotherhood. As such, the decision of a majority of the members is controlling in determination of ecclesiastical questions. Under the First and Fourteenth Amendments to the United States Constitution, this leaves civil courts no role in disputes regarding substantive ecclesiastical matters. Due to our resolution of the jurisdictional issue, consideration of the remaining contentions of plaintiff on appeal is unnecessary. Affirmed. Costs to appellee. V. J. Brennan, J., concurred. Additional aspeets of this litigation are presented in two prior appeals. Berkaw v. Mayflower Congregational Church (1965), 1 Mich App 252, reversed (1966), 378 Mich 239. Regarding further legal history of the merger, see, also, First Congregational Church and Society of Burlington, Iowa v. Evangelical and Reformed Church (CA 2, 1962) 305 F2d 724.

Lesinski, C. J. On August 20, 1959, plaintiffs, landlords, entered into a written 20-year lease with defendant, tenant, Great Lakes Bowling Corporation. The lease provided in relevant part that the landlords would erect on the demised premises a building sufficient to house a 64-lane bowling establishment and a parking lot with proper drainage facilities, both according to “plans and specifications to be approved by tenant”. The tenant was obligated by the lease to furnish bowling alley equipment. The lease contained an agreement by the parties that the landlords would not be required to invest more than $540,000 for construction of the building and parking lot, and that the tenant would pay the cost of construction in excess of $540,000. Construction costs specifically were to include “any other costs attributable to the improvement of the herein described premises”. Pursuant to the lease, plans and specifications for the project were prepared by architects and approved by the tenant. When the general contract for the project was let for $557,900, defendants acknowledged their liability for $17,900, the excess over $540,000. In addition to the admitted $17,900 liability, plaintiffs claimed their tenants also owed another $56,170.70. To recover that amount, plaintiffs instituted an action in Wayne county circuit court. A jury trial was held in which each party prevailed in part. Defendants now appeal portions of the judgment; plaintiffs do not cross-appeal. Defendants first contend the trial court erred in failing to direct a verdict for defendants on plaintiffs’ claim for rent. The lease in relevant part provided: “This lease shall commence on the date upon which the building and parking lot required to be constructed under * * * this lease shall have been fully completed and the tenant shall have in stalled his entire equipment necessary for the operation of a howling alley, but in no event shall such lease commence later than 30 days after the full and final completion of the building and parking lot.” Stipulated rent under the lease was $5,333.33 per month. Plaintiffs contend that the project was substantially completed for purposes of the lease by December 23,1960. Therefore, plaintiffs seek payment of $12,266 under the lease for rent commencing 30 days after December 23, 1960, and ending April 1, 1961. Defendants voluntarily paid rent for the period beginning April 1, 1961. Defendants refute plaintiffs’ claims, contending that since howling operations could not be commenced until after April 1, 1961, no rent was due under the lease for the prior period. The jury awarded plaintiffs $6,133 for rent, which was one-half the rent claimed owing by plaintiffs. As part of defendants’ appeal on the rent issue, they assert that the trial court erred in instructing the jury that the doctrine of “substantial performance”, which is applied in building and construction contracts, applies to lease arrangements. The instruction provided: “I might also say while I am on the subject that it is a question of fact for your determination as to whether or not Mr. Brown’s refusal to accept the building on December 23, 1960, was arbitrary, and whether or not the plaintiffs had substantially performed or fulfilled their contract on that date. “Now, let me tell you what constitutes ‘substantial performance’. While it is difficult to state what the term ‘substantial performance’ or ‘substantial compliance’ as applied to building and construction contracts means, inasmuch as the term is a relative one, and the extent of the nonperformance must he viewed with, relation to the full performance promised, it may be stated generally that there is substantial performance of such a contract when all the essentials necessary to the full accomplishment of the purposes for which the thing contracted has been constructed or performed with such approximation to complete the performance that the owner obtains substantially what is called for by the contract. “Imperfections in the matters of detail which do not constitute a deviation from the general plan contemplated for the work, do not enter into the substance of a contract and may be compensated iii damages; do not prevent the performance as being regarded as substantial performance.” This Court in P & M Construction Company, Inc. v. Hammond Ventures, Inc. (1966), 3 Mich App 306, 314, 315, approved an almost identical “substantial performance” rule in a suit between a property owner and a contractor. Therefore, the instruction in the instant case was not in error if the “substantial performance” test applies to tenants. While defendants contend the “substantial performance” test is inapplicable to tenants, they cite no case to support that contention. However, in Weissberger v. Brown-Bellows-Smith, Inc. (Tex Civ App, 1956), 289 SW2d 813, the substantial performance test was expressly applied to a lease arrangement requiring a landlord to construct a building for occupancy by tenants. There the tenant claimed the landlord breached the leasing agreement through noncompliance and nonperformance in that the plaster was wet, certain air conditioning ducts had to be moved, and certain lighting fixtures had to be installed. The court in examining the evidence, concluded that substantial performance was established and that such performance is regarded as full performance of a building contract. Similarly, in Noble v. Tweedy (1919), 90 Cal App 2d 738 (203 P2d 778), the court applied the “substantial performance” test to a lessor’s duty to erect a bowling alley for his tenant on lessor’s premises in accordance with agreed plans and specifications. See, also, 17 Am Jur 2d, Contracts, § 375. The instructions in the case at bar indicated that the “substantial performance” rule is a relative one, the extent of nonperformance being viewed in relation to the full performance promised. By this instruction, the jury was cautioned to examine the entire lease between landlord and tenant to determine whether, by the standards of the lease, the landlord had substantially performed. No general “substantial performance” test was applied; rather, performance in relation to the lease was the test expressed by the trial court. We find that the “substantial performance” instruction given by the trial court was properly applied to the lease arrangement in the instant case. There was no error in the trial court’s instruction to the jury regarding the issue. As part of defendants’ contention of trial court error concerning the claim for rent, defendants further urge that they should have received a directed verdict because no rent was due under the lease until April 1, 1961. Neither party denies that on December 23, 1960, items still incomplete included the indoor sprinkler system, asphalt tile floor, painting and vinyl work, installation of the lawn, a screening wall on the property line, parking lot striping and lighting islands, lattice grill work, and walls in back of the snack bar, between the control desk and checkroom, and in the cocktail lounge and playroom. On April 12, 1961, the following items were still incomplete: curbing around light posts in parking lot, sod on lawn, ceiling of concourse, screening wall on property line, painting and general clean-np. Under the “substantial performance” test, the exact date the lease was to commence was a question of fact to be determined by the jury. The jury, in awarding one-half of the rent plaintiffs alleged owing, presumably determined that “substantial performance” occurred as of January 25, 1961, and therefore that rental payments should have begun as of February 24, 1961. Upon a review of the record, we concur in the jury’s determination. The trial court did not err in refusing to direct a verdict for defendants. Defendants also contend, in two related issues, that the trial judge erred in refusing to direct a verdict for defendants on plaintiffs’ claim for the cost of extension of the storm and sanitary sewers beyond the demised land. Plaintiffs claimed that the $557,900 general contract included only “on site” drainage, and that extension of the sewage system beyond the demised premises was an improvement of the premises in excess of the contract price and chargeable to the defendants under the terms of the lease. Defendants asserted that the general contract included in its $557,900 amount the cost of necessary extensions, and that no further payment is due for the extensions. In the instant case, the lease requires the landlord to construct a building and parking lot according to plans and specifications approved by the tenant. Pursuant to the lease, defendant approved the general contract and its plans and specifications, as entered into between the landlord and the general contractor, for $557,900. Regarding the first of these two related issues, the sanitary sewer system, the general contract expressly provided for a “complete” sanitary sewer system, and thus rebuts plaintiffs’ contention that the contract included only “on site” construction. Analysis of the site plan clearly illustrates the bowling alley sanitary sewer system connected by a six-inch pipe with the public “sanitary sewer” located in the median strip of Schoolcraft road. The contract adopted the site plan by requiring that pipe be laid in locations shown on plans. Furthermore, the contract expressly provided for “sanitary sewer connections from building to sanitary sewer as indicated”. The only feasible conclusion from the contract provisions, plans and specifications is that off-the-premises work entailing construction of a complete and operational sanitary sewage system under the contract was contemplated by the parties. There was no credible evidence from which a reasonable conclusion could be drawn to support plaintiffs’ claim. Therefore, the trial court should have directed a verdict against plaintiffs’ claim for payment for the sanitary sewer extension based upon provisions of the lease, the contract, and the contract’s plans and specifications. Regarding the second related issue, the storm sewer extension, the general contract similarly provided for a “complete storm drainage system”. The site plan together with addendum 2 of the contract clearly indicates that the storm drainage pipes were to lead from the premises to a point 10 feet north of the leased premises, onto plaintiffs-landlords’ adjoining land. Evidence presented by plaintiffs tending to show that only “on site” piping was in- eluded in the general contract contradicts clearly expressed, unambiguous written agreements, and is not credible. Testimony consistent with the contract includes testimony by plaintiffs’ architect that storm drainage water was to be conducted through a pipe to a point outside the leased premises, and from there it was to flow into an open ditch on plaintiffs’ adjoining land running north from the leased property to an open-ditch public drain. The architect testified that this was a sufficient and workable plan which was approved by the city of Livonia. To charge the tenant, the lease requires that expenditures be approved by the tenants and that the cost be attributable to improvement of the premises. The plaintiffs have not produced credible evidence to prove that extension of the storm sewer pipe beyond the point contemplated in the general contract was necessary for improvement of the leased premises. The controversial pipe extension was installed solely on nonleased land. Moreover, the plaintiffs have not provided credible evidence of approval of the expenditure by the tenants. The trial court should have directed a verdict for defendants and against plaintiffs’ claim for payment of the storm drainage extension costs. Defendants’ final claim on appeal is that it was error for the trial judge to direct a verdict against their claim for damages because of delay in completion of the bowling center. There is no question that the lease and related documents made no mention of a completion date. However, defendants contend that plaintiffs made distinct oral representations that the building would be ready by July 1, 1960. Parol evidence is not admissible to show time of performance where a written contract is complete and unambiguous but does not mention time, because a reasonable time is presumed. Giffels & Vallet, Inc. v. Edw. C. Levy Company (1953), 337 Mich 177; 30 Am Jur 2d, Evidence, § 1060, p 199. The contract documents in this case were numerous and carefully detailed, and as the trial court observed, the parties were all experienced and had the advice of counsel. It cannot be assumed that they would leave the contract ambiguous if they intended to set a firm completion date. Parol evidence being excluded, no evidence supported defendants’ claim. The trial judge properly directed a verdict against it. Reversed in part and remanded for entry of judgment in conformity with this opinion. No costs, neither party having prevailed in full. All concurred. While certain additive alternates were addendums to the contract and entailed additional sewer expense for sewer extensions, when the contract was submitted, these alternates were omitted from the base price. Omission of these alternates did not remove the requirement of the general contract that off-site plumbing be completed. Addendum 1, while altering the site plan by moving the storm sewer manhole 29 feet westward, does not change the requirement that the sewer extend north of the leased premises.

Fitzgerald, J. Philco Corporation made arrangements to purchase sophisticated electronic equip ment from Apex Computer Products Co. of California. The equipment included certain “memory cores” which are extremely intricate units of electrical apparatus and are valued at about $140,000 each. Because of their unique component parts, these memory cores cannot be transported or handled in any position except upright. Philco engaged The Flying Tiger Line to transport the memory units from Culver City, California, to Willow Grove, Pennsylvania, by air freight. Philco claims that it expressly pointed out that it was absolutely necessary to carry the memory cores in an. upright position and that it would he necessary to use aircraft with adequate doors and of sufficient height to assure that the units would not be loaded or carried horizontally. Philco claims it was assured that only “swing-tailed” aircraft would be used, containing suitable loading entrances to permit the memory cores to remain upright at all times. Two shipments are involved in this case: September 7, 1963, and March 28, 1964. Air bills of lading for freight transport to Philco were obtained for each shipment. Each of the air bills provided that: “It is mutually agreed that the goods herein described are accepted in apparent good order (except as noted) for transportation as specified herein, subject to governing classifications and tariffs in effect as of the date hereof which are filed in accordance with law. Said classifications and tariffs, copies of which are available for inspection by the parties hereto, are hereby incorporated into and made part of this contract.” Further, each air bill contained the following: “DECLARED VALUE Agreed and understood to he not more than the value stated in the governing-tariffs for each pound on which charges are assessed unless a higher value is declared and applicable charges paid thereon.” No higher value was declared on the air bills. Philco claims that at the time of shipments, Plying Tiger had on file with the Civil Aeronautics Board, and in effect, certain tariff provisions for “shipments subject to advance arrangements” including “shipments requiring special attention, protection or care en route”. This tariff provision provided that certain kinds of shipments easily damaged or of high value would be acceptable for air carriage only upon advance arrangements. Philco claims that the advance arrangements in the present case were that only “swing-tailed” aircraft would be used so the memory cores could be transported upright. At the time of shipment, the relevant tariff rules filed by Plying Tiger with the CAB were: “Rule No. 3.1: “(g) No agent, servant or representative of carrier has authority to alter, modify or waive any provisions of the contract of carriage or of this tariff. “Rule No. 3.3: “(a) In consideration of carrier’s rate for the transportation of any shipment, which rate, in part, is dependent upon the value of the shipment as determined pursuant to rule 4.3, the shipper and all other parties having an interest in the shipment agree that the value of the shipment shall be determined in accordance with the provisions of rule 4.3 and that the total liability of the carrier shall in no event exceed the value of the shipment as so determined.” “(b) By tendering the shipment to carrier for transportation, the shipper, for himself and all other parties having an interest in the shipment, waives all claims for damages beyond the limitations set forth in these rules and regulations and affirms the description of the shipment as recited on the air bill, and the fact that the shipment is not of a nature unsuitable for carriage by air or hazardous thereto. “Rule No. 4.2: “(a) 1. A shipment shall be deemed to have a declared value of 50 cents per pound (but not less than $50) unless a higher value is declared on the air bill at the time of the receipt of the shipment from the shipper.” The first memory core, transported on September 7, 1963, arrived at its destination in a severely damaged condition. The memory core had been removed from a “swing-tailed” aircraft in Chicago and transported aboard a 707 aircraft to its destination. Substantial damages resulted to the interior parts and systems of the memory core. As a result of the damages Philco spent $14,112.25 to repair the memory unit. On June 30, 1963, Philco had contracted with the other plaintiffs herein to insure Philco against casualty losses, including property in transit. Under the contract, these insurers became obligated to pay to Philco all damages to the memory cores in excess of $5,000 and are Philco’s subrogees, though plaintiffs herein will be referred to as Philco. After the September 7, 1963, shipment, Philco informed Plying Tiger of the damages. Plying Tiger, it is claimed, assured Philco that in the future the memory units would be loaded and transported in an upright position and that only “swing-tailed” aircraft would be used. On March 28,1964, Plying Tiger accepted another memory core unit for air transportation. The air freight bill contained the same clause as the September 7, 1963, bill. The same tariff provisions were in effect. The memory unit was delivered to Philco in seriously damaged condition on a Constellation aircraft which was not equipped with “swing-tailed” facilities. Again, the memory core had arrived in a horizontal position. As a result, Philco incurred transportation and repair expenses in the sum of $35,113.70. By virtue of the insurance contract, all of Philco’s damages in excess of $5,000 were paid and again, subrogation to Philco’s rights occurred. On May 6, 1966, Philco and its subrogees filed a complaint in the Wayne county circuit court against Flying Tiger. In its complaint, Philco set forth four separate counts. The first two counts arise out of the shipment of September 7, 1963, and counts three and four arise out of the shipment of March 28, 1964. Count one of the complaint sought relief against Flying Tiger for negligence and gross negligence as a result of the improper method of transportation which was employed and in count two of the complaint they asked that the air freight bill issued on September 7, 1963, be rescinded and that they he awarded restitution. Count three of the complaint requested a judgment against Flying Tiger as a result of the negligence and gross negligence in transporting the unit shipped March 28, 1964, in a horizontal manner; count four of the complaint asked that the air freight bill for the shipment of March 28, 1964, be rescinded and that plaintiffs be awarded restitution. Flying Tiger, on February 24, 1967, filed a motion for summary judgment based upon the provisions of the Federal Aviation Act (49 USCA, § 1373), the tariff provisions it had on file with the CAB, the declared value clauses in the two air freight bills and the principle of Federal uniformity. The circuit court granted a partial summary judgment. Damages were limited to the provisions found within the Federal Aviation Act of 1958 and it was held that this act was controlling on the issue of limitation of damages, the limit of which would be $1,001.50. On December 5, 1967, Philco appealed to this Court, but claim of appeal was dismissed for the reason that the judgment rendered in the trial court was not appealable as of right. On April 24, 1968, the circuit court entered an order vacating the previous judgment and ordered a partial summary judgment in Flying Tiger’s favor with prejudice. The order expressly directed the judgment be final as to the issues of gross negligence and rescission. Appeal followed. The basic issue discussed in the briefs is: Whether the common-law remedies of gross negligence and rescission were reserved to Philco by virtue of 49 USCA, § 1506, of the Federal Aviation Act. This issue consists of two subissues: A. Whether defendant’s failure to use the agreed-upon method of conveyance constituted a material deviation which entitled plaintiff to be relieved of the provisions of the declared value clause contained in the bills of lading and in the air tariffs filed with the CAB. B. Whether air tariffs filed by an air freight carrier pursuant to 49 USCA, § 1373, will survive when there are claimed losses against an air carrier due to grossly negligent conduct and claims of rescission for breach of contract based on the same conduct. A summation of the situation before us is particularly well stated in plaintiffs’ brief as follows: “Has the Congress of the United States adopted a uniform national policy as to air freight transportation which preempts local or state law to the extent that a shipper may not maintain an action against an air carrier in a state court to rescind an air hill of lading for failure of consideration or substantial breach of the carrier’s undertaking, or an action in a state court based on gross negligence ? Appellant believes that this is the basic question presented by this appeal. The trial court has determined, based upon congressional legislation, appellee’s tariff, and the provisions of the bill of lading, that the two shipments described in the complaint were so enveloped by the Federal law and by a national policy of uniformity, that a state court applying state law may not inject itself into the relationship between the shipper and carrier through a suit for rescission of the air bill and further that a state court, applying state law, may not award damages for gross negligence. The trial court concluded that remedies afforded by state or local law must give way to a uniform national policy of preemption. “Appellants in this proceeding seek to rescind the air bills of lading and to obtain relief for the full loss they have sustained. Appellants assert that the declared value clause, as well as any tariff provision incorporated into the air bills of lading, must necessarily fall if the contracts are rescinded. Appellants contend that Congress has not preempted this remedy but to the contrary that Congress has, in fact, reserved it to appellants. “In the alternative, appellants seek to recover in this proceeding on grounds of gross negligence. Appellants plead that appellee’s actions, in view of the express understanding with regard to the type of aircraft to be employed, and in view of the fact that the memory cores were highly susceptible to damage, was wilful, wanton and reckless. Appellants contend that the provisions of the tariff and the provisions of the air freight bills were not intended to limit recovery in cases where the carrier’s actions were so gross, so wilful, so wanton as to constitute reckless, grossly negligent conduct, “Appellants submit that tbe theory of appellee’s motion for summary judgment, and the theory adopted by the trial court in its opinion, is that appellants are, in any event, and irrespective of the relief sought, restricted to damages in the amount of 50 cents per pound. Inasmuch as the weight of the shipments is not disputed, appellants’ damages for the shipment of September 7,1963, would be limited to $496.50, and appellants’ damages for the shipment of March 28, 1964, would be limited to $505. Appellants respectfully urge that they have pleaded causes of action for rescission and causes of action for gross negligence for which appellants’ recovery is not so limited, and that appellants should be entitled to show the jury all of their actual expenses and losses. “Particularly, with respect to rescission, appellants ash that the very clause which the circuit court invoked be set aside along with the other provisions of the contract. The holding below, that the counts for rescission be dismissed, gives the declared value clause the effect of preempting any right to rescind which appellants may have had. Similarly, with respect to gross negligence, appellants’ position below was that appellee’s actions and omissions amounting to gross negligence were outside of the restrictive provisions of the declared value clause, outside of the reasonable contemplation of the parties, and that the damages flowing from such conduct were neither intended to be, nor were they, subjected to the 50 cent restriction.” Plying Tiger replies with a likewise well-stated summary of its position: “If a loss arises to freight being shipped by an air carrier and a plaintiff is able to show the air carrier was responsible for the damage or loss, the amount of the air carrier’s liability is still limited. The tariff presently on file and at issue has been accepted as using a declared value formula for lim itations of recovery. The carrier is liable only for a fixed amount based on the freight weight unless the shipper declares a higher value and pays additional freight charges. Hence, the tariff system gives the shipper the advantage of allowing him to choose between buying insurance for his cargo, in effect, from the airline, or taking out his own insurance and paying a lower transportation rate, New York and Honduras Rosario Mining Company v. Riddle Airline, Inc. (1958), 4 NY2d 755 (149 NE2d 93, 172 NYS2d 168). “A carrier subject to the Federal Aviation Act (hereinafter referred as PAA) is required to publish and file tariffs containing its rates and rules. These, then, taken together, constitute the terms of its offer to serve the public. The PAA expressly prohibits the carrier from deviating from those terms. To be sure, the Act does not explicitly say that the other party to the contract — the shipper — is similarly restricted. But the restriction upon his freedom to contract follows as a matter of course. If the carrier is legally free to agree only to terms published in its tariff and no others, there can hardly be a ‘meeting of the minds’ on other contractual terms, even though the passenger or shipper retains complete freedom. The tariff, then, contains the only terms upon which the parties can legally agree. It contains the carrier’s offer, which the shipper accepts when he uses the carrier’s service. It is the contract of carriage. The tariff limitations are applicable by force of law, Lichten v. Eastern Airlines [(1951), 189 F2d 939], and an acceptance of the air bill is an acceptance of the conditions imposed. “The tariff becomes a part of the contract of shipment, but the question here arises as to whether the shipper, or representatives, having become a party to the contract, may avoid its provisions on the ground that they are unlawful. May he, for example, after receiving transportation, attack the tariff rate as unreasonable and recover as damages the excess over the lawful rate? May he escape the effect of a tariff rule limiting the carrier’s liability on the ground that it is invalid? In the ease of ordinary contracts, of course, a party can obtain relief from provisions which are illegal or otherwise contrary to public policy. Is this principle applicable to a contract of carriage embodied in a tariff filed pursuant to the PAA? “Essentially, the question is whether particular remedies are available to enforce a statutory duty of the carrier. The PAA imposes an affirmative duty on carriers to publish lawful tariff rates and rules, that is, rates and rules which are ‘just and reasonable’ and which do not result in ‘any undue or unreasonable preference or advantage’ or in ‘any unjust discrimination or any undue or unreasonable prejudice or disadvantage’. To insure performance of this duty, the PAA provides an elaborate system of safeguards and remedies. The CAB may, through the exercise of its suspension powers, prevent an unlawful rate or rule from taking effect. Even after the unlawful provision has become effective, the Board may take corrective action and require the carrier to submit a lawful provision. Our problem is to determine whether or not, in addition to these remedies, the Act permits a shipper to attack the validity of a tariff provision in order to establish a common-law action against the air carrier or deprive the air carrier of a defense based on the terms of the tariff.” Philco argues that the failure to use the method of conveyance agreed upon was a material deviation which destroyed all consideration under the contract. Substantial breach of a contract is an adequate basis for the rescission of a contract and Rosenthal v. Triangle Development Co. (1933), 261 Mich 462, is cited for that proposition. The transportation as tendered by Plying Tiger was useless and highly detrimental, Philco says. Failure of consideration as a basis for rescinding a contract is discussed in Sharrar v. Wayne Savings Ass’n (1929), 246 Mich 225, also cited. Under the common law, a deviation in the mode or manner of conveyance operated to displace a contract of carriage. The shipper was entitled at his option to treat the contract as abrogated. 13 Am Jur 2d, Carriers, §§ 328-334; 33 ALR2d 145, Deviation by carrier in transportation of property, § 35, pp 217-219. The effect of a material deviation to a contract was to do away with the express contract altogether. McKahan v. American Express Company (1911), 209 Mass 270 (95 NE 785). Further, Reynolds v. Adams Express Company (1916), 172 NC 487 (90 SE 510), held that a deviation from the agreed method of transportation rendered the carrier liable to the full extent of the loss irrespective of a declared value. Philco also argues that since the airline’s conduct was grossly negligent they should be allowed full recovery nohvithstanding the declared value clause. They admit that they could find no cases which have thusly held. Congress in the Federal Aviation Act has not preempted plaintiffs’ common-law right. The FAA has a saving clause (49 USCA, § 1506). The common-law right is abrogated under the act where its continued existence would be absolutely inconsistent with the provisions of the Act. Texas and Pacific Railway Company v. Abilene Cotton Oil Company (1907) 204 US 426 (27 S Ct 350, 51 L Ed 553). T.I.M.E. Incorporated v. United States (1959), 359 US 464 (79 S Ct 904, 3 L Ed 2d 952). Philco relies strongly on Hewitt-Robins, Incorporated v. Eastern Freight-Ways, Inc. (1962), 371 US 84 (83 S Ct 157, 9 L Ed 2d 142). The Court there held that the common-law duty to ship over the cheapest possible route survived under the Motor Carrier Act. Survival of the remedy depends upon whether the exercise of the particular remedy would be inconsistent with the statutory scheme. Plaintiffs argue that it is not inconsistent with the FA A statutory scheme to assert the common-law right of rescission. They argue that Mitchell v. Union Pacific R. Co. (SD Cal, 1960), 188 F Supp 869, is a case which sustains the survival of a rescission remedy. That case held that fraud vitiated the value declaration and the tariff provisions which limited liability. Rescission for fraud and rescission based on substantial breach or failure of consideration, they claim, should be handled in the same way. Flying Tiger argues that a provision of an air tariff filed pursuant to the Federal Aviation Act becomes a part of the contract of air freight transport, and cannot be avoided or invalidated by a court. They say that an air carrier is liable only for a fixed amount based on the freight’s weight, unless the shipper declares a higher value and pays additional charges. New York and Honduras Rosario Mining Company v. Riddle Airlines, Inc., supra. The purpose for the above rules is to assure uniformity of rates and services to all persons. Lichten v Eastern Airlines (CA2, 1951), 189 F2d 939 (25 ALR2d 1337), held that a misdelivery of luggage is not a conversion which would deprive a carrier of the benefit of a tariff provision limiting liability. Therefore, they argue, in actions attacking the validity of tariffs and in actions based on contracts involving interstate air carriage, federal common law and state law is held to be irrelevant. A tariff is presumed to be valid until the CAB declares it to be otherwise, and federal law applies to determine its validity. Plaintiffs would be bound in a breach of contract action to a recovery based on the tariff provisions. This should not be allowed through rescission to do indirectly what they could not do directly. VanDyke v. Pennsylvania R. Co. (1952), 46 Del 529 (86 A2d 346). The tariffs which fix the amount of recovery are premised upon the amounts to be charged for transportation. A claim of gross negligence against an air carrier does not render inapplicable air freight tariffs or waive the limitation of liability. Mitchell v. Union Pacific R. Co., supra. Tishman & Lipp, Inc. v. Delta Airlines (SD NY 1967) 275 F Supp 471. Philco, in its reply, attempts to distinguish those cases relied upon by the defendant. Plaintiff claims that Hewitt-Robins Incorporated v. Eastern Freight-Ways, Inc., supra, is controlling on the present case. In New York and Honduras Rosario Mining Company v. Riddle Airlines, Inc., supra, the court allowed payments of actual damages rather than the tariff. The court did not discuss the effect of Civil Aeronautics Act upon the common law. Plaintiffs are not raising the issue of the validity of the tariff as was raised in Randolph v. American Airlines, Inc. (1956), 103 Ohio App 172 (144 NE2d 878), and Tishman & Lipp, Inc., v Delta Airlines, supra. As to negligence, plaintiff claims that Tishman, supra, was only a case of ordinary negligence. Further, in Tishman the common-law arguments were disposed of on their merits rather than discarded as was done in the present case, as a matter of law. None of the cases cited -by defendant involve a material breach of a contract which resulted in an entire failure of consideration. Lichten, supra, involved ordinary negligence. The statute in issue (49 USCA, § 1506) states: “§ 1506. ^Remedies not exclusive “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” The Supreme Court of Tennessee has held the purpose of this act and specifically this section: “* * * is to take control of the air space, to set up federal agencies to regulate the operation of aircraft and to provide standards to promote the efficiency and safety of operation and it does not exclude state law not inconsistent with its purpose.” Syllabus, Southeastern Aviation, Inc., v. Hurd (1962), 209 Tenn 639 (355 SW2d 436) appeal dismissed 371 US 21 (83 S Ct 120, 9 L Ed 2d 96). The test which governs whether a common-law remedy survives is that if the remedy is inconsistent with the statutory scheme of regulation, it does not survive. Hewitt-Robins Incorporated v. Eastern Freight-Ways, Inc., supra. The issue before that court was the same as the present one, and as stated there is : “The sole issue before us is whether the complaint states a cause of action upon which the district court may grant relief.” In that case, as in the present one, no attack was made upon the validity of the published tariff rates and it is conceded that they were reasonable. Thus, all of the cases cited by Plying Tiger to prove that its tariff rates could not be attacked as being unreasonable in the courts have no bearing upon the present case. T.I.M.E. Incorporated v. United States, supra. The entire controversy hinges upon whether the carrier materially deviated from the terms of the contract to render the contract void. The trial court determined that this issue was foreclosed by the “savings clause” of the act, 49 USCA, § 1506, as being inconsistent with the statutory scheme of regulation. The court found plaintiffs’ claim to be inconsistent with 49 USCA, § 1373, which says: “§ 1373. Tariffs of air carriers — Filing, posting, and publication; rejection of tariffs “(a) Every air carrier and every foreign air carrier shall file with the Board, and print, and keep open to public inspection, tariffs showing all rates, fares, and charges for air transportation between points served by it, and between points served by it and points served by any other air carrier or foreign air carrier when through service and through rates shall have been established, and showing to the extent required by regulations of the Board, all classifications, rules, regulations, practices, and services in connection with such air transportation. Tariffs shall be filed, posted, and published in such form and manner, and shall contain such information, as the Board shall by regulation prescribe; and the Board is empowered to reject any tariff so filed which is not consistent with this section and such regulations. Any tariff so rejected shall be void. The rates, fares, and charges shown in any tariff shall be stated in terms of lawful money of the United States, but such tariffs may also state rates, fares, and charges in terms of currencies other than lawful money of the United States, and may, in the case of foreign air transportation, contain such information as may be required under the laws of any country in or to which an air carrier or foreign air carrier is authorized to operate.” Flying Tiger filed the following tariff: “A shipment shall be deemed to have a declared value of 50 cents per pound (but not less than $50) unless a higher value is declared on the air bill at the time of the receipt of the shipment from the shipper.” In Lichten v. Eastern Airlines, supra, the plaintiff argued that an over-carriage of her luggage was a deviation. This deviation was a fundamental breach of her contract and it therefore deprived the carrier of the benefit of the exculpatory provisions of the tariff. The court said that this argument : “Overlooks, however, the far-reaching effect of the principle of uniformity of treatment, which requires that the tariff be applied to all matters arising from the attempted performance of the contract.” The above conclusion is discussed in Mitchell v. Union Pacific R. Co., supra. The court concluded: ■ “The real question here is whether or not the legislative policy of maintaining uniform rates and of ■ preventing rebates is so strong that it would allow the carrier to limit its liability even though it was the fraud of one of its agents which induced the contract of carriage. It is not believed that such a result is required, and the court holds that the fraud vitiated the value declaration and the tariff provisions which would limit the liability.” The conclusion can be applied to the present case where a material breach of a contract is alleged. In the present ease, there was performance of the contract but there was an alleged material deviation. The case most closely on point is The Sarnia (1921), 278 F 459 (cert den 258 US 625 [42 S Ct 382, 66 L Ed 797]). In that case, goods were carried above deck instead of below deck as provided for in the bill of lading. The court held that the amount paid by the shipper to the carrier took into consideration the risk to which the goods viere to be exposed and the manner of carriage. The court said: “It seems to us most unreasonable to hold that, as between the shipper and the carrier, the former should be estopped by a valuation clause, where the latter’s own misconduct has breached the agreement and destroyed the conditions upon which the estimate of value was predicated. In fixing the value the shipper was undoubtedly influenced by the fact, that the goods were to be carried below deck, and not exposed to the perils of carriage above deck.” Further, in Reynolds v. Adams Express Company, supra, the court held that the tariff rates filed with the Interstate Commerce Commission were established with reference to express shipments and were not intended to apply where the carrier resorted to another mode of shipment. ■ Where the deviation is so material under a contract as to completely change the risk and terms of the contract, the shipper should not be bound by the-contract, that is, the contract should be rescinded. “The distinction suggested between contractual, and statutory limitation or exemption clauses is more apparent than real. The fundamental character of the bill of lading is not changed by incorporation of the statutory provisions of .the Act. The bill of lading is the contract between the shipper and the carrier. It defines the rights, duties, exemptions, and limitations of the parties, whether imposed by statute or the result of voluntary agreement. And when there is such a departure from the contract of carriage as to amount to an unjustifiable deviation, the bill of lading and all its terms go. So, too, the statutory limitation would be vitiated unless the act specifically keeps it alive.” Jones v. The Flying Clipper (SD NY, 1953), 116 F Supp 386, 388. It does not appear that the FAA specifically keeps the tariff in question “alive”. To paraphrase from the Jones Case — To uphold the carrier’s contention that the limitation of liability is absolute, regardless of a fundamental breach which goes to the very essence of its undertaking, would permit any carrier to violate with recklessness the terms of the bill of lading, knowing it cannot be called upon to pay more than 50 cents per pound. It is for the circuit court to determine whether the deviation alleged by plaintiffs was material and not justifiable. If it is thusly found, then the contract should be rescinded. The summary judgment is reversed for a determination of this issue. It is conceded by the plaintiffs that there is no case law on the gross negligence-issue. In Mitchell v. Union Pacific R. Co., supra, the court refused to distinguish between wilful misconduct and ordinary negligence. Further, in Tishman & Lipp, Inc., v. Delta Airlines, supra, the court held that even gross negligence would not render the tariff inapplicable. As to this issue, the summary judgment of the circuit court is affirmed. No costs, neither party having prevailed in full. All concurred. 49 USCA, § 301 et seq. 49 USCA, § 1301 et seq., later amended by the Federal Aviation Act, 49 USCA, § 1301 et seq. Carriage of goods by sea aet, 46 USCA, § 1300 et seq.

J. H. Gillis, P. J. Plaintiff was injured and his automobile was damaged when it was struck from the rear by an automobile owned by defendant Marie. Davis and operated by her nephew, Donnis Butcher. At the time of the accident, defendant Butcher’s policy of automobile insurance on his own car written by State Farm Mutual provided coverage in the event that he would operate any other motor vehicle that was not insured. The question underlying this appeal is whether or not defendant Davis’ automobile was insured by Progressive Mutual. If her automobile was insured, Progressive Mutual would be primarily liable to plaintiff. If her automobile was uninsured, then the liability provision of' defendant Butcher’s insurance covering uninsured vehicles would be effective and State Farm Mutual would be liable. Judgment was entered against both defendants. When both defendants’ insurers denied coverage, plaintiff garnished both of them and each filed a disclosure denying liability. Plaintiff thereafter filed a motion for declaratory judgment. The trial court entered judgment, after hearing, in which it was determined that State Farm Mutual, and not Progressive Mutual, was liable to plaintiff. From that determination, State Farm Mutual has appealed. Progressive Mutual had issued, before the date of the accident, a liability policy to Ingram Davis, husband of defendant-owner Marie Davis, insuring a 1953 Chevrolet titled in his name. The provision of that policy here in dispute provides as follows: “Definitions. ‘Owned automobile’ means “(c) a private passenger, farm or utility automobile ownership of any of which is acquired by the named insured during the policy period, provided, “(1) it replaces a described automobile, or “(2) the company insures all private passenger automobiles, farm automobiles and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days following such date.” The car which defendant Butcher was driving at the time of the accident was a 1964 Ford which Mr. Davis had purchased a few days prior to the accident, title to which he had placed in his wife’s name. At the hearing on plaintiff’s motion for declaratory judgment, Mr. Davis testified that two days after he purchased the Ford he contacted the Collins insurance agency, with whom he did business, for the purpose of obtaining insurance for the Ford. The following excerpt is taken from the transcript of the hearing: “Q. For what purpose did you go into the agency? “A. To transfer the insurance from the 1953 Chevrolet to the 1964 Ford. “Q. What did you tell Mr. Collins or Mr. Mesick? “A. I told them that I bought a new ear and had to have coverage on it, so they sold me coverage with the understanding I could take it out and drive it right then, is all they told me. “Q. Do you know which of the two you spoke to about this? “A. I spoke to Mr. Mesick. “Q. What did Mr. Mesick tell you? “A. He didn’t tell me anything. He took the deposit on the — no, he — -he told me that — that I was covered. I don’t know if I paid the money that day. I suppose I did. I don’t remember yet, but I would have the receipt for it to home; but he told me that the Ford was covered right then. * *#«#*##* “Q. This accident occurred, I believe, on a Saturday night, on April 11? “A. I believe it was. “Q. When did you report it? “A. Monday morning. “Q. To whom did you report this accident? “A. Mr. Mesick and Mr. Collins, and they sent me down to Michigan Claims Service. “Q. Did they tell you anything with regard to coverage on your vehicle? “A. Yes, they did, in the presence of Mr. Don Butcher and Mr. — the plaintiff, Mr. Huhn. They told me that I was covered and that I should go down to Michigan Claims Service and file a claim, which I proceeded to do.” ' Subsequently, Mr. Davis was notified by Progressive Mutual that there was no coverage for the accident with the Ford. It was the position of Progressive Mutual that the Ford was not an “owned automobile” under the policy in that Mr. Davis continued to drive the Chevrolet and, therefore, the Ford was not a replacement vehicle. The company also contended that it was not bound by any representations of its agents because the furnishing by Mr. Davis of the serial number of the Ford, an alleged prerequisite to coverage, did not occur until after the accident. The trial court resolved the matter as follows: “Practically this self-same language (of the insurance contract) was construed in the case of State Farm Mutual Automobile Insurance Company v. Shaffer (1959), 250 NC 45 (108 SE2d 49, 54) and in which was stated: “ ‘It is our opinion that the replacement vehicle is one the ownership of which has been acquired after the issuance of the policy and during the policy period, and it must replace the car described in the policy, which must be disposed of or be incapable of further service at the time of the replacement.’ “The 1964 Ford thus could not possibly be a replacement for the 1953 Chevrolet, and the 1964 Ford was not owned by the named insured in Progressive’s policy. “The 1964 Ford was not covered by the Progressive policy, and liability is solely that of State Farm under its policy on Butcher, and it shall pay the same forthwith.” Under the policy, “ ‘named insured’ means the individual named in item 1 of the declarations and also includes Ms spouse, if a resident of the same household(Emphasis supplied.) Thus, any coverage in the name of one spouse alone would also include the other. We agree that the 1964 Ford was not, under the policy, a replacement for the 1953 Chevrolet. This fact is not, however, dispositive of the issue in this case. The record reveals that Mr. Davis informed his insurance agent that he desired the Ford to be insured. His testimony that he was given unequivocal assurances on several occasions that the Ford was, in fact, insured is unrefuted. There is no clear showing that the furnishing of the serial number was either set out by the insurance agent or understood by Mr. Davis to be a condition of coverage. It is unclear whether Mr. Davis intended to actually transfer the insurance from the Chevrolet to the Ford, thus leaving the Chevrolet uninsured, or whether he intended to obtain additional insurance to cover both cars. Notwithstanding whether or not the Ford was a replacement for the Chevrolet, Mr. Davis reasonably relied on the representations of Progressive Mutual’s agents that the Ford was in sured. As stated in Holt v. Stofflet (1953), 338 Mich 115, 119: “ ‘It is a familiar rule of law that an estoppel arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.’ ” The issue of estoppel having been briefed by both parties, our determination is made pursuant to G-CR 1963, 820.1(7). There is testimony which indicates that the insurance agent believed Mr. Davis had replaced the Chevrolet with the Ford and that the only ear to be insured with Progressive Mutual was the Ford. In holding Progressive Mutual primarily liable to plaintiff, we are holding the company to no more of a burden than its agents anticipated, namely, that the Ford, if no other car, was insured. The order of the trial court will be vacated and an order entered consistent with this opinion. Bronson, J., concurred.

Lesinski, C. J. Defendant Ozzie Jefferson was found guilty by jury verdict of murder in the second degree contrary to CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549), and appeals. He first contends that the jury verdict should be reversed as contrary to the weight of the evidence. Specifically, defendant asserts that the evidence clearly establishes that he acted in self-defense and was in fear for his life when he shot the deceased. However, our review of the record convinces us that sufficient evidence was presented from which a jury properly could reject defendant’s claim of self-defense and conclude that defendant was guilty beyond a reasonable doubt. The testimony was sufficient to establish that the decedent was shot in' the back -while the decedent was 15-20 feet from the defendant and was leaving defendant’s home. Credible evidence rebuts defendant’s contention and requires that this Court sustain the lower court finding of guilt of defendant beyond a reasonable doubt. See People v. Patton (1968), 15 Mich App 198; People v. Thomas (1967), 7 Mich App 103. Defendant also asserts that admission of his alleged confession into evidence constitutes a violation of due process contrary to Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974). A reading of the trial transcript indicates that, before admission of the two statements given by defendant, the trial court determined that defendant was fully and properly advised of his constitutional rights before he was questioned by police officers. We concur in the trial court’s determination that no violation of defendant’s rights occurred. Moreover, while during the trial defense counsel objected to admission of one of defendant’s two statements on the grounds of the “best evidence” rule, no objection was raised as to the voluntariness of the confessions. No error was committed in admitting the confessions, since no objection as to. voluntariness was raised and the record fails to indicate that the confessions were involuntary. People v. Jury (1966), 3 Mich App 427; People v. Gollman (1966), 3 Mich App 463. The third contention on appeal concerns the prosecutor’s cross-examination of defendant regarding an alleged privileged conversation with his wife. Defendant alleges that prejudicial error was committed when the court allowed the prosecutor to cross-examine defendant as follows: “Q. Now, Mr. Jefferson, you knew, did you not, that your wife had lost her job that night? “A. No, sir, she had not lost her job. "Q. You knew * * * or, you had an argument with her, didn’t you * * * didn’t you, that night? “A. We had a conversation, yes. “Q. No argument? “A. It wasn’t an argument, no sir. “Q. You never had a heated * * * “A. No, sir. “Q. (continuing): * * * conversation? “A. No sir.” The trial court specifically limited the inquiry regarding defendant’s conversations with his wife to two questions: (1) whether the defendant knew his wife had lost her job, and (2) whether defendant and his wife had an argument. Regarding the first question, in People v. Bowen (1911), 165 Mich 231, 236, the Michigan Supreme Court stated that the presumption would be that: “The intention was that any communication between husband and wife, no other being present, should be considered confidential until the contrary appears.” In the instant case no error occurred as defendant was not requested to divulge the substance of the communication between himself and his wife. Defendant also asserts that the trial court erred in its instruction to the jury. In particular, defendant alleges that the court in its instructions overemphasized first- and second-degree murder hut gave no emphasis to justifiable homicide. We disagree. A review of the instructions discloses that more than sufficient emphasis was provided for the defense of justifiable homicide. The elements constituting self-defense were definitely set forth and their applicability to the facts of the instant case was explained. In addition, counsel for defendant, when asked if there were objections to the instructions, replied that he had no objections. GCR 1963, 516.2 provides: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection.” Defendant may not on appeal for the first time claim error in the instructions. People v. David Smith (1969), 16 Mich App 198; People v. Smith (1969), 15 Mich App 173; People v. Mallory (1966), 2 Mich App 359. Affirmed. All concurred.

Per Curiam. Defendant Edgar Milton Craig was convicted of murder in the first degree by a jury in Recorder’s Court of Detroit on July 26, 1968. CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548). On appeal he raises three issues, two objecting to instructions and the third claiming error because the court accepted a people’s request to charge after final argument. The people have filed a motion to affirm the conviction. No objections to the instructions were made at trial, as required by GCR 1963, 516.2, and therefore this asserted error may not be raised in this Court for the first time unless it appears that justice so requires. People v. Keiswetter (1967), 7 Mich App 334, 342. An examination of the brief, the motion to affirm and the record convinces us that justice does not require further consideration of the instructions in question. The third issue is without merit for the reason that a request to charge is timely if presented to the court before the case is submitted to the jury. Morrison v. W. R. Reynolds & Co. (1923), 224 Mich 61, 65. The questions presented here on appeal are unsubstantial and require no formal argument or submission. The motion to affirm defendant’s conviction is granted. GCR 1963, 817.5

J. H. Gillis, P. J. The defendant was convicted of armed robbery MOLA § 750.529 (Stat Ann 1969 Hum Supp § 28.797) in a jury trial. On appeal, defendant contends that the trial court committed reversible error in its charge to the jury and, further, that the trial court denied the defendant a fair trial by displaying its feeling of defendant’s guilt to the jury and, finally, the defendant alleges that the trial court erred in denying defendant’s motion for a directed verdict of acquittal. An examination of the record fails to establish any of the defendant’s claims of reversible error. Affirmed. All concurred.

PER CURIAM. Respondent mother appeals as of right the trial court’s order terminating her parental rights to the minor children, SL and CJ, under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (c)(¿¿) (other conditions implicating jurisdiction exist and were not rectified), (g) (failure to provide proper care or custody), (j) (reasonable likelihood of harm if child returned to parent’s home), and (Z) (parental rights to another child previously terminated). We affirm with respect to SL and conditionally reverse and remand for further proceedings relative to CJ. Respondent argues that the trial court and petitioner, the Department of Health and Human Services (DHHS), failed to make sufficient efforts to determine whether CJ is an Indian child under the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. This Court has observed that the MIFPA was designed to protect the best interests of Indian children and to promote the security and stability of Indian families and tribes and that “[t]he ICWA and the MIFPA each establish various substantive and procedural protections for when an Indian child is involved in a child protective proceeding.” In re England, 314 Mich App 245, 251; 887 NW2d 10 (2016), citing MCL 712B.5(a) and In re Spears, 309 Mich App 658, 669; 872 NW2d 852 (2015). Under the ICWA, the United States Congress provided, in pertinent part: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary.... [25 USC 1912(a) (emphasis added).][ ] With respect to interpretation of the “reason to know” language in 25 USC 1912(a), our Supreme Court construed the phrase broadly, determining that the notice requirement of 25 USC 1912(a) is triggered when there exists “sufficiently reliable information of virtually any criteria on which [tribal] membership might be based,” including “information suggesting that the child, a parent of the child, or members of a parent’s family are tribal membersf.]” In re Morris, 491 Mich 81, 108 & n 18; 815 NW2d 62 (2012) (emphasis added). “Once sufficient indicia of Indian heritage are presented to give the court a reason to believe the child is or may he an Indian child, resolution of the child’s and parent’s tribal status requires notice to the tribe or, when the appropriate tribe cannot be determined, to the Secretary of the Interior.” Id. at 108 (emphasis added); see also In re Johnson, 305 Mich App 328, 330-332; 852 NW2d 224 (2014) (holding that the notice requirement of ICWA was triggered when the trial court had information that the child’s grandmothers were Native Americans). The MIFPA, which was enacted pursuant to 2012 PA 565, effective January 2, 2013, contains language similar to that found in 25 USC 1912(a): In a child custody proceeding,[ ] if the court knows or has reason to know that an Indian child is involved, the petitioner shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending child custody proceeding and of the right to intervene. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice shall be given to the secretary[ ] in the same manner described in this subsection. The secretary has 15 days after receipt of notice to provide the requisite notice to the parent or Indian custodian and the tribe. [MCL 712B.9(1) (emphasis added).] In the MIFPA, the Legislature expressly set forth a nonexclusive list of circumstances that trigger the notification mandate found in MCL 712B.9(1): Circumstances under which a court, the department,[ ] or other party to a child custody proceeding has reason to believe a child involved in a child custody proceeding is an Indian include, but are not limited to, any of the following: (b) Any public or state-licensed agency involved in child protection services or family support has discovered information that suggests that the child is an Indian child. * * * (e) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child. [MCL 712B.9(4) (emphasis added).] In the instant case, multiple petitions had been filed and numerous hearings had been conducted over the span of several years. In January 2011, respondent had indicated to the trial court that CJ’s father “might be Native American,” although she could not identify any particular tribal affiliation. Nothing came of the matter, the petition pending at that time was dismissed, and the court terminated its jurisdiction. In December 2012, the trial court inquired into Native American heritage, and a child protective services (CPS) worker indicated that there was no Indian heritage or tribal connection. However, the petition that was pending at that particular time pertained solely to SL, not C J, so the response by the CPS worker is irrelevant to our analysis because there is no argument before us that SL may be an Indian child. In November 2013, in relation to a new petition that did include C J, respondent informed the trial court that CJ’s father “might have a little Indian in him.” She further asserted that CJ’s father “says he might be Cherokee [,] [b]ut he’s not sure.” The trial court indicated that the issue needed to be explored, noting that an effort should be made to obtain some cooperation from CJ’s father on the matter. At a pretrial conference in December 2013, a DHHS worker informed the trial court that she had spoken to CJ’s father, who advised her that he “thinks there may be” Native American heritage in his family, but he was simply unsure. The DHHS worker told the trial court that she directed CJ’s father to gather family names for her, so that she could submit paperwork checking on tribal membership or eligibility. The trial court ordered further investigation on the issue and ordered CJ’s father to fully cooperate. Thereafter, in late December 2013, the DHHS worker sent a notice to the Department of the Interior, Bureau of Indian Affairs (BIA), in an effort to determine CJ’s enrollment, or eligibility status for enrollment, in an Indian tribe. The notice only included the names, birthdates, and addresses of respondent, CJ, and CJ’s father. In January 2014, the BIA responded in writing to the inquiry, stating that there was “insufficient information to determine tribal affiliation” at that time. At a review hearing in September 2014, the trial court noted that no exhibit had yet been filed regarding the inquiry into CJ’s Native American heritage, and respondent reiterated her belief that CJ’s father might be Cherokee. At the next hearing in November 2014, the notice sent to the BIA and the BIA’s response were admitted. There is no further discussion or document in the record pertaining to Native American heritage or whether CJ might be an Indian child. We first conclude that, for purposes of the ICWA, there was sufficiently reliable information—of virtually any criteria—of tribal membership or eligibility for membership, because the trial court had informa tion obtained from respondent and CJ’s father suggesting that CJ’s father might have Native American heritage. In re Morris, 491 Mich at 108 & n 18; In re Johnson, 305 Mich App at 332. We reach this conclusion because the Supreme Court made abundantly clear in In re Morris that if we are to err, we are to err on the side of caution, protecting the interests of Indian children, families, and tribes to avoid later potential disruptions in the child’s life. In re Morris, 491 Mich at 88-89, 106-107. Additionally, for purposes of the MIFPA, we conclude that the DHHS discovered information that “suggest [ed]” that CJ is an Indian child, MCL 712B.9(4)(b), and that the trial court and counsel had knowledge that CJ “may be an Indian child,” MCL 712B.9(4)(e) (emphasis added). Accordingly, we hold that the notice requirements of both 25 USC 1912(a) and MCL 712B.9(1) were triggered in this case. The record reflects that notice was sent to the Secretary of the Interior or the BIA, but we note that such notice only becomes obligatory when “the identity or location of the parent or Indian custodian and the tribe cannot be determined[.]” 25 USC 1912(a); MCL 712B.9(1). The first step in the process is to send the appropriate notification to “the parent or Indian custodian and the Indian child’s tribe,” if determinable. 25 USC 1912(a) (emphasis added); MCL 712B.9(1) (emphasis added). The trial court and the DHHS were familiar with the identity and location of respondent and CJ’s father, who were both fully apprised of the pending proceedings. Regarding the identity of the Indian tribe, respondent, although unsure, thought that CJ’s father might have Cherokee heritage, and, as noted earlier, she told the trial court that CJ’s father informed her that ‘lie might be Cherokee.” Given that the DHHS and the trial court had information that at least suggested the possibility of Cherokee heritage, absent mention of any other potential tribal affiliation, notice should have been sent to the Cherokee tribe for purposes of 25 USC 1912(a) and MCL 712B.9(1). There is no indication in the record that such notice was sent. Consistently with the remedy set forth in In re Morris, 491 Mich at 114-123, and given that we reject respondent’s argument concerning the children’s best interests, we conditionally reverse the order of termination with respect to CJ and remand for compliance with the notification requirements in the ICWA and the MIFPA. Considering that there is no argument or indication in the record that SL is an Indian child, there is no basis to conditionally reverse the termination of parental rights to SL. Moreover, aside from 25 USC 1912(a) and MCL 712B.9(1), respondent also presents an argument under MCL 712B.9(3), which provides: The department shall actively seek to determine whether a child at initial contact is an Indian child. If the department is able to make an initial determination as to which Indian tribe or tribes a child brought to its attention may be a member, the department shall exercise due diligence to contact the Indian tribe or tribes in writing so that the tribe may verify membership or eligibility for membership. If the department is unable to make an initial determination as to which tribe or tribes a child may be a member, the department shall, at a minimum, contact in writing the tribe or tribes located in the county where the child is located and the secretary. Given the multiple references in the record to possible Cherokee heritage, the DHHS had adequate information to make an “initial determination” that C J “may be a member” of the Cherokee tribe, implicating a duty to “exercise due diligence to contact” the Cherokee tribe “in writing so that the tribe may verify membership or eligibility for membership.” MCL 712B.9(3) (emphasis added). This was not done. Furthermore, assuming that the DHHS was “unable to make [such] an initial determination” relative to the Cherokee tribe, there is no indication in the record, nor does the DHHS argue on appeal, that the tribe or tribes located in Kalamazoo County were given written notification, which is a minimal requirement under the final sentence in MCL 712B.9(3). Indeed, the DHHS does not even present an appellate argument under MCL 712B.9(3), despite respondent’s partial reliance on the provision. Accordingly, MCL 712B.9(3), along with 25 USC 1912(a) and MCL 712B.9(1), serves as a basis to order conditional reversal with regard to CJ. On remand, notice must be sent to the Cherokee tribe and, if one exists, to any tribe or tribes in Kalamazoo County. Lastly, respondent challenges the trial court’s finding that termination of her parental rights was in the children’s best interests. The trial court must find by a preponderance of the evidence that termination is in the best interests of a child. In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013); see also MCL 712A.19b(5). We review the trial court’s decision for clear error. MCE 3.977CK); In re HRC, 286 Mich App 444, 459; 781 NW2d 105 (2009). A finding is clearly erroneous if it leaves us with a definite and firm conviction that a mistake was made. In re HRC, 286 Mich App at 459. Factors to be considered include “the child’s bond to the parent,.. . the parent’s parenting ability,. .. the child’s need for permanency, stability, and finality,.. . and the advantages of a foster home over the parent’s home.” In re Olive/Metts Minors, 297 Mich App 35, 41-42; 823 NW2d 144 (2012) (citations omitted). Further, we may also consider whether it is likely “that the child could be returned to her parents’ home within the foreseeable future, if at all.” In re Frey, 297 Mich App 242, 249; 824 NW2d 569 (2012). The trial court, in this case, did not clearly err by finding that termination of respondent’s parental rights was in the children’s best interests. Though respondent shared a bond with the children, that bond was outweighed by the children’s need for safety, permanency, and stability. Respondent never obtained suitable housing during the course of the proceedings, nor could she meet her own economic or financial needs, let alone the needs of the children. These issues were longstanding, and numerous services had been provided to no avail. There was no indication that respondent would be able to rectify the problems in such time that the children could be returned to her in the foreseeable future. There were also serious concerns with respondent’s history of bringing inappropriate individuals—including men with histories of criminal sexual conduct—around her children. Respondent failed to address this issue in counseling and minimized the matter throughout the proceedings. Finally, even though the minor children were not in preadop-tive placements, any further delay in providing them permanency by allowing respondent additional time to improve her situation was not in the children’s best interests. The trial court did not clearly err by finding that it was in the children’s best interests to terminate respondent’s parental rights. We affirm with respect to the termination of respondent’s parental rights to SL. We conditionally reverse the order terminating respondent’s parental rights to CJ, and we remand for further proceedings consistent with this opinion. We do not retain jurisdiction. MURPHY, P.J., and SAAD and BORRELLO, JJ., concurred. This Court recently declared that MCL 712A.19b(3)(l) “violates the due-process protections of the federal and state Constitutions . . . .’’ In re Gach, 315 Mich App 83, 101; 889 NW2d 707 (2016). Regardless, only one statutory ground need be established in order to support termination of parental rights. MCL 712A.19b(3); In re Ellis, 294 Mich App 30, 32; 817 NW2d 111 (2011). And on appeal, respondent does not directly challenge the trial court’s findings concerning the statutory grounds for termination. An “Indian child” is defined in the ICWA as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 USC 1903(4). “[0]nly the Indian tribe can determine its membership.” In re Morris, 491 Mich 81, 100; 815 NW2d 62 (2012). Under the MIFPA, an “Indian child” is defined as “an unmarried person who is under the age of 18 and is either of the following (s) [a] member of an Indian tribe [or] (¿i) [eligible for membership in an Indian tribe as determined by that Indian tribe.” MCL 712B.3(k). “The definition of ‘Indian child’ in MIFPA is similar to that in ICWA, but does not require the child who is eligible for membership to also be the biological child of a member of an Indian tribe.” In re KMN, 309 Mich App 274, 287; 870 NW2d 75 (2015). “Secretary” means the Secretary of the Interior. 25 USC 1903(11). A “child custody proceeding” includes removal actions, MCL 712B.3(b)(¿), and “[a]ny action resulting in the termination of the parent-child relationship,” MCL 712B.3(b)(ü). The definitions section of the MIFPA, MCL 712B.3, was amended by 2016 PA 26, effective May 30,2016; however, that amendment did not substantively alter any of the statutory definitions discussed in this appellate opinion, assuming the amendment is even generally applicable to these proceedings. The term “Secretary” as used in the MIFPA refers to the Secretary of the Interior. MCL 712B.3(u), as amended by 2016 PA 26 (the Legislature amended MCL 712B.3(u) to capitalize the title of the officeholder). “Department” means the Department of Human Services or any successor department or agency. MCL 712B.3(e). CJ’s father’s parental rights were also eventually terminated but are not at issue in this appeal. He was generally uncooperative and did not participate in services. We note “that a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child’s tribe . .. .” In re Morris, 491 Mich at 89. For this reason, we reject the petitioner’s appellate argument that the CPS worker’s statements in December 2012 reflected resolution of the question regarding CJ’s potential Indian heritage. There is no indication in the record about whether the DHHS worker had been able to procure any further information from CJ’s father regarding any family ties to an Indian tribe. The need to proceed cautiously in order to avoid the potential future disruption of lives is also apparent under the MIFPA: Any Indian child who is the subject of any action for termination of parental rights under state law, any parent or Indian custodian from whose custody the child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate the action upon a showing that the action violated any provision of this section. [MCL 712B.15(5).] We acknowledge that we do not know whether there are any Indian tribes located in Kalamazoo County. That matter will have to be explored on remand.

Sharpe, J. The plaintiff suffered a somewhat severe cut on the back of his left wrist on January 22, 1923, while in the employ of the defendant. It was thus described by the nurse who rendered him first aid: “It was an inch or inch and a quarter long, I think, and it was not deep, not straight down, it was rather slanting, under the skin more — perhaps a little less than a quarter of an inch.” He continued work until February 13th. At that time the wound was healed and the redness and swelling had gradually disappeared. A few days before the 13th, he complained to the nurse of pain in his left arm. There was no outward evidence of the cause. On that day he went to see Dr. McNamara. The doctor testified that he was suffering from “a neuritis involving the left hand and arm;” “our treatment consisted of what we call light treatments two or three times a week. * * * These treatments were gratifying, the patient liked them, but apparently it didn’t affect the case.” In answer to a question as to whether his then condition might be due to the cut on his wrist, the doctor answered, “I should say absolutely impossible.” In the opinion of the doctor, his condition was due to a general breakdown, both mentally and physically. He continued at work intermittently until April 4th. He went to Ann Arbor ,on June 20th, where he was examined by Dr. Klingman, a specialist in neurology. He testified that he found his trouble to be: “Primarily, a spinal arthritis; secondly, a neuritis; with atrophy of the muscles of the left shoulder, left upper arm, and some of the fore arm and hand on the same side. He also had some difficulty in walking probably due to the same condition. He had a spinal curvature. He had an arterio-sclerosis with very distinct changes in his eye-grounds, and very distinct mental symptoms, loss of memory, disosientation from the arterio-sclerosis which had affected his brain.” The X-ray revealed— “bony deposits between all of the joints of the vertebra from the third cervical down to and entirely through the cervicals.” He was asked: “Q. Not all of this difficulty arose from the scratch on the hand? “A. Oh, no; impossible; out of the question. In the first place, this sort of trouble is not due to infection, acute infection; it is always chronic infection; it is not caused by the same bacteria. “Q. There was no evidence of acute infection in this case, was there? “A. Apparently not, “Q. Is it to be expected that the kind would be affected from'such a neuritis? “A. No. “Q. I mean, accounting for the mental condition. “A. It is due to the hardening of the arteries.” He described his condition as “progressive” and testified that “he might have continued for quite a time if something had not come up to challenge his attention.” The plaintiff was in the hospital at the time of the hearing. The deputy commissioner awarded compensation at the rate of $14 per week during total disability, and his award was affirmed on appeal to the full board. Defendant reviews . this order by certiorari. The board based its order upon the testimony of Dr. Klingman, and particularly that part of it wherein he testified that plaintiff might have continued longer at work had not his attention been challenged to his physical condition by the injury to his wrist. The testimony of both doctors is convincing that the injury to his wrist had completely healed and in itself had no effect upon the physical condition of plaintiff at the time of the hearing. He had been suffering from neuritis for years. His teeth had been removed in 1922 at the suggestion of a doctor who was then treating him. It is our duty to ascertain whether there is any evidence to sustain the findings of the board. The reasoning employed in Ortner v. Zenith Carburetor Co., 207 Mich. 610, applies with much force to the facts here presented. In our opinion there was no evidence to support the finding that his then disability was due to the accident. The award is reversed and set aside. Clark, c. J., and McDonald, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.

Clark, C. J. Plaintiff purchased on February 1, 1923, the Shepard building in Grand Rapids from Shepard, the owner. Rowlette was Shepard’s agent in charge of the building before the sale. A list of tenants holding under written leases, and another list of those holding under verbal leases from month to month were given to plaintiff by Shepard at the time of transfer. Defendant was listed as a tenant of room 518, holding without lease in writing and from month to month. On July 10, 1923, plaintiff gave defendant notice to quit room 518 and also a certain room or space adjoining on the north. Later defendant produced two papers being in form a lease executed in duplicate, signed by defendant and by Shepard by Rowlette as agent, and dated July 11, 1922. Statutory proceedings for possession followed, and appealed to and tried in the circuit court resulted in verdict and judgment for defendant. Plaintiff brings error. The lease in duplicate was prepared by Rowlette and handed to-an agent of defendant on July 11, 1922. Defendant claims that both parts of the lease were signed by its secretary soon after that date, but that through oversight both papers were kept in defendant’s office and that neither of the papers was returned or offered to the landlord until after notice to quit. Plaintiff claims that the lease in duplicate as offered to defendant covered “Room 518 and northwest side room” and that the papers when produced by defendant had been altered to read “northeast” instead of “northwest.” This the defendant denied. The. claimed alteration was the only question submitted to the jury. ■ Plaintiff insists that the court erred in not submitting to the jury the question of whether defendant had accepted the lease offered by the landlord, and that, in holding as a matter of law that there was a written lease between the parties (aside from the question of alteration), the court disregarded evidence adduced. We recall the familiar rule that on this question, as presented, the evidence must be viewed in the light most favorable to the plaintiff. Rowlette testified in part that on July 11, 1922, when he prepared and offered the lease to defendant, defendant was already in possession of the premises making them ready for use as an office; that he handed the papers to defendant’s agent in room 518, that they had not then agreed upon the length of the term, that defendant requested a two-year lease with privilege of renewal for three years, that the lease as offered was for five years “straight.” That when handing the proposed lease to defendant’s agent, he directed him “to take it up with” his superior and “have them signed and return one of them,” that defendant never accepted, never told the landlord or anyone in his behalf that it would accept, that on the contrary it objected to language in the lease, that he, Rowlette, called many times at defendant’s office for a signed copy of the lease, that defendant agents merely stalled, that he got disgusted and made no further request for the lease, and that defendant continued in possession and paid rent from month to month. Defendant had evidence that there was an agreement as to all the terms of the lease, that the lease, as prepared by Rowlette and as corrected by him by changing “northwest” to “northeast” fully expressed the agreement, that it was signed promptly for defendant, that the landlord was promptly notified that the lease had been signed and accepted, that defendant after signing took possession of the premises under the lease, made improvements, and has ever since paid the rent reserved, and that the failure to return a signed lease to the landlord was mere oversight. Although Rowlette gave other testimony inconsistent with, if not flatly contradictory of, that portion of his testimony above reviewed, the weight to be given to his various statements was for the jury. The evidence, including that above stated and the explanations or excuses of defendant for its failure to return the lease to the landlord, presented a question of fact for the jury as to'whether the defendant had accepted the lease and held under it. See 35 C. J. p. 1144; Phœnixville Borough v. Walters, 147 Pa. 501 (23 Atl. 776); Henchey v. Rathbun, 224 Mass. 209 (112 N. E. 862); McGivern v. Parkhill, 195 Ill. App. 343; L. & M. Holding Co. v. Karp, 194 N. Y. Supp. 476; Swart v. Telegraph Co., 142 Mich. 21; Gault v. Gault, 162 Mich. 85; 1 Underhill on Landlord and Tenant, p. 351, 16 R. C. L. p, 566. The case of Bakker v. Fellows, 153 Mich. 428, cited by defendant to sustain its contention that if the act of plaintiff in delivering the signed lease to defendant is a-mere offer, nevertheless defendant’s taking possession, making repairs and paying rent constitute an acceptance in law, is clearly distinguishable in facts, assuming the facts in the case at bar to be as claimed by plaintiff. If the facts are as claimed by defendant, the case is controlling on that question. Other questions presented have been considered, but are not likely to arise again, and are not discussed. Judgment reversed with costs to' appellant. New trial granted. McDonald, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred. Sharpe, J., did not sit.

WlEST, J. The will of Mary C. Kempf, deceased, upon contest certified to the circuit court (3 Comp. Laws 1915, § 14145), was admitted to probate by jury verdict and judgment thereon March 20, 1924. Contestant's motion for a new trial was denied July 24, 1924. Time in which to settle a bill of exceptions has been extended. No bond to stay proceedings having been given, August 25, 1924, plaintiff moved the court to certify the judgment to the probate court. This motion was not granted but the court, sua sponte, ordered contestant to give a bond within seven days to stay proceedings or the judgment would be certified to the probate court. Plaintiff, by mandamus, seeks direction to the circuit judge to set the stay aside. The statute (3 Comp. Laws 1915, § 12812) provides: “No stay of proceedings upon any verdict or judgment rendered in any circuit court in this State shall hereafter be granted or allowed for the purpose of moving for a new trial or settling a bill of exceptions in the case in which such verdict or judgment was rendered, for a longer period than twenty days, unless the party applying for such stay, if judgment shall have been rendered against him, shall execute to the adverse party a bond.” * * * The purpose of this act is to expedite review, if desired, accepts the view that the judgment is right and should be enforced by available remedies unless a stay thereof is extended beyond the 20-day period. When this stay was granted it took away an accrued right of enforcement. This court has held that execution will not be recalled upon giving a bond after the 20-day period. Hatch v. Washtenaw Circuit Judge, 200 Mich. 1. The accrued right to have the judgment certified to the probate court was not at all affected by the orders extending time in which to settle a bill of exceptions. Under this statute no stay can be had for a longer period than 20 days after judgment without a bond given within the 20 days to carry on the stay. If a stay granted ends with the 20 days for want of a bond the right to stay is lost. In the instant case the right to stay was lost and the court had no power to grant stay, and the order permitting the stay should be vacated. If necessary the writ will issue. Plaintiff will recover costs against Harry V. Angevine, contestant of the will. Clark, C. J., and McDonald, Bird, Sharpe, Moore, Steere, and Fellows, JJ., concurred.

McDonald, J. The purpose of this action is to recover for services rendered under a contract for the hauling of stone and for street excavation. In 1923, the defendants, who are paving contractors, had a contract for the construction of three and one-half miles of pavement in the city of Holland, Michigan. They made two contracts with the plaintiff, one a written contract for the work of excavating and the other an oral contract for the hauling of crushed stone. The controversy arises largely over the oral contract. The plaintiff says that the stone was to come in by boat and that he was to be paid 27 cents a ton, according to what is known as boat weights, for hauling it to the street where it was to be used; that he was to furnish four or five trucks for this purpose; that the defendants • were to furnish some mechanical device for unloading it and were to keep the streets which were being improved covered with marsh hay or straw, so that they would be passable for the plaintiff’s trucks. The plaintiff claims that the defendants did not perform their part of the contract; that they did not keep the streets passable as a result of which he was delayed in his work and compelled to do it at greater expense; that they did not provide mechanical means for unloading and refused to pay for the hauling according to boat weights; that, because of the failure of the defendants to carry out the agreement, disputes arose between them which finally resulted in a modification of their contract; that under the new agreement he was to receive 31 cents a ton' for the hauling based on actual weight instead of boat weights. It was the plaintiff’s claim that there was a balance of $4,102 due and unpaid on this contract and to recover that amount he began suit. The defendants admitted the modification of the contract as to the amount to be paid for hauling, but are not in agreement with the plaintiff as to when it became operative; they say that the plaintiff was not doing his work in a satisfactory manner and that the modification of the contract was agreed to by them only on condition that he put a sufficient number of trucks on the job to insure prompt delivery of the stone as they required it. It is their claim that the plaintiff did not carry out his contract in this respect; that it became necessary for them to spend their time in looking after the work which he should have performed; that his neglect to promptly deliver the stone caused delay and loss to them by their men and machinery remaining idle; that finally the plaintiff abandoned both of the contracts and that they were compelled to complete the work which he should have performed; and that because of this they suffered damages to the extent of $1,831.81, which they sought to recoup against his claim. They admitted a liability of $982.16, which they deducted from $1,831.81, leaving a balance in their favor of $849.65. The issue presented by the claims of the parties was submitted to the jury. The plaintiff was given a verdict of $4,102. The defendants were refused a new trial and judgment was entered on the verdict. The errors assigned relate to the admission of certain evidence, the charge of the court and the denial of a motion for a new trial. 1. Errors in the admission of testimony. Objection is made to the following testimony given by the plaintiff on his direct-examination: “Q. I will ask you how much more it cost you to haul this stone under the conditions as they were in the matter of the failure to provide mechanical device, than it would have cost you had Mr. Glover kept his part of the contract and kept the streets in condition and furnished the mechanical unloading device ? * * * “A. The repairs on the trucks ran to some $2,800, plus the amount of depreciation; they depreciated to a great extent, even the $2,800 put them in working condition, not in the condition they came there, and the showing up of the weighing and the waiting at the cars would be approximation of a thousand dollars additional. * * * “Q. During these three days a week that you had the shovel there and wasn’t using it what expense was that to you? * * * “A. Expense of an operator, foreman and general overhead which ran about twenty to twenty-five dollars a day.” Counsel for the defendants objected to these questions and moved to strike out the answers. In permitting the testimony to be taken the court explained that they were not received as elements of damages, and counsel for the plaintiff said: “I am not claiming any damages on account of that, it is simply for the purpose of showing that this man was doing all that he could by virtue of a situation that he was in no way in control of.” We think that the testimony was admissible for several reasons but more particularly on account of the claim of the defendants that the plaintiff had abandoned both contracts. If because of the failure of the defendants to' carry out their contracts it was costing the plaintiff so much more money to perform on his part, he would be justified in refusing to proceed with the work. In view of the purpose for which this testimony was offered and the restriction which was placed upon its consideration by the jury, we think the court did not err in overruling defendants’ objection and in refusing to strike it out. 2. Errors in the charge of the court. Defendants complain of the following charge: “Defendants refused to pay on the basis of boat weights and then the matter was compromised by allowing 31 cents per ton on the basis of actual weights; that this rate was allowed in the estimates by defendants, but was not paid.” Counsel’s objection to this portion of the charge is without merit. The court was not stating the facts. He was telling the jury what the plaintiff claimed the facts to be. The record shows that he correctly stated the claim. 3. It is further claimed that the court erred in instructing the jury as follows: “You are instructed that if you find by a preponderance of the evidence that the agreement was made as claimed by the plaintiff and that the agreement was afterwards modified as claimed by him, then you should find a verdict for the plaintiff for the amount you find to be due plaintiff.” It cannot be said that this instruction ignored all of the other questions in the case in view of the fact that the court followed it with an instruction that if the defendants had established their claim of recoupment, and the amount thereof should exceed the amount they found to be due to the plaintiff, they should render a verdict in favor of the defendants for the difference. Considered in its entirety the charge fairly stated the claims of the parties and correctly informed the jury as to law applicable thereto. 4. Denial of the motion for a new trial. In their motion for a new trial the defendants complained that the jury did not give them credit for certain items which they paid for the plaintiff, about which there was no dispute; and that the court should have granted a new trial unless the plaintiff remitted the amount of those items from his judgment. The plaintiff testified that the amount of the items with which he was properly chargeable was $614 and that this amount included the items which the defendants now say were not considered by the jury. The defendants’ testimony tended to show that there were other amounts for which the plaintiff did not give them credit. It would have been an easy matter to have shown with absolute certainty the amount of these items. The plaintiff did not undertake to itemize the various amounts which made up the credit of $614 and was not asked to do so on cross-examination. The defendants had the bills which they had paid and others on which they were liable, but did not put them in evidence. Leaving out of consideration the affidavit in support of the motion for a new trial the record is not clear as to the true state of the accounts in respect to the amounts with which defendants were entitled to credit for money paid in plaintiff’s behalf. In view of this situation we are inclined to accept the judgment of the trial court who said in denying the motion for a new trial: “The questions involved were entirely questions of fact as to whether certain accounts should be allowed, and they were passed upon by the jury, and it cannot be said as a matter of law that their verdict was contrary to the weight of the evidence.” The judgment is affirmed. Plaintiff will have costs. Clark, C. J., and Bird, Sharpe, Moore, Steere, Fellows, and Wiest, JJ., concurred..

Sharpe, J. Plaintiffs are husband and wife. They reside upon' a farm in Huron county. Defendant is a corporation, organized in the State of Delaware. Its business operations in this State are conducted in the city of Saginaw. Its board of directors consists of prominent business and professional men living in that city and its vicinity. On June 23, 1922, DeVere Kirby, an agent and stock salesman of the defendant, secured from plaintiffs an agreement to purchase 50 shares of the 7 per cent, cumulative preferred stock of the corporation, with par value of $100, and 50 shares of the common stock, of no par value, but fully paid and nonassessable, for the sum of $5,500, payable as follows: “$2,750 note......dollars cash, the receipt whereof is hereby acknowledged, and the balance of $2,750 note..........dollars six months after date until the full purchase price shall have been paid.” (The peculiarity of the above language is explained by the fact that a printed form with blanks to be filled in was used.) The agreement provided that the stock should be delivered when the payments provided for therein were made in full. Both of the notes were signed by the plaintiffs and delivered to the agent. One of them was made payable to the order of “myself,” bore interest at 7 per cent, until paid, and bears the indorsement “August C. Radloff.” The other was payable to the order of the defendant, due 6 months after date, with interest after maturity. On the execution of the agreement and notes, the agent gave to plaintiffs a written receipt, worded as follows: “No. 2085. Saginaw, Mich., June 2Srd, 1922. “Received of August C. Radloff and Clara L. Radloff $................two notes.................dollars .......................purchase price of 50 shares preferred stock 50 shares common stock balance due .......................to be paid in six months. “Ruggles Motor Truck Co. “By D. J. Kirby, “Sales Agent.” On June 28, 1922, the defendant wrote plaintiffs confirming the contract entered into by its agent. The note payable to the order of “myself” was at once taken by the agent to the State Bank of Frank W. Hubbard & Company, at Bad Axe, and, without further indorsement, discounted by him. He received there for a certificate of deposit, the amount of which is not stated, which was afterwards cashed by defendant. On receiving notice from the bank that the note discounted by it was due and must be paid, and from the defendant that the note it held was due, plaintiffs filed this bill. In it they allege that they were induced to sign the contract and notes by the fraudulent representations of defendant’s agent, and they ask that they be canceled and plaintiffs relieved from any liability thereunder. In an amendment to the bill, plaintiffs aver that the sale of stock was made in violation of the terms imposed by the securities commission in the order permitting its sale in this State. The defendant in its answer denied the charges of fraud, and in its cross-bill asked that the contract be confirmed as a binding obligation, and that it have decree for the amount of the note executed by plaintiffs and then held by it. The trial court found that defendant’s agent had been guilty of the fraud charged in procuring the execution of the contract and notes, and decreed that the note made payable to the company be canceled and delivered to plaintiffs. The decree also provided that defendant should procure the delivery to plaintiffs of the note held by the bank within 80 days or, in default thereof, should pay to plaintiffs the amount thereof, including interest. The defendant appeals. While plaintiffs deny that they knowingly signed the subscription agreement, we have no doubt that it as well as the notes were signed by them. The writings were all signed in plaintiffs’ home. Kirby secured the services of John L. Hoffman, a deputy sheriff of the county, to assist him in making sales. For such service Hoffman received a commission of 2 per cent, on the purchase price of the stock sold. The plaintiff August Radloff was at work in a field when they arrived. After introducing Kirby, Hoffman said to Radloff that “he had stock in the company himself, and looked upon it as a wonderful opportunity.” He also gave him the names of some others in the vicinity who had already bought stock. Kirby had theretofore secured a list of farmers and had submitted it to Mr. Ryan, the vice-president of the Hubbard bank in Bad Axe, and had him indicate on it the names of those whose notes he would be willing to discount and the amounts thereof. On the literature exhibited were pictures of several of the officers and directors of the company, men of prominence in Saginaw and Huron counties, whose standing and integrity were known to plaintiffs. When the proposition to purchase stock was put up to August, he expressed his inability to buy. Hoffman testified that Kirby then said, “we don’t want your money, we don’t want your farm, all we want is your credit, * * * all we want; is for you to loan them your credit.” Radloff and Kirby then went into the house to see Mrs. Radloff. Radloff testified that when hesitating about giving a note, although told that they would not be bound by it, Kirby said: “If we could not pay it at any price, can’t even pay the interest, to let it run 30 days past due and we will absolutely be out of it, our note would be sent back and we won’t be held responsible for it at all.” That when he and his wife concluded to execute the note for $2,750, Kirby had another one ready and said: “You have got to sign this one. It is supposed to be an office copy, held at Saginaw, and he got us to sign that, so he said we will have this copy note so we keep a record of this one at Bad Axe.” That he asked if the note first signed was to be sold at Bad Axe, and Kirby said— “no, it was going to be held in the Hubbard bank here for collection, if I wanted to make any payment I can go to the Hubbard bank and make my payment there, I didn’t have to go to Saginaw. * * * He said every time I made a payment at the Hubbard bank at Bad Axe the same amount would be added on the copy note at Saginaw in the office, and after I got this one paid in Bad Axe in the Hubbard bank that I would have a share in the Ruggles Truck Company worth $5,500.” Radloff’s testimony as to what Kirby said while in the house, and particularly as to what he said about the “copy note,” is fairly corroborated by that of Mrs. Radloff. Both were submitted to a very severe cross-examination, and, while they were not in accord as to some statements and denied that they knowingly executed the subscription agreement, we are unable to conclude that there was any intentional false swearing on their part. There was also proof that Kirby had secured two notes from other purchasers of stock residing in the same community where but one was intended to be given. Stanley Kleida testified as to similar statements made to him as to his liability on his note. He also testified that after he had signed one for $550 Kirby— “wanted me to sign another paper and I did sign it and I asked him what for that is, he said, that go to the company.” That he afterwards got notice of two notes he had given, each for $550, one payable to “myself” and the other to the defendant. Harry Young, another farmer to whom Kirby sold stock, testified that he signed two notes, and that Kirby said— “the one they would hold at my bank and the other they would take to Saginaw, that is his very words he told me,” and that the first he knew that liability was claimed on both notes was when he got notices to pay them. While this testimony and other of somewhat similar import was received over defendant’s objection, it was clearly admissible under our holdings in its bearing upon the credibility of Kirby and his intent to defraud. Cook v. Perry, 43 Mich. 623; Dayton v. Monroe, 47 Mich. 193; Stubly v. Beachboard, 68 Mich. 401; French v. Ryan, 104 Mich. 625; Shrimpton & Sons v. Rosenbaum, 106 Mich. 68; Morain v. Tesch, 214 Mich. 699; Bay State Milling Co. v. Saginaw Baking Co., 225 Mich. 557. The plaintiffs testified that at that time they were the owners of 80 acres of land, and that August owned an additional 80, the value of the entire 160 acres being about $18,000, on which there was an incumbrance of about $13,000. Conceding that they also had the stock and implements usual to farming, it is apparent that the subscription agreement and notes obligated them to pay, six months thereafter, a sum almost equal to their net worth. . Courts of equity have no power to set aside contracts because improvidently entered into. Written instruments, when executed voluntarily and understandingly, must be enforced. But when it is claimed that the execution of such instruments is procured by fraud, and the representations relied on to establish it are denied, the court, in its effort to determine wherein the truth of the matter lies, may weigh the testimony submitted in the light of the surrounding circumstances. The trial court heard and saw the plaintiffs and their witnesses. We find nothing to indicate that they were not testifying truthfully, and he saw nothing to reflect on the truth of their statements. After a careful consideration of the entire record, including the denial of Mr. Kirby in his deposition taken in California, where he now resides, we cannot but agree with him that a fraud was perpetrated upon the plaintiffs in obtaining from them the note for $2,750, payable to the order of the defendant, and that such fraud vitiated the entire contract. The proofs supporting this charge are quite as convincing as those submitted in the recent cases of Curwood v. Insurance Co., 226 Mich. 573, and Miller v. Savings Bank, 227 Mich. 316. We have not overlooked the fact that defendant, soon after the writings were executed, wrote plaintiffs confirming the sale of stock to them, and that plaintiffs in no way repudiated their act in signing the subscription agreement until demand for payment of the notes had been made. While plaintiffs had but little education, they were intelligent and make no claim that they could not understand the meaning of ordinary English words. Their explanation of this, as well as the receipt which stated they had purchased 50 shares of each kind of stock, is that Kirby stated to them that if they paid the note, first signed, for $2,750, they would receive the $5,500 worth of stock. If they so understood at the time the receipt was given, the letter of confirmation might have been read without challenging their attention to the fact that the defendant claimed they had obligated themselves to pay par value for the 50 shares of each kind of stock. It is urged that the part of the decree requiring defendant to procure the delivery of the note held by the bank for cancellation or, in default, the payment of the amount thereof with interest to plaintiffs, is not warranted. The trial court held that the bank was a holder of the note in due course. Had plaintiffs paid it before decree, they would have been entitled to a decree for the amount so paid. Equity requires that they should be protected from making such payment or reimbursed if payment be enforced. The defendant may protect itself under the decree by retiring it. We think a legal obligation rests upon it to do so. The court, however, was not warranted in decreeing that defendant should pay the amount of it to plaintiffs until and unless payment had been made by them. The decree may, at the option of defendant, be modified to provide for payment of the money into court, to be turned over to plaintiffs on production of the note and evidence of its payment. The record may be remanded to permit this to be done under the supervision of the court if deemed necessary. Plaintiffs also claim, and their counsel are very insistent in urging its 'consideration, that defendant received no cash on the sale to plaintiffs and thereby violated the permission to sell its stock granted by the securities commission. The note given by plaintiffs was at once discounted by defendant’s agent and its proceeds placed to the credit of the company. The purpose of requiring a cash payment on the sale of stock of a corporation is to secure to it funds to carry on its business. This purpose was accomplished when the note was discounted, provision for which had been theretofore made. We find no such evasion of the order of the commission as would invalidate the sale. The decree is affirmed, with such modification as defendant may desire, consistent with what has been said. As defendant may fully protect itself without modification of the decree, we feel constrained to allow costs to appellees. Clark, C. J., and McDonald, Bird, Moore, Steere, Fellows, and Wiest, JJ., concurred.

Sharpe, J. Plaintiff signed the following memorandum : “Offer To Purchase. “Detroit, Mich., Nov. 13, 1920. “I hereby agree to purchase through Raven & Harkness, agent for the owner, the following described property: “10 family brick apartment Bldg, located at 107 & 109 Leicester Court, Detroit, Mich. (present rentals $650.00 per month) and to pay therefor the sum of fifty-one thousand, five hundred dollars ($51,500.00) upon the following terms and conditions: One dollar ($1.00) upon the signing of this agreement as a deposit to bind the bargain, the same to be returned should proposition be rejected by owner of said property, or should the title be found unmerchantable; the balance to be paid as follows: “Pay out owner’s equity and assume his contract of $335.00 per month, including 6 per cent, interest. Owner’s equity to be paid as follows: $16,500 by purchaser giving deed to lot No. 52 Montcalm St. E., subject to $3,500.00 mortgage (house 52) which vendor agrees to assume, and balance of owner’s equity to be paid in the form of a note due six months from date of closing sale, said equity not to exceed $5,200.00; said note to be secured by purchaser placing contract in Peninsular State Bank as security until said note is paid. “The owner shall furnish abstract of title, brought down to date, showing merchantable title at this date, and when conveying shall convey by warranty deed. Contract to be assigned at time of signing final agree rnent to purchaser. Adjustment of interest and rents and insurance to be made at time of final agreement.” Defendant accepted the same in writing. Plaintiff here seeks to recover damages for defendant’s Refusal to perform. The trial court entered a judgment for defendant, notwithstanding a verdict rendered in plaintiff’s favor for $2,723.60, under the provisions of the Empson act, for the reason that the memorandum was not sufficiently definite and complete in its terms to satisfy the statute of frauds (3 Comp. Laws 1915, §§ 11975-11977). Counsel agree that the rule by which the sufficiency of the writing should be determined is as stated in Walsh v. Oakman, 199 Mich. 688: “A contract definitely fixing the property, the parties, the price, and the terms of payment complies with the requirements of the statute of frauds.” The description of the property was sufficient. Ogooshevitz v. Sampson, 211 Mich. 180; Cooper v. Pierson, 212 Mich. 657; Baller v. Spivack, 213 Mich. 436; Barton v. Molin, 219 Mich. 347. It is urged that the last two sentences in the memorandum render it uncertain and indefinite. It clearly appears from that which precedes these provisions that the vendor had but a contract interest in the premises. It also appears that the memorandum was to be followed by a more specific agreement, particularly defining the rights and liabilities of the parties. While no definite time is fixed therefor, a reasonable time would be implied. The contract to be assigned is that held by the vendor from the owner. We can see no uncertainty in the last sentence. The interest then due to the owner would be adjusted, that is, either assumed by the purchaser or allowed as a part of the purchase price. If the vendor desired to, he might pay it to the owner; otherwise, he must allow it to the purchaser. The same is true as to rents and insurance. If the vendor had received advance payments of rents, he must credit the purchaser therewith; if he had paid for advance Insurance, he should get credit for it or have the policy canceled. We are unable to see how any parol testimony would be needed in order to determine the rights and liabilities of the parties when the after agreement contemplated by the writing should be made. We think the memorandum contained all the requisites of a completed contract. Mull v. Smith, 132 Mich. 618; Walsh v. Oakman, 199 Mich. 688; Elbom v. Pavsner, 225 Mich. 213. The judgment is reversed and set aside and the cause remanded with directions to the trial court to enter a judgment on the verdict. The appellant will recover costs. Clark, C. J., and McDonald, Bird, Moore, Steer®, Fellows, and Wiest, JJ., concurred.

Wiest, J. Defendant conducted a real estate agency at Albion and had been requested by one Arthur Ball during his lifetime and, after his death, by Rose Ball, administratrix of the estate, to find a purchaser for certain land. As such agent defendant had certain negotiations with plaintiffs and on March 25, 1935, gave plaintiffs the following receipt : “Received of Elmer Amsler and Harold King the sum of $50, as first payment on the purchase price of $1,000 for the property described (description). The terms of said sale to be $200 down and $100 on the principal sum annually with interest in addition at the rate of six per cent, per annum. All of the purchase price to be paid in five years. The first payment to be made as soon as the owner can furnish an abstract showing a merchantable title in their name. “H. W. Russell, Agent.” Plaintiff knew that defendant was acting in the capacity of an agent. Mrs. Ball testified that she asked defendant to find a purchaser for the land and— “I have been in his office in connection with the sale of this piece of land in question a number of times. It is a little hard to give the time of my last visit to Mr. Russell’s office before this receipt was made out. I imagine it was two or three days possibly. I don’t recall positively. He came to my home at Duck Lake and said that he had some one who wanted to buy the farm in question. I told him it would be all right to sell it. We needed cash. After that he brought the paper to me which I forwarded to Mr. Blair. (This was the receipt.) In less than two hours a telegram came stating that he had sold the farm and I immediately telephoned Mr. Russell to that effect. * * * Samuel Blair (who was a former husband of Mrs. Ball) had a deed to the land in question at the time I talked with Mr. Russell. I did not tell Mr. Russell that. I supposed he knew it. I did not connect him up with it at all at any time. Mr. Blair has had a title since January, 1929.” Defendant did not know that the land had been conveyed to Mr. Blair. When defendant informed Mrs.. Ball of the offer made by plaintiffs she said' to him that she would sell the farm for $1,000, with $100 down and $100 a year. Plaintiffs brought this suit to recover damages from defendant for loss of the pecuniary advantage which they would have gained had defendant been the agent of the owner of the land, and they had judgment for $1,500. The case was tried without a jury and the circuit judg*e found that: “Viewing the facts in the present case in the most favorable light to defendant, the following facts are clearly established: (1) That defendant Russell entered into a valid agreement or contract to sell plaintiffs certain real estate. (2) That he signed said contract as agent. (3) That he, in g’ood faith, believed he had authority to represent the owner thereof as his agent. (4) That as a matter of fact he did not have authority to act as agent for the owner thereof. (5) That the owner sold the property to another. (6) That plaintiffs lost whatever benefits or profits that would have accrued to them had the contract of sale been carried out,” and stated: ‘ ‘ Therefore, the principal question in this case is: Ms the defendant Russell personally liable for the loss and damage sustained by plaintiffs when Russell, in signing said contract as agent, believed in good faith yet erroneously that he had authority to act as agent for the owner of said real estate? ’ ” Upon such findings the court should have entered judgment for defendant. The case is an odd one. In a search we have been unable to find one like it in the books. At inception the receipt was not defendant’s contract but acknowledgment of money paid to him for another who was to execute a conveyance. Not be ing defendant’s contract when given the receipt could not become such upon failure of defendant’s principal to pass the title to plaintiffs. The action was not brought for deceit nor, under the evidence, could it be maintained along such line. We quote, for its sound sense, the following from Ogden v. Raymond, 22 Conn. 379 (58 Am. Dec. 429): “We think, likewise, upon the second point made, that it does not follow, that an agent, acting either in a public or private capacity, is, of necessity, made personally liable, although he does not give a cause of action against some one else. We believe the law to be, that, if a person assumes to act and enter into contracts, in the name of another, as his principal, and does this, with an honest intent, openly, and fully disclosing all the facts touching his supposed authority, or which may be fairly implied from his situation, and especially, if he provides against his personal liability, in any event, he cannot be held liable, unless he be guilty of fraud or false representation ; and even then, he is not necessarily liable on the contract itself. * * * “We are aware, that it is not unfrequently laid down, as a rule of law, that, if an agent does not bind his principal, he binds himself; but this rule needs qualification, and cannot be said to be universally true or correct, as the cases already cited, abundantly show. If the form of the contract is such, that the agent personally covenants, and then adds his representative character, which he does not, in truth, sustain, his covenant remains personal and in force, and binds him, as an individual; but if the form of the contract is otherwise, and the language, when fairly interpreted, does not contain a personal undertaking or promise, he is not personally liable; for it is not his contract, and the law will not force it upon him. He may be liable, it is true, for tortious conduct, if he has knowingly or carelessly assumed to bind another, without authority; or, when making the contract, has concealed the true state of his authority, and falsely led others to repose in his authority; but, as we have said, he is not of course, liable on the contract itself, nor, in any form of action whatever. The question in these cases, will be found to be one of construction of the language and meaning of the person who attempts to act for another, and is a question often attended with very great difficulty and doubt; but when the intention is ascertained, that intention should ever be the rule for deciding whose contract it is.” The court in the instance at bar has forced the contract on defendant contrary to the intention of the parties and the terms of the contract and without any personal covenant on the part of defendant. Defendant believed and had good reason to believe that, in offering the property for sale, he was representing the owner. Under the evidence and applicable principles of law defendant was not liable as upon contract and breach thereof, and the judgment is reversed without a new trial, and with costs to defendant. North, C. J., and Fead, Btjtzel, Bushnell, Sharpe and Toy, JJ., concurred. Potter, J., did not sit.

North, J. Plaintiff is the widow of Littleton Kirkpatrick, deceased. She and four children by a former marriage survive him. He made no provision in his will for his widow or any immediate member of his family; but instead made Myrtice M. Nolan his sole beneficiary. Plaintiff elected to take under the statute of distributions. 3 Comp. Laws 1929, § 15564 (Stat. Ann. § 27.2664). As the probate proceedings progressed it developed that the executrix, Myrtice M. Nolan, had on hand $1,572.86 belonging to the estate. Plaintiff, claiming she has preferred rights in the estate in consequence of her election to take under the statute to the extent of $5,000, demanded payment to her of all of the personalty in the estate, i. e., $1,572.86. The executrix did not comply with this demand. But she did tender to plaintiff one-third of the personalty belonging to the estate. This tender was declined by plaintiff, and she thereupon petitioned the probate court for authority to institute suit against the executrix and her surety to compel payment to plaintiff of the full amount of the $1,572.86 held by the executrix. See Act No. 228, chap. 4, § 19, Pub. Acts 1939 (Comp. Laws Supp. 1940, §16289-4 [19], Stat. Ann. 1941 Cum. Supp. § 27.3178 [269] et seq.). The probate court denied the prayer of this petition. Upon appeal to the circuit court the order of the probate court was affirmed, and plaintiff has appealed. Plaintiff’s contention is indicated by the following in her brief: “When the widow elected to take under the election statute the effect was to prevent the legatee from receiving any part of the estate until after the widow’s shares of the first five thousand dollars and one-half of one-third amounting to one-sixth of the 'personal residue’ are to her paid. In the final analysis the legatee may take under the will only after the widow’s election shares are paid.” This contention of appellant cannot he sustained. It is contrary to the Michigan statute and to our former decisions. ' When a widow elects to take under the statute her election entitles her “to take the sum or share that would have passed to her, under the statute of 'distributions, had the testator died intestate, until the sum shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her under the statute of distributions, had the testator died intestate, and in case no provision be made for her in said will, shall be entitled to the election aforesaid.” 3 Comp. Laws 1929, § 15564 (Stat. Ann. §27.2664). See Act No. 288, chap. 2, § 69, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 [69], Stat. Ann. 1941 Cum. Supp. §27.3178 [139]). Prom the foregoing it appears that upon making her election the widow as to the first $5,000 takes ‘ ‘ the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate. ’ ’ The pertinent portion of the statute controlling the share the widow takes in the intestate estate of her deceased husband reads as follows: “The residue (after debts, allowance for family maintenance, et cetera), if any, of the personal estate shall be distributed as follows: One-third thereof to the widow of the deceased, and the remaining two-thirds to his children, or the issue of any deceased child or children, if any there be, by right of representation, except that if there be but one child, or the issue of such child living, then to the widow one-half of such residue and • to such child, or the issue thereof, the other half. ’ ’ 3 Comp. Laws 1929, § 15726 (Stat. Ann. §27.2891). See Act No. 288, chap. 2, § 93, subd; 4, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 (93), Stat. Ann. 1941 Cum. Supp. §27.3178 [163]). Appellant was before this Court in the recent case of Kirkpatrick v. Nolan, 293 Mich. 42; and we therein decided adversely to her contention the same question presented by this appeal. It seems unnecessary to duplicate decision herein. See, also, Phillips v. Phillips, 91 Mich. 433. Dismissal of plaintiff’s petition in the circuit court is affirmed. Costs to appellees. Chandler, C. J., and Boyles, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit.

Sharpe, J. Plaintiff, as vendor, filed its bill of complaint August 15, 1938, for specific performance of a land contract or foreclosure and deficiency judgment against defendants. A decree was entered in favor of plaintiff for tbe sum of $4,063.38. Defendants appeal. The facts are as follows: On July 19,1926, plaintiff corporation, as vendor, entered into a land contract with defendants, as vendees, covering premises in Oakland county, the consideration for the sale being the sum of $3,840, $384 of which sum was paid upon the execution of the contract. Other terms and conditions of the contract were as follows: “On payment of the further sum of $3,456 to be paid by the purchaser to the vendor on or before June 1,1933, together with interest on any part thereof at any time unpaid at the rate of six per cent, per annum, while the purchaser is not in default, and at the rate of seven per cent, per annum if the purchaser is in default while such default continues, ■ payable monthly in instalments of not less than $38.50 each including interest, payable August 15th next and a like sum or more including interest on the fifteenth day of each and every month thereafter until said purchase money and the interest thereon is fully paid.” The contract further provided that “the vendor herein reserves the right to place a mortgage on said premises, which mortgage at the time it is placed shall not exceed the unpaid balance on this contract. ’ ’ Thereafter and on or about July 1, 1927, plaintiff corporation mortgaged these premises, together with other lots in this subdivision, for the sum of $110,000 stipulating a release price for each of said lots and for the lot in question a release price of about $1,100. In June, 1928, a notice of forfeiture was served upon defendant Arthur F. Neef. The first paragraph of the notice reads in part, ‘ ‘ Hupp Farm Corporation elects to declare and does hereby declare said contract forfeited” and said notice then demands a surrender of the possession of the premises. But the last paragraph of the notice reads, “Amount due, $423.50, same to be paid on or before July 9, 1928.” Subsequent to the above notice and on or about July 9, 1928, payment was made on the contract in the sum of $231, $191.64 being credited on interest and paying interest to July 15, 1928, and $39.36 credited upon principal, leaving a balance on the contract of $3,155.06. The last payment made upon the contract was on November 12,1932. August 15,1938, plaintiff corporation filed a bill of complaint praying for the foreclosure of the contract and for deficiency judgment against defendants. Defendants contend that after the notice of forfeiture was served, defendant Arthur F. Neef made no further payments; that payments subsequent to the notice were made by defendant Laura Neef; that a land contract may not be reinstated by payment made by one joint vendee solely in the latter’s behalf; that payments by one joint vendee will not toll the statute of limitations as to the other joint vendee; that a blanket mortgage in violation of the express terms of the land contract justified vendee in rescinding the contract; and that failure of the vendor to make improvements should prevent specific performance of the contract. The trial court found as a fact that the contract became in default on the part of the defendants in September, 1927; that there was no default upon the part of plaintiff in making’ improvements upon the street upon which the lot in question is located; that the last payment made upon the contract was Novem ber 12,1932; and that the particular lot was released from the vendor’s mortgage March 29, 1938, at a time prior to the institution of the present suit. We are in accord with the finding of facts made by the trial court. It is urged by defendants that the land contract may not be reinstated by payment of one of the vendees. Decision upon this question depends upon the claim of plaintiff that the land contract was not forfeited by the notice served upon one of the defendants. In Miner v. Dickey, 140 Mich. 518, this court held that default of the vendee did not by the terms of the contract work a forfeiture and notice of the election of the vendor to forfeit was required in order to terminate the contract relation. In Maday v. Roth, 160 Mich. 289 (136 Am. St. Rep. 441), the notice to quit the premises read as follows: “To deliver up possession of the described premises which you now hold of me as my tenants or pay to me the rent now due for said premises, for which you are justly indebted to me and which you have neglected to pay. ’ ’ ' In deciding the'effect of this notice we said: “Mere default had not worked a forfeiture at the time the notice to quit was served. Nor did that notice in terms constitute a declaration of forfeiture. A declaration of forfeiture must be clear and unambiguous, conveying an unquestionable purpose to insist that the forfeiture has accrued. No such purpose is deducible from the notice given.” See, also, Gyro, Inc., v. Wesbrook Lane Realty Corp., 261 Mich. 118; Detroit Trust Co. v. Lange, 267 Mich. 69. An examination of the notice of forfeiture mailed to defendant Arthur F. Neef discloses that the first paragraph of the notice declares a forfeiture of the land contract, hut the last paragraph notifies defendant that the delayed payments must be paid on or before July 9, 1928. Such a notice is not an unqualified declaration of forfeiture and does not meet the standard raised by the authorities cited. The question of waiver of notice of forfeiture is not involved. Defendants also urge that the statute of limitations has run against all or some portion of the obligations to pay contained in the land contract. In deciding this question we have in mind that there was no valid forfeiture of the contract and that the last payment made upon the same was November 12, 1932, and that the present suit was instituted August 15,1938. It is the claim of plaintiff that the statute of limitations did not begin to run on the obligations in the contract until June 1, 1933, the date when the whole unpaid balance on the contract was due and payable, or if the statute of limitations had commenced to run before that time, the payments made by Mrs. Neef interrupted the running of the statute. Defendants rely upon Curtiss v. Perry, 126 Mich. 600, to sustain the principle that a joint vendee cannot be bound by the independent dealings of another joint vendee with the vendor. Decision in the above case rested upon the proposition that the payment made by the husband was made “without the knowledge or consent” of the wife, and, therefore, did not toll the statute of limitations as to her. In the case at bar the payments made after July 23, 1927, were made after a conference between Mr. and Mrs. Neef and their attorney and as found by the trial court were made with the knowledge and consent of Mr. Neef. The above-cited case is not determinative of the facts involved in the case at bar. In Catlin v. Mills, 140 Wash. 1 (247 Pac. 1013, 47 A. L. R. 545), it was said: ‘ ‘ The general rule is relied on that, where there are joint debtors on an obligation, a payment, after the statute has run, by one of the joint debtors binds him only and starts the statute anew as to him only. This rule has found its last statement by this court in Farmers & Mechanics Bank v. San Poil Consolidated Co., 126 Wash. 137 (217 Pac. 707), where we said: “ ‘So that, generally speaking, the rule in this State is that a payment made by one of two or more joint and several makers of a promissory note will start anew the running of the statute of limitations only as to the person making the payment. But cireumstanees may arise where, although payment was made by one co-maker, the intention was that it should be made for and its effects be binding upon the other makers. So that the rule adopted by this and many other States is that a payment made by one joint debtor shall effect the statute of limitations only as to him, unless such payment was “authorized or ratified” by the other maker.’ “But this rule, as is noted in this quotation, bears the qualification that, if the payment was ‘authorized or ratified’ by the other joint maker, the statute then begins to run anew as to both makers, where one has made the payment after the statute has run.” In our opinion, the knowledge and consent of Mr. Neef in having his wife make the payments prevents the statute from running and the decree of the lower court is affirmed, with costs to plaintiff. Bushnell, C. J., and Potter, Chandler, North, McAllister, and Butzel, JJ., concurred. Wiest, J., concurred in the result. See 3 Comp. Laws 1929, § 13976, as amended by Act No. 193, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 13976, Stat. Ann. 1939 Cum. Supp. § 27.605).—Reporter.

Potter, J. Plaintiff, claiming to have been injured by .falling in the balcony of defendant’s moving picture theater, sued to recover damages therefor. There was verdict for plaintiff, and defendant appeals. The accident occurred June 21,1938, shortly after 7:30 o’clock in the evening. Plaintiff and her companion went to the theater, purchased tickets, were directed where to go to reach the balcony, and they claim that, on entering* it, it was insufficiently lighted or was without lights. Plaintiff and her companion felt their way along* the rows of seats. She was injured when she came to the point of reaching the stairway that led from the aisle down to the front of the balcony. She claims this stairway was not lighted, that it was dark so that she could not see anything, and that because of that she stumbled or tripped or in some manner fell as she was about to go, or was on her way, down the steps. Plaintiff claims as a matter of law defendant was negligent in not providing a light, or a better light, at this particular place, and the case was submitted to the jury upon the question of whether there was light, or sufficient light, under all of the circumstances. The trial court charged the jury that it was the duty of defendant to furnish such lights as a reasonably prudent person would have maintained at that point at that time for the safety of its patrons, what a reasonably prudent person under the same circumstances would have done considering the necessities of the case and the operation of the business. He charged the jury: “There has been some testimony that it would be impossible to have bright lights in stairways and aisleways because that would interfere with the operation of the business. The care necessary is -that which would be consistent with the operation of the moving picture side of it, and the defendant was required to exercise that care, and only that care, which a reasonably prudent person engaged in that business would have exercised with reference to the lights.” Both plaintiff and defendant at the conclusion of the charge expressed themselves as satisfied therewith. A moving picture theater is a place to which the public is invited, and plaintiff had a right to presume that defendant’s picture house was maintained in a reasonably safe condition as to lights, and had a right to pass along the aisle thereof with a reasonable assurance of its being in a safe condition. The fact that the premises were maintained in a somewhat darkened condition might have given added ássuranee of its being reasonably safe. Branch v. Klatt, 165 Mich. 666. In Emery v. Midwest Amusement & Realty Co., 125 Neb. 54, 59 (248 N. W. 804), the court said: * ‘ The proper rule appears to be: ‘ The proprietor of a place of public amusement is required to use ordinary or reasonable care to put and keep the premises, appliances, and amusement devices in a reasonably safe condition for persons attending; and if he fails to perform his duty in this regard, a patron who is injured in consequence thereof is entitled to recover for the injury sustained.’ ” The question of whether or not the place where plaintiff fell was properly lighted was a question for the jury. Mr. Neal, for defendant, testified “there isn’t enough illumination there to observe the seats. ’ ’ While there were certain lights provided, Mr. Hughes, for defendant, testified, ‘ ‘ The ceiling lights are not turned on on week days in the afternoon,” although he contended they were on at the time this accident occurred. Mr. Leahy, the owner of the building, said, “The lights are turned on and off from the switch in the office;” while Mr. Hughes said, “On the ceiling lights you have to go backstage to put them on, ’ ’ and, ‘ ‘ All lights are from backstage, in the balcony.” At the time the accident occurred, Mr. Hughes, who was employed by defendant, was in the building and went to the plaintiff with a flashlight and assisted her from the balcony out of the building. The question of defendant’s negligence and of plaintiff’s freedom from- contributory negligence were questions of fact for the determination of the jury. We see no reason to disturb the verdict. Judgment affirmed, with costs. Bushnell, O. J., and Sharpe, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.

Wiest, J. Plaintiff was a guest passenger in defendant’s automobile at about 1:15 o’clock in the morning of July 11, 1937, and claims that, as defendant was driving east on Thirteen Mile road in Oakland county at a high rate of speed, he repeatedly disregarded stop and red light regulation signals at highway intersections and, as he approached the crossing of G-reenfield road where there was a stop sign, which he also ignored, and after his attention was called to an approaching automobile on the intersecting road about 100 feet away, he increased the speed of his car and a collision followed in which plaintiff suffered injuries. Plaintiff claims that he called defendant’s attention to traffic regulations he was violating and finally said to him: “Jack, if you are going to drive like that, let me out. * * * I want to get out of this car, I don’t like to drive that way.” Defendant denied disregard of traffic regulations and the request of plaintiff to be let out of the car. At the close of plaintiff’s proofs defendant moved for a directed verdict on the ground that the evidence failed to show gross negligence or wilful and wanton misconduct. The motion was denied and the issue submitted to the jury with verdict for plaintiff. Defendant also moved for a new trial on the same ground and also that the verdict was against the weight and preponderance of the evidence, and this was denied. . Upon appeal defendant contends that the court was in error in not directing a verdict and also in denying a new trial. Plaintiff claims that the several deliberate and continuing acts of disobedience of highway regulations on the part of defendant established wilful recklessness and required submission of the issue to the jury. If defendant gave no heed to highway stop orders, ran red lights at highway intersections, flouted having his attention called to such dereliction and continued such recklessness after a narrow escape before the place of the accident, and, by his wanton disregard of traffic regulation and of consequences, collided with another automobile at the mentioned intersection, he was guilty of wilful and wanton misconduct. Plaintiff’s testimony to such effect was accepted as true by tbe jury and fully justified tbe verdict. Tbe denial of defendant, supported by tbe testimony of bis wife, cannot be held to have called for a directed verdict or a new trial. Tbe case is ruled by our bolding in Wolfe v. Marks, 277 Mich. 154. Tbe judgment is affirmed, with costs to plaintiff. Bushnell, C. J., and Sharpe, Chandler, North, McAllister, and Butzel, JJ., concurred. Tbe late Justice Potter took no part in this decision.

Potter, J. Act No. 122, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 6780-21 et seq., Stat. Ann. § 14.629[1] et seq.), known as the “State Dental Act,” was passed by the 1939 session of the legislature and approved by the governor May 19, 1939. The act sets forth certain minimum requirements for the practice of dentistry and establishes a State board of dentistry with power to adopt further rules and standards for the regulation of the profession. "After the passage of the act, but before it became effective, certain petitions were circulated under article 5, § 1, of the Constitution to require the secretary of State to submit the law for approval or rejection at the general election November 5, 1940. It is undisputed that 80,262 valid signatures were required in order to meet the constitutional requirements and that 97,942 signatures were actually procured, 91,473 of which were from Wayne county. The signatures were submitted in several sections. Each section consisted of seven pages of paper stapled together at the top. On the first page was printed the section number, the petition, and part of Act No. 122, Pub. Acts 1939; on the second, third and fourth sheets was printed the balance of the act; on the fifth and sixth sheets were printed lines for 40 signatures; and on the seventh sheet were printed lines for 20 signatures and the affidavit of the circulator. The county clerk of Wayne county submitted the signatures from Wayne county in three bundles tied together with a cord, each bundle containing several sections of petitions. Only the top section in each of the three bundles had any date of filing stamped thereon by the county clerk, though a letter of transmittal from the county clerk to the secretary of State stated that all sections of the petitions were submitted to him on the same date. After the sections of petitions had been delivered to the secretary of State, petitioners caused an exhaustive investigation to be made thereof as a result of which petitioners claim there is evidence of wholesale irregularities and gross fraud. It is stated by petitioners that, of the 97,942 signatures procured, less than 25,000 are valid signatures. Upon respondent’s refusal to refrain from certifying Act No. 122, Pub. Acts 1939, for referendum, petitioners filed application for mandamus to Compel respondent secretary of State to make a re-canvass in accordance with petitioners’ claims. Petitioners claim respondent should reject: (1) All sections of the petition which do not have stamped on the face thereof the date of filing with the county clerk; (2) Each page of signatures of each section of petitions, viz., pages 5 and 6, which do not contain the circulator’s affidavit; (3) All names (a) where the purported signature of the alleged qualified voter is illegible and not capable of translation; (b) where an illegible marking has been supplied for either the place of residence, the ward, or precinct number of the alleged qualified voter; (c) where only the given name or the surname appears; (d) where the surname is preceded by an initial and not the full given name; (e) where the signature is printed and not written; (f) where a man’s name appears with the prefix “Mrs.”; (g) where the same signature appears twice or more on the same or several sections of petitions; (4) All names where the place of residence, or street number, or ward, or precinct does not appear upon the face of the petition; (5) All names where no such street, or street number, or ward, or precinct in fact exists; (6) All names where the handwriting is so similar that obviously the same person wrote all the names, or places of residence, or wards, or precincts. Respondent claims (1) the filing of the sections of petitions as required by the Constitution does not demand that the sections actually be dated, but only that they shall be turned over to the county clerk at the same time; (2) it is sufficient if the circulator’s affidavit appears at the end of each section of petitions, rather than at the end of each sheet of signatures,- (3) the secretary of State’s duties are ministerial and he has no power to reject signatures because of apparent similarities in handwriting nor to conduct an investigation to ascertain whether the street, the street number, the ward, or precinct in fact exists. Respondent prays that, if a recanvass should be ordered, this court indicate the rules by which it should be conducted. Article 5, § 1, became a part of the Constitution in April, 1913. Insofar as material to the present case, it provides: “The second power reserved to the people is the referendum. No act passed by the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act. * * * “Upon presentation to the secretary of State within ninety days after the final adjournment of the legislature, of a petition certified to as herein provided, as having been signed by qualified electors equal in number to five per cent, of the total vote cast for all candidates for governor at the last election at which a governor was elected, asking that any act, section or part of any act of the legislature, be submitted to the electors for approval or rejection, the secretary of State, after canvassing such petition as above required, and the same is found to be signed by tbe requisite number of electors, shall submit to the electors for approval or rejection such act or section or part of any act at the next succeeding general election; and no such act shall go into effect until and unless approved by a majority of the qualified electors voting thereon. * * # “Any initiative or referendum petition may be presented in sections, each section containing a full and correct copy of the title and text of the proposed measure. Each signer thereto shall add to his signature, his place of residence, street and number in cities having street numbers, and his election precinct. Any qualified elector of the State shall be competent to solicit such signatures within the county in which he is an elector. Each section of the petition-shall bear the name of the county or city in which it is circulated, and only qualified electors of such county or city shall be competent to sign such section. Each section shall have attached thereto the affidavit of the person soliciting signatures to the same, stating his own qualifications and that all the signatures to the attached section were made in his presence, that each signature to the section is the genuine signature of the person signing the same, and no other affidavit thereto shall be required. Such petitions so verified shall be prima facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors. “Each section of the petition shall be filed with the clerk of the county in which it was circulated, but all said sections circulated in any county shall be filed at the same time. Within twenty days after the filing of such petition in his office, the said clerk shall forward said petition to the secretary of State. Within forty days from the transmission of the said petition to the secretary of State, a supplemental petition identical with the original as to the body of the petition but containing supplemental names, may be filed with, the county clerk, and such supplemental petition shall be forwarded to the secretary of State by said clerk within ten days after the filing of the same.” Referendum provisions have been adopted in 21 jurisdictions. These amendments have met with varying success in practical operation. 43 Harvard Law Review, p. 813 (note); Oberholtzer, “The Referendum in America.” Many jurisdictions interpret referendum provisions liberally, holding that the referendum is an exercise of powers reserved to the people. Brownlow v. Wunsch, 103 Col. 120 (83 Pac. [2d] 775); State, ex rel. Carson, v. Kozer, 108 Ore. 550 (217 Pac. 827); Wood v. Byrne, 60 N. D. 1 (232 N. W. 303); Ford v. Mitchell, 103 Mont. 99 (61 Pac. [2d] 815); State, ex rel. Howell, v. Superior Court, 97 Wash. 569 (166 Pac. 1126). Other jurisdictions, including Michigan, have seen in the referendum a concession to an organized minority and a limitation upon the rights of the people. Ferle v. Parsons, 210 Mich. 150; Ohio Valley Electric R. Co. v. Eagerty, 14 Ohio.App. 398. See, also, Ley v. Dominguez, 212 Cal. 587 (299 Pac. 713). We take up the issues raised by petitioners: 1. It is not necessary that each section of the petition shall have stamped on the face thereof the date of filing with the county clerk. The Constitution does not demand that the petition be dated. It prescribes only that the petitions shall be “filed at the same time.” “It is suggested in a brief by amicus curiae that the petitions had not been filed at all, inasmuch as the secretary of State had refused to mark them as filed. We do not concur in this view. It is settled law that, while it is proper for an officer whose duty it is to receive and file an instrument in writing to indorse thereon the date of filing when he receives the instrument, such indorsement is not the filing, but is merely an evidence of filing, and that the instrument is filed when it is delivered to the officer at his office to be received by him and kept on file.” Westbrook v. McDonald, 184 Ark. 740, 752 (43 S. W. [2d] 356). Petitions containing genuine signatures and meeting all the constitutional requirements would be rejected in cases where the county clerk neglected to stamp thereon the date of filing if the view of petitioners prevailed. Unless evidence is introduced to the contrary, there is a presumption that the petitions were filed at the same time. 2. The circulator’s affidavit states: ‘ ‘ The undersigned, being duly sworn, deposes and says that he was, while circulating this paper and lie now is, a qualified elector of the............of ................. county of............... State of Michigan; that this paper being a section of a petition for referendum of Act No. 122 of the Public Acts of 1939 (House Enrolled Act 77), was -circulated by him iii only the .................... of ...................., county of ................' in said State; that he solicited the signatures to this section; that all of the signatures to this section were made in his presence and that each signature to this section is the genuine signature of the person signing the same.” It is petitioners’ argument that the words “this paper” refer only to the seventh sheet of twenty names and do not include the fifth and sixth sheets of 40 names each to which the seventh sheet was stapled. Petitioners claim that the circulator’s affidavit is the fundamental basis upon which the genuineness of the signatures rests, and that it would open the door to fraud if the affidavit on page seven could be made to refer to other pages which might later be stapled thereto. Unlike the Constitutions of some other jurisdictions, the Michigan Con-, stitution does not require a circulator’s affidavit upon each page of signatures but only upon “each section.” Similar in this respect to the Michigan Constitution is the Arkansas Constitution, am. 7, requiring a circulator’s affidavit upon “each part” of a petition. In Blocker v. Sewell, 189 Ark. 924 (75 S. W. [2d] 658), certain taxpayers challenged the sufficiency of petitions, claiming the affidavit was insufficient because it did not appear upon each page of signatures. The court said: “One affidavit to each of the parts is all Amendment No. 7 calls for, and there is no requirement that each page of the said petition shall have attached to it a separate affidavit, though, of course, if a part consisted of only one page, as circulatedby one solicitor, then the person circulating the petition would make the affidavit as required. A part, however, may consist of many pages circulated by one person.” See, also, Reeves v. Smith, 190 Ark. 213 (78 S. W. [2d] 72); State ex rel. v. Olcott, 62 Ore. 277 (125 Pac. 303). As used in our Constitution, “each section” of a petition is a group of several pages fastened together and containing a full and correct copy of the act, signatures, and the circulator’s affidavit, whereas the petition itself is the sum total of all the sections of a petition. Petitioners’ argument is that the words “this paper” mean this smgle sheet of paper. A fair and reasonable interpretation of the affidavit indicates that the words have a broader meaning and refer to the entire section. Thus the affidavit says, “this paper being a section of a petition,” and thereafter uses the words “this section.” The affidavit itself shows that the words “this paper” and “this section”- are used as synonyms, and, since the affidavit appears upon each section, the constitutional requirement is satisfied. 3. Respondent admits he should reject names when the signature, the place of residence, the ward, or the precinct is illegible. This is the correct rule, although there is some authority to the contrary. State ex rel. v. Olcott, 67 Ore. 214 (135 Pac. 902). Petitioners and respondent agree that where only the given name or only the surname appears the signature should be rejected. When the surname appears in full and the given name by initials only, the signature must be accepted. Rice v. People, 15 Mich. 9; 58 C. J. § 6, p. 721. Signatures printed by typewriter must be rejected, but signatures appearing in printed handwriting of the signer should be accepted. The word signature is comprehensive enough to include the printed name. 5 Words & Phrases (5th Ed.), p. 361. Signatures of married women who sign their husband’s given name or initials with the prefix “Mrs.” should also be accepted. Ley v. Dominguez, supra. Our Constitution does not prescribe what form the signatures must take and, in the absence of any statute to the contrary, the prefix “Mrs.” followed by the husband’s name is sufficient. But, signatures appearing twice or more upon the same or several sections of a petition should be rejected. O’Brien v. Pyle, 51 S. D. 385 (214 N. W. 623); In re Referendum Petition No. 35, 78 Okla. 47 (186 Pac. 485). The few instances in which father' and son will have identical names are outnumbered by the rather numerous instances in which the same person signs more than one petition. 4. Signatures must be omitted where the signer omits to add to his signature either his place of residence (Elkins v. Milliken, 80 Col. 135 [249 Pac. 655]); the street name or number in cities having street numbers (Miller v. Armstrong, 84 Col. 416 [270 Pac. 877]); the ward, or precinct (Gerth v. Dominguez, 1 Cal. [2d] 239 [34 Pac. (2d) 135]; Mayock v. Kerr, 216 Cal. 171 [13 Pac. (2d) 717]). See, also, Shields v. Wells, 65 S. D. 552 (276 N. W. 246); Halgren v. Welling, 91 Utah, 16 (63 Pac. [2d] 550); Morford v. Pyle, 53 S. D. 356 (220 N. W. 907). To well-known abbreviations and ditto- marks, there can be no objection. Thompson v. Secretary of State, 192 Mich. 512; Halgren v. Welling, supra. 5 & 6. Petitioners’ strongest claim to fraud and irregularity is that many names are followed by streets, street numbers, wards, or precincts which actually do not exist at all, and that many, if, indeed, not a majority, of the names are written by the same persons. Petitioners ask mandamus to compel the secretary of State to conduct an investigation and to reject all names where there is similarity in handwriting or nonexistent streets, street numbers, wards, or precincts. ‘Whether the secretary of State can mate an independent investigation .and go behind the face of the petition to test the sufficiency of the signatures depends upon whether the secretary of State is given quasi-judicial or ministerial powers. The overwhelming weight of authority is that the duties of the secretary of State are ministerial only and that he may not conduct an independent investigation to determine the genuineness of the signatures. Thompson v. State, supra; Fleming v. Fones, 230 Mo. App. 1147 (91 S. W. [2d] 208); State, ex rel. Kemper, v. Carter, 257 Mo. 52 (165 S. W. 773); State, ex rel. Ayres, v. Amsberry, 104 Neb. 273 (177 N. W. 179, reversed on rehearing on other grounds [178 N. W. 822]); Coghlan v. Cuskelly, 62 N. D. 275 (244 N. W. 39); State, ex rel. Herbert, v. Mitchell, 136 Ohio St. 1 (22 N. E. [2d] 907); State, ex rel. McCrehen, v. Brown, 108 Ohio St. 454 (141 N. E. 69); State ex rel. v. Olcott, 62 Ore. 277 (125 Pac. 303); Kellaher v. Kozer, 112 Ore. 149 (288 Pac. 1086); State, ex rel. Case, v. Superior Court, 81 Wash. 623 (143 Pac. 461, Ann. Cas. 1916 B, 838); 59 C. J. § 278, p. 706. Only when the Constitution itself (Arkansas Constitution, am. 7; North Dakota Constitution, art. 2, §25; Power v. Robertson, 130 Miss. 188 [93 South. 769]), or a statute (Associated Industries v. Oklahoma Tax Commission, 176 Okla. 120 [55 Pac. (2d) 79]; Miller v. Armstrong, supra; State, ex rel. Evich, v. Superior Court, 188 Wash. 19 [61 Pac. (2d) 143]), expressly states that the secretary of State shall determine the sufficiency of the petition is the secretary of State held to have quasi-judicial power. The Constitution (1908), art. 5, § 1, does not permit the secretary of State to make an independent investigation. “It is averred by relators that the referendum, petition was the subject of many gross frauds and irregularities before it was finally received and placed on file in the office of the secretary of State; that people were allowed to sign it who were not electors, and that many names were appended to it by interested parties without the knowledge or consent of those whose names were so appended; and the serious consequences to the State are pointed out if it should be held that the secretary is required to act upon such petition without making an investigation into the alleged frauds and irregularities. The gravity of these charges is fully recognized, but the law must be construed as it stands. It is clear that the secretary of State is not given authority to enter upon such an investigation. This was practically held in Thompson v. Secretary of State, supra, and we are obliged to adhere to the view taken in that opinion. The duties charged upon the secretary by the referendum section of the Constitution are purely ministerial, and his action must be based upon the face of the petition as it is received at his office. Other evils of a serious nature might result if initiative and referendum petitions could be held up pending investigations of uncertain length, and those evils were undoubtedly in mind when the constitutional amendment was framed and adopted without making provisions for such an investigation.” Thompson v. Secretary of State, supra, p. 521. The Constitution (1908), art. 17, § 2, provides that amendments may be proposed to the Constitution by petitions signed by not less than 10 per cent, of the qualified voters of the State. Article 5, § 1, and article 17, § 2, were proposed at the same session of the legislature, adopted at the same general election, and define the duties of the secretary of State in almost identical language. The duties of the secretary of State under article 17, § 2, have been held to be ministerial only. Scott v. Secretary of State, 202 Mich. 629; Hamilton v. Secretary of State, 212 Mich. 31. Petitioners urge that this court should reexamine the language of Thompson v. Secretary of State, supra, for, if the secretary of State is not given the power to make an investigation, organized minorities may perpetrate forgery and fraud with impunity. When the secretary of State is given the power to conduct investigations, particularly when the legislature has not provided machinery for a speedy determination of the sufficiency of the petitions, long and tedious arguments unduly delay the presentation of the measures to the electorate. Ewing, ‘ ‘ Sufficiency Certification of Initiative Signatures in Oklahoma,” 31 American Political Science Beview, p. 65; Associated Industries v. Oklahoma Tax Commission, supra. It is significant that, out of the 21 jurisdictions where the referendum has been adopted, only two States by Constitution, and two by statute, have given the secretary of State quasi-judicial power. Arkansas Constitution, am. 7; North Dakota Constitution, art. 2, §25; Oklahoma Compiled Statutes 1921, § 6631; 3 Colorado Statutes 1935, chap. 86, § 6. The overwhelming majority of the States provide by statute that either the county clerks, the circuit courts, or the State ballot commission shall test the genuineness of the petition. In order that there will not be nndne delay and that the sufficiency of the petition will be speedily determined, the statutes provide that hearings must be commenced within a certain time, finished as quickly as possible, and that either party may apply to the Supreme Court where the case is to be advanced upon the docket and disposed of with as much speed as is practical. 2 Oregon Code Annotated 1930, § § 36-2004, 36-2005; 3 Colorado Statutes 1935, chap. 86, §6; Struckmeyer’s Revised Code of Arizona 1928, § 1744; 2 Missouri Revised Statutes 1929, § 10705; Nebraska Compiled Statutes 1929, § 32 — 1905; Baldwin’s Ohio Code 1934, §§ 4785-175-4785-183. It is for the legislature, and not the court, to establish the machinery by which the genuineness of signatures may be determined. “It is also claimed by relators that upon some of the sections of the petition there are many names, places of residence, and voting precincts all apparently in the same handwriting, and that from this it should be concluded that the names were written thereon fraudulently, and that they should be rejected from the canvass. An examination of the petition lends some plausibility to this claim; but similarity of handwriting is too much a matter of opinion, and the whole proposition is too indefinite, to be acted upon in such a canvass as the secretary of State is required to make.” Thompson v. Secretary of State, supra. The performance of a ministerial duty may involve the exercise of some discretion and judgment. Scott v. Secretary of State, supra; Hamilton v. Secretary of State, supra; State, ex rel. Halliburton, v. Roach, 230 Mo. 408 (130 S. W. 689); State, ex rel. Laird, v. Hall, 49 N. D. 11 (186 N. W. 284). Though the secretary of State cannot go behind the face of the petition, he can, and should, exercise his honest judgment as to the validity of the names upon the face of the petition so as to reject names which are ridiculous and obviously facetious. Such absurd names as “Charlie potatoes,” “jip the blood,” “Lefty Louie,” “Highy Kababler,” and the like, which appear in these petitions, should be omitted from the canvass. The secretary of State must also reject any signature where the residence of the signer is given as a city or county or State other than that in which the petition was circulated. The foregoing portion of this opinion was prepared and submitted to the members of this Court by the late Justice Potter; and it is adopted by the Court. The following is added Per Curiam. Under the record in this proceeding it appears with reasonable certainty that checking the petition filed in accordance with the rules hereinbefore noted would result in there still being sufficient signatures to justify the secretary of State in certifying for referendum Act No. 122, Pub. Acts 1939, to the electors at the next general election, November 5, 1940. At least petitioners have not established the fact or presented a record from which there is reasonable cause to believe that checking the petition in accordance with our holding herein would disclose that the required minimum number of signatures does not appear thereon; and in the absence of such a showing mandamus should not issue. In this connection it may be noted that the minimum requisite number of signatures is 80,262, that the petition presented purported to bear approximately 98,000 signatures, and of these the secretary of State determined 88,941 were genuine and acceptable. It thus appears that there are signatures in excess of the minimum requirement of more than 8,600 according to the determination of the secretary of State. Even if it be assumed that the secretary of State did not exclude such obviously fictitious names as “jip the blood,” et cetera, still it is a fair inference from this record that exclusion of signatures of this character would not result in a deficiency of the requisite number of signatures; at least the contrary does not appear. Under the record we would not be justified in granting any of the relief sought by petitioners. The petition for mandamus is denied; but no costs will be allowed since the proceeding primarily involves a matter of public concern. Bushnell, C. J., and Sharpe, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred in the supplemented opinion. South. Dakota (1898) Const. art. 3, § 1. Utah (1895, amended 1900) Const. art. 6, § 1 (2). Oregon (1857, amended 1906) Const. art. 4, §§ 1, la. Nevada (1904) Const. art. 19, §§ 1-3. Montana (1906) Const. art. 5, § 1. Oklahoma (1907) Const. art. 5, §§ 1-5. Maine (1908) Const. art. 31. Missouri (1908) Const. art. 4, § 57. Arkansas (1874, amended 1920 and 1925) Const. am. 7, § 1 (See Brickhouse v. Hill, 167 Ark. 513 [268 S. W. 865]). Colorado (1910) Const. art. 5, § 1. Arizona (1911) Const. art. 4, § 1. New Mexico (1911) Const. art. 4, § 1. California (1911) Const. art. 4, § 1. Nebraska (1912, amended 1920) Const. art. 3, §§ 1-4. Washington (1912) Const. am. 7, art. 2, § 1. Idaho (1912) Const. art. 3, § 1. Ohio* (1912, 1918) Const. art. 2, §§ 1-lg. Michigan (1913) Const. art. 5, § 1. North Dakota (1914, amended 1918) Const. art. 2, § 25. Mississippi (1914) (Declared unconstitutional, Power v. Robertson, 130 Miss. 188 [93 South. 769]). Maryland (1915) Const. art. 16, §§ 1-6. Massachusetts (1918) Const. am. 48. Sufficiency of petitions determined by circuit court: Arizona, Struekmeyer's Revised Code (1928), §1744; Nebraska, Compiled Statutes (1929), §32-1905; Missouri, 2 Revised Statutes (1929), §10705; Oregon, 2 Code Annotated (1930), §§ 36-2004, 36-2005. Sufficiency of petitions determined by county clerks: OMo, Baldwin’s Code (1934), §§4785-175 — 4785-183; Montana, 1 Revised Codes (1935), eliap. 13, § 101; Washington, 2 Remington's Compiled Statutes (1922), §§ 5406-5414; duty transferred to secretary of State to whom county clerks send registration lists by Laws of 1933, chap. 144. See State, ex rel. Evich, v. Superior Court, 188 Wash. 19 (61 Pac. [2d] 143). Sufficiency of petitions determined by State ballot commission: Massachusetts, Const., art. 48; General Laws (Tercentenary Ed. [1932]), chap. 53, § 22A. See Report of Special Committee on Initiative and Referendum, 17 Massachusetts Law Quarterly (Eeb. 1932 Supplement). Question of sufficiency of petitions asking for referendum upon State dental act in Maryland disposed of upon other grounds, Phifer v. Diehl, 175 Md. 364 (1 Atl. [2d] 617).

Chandler, C. J. Plaintiff, Wilhelmina Longfellow, instituted her action against the defendant to recover damages for injuries received while riding on one of defendant’s buses on Grand River avenue in the city of Detroit. Her action was consolidated with one brought by plaintiff, Albert Longfellow, her husband, to recover for loss of services and medical expenses, and both cases are here for review. The jury failed to agree, and after being discharged, the trial court entered judgments for defendant under the authority of the provisions of 3 Comp. Laws 1929, § 14535 (Stat. Ann. § 27.1471), and on appeal, we must review the testimony in the light most favorable to plaintiffs. Poundstone v. Niles Creamery, 293 Mich. 455. According to the testimony adduced by plaintiffs, on August 23, 1938, Wilhelmina Longfellow was a passenger on one of defendant’s buses proceeding in a northwesterly direction on Grand River avenue. She intended to alight at the bus stop located at the intersection of said avenue with Beverly Court. Immediately after passing Martindale, the first intersecting street south of Beverly Court, she signaled the operator of the bus her desire to get off at the next stop. She then walked to the front of the vehicle where she stood facing the door on the northeast side of the bus. She was carrying a parcel under her left arm and a purse in her left hand. With her right hand, she grasped a post installed at the right of the exit. Standing in this position, she could look out the door to the northeast curb of the street, but could not see out the front of the bus. In discharging passengers at Beverly Court, the buses cross the intersection and stop at the curb on the northeast corner. Plaintiff testified that the bus was being driven in the street car tracks in the middle of the street and that prior to approaching Beverly Court it was proceeding at a speed of approximately 35 miles per hour. She stated that after giving the signal to.stop and leaving her seat to go to the front of the bus, she “felt” the speed decrease and that at the time it was ready to enter the intersection the speed had been reduced to about 30- miles per hour. She further testified that after the bus had passed the point where pedestrians cross Grand River at the south side of Beverly Court, it came to a sudden stop, without warning, which caused her to lose he.r grip on the post and threw her against the bus with resulting injuries. It was demonstrated that the coach stopped at a point 32 feet beyond the place where vehicles usually stop for a red traffic signal at Beverly Court and some 40 feet short of the usual bus stop for passengers wishing to be discharged at this intersection. It was also shown that the accident occurred in a “business district” within the meaning of that term as used in the statutes and the ordinances of the city of Detroit pertaining to the operation of motor vehicles. After the stop, plaintiff sat down. She could then see out the front of the bus and observed that the traffic control signal showed red against traffic in the direction the bus was traveling. At this time, the driver handed a card to another lady in the bus and asked her to sign it. Plaintiff testified that the passenger declined to sign, stating, “I don’t want to sign, * * # after all, you had to stop for the light.” The bus then proceeded to the regular stop and plaintiff alighted.- On appealj appellants urge that the trial court erred in entering judgments for defendant, claiming that jury questions were presented as to defendant’s negligence, plaintiff’s contributory negligence, and as to whether defendant’s negligence, if any, was the proximate cause of the injuries. . Plaintiffs cite Adelsperger v. City of Detroit, 248 Mich. 399, wherein it was held that the facts presented a question for the jury as to defendant’s negligence. On the other hand, defendant cites Bogart v. City of Detroit, 252 Mich. 534, in support of its claim that there was no evidence of negligence on behalf of the driver of the bus. The Bogart Case was preceded by a line of so-called “jerk cases,” including Ottinger v. Railway, 166 Mich. 106 (34 L. R. A. [N. S.] 225, Ann. Cas. 1912D, 578, 3 N. C. C. A. 323), which need not again be reviewed. In substance, they hold that the mere sudden stopping or .starting of a street car is not alone sufficient evidence of negligence to take a case to the jury and that such happenings are the usual and ordinary incidents to be expected in this type of transportation. However, it is our opinion that this case is not controlled by the foregoing type of authority. Defendant’s motor coach was being operated in a business district at a rate of speed in excess of that permitted by the statutory provisions (1 Comp. Laws 1929, § 4697 [Stat. Ann. § 9.1565]) and the ordinances of the city of Detroit. Violation of the statutory provision was negligence per se. Dedo v. Skinner, 296 Mich. 299. The record contains no clear and positive evidence as to the cause of the sudden stop beyond the suggestion that it was because of a red traffic signal. Whatever the cause, plaintiff might not have been injured had the operator been in the exercise of due care and driving the bus at a legal rate of speed. It was for the jury to determine under the facts presented as to whether the negligence of defendant’s driver was the proximate cause of plaintiff’s injuries. See Adelsperger v. City of Detroit, supra, where we said that the evidence of excessive and unlawful speed might have been found to have an important' bearing on the sudden stopping of the bus and hence the proximate cause of the injuries. It cannot be said as a matter of law under the record here that plaintiff was guilty of contributory negligence.- She had a right to leave her seat and go to the front of the bus preparatory to alighting. The record shows that there was a jury question as to- whether she took reasonable precautions for her safety while waiting for the bus to stop. Reversed and remanded for a new trial,-with costs to plaintiffs. Boyles, North, Starr, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., did not sit. See 1 Comp. Laws 1929, § 4693 (Stat. Ann. §9.1561).—Re-porter.

Butzel, J. Defendant agreed in a written contract to pay plaintiff $7,500 to do certain lathing and plastering in accordance with plans and specifications to the satisfaction of defendant and the architect. Extras amounting to $300 were ordered in writing by defendant. It is conceded that extras costing $35 were also agreed upon. Defendant made payments amounting to $5,800'. It is also conceded that plaintiff would be entitled to the sum of $2,035 on the contract and for extras agreed upon if he has carried out the terms of his contract. He brought suit to recover this balance, and also the sum of $852 as the reasonable costs for additional extras. Defendant in his answer denied owing any of these amounts. He filed a claim for setoff and recoupment in the sum of $5,000. On a motion for summary judgment, the trial judge entered a partial judgment for $2,035 and ordered that plaintiff’s further claim of $852 for extras await trial. The sole question presented herewith is whether or not the affidavits of and for plaintiff in support of his motion for summary judgment and the affidavit of merits for defendant present issues of fact so that no summary judgment should have been granted. Plaintiff in his affidavit for summary judgment claims that ,the balance of $2,035 was due on the original contract and for extras agreed upon, and that also the additional sum of $852 was due for work furnished, not called for in plans and specifications, hut necessary to complete the building; that all the work was done in good faith and accepted without reservation by defendant; that the sum of $852 is the fair and reasonable, value of such additional extra work; that defendant took possession of the building, expressed his satisfaction, told plaintiff and others that plaintiff had done a fine job and that he would pay him as soon as he could and requested that payments be accepted over a period of time; that any discoloration or other defect in the work was due solely to water that came through faulty .construction of the roof of the building which had not been built water tight and that defendant had acknowledged this to plaintiff. In an accompanying affidavit, an architect stated that he had examined the building, found the lathing and plastering to be a first class job; that certain areas of discoloration came from an outside source not related to the plastering or materials used, that he was informed and believed that it came from rain water leaking on to the plastering after its completion; that one portion of the plastering, approximately 12 square yards, presents a lighter appearance in color but this might be due to extrinsic or intrinsic causes which only could be determined by laboratory tests; and that the cost of refinishing the discolored areas would not exceed $35; that he had examined the architectural plans and specifications and that they do not include the work for which the sum for additional extras was charged. Another affidavit was to the effect that the sound-proofing materials used for the bowling alleys was specified by defendant’s architect; that it was properly mixed and applied by plaintiff; that the completed job was a good workmanlike one; that the affiant visited the bowling alleys after the job was completed, and that defendant made no complaints whatsoever. Two officers of labor unions gave supporting affidavits stating that the plastering was properly done in accordance with the best practice of the trade. Another affidavit stated that defendant had told the affiant that plaintiff had done a good job. In the affidavit of merits, defendant admitted that according to the contract price and extras agreed upon, a balance of $2,035 would be due but that plaintiff was not entitled to such amount because of facts set forth in his answer and also his notice of setoff and recoupment and because plaintiff had failed to perform his contract to the.entire satisfaction of defendant. Such statements alone would be insufficient to counteract plaintiff’s affidavits. However, the further and positive allegations raised issues of fact. Defendant further stated in his affidavit that plaintiff had failed to complete the plastering and lathing of a room known as the “Club Room,” as required by the plans and specifications, and that it would cost $750 to do the lathing and plastering of this room; that defendant never agreed to pay plaintiff the sum of $852 for additional extras and that all of the work was included in the original plans, specifications, details and drawings. Defendant further denied that he accepted the job or took possession of the building inasmuch as he was at all times in possession of his own property. He further stated that because of the long period it took for the plaster to dry, defendant was unable to see the defects which he now complains of, and that, in this connection, at no time did he state to others that the job was completed in accordance with his desires and to his complete satisfaction; that while defendant did recommend that certain sound-proofing material be used, plaintiff failed to use the proper proportions; that there were large cracks and openings throughout the building, and that there were certain portions thereof which plaintiff failed to cover; that there were huge discolorations of the plaster, lines were uneven and edges crooked; that the discolorations were not caused by the roof; that defendant is in the roof construction business and placed the best kind of roof on the building and that it was free from leaks such as would cause the discoloration of the plaster; that defendant’s damages are in excess of the amount claimed by plaintiff; and that the trial will result in a judgment in -favor of defendant instead of plaintiff. Defendant’s affidavit of merits squarely presents issues of fact. Irrespective of whether the trial judge believed the affidavits ‘ of and in behalf of plaintiff rather than that of defendant, the latter was entitled to his day in court and a regular trial on the merits. Obviously issues of fact are presented. The trial judge relied largely on Terre Haute Brewing Co., Inc., v. Goldberg, 291 Mich. 401, wherein the plaintiff in his affidavit for summary judgment also stated that at no time did defendant dispute plaintiff’s claim. Defendant in his affidavit of merits did not deny this fact but relied solely upon a claim of setoff and recoupment in an amount in excess of plaintiff’s claim and arising out of damages because of a breach of an alleged oral agreement to renew a contract for two years, such oral contract obviously being within the statute of frauds and void. We are not confronted with such a situation in the instant case wherein questions of fact are squarely raised. The judgment is reversed, with costs to defendant, and the case remanded to the trial court where the issues together with the others raised by the pleadings may be tried. Chandler, C. J., and Boyles, North, Starr, Bushnell, and Sharpe, JJ., concurred. Wiest, J., took no part in this decision.

North, J. {dissenting). On the 5th of June, 1940, the auditor general of the State of Michigan filed a petition in the circuit court of Bay county by which the relief sought was an order subjecting the estate of Roman Olezniczak to payment to the State or reimbursement for the expense incurred incident to the maintenance of Roman Olezniczak as an inmate of the State prison of southern Michigan at Jackson, Michigan. Having been convicted upon his plea of guilty of murder in the first degree, Roman Olezniczak was sentenced on February 4, 1921, to life imprisonment. The defendant, Asa M. Burnett, is the guardian of the estate of Roman Olezniczak. The principal defendant, Roman Olezniczak, is a war veteran who receives a pension or adjusted compensation from the United States; and Frank T. Hines, administrator of veterans’ affairs, was permitted to intervene as a party defendant. See Act No. 321, §3, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 829-3, Stat. Ann. 1941 Cum. Supp. § 4.971 [3]). The proceedings, which were brought to issue by answers of the respective defendants, are prosecuted by the attorney general under the prison reimbursement act, being Act No. 253, Pub. Acts 1935, as amended by Act No. 272, Pub. Acts 1937 (Comp. Laws Supp. 1940, §17667-11 et seq., Stat. Ann. § 28.1701 et seq. and Stat. Ann. 1941 Cum. Supp. § 28.1709). The defense urged is that, as sought to be applied to the facts in. this case, the act is unconstitutional. The circuit judge so held, and the auditor general has appealed. There is also a cross appeal by the defendant guardian which will be hereinafter noted. We are presently concerned principally with, that portion of the act which reads: “At the time of the hearing, if it appear that snch person or prisoner has an estate which ought to be subjected to the claim of the State, * # * the court shall make an order requiring the guardian or any person or corporation so possessed of the estate belonging to said prisoner to appropriate and apply such estate to the payment of so much or such part thereof as may appear to be proper toward reimbursing the State for the expenses theretofore incurred by it on behalf of such prisoner, and such part thereof towards reimbursing the State for the future expenses which it must pay on his behalf.” Act No. 253, § 4, Pub. Acts 1935. When sentence was imposed on Roman Olezniczak in 1921, there was no such provision in the law of this State as that now contained in the prison reimbursement act. However, there is no attempt in the instant ease to subject the estate of Roman Olezniczak to a charge for reimbursing the State for his care during the period prior to the effective date of Act No. 253, Pub. Acts 1935; but reimbursement is sought for the period subsequent to such effective date. It is obvious that the instant case differs materially in its factual aspect from Auditor General v. Hall, 300 Mich. 215 (139 A. L. R. 1022), wherein this same act was involved. In the Hall Case his commitment was subsequent (not prior) to the effective date of the prison reimbursement act. Among the questions raised by defendants in asserting invalidity of the prison reimbursement act as it is sought to be applied in the instant case is the following: “Does the Michigan prison reimbursement act, as applied to one confined prior to the passage of the act, operate as unconstitutional retroactive legislation in violation of the due process provisions of amendment 14, § 1, Federal Constitution, and article 2, § 16 of the Michigan Constitution of 1908?” Defendants also assert that under the circumstances to which the prison reimbursement act is sought to be applied in the instant case, it is constitutionally defective in that it would increase the severity of the penalty imposed upon Roman Olezniczak and also would deprive him of his property without due process of law. Not all retroactive legislative acts are unconstitutional. Philip v. Heraty, 147 Mich. 473 (118 Am. St. Rep. 554). But when such an act would defeat or impair vested rights, it is violative of the due process clause of the State Constitution and of the Federal Constitution. Prior to the effective date of the prison reimbursement act Roman Olezniczak was in no way legally obligated to reimburse the State for his care and maintenance. The State had no such right of action against him. Instead he had the constitutional right to possess, use and dispose of his estate entirely free from any lien thereon or right therein by the State, as is now asserted. Following the enactment of the prison reimbursement statute there was no change of status or any act on the part of Roman Olezniczak in consequence of which he became obligated to reimburse the State or subject his estate to such a liability. To be sure he continued to be an involuntary prisoner of the State, but that gave the State no right to change his status as an involuntary ward of the State and to deprive him of his estate in whole or in part. Roman Olezniczak’s status and his penalty or obligation to the State were fixed by the sentence imposed on him in 1921. The court which sentenced him could not at that time have lawfully included in the sentence such a provision as is sought to be imposed under the prison reimbursement act. It seems quite conclusive that this present attempt to require Roman Olezniczak to pay as reimbursement to the State the cost of his maintenance for that period of his term of • commitment-subsequent to the enactment of the prison reimbursement act is in effect an attempt to apply the law retroactively to his rights and status as fixed by the sentence passed on him 14 years before the enactment of the prison reimbursement act. So construed and applied the act would be unconstitutional. Incident to the above conclusion it may be noted that we find a distinct and controlling difference in the situation presented in Auditor General v. Hall, supra, and the instant case. When sentence was passed upon Hall the prison reimbursement act was a part of the law of the State; and in passing that act there was embodied in the law of this State a distinct change of public policy. Theretofore it had been the public policy that the State would support at its own expense all persons convicted of a felony during the term of commitment. This was changed by the enactment of the prison reimbursement statute' and thereafter the definitely fixed public policy was to require reimbursement to the State within the provisions of the act for expense so incurred. A sentence thereafter imposed automatically carried with it the pertinent provisions of the prison reimbursement act. But as above noted, at the time sentence was imposed on Roman Olezniczak neither the prison reimbursement act nor any similar act was in effect in this jurisdiction. His status and obligation to the State were fixed when his sentence was imposed in 1921. These could not be changed to his detriment by an act of the legislature passed 14 years later. To hold otherwise would be to give retroactive effect to the law arid violate his constitutional rights. Such would be the result regardless of whether or not we consider the pertinent provision of the prison reimbursement act “as civil rather than criminal in character” as stated by Mr. Justice Butzel in Auditor General v. Hall, supra. The cross appeal by the defendant guardian necessitates statement of additional facts. In 1932 and again in 1937 the auditor general, represented by the attorney general, petitioned the probate court of Ionia county for the payment of specified sums totalling $1,772.40 to reimburse the State for the maintenance of Roman Olezniczak wlm at those periods was an inmate of the Ionia State hospital for the criminal insane, he having been transferred to that institution from a branch of the State prison. Appropriate orders were made by the probate judge and in accordance therewith the State received the noted amount as reimbursement. In his cross bill the defendant guardian prays that an order be entered*in these proceedings requiring the State to repay the money so received by it. This relief was denied by the circuit judge, and the defendant guardian has appealed. In general the basis of the claim embodied in this cross appeal is indicated in the guardian’s brief by the following: “Defendant’s ward (Roman Olezniczak) was not, however, a public patient in the sense intended by section 17 of the hospital act (Act No. 151, Pub. Acts 1923, as amended; Comp. Laws 1929, § 6878 et seq. [Stat. Ann. § 14.801 et seq.]), which provides for reimbursement to the State of Michigan from estates of mental incompetents confined to any of the State institutions covered by the act under the procedure set forth in section 11 of the hospital act.” In effect cross appellant’s claim is that the probate court is one of statutory jurisdiction only, and that the Ionia probate court did not have jurisdiction of the subject matter at the time the 1932 and 1937 orders were granted, and therefore the orders were void, and the State of Michigan through the void proceedings obtained moneys from the ward’s estate without lawful authority. In consequence thereof cross appellant contends that the circuit court in these proceedings should have ordered repayment by the State of the moneys so obtained. In view of our having hereinbefore determined that the State cannot recover in the present proceedings, we are not confronted with what might have been the right of this cross appellant to use as a set-off pro tanto the moneys it seeks to recapture by its cross action as against any amount recovered by the State in the present proceedings. Instead, since we hold the State cannot recover in the instant case, the asserted right of cross appellant' must be considered wholly independent of plaintiff’s unsuccessful effort to recover. On this phase of the "case the State in its sovereign capacity asserts immunity from liability in the instant proceedings. The law seems to be settled that by instituting the present proceedings in the circuit court of Bay county the State waived its right of immunity only to the extent of any set-off that might be successfully urged against its claim. United States v. Shaw, 309 U. S. 495 (60 Sup. Ct. 659, 84 L. Ed. 888). The circuit court of Bay county is without jurisdiction to render a judgment against the State in these proceedings. Instead the exclusive jurisdiction to render such a judgment is by the law of this State vested in the court of claims. Act No. 135, § 8, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 13862-8, Stat. Ann. 1940 Cum. Supp. § 27.3548 [8]). In part at least it was on the ground just above noted that the circuit judge denied relief to cross appellant. This holding was proper. In view of our decision it is unnecessary to review other contentions embodied in the respective briefs; but it may be noted that, at least in part, the contentions made by the administrator of veterans’ affairs have been considered. In re Lewis’ Estate, 287 Mich. 179. The judgment entered in the circuit court should be affirmed; but since neither party has sustained its position and also because a public question is involved, no costs will be allowed. Starr, J., concurred with North, J. Butzel, J. I believe that the prison reimbursement act, Act No. 253, Pub. Acts 1935 (Comp. Laws Supp. 1940, §§17667-11 — 17667-16, Stat. Ann. §§28.1701-28.1708), as amended by Act No. 272, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 17667-17, Stat. Ann. 1941 Cum. Supp. § 28.1709), imposes a civil liability on all prisoners able to pay whether they were sentenced before or after the effective date of the act, but such liability does not extend to any period of imprisonment prior to the effective date of such act. We stated in the unanimous opinion of the court in Auditor General v. Hall, 300 Mich. 215, 221 (139 A. L. R. 1022) : “We regard the statutory obligation of a prisoner to pay for his keep and maintenance, if he has a sufficient estate, as civil rather than criminal in character. ’ ’ We likened it to the obligation of the estate of an insane person to pay for his keep and maintenance. Prior to the enactment of the prison reimbursement act it was the policy of the State of Michigan to furnish, its prisoners such keep and maintenance gratuitously. That policy was changed upon the effective date of Act No. 253, Pub. Acts 1935. A prisoner sentenced before that date had no vested property or contract right to continue to be supported gratuitously even though he had an estate ample to pay for his future keep and maintenance after such date. No obligation was imposed retrospectively. “A law is not retrospective, in a sense forbidding it, because a part of the requisites for its action and application is drawn from a time antedating its passage.” Clearwater Township v. Kalkaska Supervisors, 187 Mich. 516, 521. That the prison reimbursement act provides for a remedy purely civil in nature is borne out by the fact that whole passages in it are copied verbatim from the act providing reimbursement to the State for maintenance of insane persons confined to State hospitals. It has never been doubted that the latter statute is constitutional, yet, if the proceedings authorized thereunder were criminal in nature, a more flagrantly unconstitutional statute could hardly be imagined, since the visitation of a criminal penalty upon a person simply because he is insane would be a substantive denial of due process of law. In their pleadings the guardian and the veterans’ affairs administrator furnish a statement of the assets of Olezniczak in the guardian’s hands. The five items total $3,327.93, and may be grouped as follows: Group 1: United States Savings Bonds’ (plus accrued interest unpaid) $ 506.25 United States Treasury Bonds (plus accrued interest unpaid) 1,000.00 Group 2: Cash on deposit in Ionia County National Bank 992.61 Receiver’s certificate, National Bank of Ionia, in receivership 29.07 Group3: Adjusted Compensation (Veterans’ bonus) Bonds (plus accrued interest unpaid) 800.00 Both parties agree that no exemption under the Federal statutes relating to veterans can be claimed for the items in Group 1, though they were purchased with funds received by the guardian from the veterans’ administration, this question having been settled by Carrier v. Bryant, 306 U. S. 545 (59 Sup. Ct. 707, 83 L. Ed. 976). As to the deposits in Group 2, which also are derived from such funds, and as to the bonus bonds in Group 3, a claim of exemption is made both by defendant guardian and by the intervening defendant, the administrator of veterans’ affairs. They rely upon 38 USCA, §§ 454a, 618 and 686c. These three sections are from three separate enactments: section 454a is from the world war veterans’ act, 1924, as amended; section 618 from the world war adjusted compensation (bonus) act (1924), as amended; and section 686c from the adjusted compensation (bonus) payment act, 1936, as amended. The adjusted compensation bonds in Olezniczak’s estate (Group 3) were issued under the authority of the last mentioned act; hence section 686c refers only to them. Section 454a refers to funds derived from the veterans’ administration, and, if applicable, covers the items in Group 2, which are derived from pension and insurance payments from the veterans’ administration. It is not clear that there are now any funds in Olezniczak’s estate to which the exemption provided in section 618 would apply, since, presumably, all such funds were converted into adjusted compensation bonds under the authority of the adjusted compensation payment act, 1936, and section 686c applies to such bonds. In effect, therefore, we are confronted with the two questions: (1) Does section 454a exempt deposits in banks accumulated from pension and insurance payments from the veterans’ administration from the claim of the State of Michigan for reimbursement for maintenance furnished a prisoner in State’s prison? and (2) Does section 686c exempt adjusted compensation (bonus) bonds of such prisoner from such claim? Fortunately, the first question is already answered by our previous decision in Re Lewis’ Estate, 287 Mich. 179, where we held that, notwithstanding section 454a, the State of Michigan could obtain reimbursement for the maintenance in State hospitals of Mary T. Lewis, a dependent, incompetent child of a United States military service veteran, from her estate, which consisted wholly of monthly pension payments received by her guardian from the veterans’ administration. We held that, as the very purpose of a pension is to provide the beneficiary with support and maintenance, it could not have been the intent of congress to deny the State of Michigan reimbursement for furnishing such support. The Leiuis decision has never been overruled by any decision of the United States supreme court, and we adhere to it now. So far as the deposits in bank are concerned, they are not exempt from a claim such as that before us, having been accumulated out of pension and insurance payments, the express purpose of which was to provide the beneficiary (in this case the veteran himself) with needed support. We are mindful that in Lawrence v. Shaw, 300 U. S. 245 (57 Sup. Ct. 443, 81 L. Ed. 623, 108 A. L. R. 1102), the Federal supreme court held such moneys exempt from taxation under section 454a, but we call attention to the fact that, in that same case, the court explains the purpose of such pension payments in language which practically reiterates the principle upon which we rested our decision in the Leivis Case. Chief Justice Hughes writes: “These payments are intended primarily for the maintenance and support of the veteran. ’ ’ Lawrence v. Shaw, supra, 250. Though the exemption from taxation and the exemption from creditors’ claims appear in the same sentence in section 454a, a decision that pension-derived funds are nontaxable does not mean that they are unavailable for the support of the veteran. Indeed, another way of expressing our Lewis decision would be to say that the State of Michigan is not a “creditor” within the congressional intendment. The bonus laws, on the other hand, evince a donative intent, rather than an intent merely to support. The size of the bonus given each veteran is made to depend upon factors quite other than his need. The adjusted compensation bonds, therefore, do not come within the reason of the rule announced in the Lewis Case, and we refuse to extend that rule to them. We do not dwell upon the slight difference in wording of the exemption clause contained in section 454a and that in section 686c, but rather stress the difference of congressional purpose in enacting the entirely distinct statutes of which those sections are parts, respectively. The distinction between the two sections is well delineated in the recent excellent decision of the supreme court of Wisconsin in Re Guardianship of Letourneau, 238 Wis. 473 (300 N. W. 248). That case also reaches the conclusion that section 686c exempts bonus bonds from a claim on the part of the Wisconsin department of public welfare for reimbursement for tbe institutionalization of an insane veteran. Roman Olezniozak was sentenced to imprisonment for life February 4, 1921. On August 23, 1923, he was transferred from prison to, tbe Ionia State hospital for tbe criminally insane, where be remained until April 18, 1924, a period of 7 months, 26 days. Then be was returned to prison. Later, on November 13, 1925, be was again transferred to Ionia, where be remained until January 15, 1938, a period of 12 years, 2 months, 2 days. During this second period of confinement at Ionia, tbe probate court for tbe county of Ionia, upon petition, of tbe auditor general and after notice to Olezniczak’s guardian, made two orders for reimbursement for Olezniczak’s maintenance at Ionia, tbe first on February 13,1932, and tbe second on February 18,1937. Tbe moneys so ordered to be paid were paid, and now Olezniczak’s present guardian claims that tbe probate court was without jurisdiction to make such orders, and counterclaims in tbe present proceedings to recover such payments. Tbe circuit court held that tbe statute of limitations (3 Comp-. Laws 1929, § 13976 [Stat. Ann. §27.605]) barred defendant’s counterclaim insofar as it sought recovery of moneys paid under tbe 1932 order. This was cor- . rect. Tbe 1937 order commanded payment of reimbursement for Olezniczak’s hospitalization at Ionia •for tbe interval between the two orders. This five-year interval was part of Olezniczak’s second period of hospitalization at Ionia, which commenced on November 13, 1925, when tbe prison authorities transferred him thither, acting under Act No. 151, § 56, Pub. Acts 1923 (2 Comp. Laws 1929, § 6932 [Stat. Ann. §14.854]). That section, unlike its- predecessor, Act No. 124, § 27, Pub. Acts 1893 (1 Comp. Laws 1897, § 1980), as amended by Act No. 81, Pub. Acts 1899 (1 Comp. Laws 1915, §1432), does not contain the sentence: “The expenses of such insane convict’s maintenance and clothing in said asylum shall be charged to the State of Michigan.” Indeed, section 17 of the 1923 act provides the procedure whereby persons admitted to State hospitals for treatment of the insane may, provided they have estates sufficient therefor, be compelled to reimburse the State for the expense of their maintenance. Act No. 151, § 17, Pub. Acts 1923 (2 Comp. Laws 1929, § 6894 [Stat. Ann. § 14.817]). Section 17 begins: “When such mentally diseased person has been admitted to any of the State institutions named in this act, as a patient. ’ ’ Section 1 of the act (2 Comp. Laws 1929, § 6878, as amended by Act No. 220, Pub. Acts 1931 [Comp. Laws Supp. 1940', § 6878, Stat. Ann. §14.801]) names the Ionia State hospital as follows: “At Ionia, Michigan, a hospital for the humane, curative, scientific and economical treatment of insane persons who have committed or attempted to commit certain crimes as herein set forth, to be known as the Ionia State hospital.” It is not necessary to the existence of a right of reimbursement in favor of the State that an insane prisoner be transferred from prison by order of a probate court. Indeed, a probate court would have no jurisdiction to make such a transfer, since the subject of transfers from prison to the Ionia State hospital is already governed by section 56 of the 1923 act, which is exclusive. Section 17 of the same act does not discriminate between transfers by the probate court of noncriminal insane persons from private homes to State institutions for the treatment of noncriminal insane persons, on the one hand, and transfers by the prison authorities of insane convicts from prison to the Ionia State hospital, on the other, nor does section 17 even intimate that while the State should have reimbursement in the former class of cases, it shall have none in the latter; on the contrary, section 17 scrupulously avoids all reference to the manner of admission, and simply provides: “"When such mentally diseased person has been admitted to any of the State institutions named in this act, as a patient.” (Italics ours.) The record and briefs inform us that the orders of the Ionia probate court of 1932 and 1937 were based on petitions by the auditor general in which Act No. 217, §§ 17, 19, Pub. Acts 1903 (1 Comp. Laws 1915, §§ 1326, 1328) were referred to as the statutory basis of the reimbursement proceedings. Obviously, Act No. 217, Pub. Acts 1903, could not have been the basis for such proceedings,, it having been repealed in 1923 (Act No. 151, § 53, Pub. Acts 1923 [2 Comp. Laws 1929, § 6930 (Stat. Aun. § 14.852)]); yet, even if it had not been repealed, it still could not form the statutory basis of reimbursement proceedings for an insane convict transferred to Ionia, since its applicability is limited to the State institutions enumerated in section 2 (Act No. 217, Pub. Acts 1903 [1 Comp. Laws 1915, § 1311), among which Ionia is not named. Nevertheless, inasmuch as there ivas a valid statute under which the probate court for the county of Ionia in 1932 and 1937 could act in awarding the State reimbursement, namely, Act No. 151, § 17, Pub. Acts 1923 (2 Comp. Laws 1929, § 6894 [Stat. Ann. § 14.817]), we are not disposed to permit the legal error in the auditor general’s petitions, however gross, to vitiate the jurisdiction of the court in those proceedings, especially in view of the fact that the attack upon such jurisdiction is, in the case at bar, collateral. Once judgment is rendered, merely formal defects in the pleadings, which do not affect the right or justice of the judgment, may be disregarded (3 Comp. Laws 1929, §14148 [Stat. Ann. §27.842]). From the orders of the probate court no appeal was ever taken. They are, therefore, judgments, and within the protection from collateral attack, even on the ground that the court had no jurisdiction over the subject matter, which we held to be the status of all unappealed judgments in Dodge v. Detroit Trust Co., 300 Mich. 575, 610-612. The judgment of the circuit court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. As a public question is involved, no costs will be awarded. Chandler, C. J., and Boyles, Bushnell, and Sharpe, JJ., concurred with Butzel, J. Weest, J., took no part in this decision.

Boyles, J. Defendant appeals from a conviction and sentence for the crime of rape, having been informed against .under section 520 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-520, Stat. Ann. § 28.788). Trial was by jury in the recorder’s court for the city of Detroit and appellant relies on three claimed errors for reversal. 1. Was prejudicial error committed by the trial judge by restricting defendant’s cross-examination of the complaining witness? The following occurred while defendant’s counsel was cross-examining the complaining witness: “Q. You recall the examination in which you testified? “A. Yes. “Q. Did you make this answer: ‘Yes, it was a parked car on a private side on Seebaldt where he had this other act of sexual intercourse with me.’ Did you make that answer? “The Court: What of it? She has not denied it here. “Mr. Lefebvre: “Q. Now, then, did you make this answer? The Court asked you this question: ‘Well, after that occurred what happened? A. Then we came out on the street; that is when he first took the blind-fold off me and then we came out on Seebaldt and started walking up* the street, and when we saw somebody coming — I could see in the distance, about a block and a half away, — so when the fellow said “Someone is coming.” Then he just grabbed me again and then we went through another back yard until we came to Larchmont again and that is where he left me go.’ Did you make that answer? “The Court: Well, she said he let her go on Larchmont.” After two or three more questions along the same line, the court ruled: “The Court: Well, that does not impeach her. You have not laid the foundation for it. You are attempting to impeach her. ’ ’ While the use of this method in rejecting testimony does not merit the stamp of approval, the ruling of the court was proper, so far as disclosed by the record before us. We are not favored with a transcript showing what preceded this line of questioning. The only purpose in questioning the witness as to her answers given at the preliminary examination was to impéach the witness for inconsistent statements. A contradictory statement lies at the foundation of such cross-examination. Nowhere in the record can we find where the witness had previously testified contrary to her answers indicated in this line of questions. The record does not show that the witness had ever been aslced, or had answered, similar questions or made statements inconsistent with her answers at the examination. So far as our record discloses, the court properly ruled that the foundation for impeaching questions had not been laid. Rodgers v. Blandon, 294 Mich. 699. 2. Did the trial judge make prejudicial comment on the evidence in chárging the jury? The court said: “Now, there is an alibi here. An alibi is a perfectly legitimate defense. Under the.law which my brother quoted that rule has been changed — that an alibi is easy to prove and hard to disprove because of the suddenness of the presentation of the alibi. The legislature has subsequently provided that if a person who is charged with an offense gives notice of an alibi, with sufficient time to give the authorities an opportunity to investigate, then that rule does not apply, because it is easier to disprove if the prosecution has an opportunity to investigate. However, you have a right to take into consideration all the elements of an alibi, who the people are, what interest they have in the outcome, if any, or what their motive may be in the case, the same as any other witness, in arriving as to what credit you shall give to it. “Now, as to the question of time. All the people who testified as to the alibi — except the wife, she testified she remained with the defendant all night— testified they left the premises about the time, that is, if the statement is accurate, that this act was committed. But inasmuch as these people, as I understand, were in the immediate neighborhood of where the act was alleged to have been committed, the element of time becomes important. The people who testified as to the alibi may be perfectly honest in their estimate of the time they left the premises or they may be mistaken in it in enough minutes to have given the defendant an opportunity to have committed the offense. Now, that could or could not have happened. “So these are elements for you to determine; first, whether the act was committed; second, whether the defendant was the one who committed it. You have a right, as I said, to take into consideration all the circumstances in arriving at the truth and what conviction it may bring to your mind as to the guilt or innocence of this defendant. ’ ’ Defendant argues from this that the court did not leave to the jury the question whether the time testified to by the alibi witnesses coincided with the time of the offense. The court did not state that a mis^ take in the time had been made. He merely said that the mistake conld or could not have happened. The first part of the above comment on the alibi testimony was more favorable to the defendant than he was entitled to. See 3' Comp. Laws 1929, § 17313 (Stat. Ann. § 28.1043); People v. Wudarshi, 253 Mich. 83 (95 A. L. R. 782); People v. Marcus, 253 Mich. 410. -The charge as a whole carefully explained to the jury what proof was necessary before a verdict of guilty could be returned and defendant’s rights were not prejudiced on this account. 3. Did the trial judge err in denying defendant’s motion for new trial, without stating in writing his reasons therefor? No request was made that the court give reasons for denial. The record before us does not contain the motion — merely the “reasons in motion” are summarized as an exhibit. Nor does the record contain the order of denial or indicate what was done with the motion, except in the record index of calendar entries we find, “Jan. 3, 1938— Court denies motion for new trial.” Neither the statute (3 Comp. Laws 1929, §17370 [Stat. Ann. § 28.1121]), nor the court rule (Court Rule No. 66, § 6 [1933]), has been complied with to provide this court with the necessary record on which to review the question. Appellant’s rights were not prejudiced if the court failed to assign reasons in writing for denying the motion. People v. Tice, 115 Mich. 219 (69 Am. St. Rep. 560); Eger v. Helmar, 272 Mich. 513. Defendant was convicted in 1937 and'sentenced to a minimum of 10 years in State prison. More than three years elapsed before appeal was sought. Lapse of time and possible inability to locate witnesses tend to defeat the ends of justice and to disparage the sincerity of claims such as here advanced. We find no reversible error. Conviction and sentence affirmed. Chandler, C. J., and North, Starr, Wiest, Butzel, Bushnell, and Sharpe, JJ., concurred.

Butzel, J. Lonis Beller was convicted of conspiring with Annie Warheit to murder Mrs. Beller. Beller was a successful wholesale poultry merchant in the city of Detroit. He conducted his business at a store owned by himself and his wife near the eastern market. Mrs. Beller worked with him whenever she felt able, absenting herself only on Fridays and Sundays. Mrs. Warheit had been a good friend of the Bellers, having been a frequent guest at their home prior to the time Bellers moved to a new home on Woodingham Drive. Mrs. Warheit’s son married a daughter of the Bellers, but it appears that he had little to do with his mother after his father was granted a divorce in 1935. Mrs. Beller had been sick for several years, suffering from nervousness and other ailments associated with her age of life; Mrs. Warheit accompanied her on visits to her physician. Mrs, Warheit knew that the physician had prescribed a tonic, and that it was kept in the electric refrigerator in the Beller home, for she herself had administered it to Mrs. Beller when the latter was ill in bed. This, however, was before the Bellers moved to their new home and before the friendship between Mrs. Beller and Mrs. Warheit was broken off because she became a part of a domestic triangle. Mrs. Warheit had worked part time with the Bellers at their poultry business but ceased to work there because of disagreements. Mr. Beller nevertheléss furnished her with a weekly allowance, bought her used automobiles and a fur coat, and continued to see her clandestinely at a room she rented, for which he paid. These meetings ran on for about four years. Except for these transgressions Mr. Beller seemed to be otherwise devoted to his wife, having bought her an expensive fur coat, a high grade new automobile, - sent funds to her impoverished sister, maintained life insurance with her as beneficiary, bought a new home in their joint names, and left the old home in her sole name and permitted her to retain whatever income there was from it. To get Mrs. Beller out of- the way, Mrs. Warheit sought out a man who had acted as a dealer in a gambling house and offered him $25 if he would put poison in the medicine Mrs. Beller kept in the refrigerator at home. He was told that there had been some trouble with the refrigerating mechanism and that he could disguise himself as a repair man to gain access to the home. He declined to do the job himself, but stated that he could get another to do it, whereupon he told the story to a detective who disguised himself as a refrigerator service man. The detective met Mrs. Warheit and received from her a bottle of muriatic acid and $20. They drove up to the Beller home and Mrs. Warheit was immediately placed under arrest. Shortly after the arrest, she told a detective that Mr. Beller was in the conspiracy with her. At the police headquarters she made a statement to a stenographer which implicated Beller, and he was promptly arrested. Beller made a statement that evening in which he denied any part in the conspiracy, but made the following remarks which are relied upon by the people as a confession: “Q. You didn’t want to rent a room? “A. No; and she used to go in and write letters, and she used to send people, and call me up, and I was in business and I couldn’t get out — and one time she comes right in the store, and the bookkeeper was there, and she pretty near want a fight then, and I say to her ‘Don’t bother me’ and she say to me ‘Well, I am going to take yonr life and shoot you,’ and I say ‘All right, go ahead, but don’t bother me’ and she say ‘I am going to see your wife,’ and I say ‘Don’t bother my wife; just talk to me, but don’t bother her, ’ see — and I am to blame for everything, myself.” Several questions are raised in this appeal. The main question is whether there is any competent proof that Mr. Seller conspired to commit murder. The prosecution relied to a great extent on the extrajudicial admissions of the defendants. It is true that the acts and declarations of one conspirator done or made while the conspiracy is pending, and in furtherance of its object, are admissible against all; but after the conspiracy has come to an end, the admissions of one conspirator are not admissible against the others. Logan v. United States, 144 U. S. 263 (12 Sup. Ct. 617); Brown v. United States, 150 U. S. 93 (14 Sup. Ct. 37); People v. Saunders, 25 Mich. 119; People v. Wysocki, 267 Mich. 52; People v. Parker, 67 Mich. 222 (11 Am. St. Rep. 578); People v. Lewis, 264 Mich. 83; People v. Chambers, 279 Mich. 73. The rule was well stated by Justice Christiancy in People v. Pitcher, 15 Mich. 397: “The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it. But after the common purpose or enterprise has been fully completed or terminated, the statements of one or more of them, in reference to any things connected with that past transaction, become as to the others, res inter alios, mere hearsay, neither binding upon nor evidence against any of the others, for the reason that they are no longer supposed to be acting with one common design, and one is in no sense the agent of the other.” Purporting to abide by this principle, the trial court ruled that Mrs. Warheit’s declarations made immediately after her arrest in' front of the Beller home were admissible as part of the res gestae and were to be considered by the jury as they related to Beller if the people proved a conspiracy. This was error. The res gestae of a conspiracy is limited to the period during which the parties are engaged in the unlawful enterprise. People v. Lewis, supra; People v. Chambers, supra. When the arrest was made, the joint enterprise was ended, and the declarations of Mrs. Warheit were no more binding on Beller than those made subsequently at the police headquarters, and the jury should have been so instructed. This evidence was not to be considered in determining Beller’s guilt. An examination of this phase of the record satisfies us that the statements after the arrest were designed to implicate Beller and not to further the alleged conspiracy. The rule which excludes such implication is one of safety; defendant was not accorded the protection to which he was entitled. While the error just discussed would require granting a new trial, we think from an examination of the record as a whole that the proofs adduced were insufficient to sustain a verdict of conviction, and the jury should have been so instructed. It has long been recognized that the conspiracy may, and generally is, established by circumstantial evidence, and that positive proof is not required. People v. Pitcher, supra. But the circumstances must be within safe bounds of relevancy and be such as to warrant a fair inference of the ultimate facts. We may assume, but we do not so hold, that Mr. Beller possibly might have had a motive for the com mission of the crime; but the mere presence of desire or temptation without other proof is not sufficient to warrant a conclusion of complicity. The prosecution urges that Beller confessed his part in the crime in his stenographic statement on the eve of the arrest. There might be found an isolated statement acknowledging “blame,” but if this is wholly stripped from its context, it is at best merely a conclusion of the declarant and not substantive, probative proof. People v. Dellabonda, 265 Mich. 486. "When returned to its background, the declarant- only acknowledges blame for his intimacy with Mrs. Warheit which led to her desire to remove an obstacle from her path. It in no way is an acknowledgment of a part in any design to bring about this result. The corpus delicti was not shown. As there was no competent testimony showing respondent’s part in the conspiracy, the judgment of conviction must be reversed, and the respondent is discharged from custody. Bttshnell, C. J., and Sharpe, Chandler, North, ■ McAllister, and Wiest, JJ., concurred. The late Justice Potter took no part in this decision.

Btjtzel, J. This is an appeal on one record from a judgment rendered in a suit in assumpsit on a promissory note instituted by Helen Jaffe against Steelcraft Piston Ring Sales, Inc., M. H. Sobel and'E. J. Brock, and from a decree rendered on a bill in chancery for the reformation of a contract and for other relief by Sobel and Brock against Steelcraft Piston Ring Sales, Inc., and J ames J. Carroll. Because the suits arise out of the same transactions and subjects of action, it was stipulated that the findings of fact in the chancery suit shall be determinative of the assumpsit action. A judgment of no. cause of action was entered in the suit at law, and an affirmative decree in favor of defendant Steelcraft was awarded on its cross-complaint in the chancery cause. ¥e shall refer to Sobel and Brock as plaintiffs. Defendant James J. Carroll was president, director and a large stockholder of defendant Steelcraft Piston Ring Sales, Inc. The corporation was formed in 1933 principally for the purpose of manufacturing and marketing a piston ring that Carroll had invented. Plaintiffs Maurice H. Sobel and Eugene J. Brock were salesmen of experience and ability. After some negotiations, Steelcraft Corporation entered into a written contract of December 29,1933, whereby plaintiffs were appointed sole distributors and granted the exclusive right to purchase Steelcraft’s piston rings at the price of $2 per pound. Steelcraft agreed to save plaintiffs harmless from liability or expense arising out of any patent litigation or infringement. Plaintiffs opened an office in Detroit through which they handled a large volume of business. The orders obtained were submitted to Steelcraft’s factory, and the goods were shipped directly to the customers, but plaintiffs rendered the accounts as owners and made their own collections. Plaintiffs appointed a Canadian subdistributor who sold a large quantity of piston rings. A claim of patent infringement arose in Canada and it resulted in a controversy between the contracting parties. While the contract contained no provision for territorial limitations or Canadian patent litigation, defendant acknowledged an interest, if not a legal obligation therein, and gave material assistance in the unsuccessful attempt to maintain the patent in Canada. Under protest an agreement was made to indemnify for the expenses incurred in the Canadian litigation. On January 23, 1935, settlements were made between Steelcraft and the Canadian subdistributor, and also with plaintiffs on account of the Canadian account. Plaintiffs assigned to Steelcraft an account of $2,800 due from the Canadian sub-distributor, and Steelcraft agreed to deliver to plaintiffs 1,050 pounds of piston rings at the rate of 100 pounds per month beginning on the 15th of the following April. ' In a separate agreement Steelcraft released the Canadian distributor from the $2,800 and paid him other considerations. This settlement was followed by controversies and general dissatisfaction. On March 6, 1935, plaintiffs offered to sell to defendant their entire business and sales agency for $7,000 in cash and $2,000 in negotiable paper, offering to turn over to defendant the operation and management of the business, all correspondence, files, books and records and such assets as “1,050 pounds of rings, ’ ’ advertising matter, et cetera. On March 15, 1935, a written agreement was executed. Plaintiffs were to receive $5,000 in cash, $1,700 in 30 days, and $2,000 on or before July 1, 1935, evidenced by a note of Steelcraft indorsed by Carroll. Plaintiffs agreed to turn over to Steeleraft, “All literature, catalogues, advertising matter, mailing list, rating lists, cuts, mats used in the printing of the various literature and advertising matter, and the following office fixtures heretofore purchased from the Cloutier Furniture Company, consisting of the following: 2 large metal cabinets; 1 conference table; 1 rug; expanders and shim stock; and approximately 1,000 pounds of rings and files to date.” (Italics ours.) Steeleraft agreed to carry out all outstanding agreements of plaintiffs and their dealers in relation to territory, supply of rings, et cetera. All accounts were to remain the property of plaintiffs, but Steel-craft agreed to turn over all remittances as received and, further, to assist in making collections. The concluding paragraph of the agreement stated that upon payment of the agreed sums “the contract of December 29, 1933, shall be completely ignored and terminated as if the same had not been entered into, and the parties hereto shall be under no obligation to each other, except as herein provided. ’ ’ Steeleraft failed to pay the $2,000 note which had been transferred to one Helen Jaffe; she brought suit to enforce payment. It is conceded that she holds the note subject to any infirmities that might be asserted against the original owner. Steeleraft in its answer to the law action claimed that there was due it from plaintiffs 1,000 pounds of piston rings of the value of $2,350 which plaintiffs failed to deliver to defendant under the settlement agreement of March 15, 1935, and that this default excused payment. Shortly after this suit was started, plaintiffs filed a bill in chancery to reform the settlement agreement so as to conform to the alleged understanding of' the parties. The law and chancery eases, as combined by stipulation, were referred to a circuit court commissioner who took voluminous testimony. It is the claim of plaintiffs that the clause wherein they agreed to deliver approximately 1,000 pounds of rings referred to the 1,050 pounds of rings that became due from defendant to plaintiffs under the agreement made following the Canadian patent litigation, and that the expression “approximately 1.000 pounds” of rings was the scrivener’s general reference to the 1,050 pounds, the word “approximately” having been meant to express the idea of “more or less.” It is Steelcraft’s claim that it not only was to be released from delivery of the 1,050 pounds, but that plaintiffs were to turn over to it 1.000 pounds which they had on hand and were to secure from an eastern warehouse or from other distributors. The source was not definitely described. Based on the commissioner’s report, the circuit judge without opinion entered a decree denying reformation and ordering payment of $242.02 to Steelcraft. This was based on the findings that plaintiffs owed Steelcraft 1,000 pounds of rings under the final agreement, and that Steelcraft had collected $94.65 from dealers since the execution of the agreement; that the undelivered 1,000 pounds of rings were of the value of $2,666.67, on which sum interest was computed ; interest was also computed on the $2,000 note. Plaintiffs claim they are entitled to reformation, and that there is no basis in the record for the damages assessed. Reformation may be granted in a proper case for mutual mistake. DeGood v. Gillard, 251 Mich. 85. The burden of establishing the mistake is on the party seeking to reform. Lahey v. Hackley Union National Bank, 270 Mich. 438. The evidence must be clear and convincing and must establish beyond cavil the right to reformation. Schuler v. Bucuss, 253 Mich. 479; Donaldson v. Hull, 258 Mich. 388. Plaintiffs have succeeded in casting considerable doubt as to whether the contract as written expressed the intention of the parties, but we are not so convinced of its failure as to disturb the findings made from testimony so highly conflicting. Plaintiffs kept no warehouse in Michigan. Prom the statements we may well doubt whether plaintiffs had on hand 1,000 pounds of piston rings or whether defendants had any reason for believing they had. "When examined by his counsel, Carroll corroborated plaintiffs’ claims that the “approximately” 1,000 pounds of rings referred to the 1,050 pounds that were subsequently to be delivered; but on further examination, he corrected his testimony and was positive in his insistence that the 1,000 pounds to be delivered by plaintiffs was independent of the release of the obligation to deliver 1,050 pounds to plaintiffs. He further testified that plaintiffs had some rings on hand in a New England warehouse, that they were to receive some additional rings from their former agent, and that the nature of the settlement was such that he wanted all of the unsold rings back in his possession. Mr. Palliaer, an attorney present at the time the agreement was executed, testified that the delivery of the 1,000 pounds was absolutely distinct from the 1,050 pounds referred to in the prior agreement, and that the obligation to deliver the 1,050 pounds was terminated by the final clause of the agreement here sought to be reformed. He stated positively that plaintiffs agreed to collect and deliver 1,000 pounds of rings to Steelcraft. Our attention is directed at the typewritten agreement, in which, in the very line referred to “approximately 1,000 pounds of rings,” the words “and files to date” are inserted in handwriting and initialed by Carroll and Brock. This serves to give some indication of how carefully the contract was gone over and how painstakingly the particular words may have been examined. The attorney who drew the contract represented plaintiffs. He stated that to his understanding the expression “approximately 1,000 pounds of rings” referred to the 1,050 pounds due plaintiffs on the settlement of the Canadian affairs. Plaintiffs categorically denied a large part of defendant’s proofs and urged strong reasons for the mistake. It would serve no useful purpose to go into the complicated affairs further. We are not inclined to disturb the findings which resolved the .conflicts of the testimony; on such a record we think it would be unwise to attempt to displace the findings of the trier who had the witnesses before him. It is claimed that since the distributors’ contract of December 29, 1933, was the only one specifically enumerated for cancellation, the doctrine of ejusdem generis would bar a claim that the credit memorandum for 1,050 pounds was also impliedly cancelled. Although the agreement of January 23, 1935, was not expressly terminated by the arrangement of March 15, 1935, there is a general statement that parties should be under no obligation to each other ‘ ‘ except as herein provided. ’ ’ The general principles fail us here. When the parties use both general and specific words, the latter will ordinarily be controlling. Goldberg v. Cities Service Oil Co., 275 Mich. 199. The judgment in the law action is affirmed, but the decree in the equity suit must be modified. The court below granted $2,666.67 damages on the cross-complaint for failure to deliver the 1,000 pounds of rings. We are not told how this figure was computed; perhaps the rate of $2.66 per pound was determined from the terms of the settlement of the Canadian matters wherein a $2,800 claim was exchanged for a promise to deliver 1,050 pounds of rings. At best this was only an isolated transaction, and was only a part of a general settlement. In the answer to plaintiffs’ declaration, defendant fixed the value of the 1,000 pounds of rings at $2,350. We think the proper approach is to value the 1,000 pounds at $2 per pound, as provided in the contract, which would make the amount $2,000. However, the cross-complainant must do equity and give credit for the amount of the debt represented by the note, as it would be inequitable to allow defendant Steelcraft to recover damages on the contract and let it escape performance of its side of the agreement. By doing equity, the amount of damages for nondelivery of the rings will be offset by the amount of the note. The decree must be further modified because plaintiffs are entitled to certain credits not included in the decree. The lower court allowed plaintiffs a credit of only $94.85 for payments made directly to Steel-craft subsequent to the settlement agreement, notwithstanding the fact that the stipulation in the record shows that the amount received up to the time of the hearing was $228.65. Thus, the credit was $133.80 less than the conceded amount; plaintiffs are entitled to $228.65. The decree entered below gave plaintiffs no credit for any rings returned to defendant by the Buffalo agency. This was erroneous. Plaintiffs are entitled to credit for the value of the rings returned, but not for the merchandise of other producers. While the record does not disclose the weight of the returned goods manufactured by Steelcraft, defendants’ counsel have admitted the weight to be 135 pounds, as opposed to the claim of 140 pounds by plaintiffs’ counsel. As defendants claim that the object of the 1,000 pound provision was to bring into Steelcraft’s control all outstanding rings, we think credit for the 135 pounds at the contract price should be allowed. An additional credit should be allowed plaintiffs for $270. Plaintiffs in the chancery case are entitled to a decree in their favor for the sum of $498.65. They may also tax the cost of printing the record and briefs. Inasmuch as one of the consolidated cases is affirmed and the other is modified substantially, no attorney fees will be allowed. A decree may be entered in accordance with this opinion. Bushnell, C. J., and Sharpe, Potter, Chandler, North, McAllister, and "Wiest, JJ., concurred.

Starr, J. Plaintiffs appeal from a decree entered November 1, 1941, dismissing their petition to have defendants adjudged guilty of contempt for violation of decree dated January 25, 1941, and entered January 27, 1941. In 1936 the electors of the village of Constantine, at a special election called for that purpose, voted to issue revenue bonds in the amount of $107,000 for the purpose of constructing a municipally-owned electric light plant and distribution system. The trust mortgage securing such bond issue, executed by the defendant village to the Union Guardian Trust Company, provided, in part: ‘ ‘ The general credit of the village shall not' be pledged for any payment required under this mortgage or the bonds, but any such payment shall be made from, and to the extent of, the revenues of the plant and system. * * * “Rates: The village shall charge and maintain rates for electricity furnished by said plant and system, sufficient to provide for full and prompt payment of principal and interest on said bonds, to pay all expenses of operation and of the maintenance of said plant and system in good repair and working order, and to build up a reserve for depreciation thereof. * * * “Surplus Revenue: Any surplus revenue after providing for the operation and maintenance and bond and interest redemption funds shall be used to set up a reserve to meet any deficiencies in the operation and maintenance fund, and to establish and maintain a reserve for depreciation; and at the end of each-fiscal year such amounts as the village council shall deem necessary shall be set apart and placed in said funds. Any surplus remaining after providing for such funds may be used for extensions and improvements of said plant and system or for the purchase and retirement of bonds.” Such bonds were sold and the proceeds used for the construction of the light plant and distribution system. In 1939 the village council authorized an additional issue of revenue bonds in the amount of $38,000 and obtained a grant of about $26,000 from the public works administration for the purpose of extending and enlarging the light plant and system. Such additional bonds were on equal rating with the first issue and were secured by supplemental trust mortgage to the Union Guardian Trust Company. In March, 1939, prior to the' issue of the additional $38,000 of bonds, plaintiffs, as taxpayers of the defendant village, filed bill of complaint and later amended bill of complaint alleging, among other things, diversion of the general funds of the village; that the sale of the first issue of bonds was unlawful; that losses in the operation of the plant were hidden by the device of increasing accounts payable; that the published rates for current were not collected; that there, was unlawful discrimination in rates charged customers; that the proposed additional issue of bonds would be unlawful; and that a part of the proceeds of such bonds would be used to cover losses in operation. Defendants answered and moved to dismiss the amended bill of complaint. Upon a hearing on defendants’ motion the court dismissed plaintiffs’ amended bill. Plaintiffs then appealed, and in our decision in that case (Wolgamood v. Village of Constantine, 292 Mich. 222, 226) we stated: “In deciding this case we have in mind that the cause was not heard on its merits; and that upon a motion to dismiss, the allegations stated in the bill are to be taken as true. * * * It therefore becomes necessary to analyze the claims of plaintiffs as stated in their amended bill of complaint. * * * “In our opinion plaintiffs’ bill of complaint contains charges which, if true, would entitle a court of chancery to grant relief. They are entitled to have these charges heard. “The order of the trial court (dismissing plaintiffs’ bill) is reversed.” The case was then tried upon its merits. The trial court determined, among other things, that the bond issues were lawful and valid; that defendant village was guilty of unlawful discrimination in its rates for electric current; that the rates charged for current were “far below the amount required to take care of the cost of generation, distribution, bonds and interest and depreciation,” and that an advertisement published by defendants did not correctly and accurately show the actual financial condition of the electric light plant as of May 31, 1940. In pursuance of the trial court’s opinion a decree dated January 25, 1941, was entered, providing, in part: “ (1) That the defendants be and they are hereby enjoined from directly or indirectly publishing any advertisements or statements relative to the financial condition of the defendants’ electric plant that are misleading and do not state the whole truth. “(2) That the defendants are ordered to charge and maintain rates for electricity furnished by the Constantine electric plant sufficient to provide for full and prompt payment of principal and interest on the bonds referred to in the bill of complaint, and to pay all expenses of operation and of maintenance of said plant and system in good repair and working order, and to build, up a reserve for depreciation of said plant, and the defendants are hereby enjoined from charging and maintaining rates not sufficient "for the purpose in this paragraph stated. “(3) That the defendant, Village of Constantine, is hereby restrained from discriminating among its customers. “(4) That the defendants are enjoined from us ing any device whatsoever to collect a rate less than the established rate.” In pursuance of such decree an injunction was issued against defendants. No appeal was taken from the decree. In April, 1941, the court, after a hearing on an order to show cause, determined that defendants were guilty of contempt of court for violation of the provisions of the above-quoted decree of January 25, 1941. Such order stated, in part: “The court does hereby find that the defendant village is guilty of contempt of court in that it did violate paragraphs (2) and (4) of the decree (above quoted) * * * and it is the judgment of the court that it should be punished therefor and that the punishment be and the same is hereby fixed as a fine of $200, provided, however, the payment of said fine is suspended for a period of 30 days, and if said village at the next billing of the customers of its municipal lighting plant sends out its bills in accordance with said decree and injunction and as herein later specified, then said village shall not be required to pay said fine, but otherwise the fine shall be paid 30 days froxp and after the date of this order. “ It is further ordered, adjudged and decreed that in all other respects the decree (of January 25, 1941) heretofore entered and the injunction issued thereon shall remain in full force and effect.” On July 15, 1941, plaintiffs again petitioned that defendants be required to appear and show cause why they should not be adjudged guilty of contempt of court for violation of the decree of January 25, 1941. Such petition alleged, in part: “That * * * for the purpose of defeating the decree, injunction and order, the defendants have continued to sell electricity to the- Constantine Creamery Company at less than cost. That at the hearing April 9, 1941, the defendants were then charging the creamery company for power $.0215 per k. w. h. That thereafter there was a slight increase to $.0224 made in the rate to the creamery company, which was only 9/10 of one mill increase, and on the amount of power used would amount to not over $15 per month, or $180 per year, which rate was not large enough to return to the defendants the actual cost of the power. That the theory on which the defendants’ plant is operated is that it will earn enough in profits to pay the principal and interest on the bonds referred to in the original bill of complaint, the expenses of operation and of maintenance of the plant and system in good repair and working order, and to build up a reserve for depreciation of said plant. That the general funds of the village are not to be invaded or used for the purpose of covering losses of said plant. That before the construction of said plant the village was paying $175 per month for 140 street lamps. That for the period from February 1, 1938, to April 1, 1941, the municipal plánt furnished 143 street lamps to the village for $175 per month. That April 1, 1941, the defendants charged the village for the same number of lamps $215.60, or an increase of $40.60 per month. That at the hearing on April 9, 1941, the defendants found it necessary to increase their rates as provided for in the decree, and in order to still give a preference to the Constantine Creamery Company, the defendants adopted the device May 1, 1941, of increasing the charge on the street lamps from the rate last above mentioned to $259.15 a month, or an increase of $53.55 a month, making a total increase of $95.14 per month, or a yearly increase of $1,129.80 over the price charged and collected from the general fund of the city for street lamps up to April 1,1941. “That this plaintiff is informed and believes that on May 6,. 1941, the defendant sent to most of its electric current users a postal card not telling the full truth, saying among other things— “ ‘Residential rates and commercial rates REMAIN THE SAME as set when the municipal plant was first started. There has been an adjustment in commercial power rates only.’ ‘ ‘ That in truth and fact they had used the device of increasing the rates on the street lights, payable out of the general fund, in order to save a change in said rates. “(3) That the defendants have unlawfully violated the terms of the decree and injunction issued herein.” In pursuance of such petition an order was issued requiring defendants to show cause why they should not be adjudged guilty of contempt of court. Defendants filed answer asking that such petition be dismissed. In their answer defendants alleged that they had complied with the court’s decree and that: “(1) It (Village of Constantine) has established a graduated power rate scale applicable to all power users. No separate rates are made to any user. “ (2) While the court has not ordered the village to set up a cash reserve for depreciation, the village now has in said fund $1,169.68. “(3) That the village is not discriminating among its customers, - all being treated alike. “(4) That the village is using no device whatever to collect a rate less than the established rate. “(5) That all terms of the mortgage are being met promptly. * * * “Hence, all things ordered by the court have been complied with to the fullest extent. No device whatever has been used to circumvent or avoid the court’s orders in any manner whatsoever. * * * “In answer to paragraph 3 of plaintiffs’ bill, the defendants state that in no manner whatsoever has the village or its officers violated any of the terms of the decree and injunction issued by this court. ’ ’ The matter was brought on for hearing and testimony was taken regarding the operation of the light plant, the cost of producing electric current, the increased charge to the village for street lighting, the cost of and charge for current furnished the Constantine Creamery Company, and regarding the building up of a reserve for depreciation of the plant and system. The record contains only excerpts from such testimony. In its findings filed October 16, 1941, the trial court ably and comprehensively reviewed the pending litigation, and a decree was entered November 1,1941, determining that defendants were not guilty of contempt and dismissing plaintiffs’ petition. Plaintiffs’ motion to set aside such decree was denied and they appeal in the nature of mandamus. Plaintiffs ask this court to enter an order “directing the trial judge to set aside his decree of November 1, 1941, and to enter a decree finding the defendants guilty of contempt and directing them to carry out the decree of January 25, 1941.” The State Constitution, 1908, art. 8, § 23, and 1 Comp. Laws 1929, §§ 1684, 1692 (Stat. Ann. §§5.1420, 5.1428), gave the defendant village the right to acquire, construct, own and operate a municipal electric light plant. 1 Comp. Laws 1929, § 1689 (Stat. Ann. §■ 5.1425), gave the defendant village council the power to fix “such just and equitable rates as may be deemed advisable for supplying the inhabitants of such village with lights.” "We have recognized that a municipality’s operation of a public utility, although it may be a pro prietary activity, constitutes engaging in a public enterprise for a public purpose. City of Traverse City v. Township of Blair, 190 Mich. 313 (Ann. Cas. 1918E, 81); Wood v. City of Detroit, 188 Mich. 547 (L. R. A. 1916C, 388); Mitchell v. City of Negaunee, 113 Mich. 359 (38 L. R. A. 157, 67 Ana. St. Rep. 468). Where a municipality has the power to engage in an activity for a public purpose, the courts will not interfere with the discretionary acts of its municipal officials. Putnam v. City of Grand Rapids, 58 Mich. 416; Nelson v. County of Wayne, 289 Mich. 284; White v. City of Grand Rapids, 260 Mich. 267; Andrews v. City of South Haven, 187 Mich. 294 (L. R. A. 1916A, 908, Ann. Cas. 1918B, 100); Bauman v. Campau, 58 Mich. 444; Torrent v. Muskegon Common Council, 47 Mich. 115 (41 Am. Rep. 715). See, also, 6 (Rev.) McQuillin on Municipal Corporations (2d Ed.), p. 964, § 2755. In Veldman v. City of Grand Rapids, 275 Mich. 100, 113, we said: “In order to warrant the interposition of a court of equity in municipal affairs, there must be a malicious intent, capricious action or corrupt conduct, something which shows the action of the body whose acts are complained of did not arise from an exercise of judgment and discretion vested by law in them. ’ ’ In Putnam v. City of Grand Rapids, supra, p. 419, this court stated: ‘ ‘ There has been an idea in some places, as apparent from reported cases, that courts of equity can always stand between citizens and municipal authorities, to shield them from abuses and extravagant action. This is not one of the functions of courts. It is one of the incidents of popular government that the people must bear the consequences of the mistakes of their representatives. No court can save them from this experience. It is one of the means of teaching the necessity of choosing proper servants, and being vigilant to obtain reform from abuses. The discretion which is necessarily vested in public functionaries cannot be reviewed by any one else. If they go beyond the range of the discretion given them, and mischief happens or is likely to happen, a case arises for the interference of judicial authority to keep them within the lines bounding their agency. But their mistakes within those lines are beyond legal redress.” In the present case defendants would not be guilty of contempt of court because of their good-faith errors in judgment or discretion in connection with their operation and management of the electric light plant. They would be guilty of contempt only in case of fraud, dishonesty, or abuse of discretion in their official duties. Plaintiffs complain of discrimination in rates in favor of the Constantine Creamery Company. The testimony shows that after defendants were found guilty of contempt in April, 1941, they caused the then-existing power rates to be revoked and adopted a new schedule of power rates applicable to all users and also a new schedule of street lighting rates, and that subsequent bills were sent out under such new rates. The new schedules adopted by the council of defendant village on April 29, 1941, were as follows: “POWER RATES “First 50 kwh’s at................$ .07 “Next 50 kwh’s at.................06 “Next 1,000 kwh’s at................04 “Next 1,500 kwh’s at................03 “Balance kwh’s at..................02 “Minimum: 50 cents per h. p. connected per month. “STREET LIGHTING RATES “107 overhead lights, 200 watts, at $1.65 per month, each. “10 overhead lights, 300 watts, at $2.50 each per month. “26 ornamental lights, 300 watts, at $2.60 each per month.” In its findings on the question of rates charged the Constantine Creamery Company, the trial court stated, in part: “It was defendants’ duty under the provisions' of their trust mortgage to establish and maintain rates sufficient to take care of the principal and interest on their bonds, to pay all expenses of operation and of maintenance of said plant and system in good repair and working order and to build up a reserve for depreciation of said plant. The court in its decree ordered them to establish rates sufficient to accomplish said purpose. In order to do so and to take care of the objectionable features of their former rate schedule for which they had been held to be in contempt, to-wit: the flat power rate to the Constantine Creamery Company, and rates sufficient to build up a reserve, they adopted this new schedule, which the testimony shows is taking care of all the provisions of the trust mortgage and is building up a reserve for depreciation. * * * “The power rates as now established apply to all users of power and are based on a sliding scale, so that the customers who use more power get a reduction in rate the more energy or power that is used. This sort of a rate is usual and customary, and does not, as the former flat rate of $.0215, discriminate in favor of the creamery company. It is true that at the present time the creamery company is the only user of electrical energy that uses sufficient energy to bring it within the lower brackets of said power rate. However, there is no discrimination in favor of the Constantine Creamery Company and they are not furnishing said company energy for less than the established power rate, which applies to all users of power alike. ‘ ‘ Such a rate is justifiable on the basis that where a consumer such as the Constantine Creamery Company uses a large amount of electrical energy distributed throughout the day, during a large portion of which time the electrical plant is operating on an off-peak load, it is good business, providing the same is not being furnished at less than the cost of production find distribution. The testimony shows that the amount of energy as furnished to the Constantine Creamery Company under the present power rates, when figured on their total bill, brings a fiat rate of $.217 per k. w. h. for said energy which is more than the actual cost of production and distribution of said energy to the Constantine Electric Company, exclusive of bond retirement, interest and depreciation. The testimony further shows that the creamery company is now being billed for its lights at the regular rate fixed for commercial lights rate and the same is not included in the same rate as their power bill. Under the testimony as submitted, I am of the opinion that the defendants are not now discriminating as to the rate charged the Constantine Creamery Company, from that charged other customers of electrical energy, and that they are not collecting from them directly or indirectly a rate less than the established rate.” From a careful study of the record and exhibits we are satisfied that the trial court was correct in its conclusion that defendants were not, at the time of the hearing in August, 1941, discriminating in the rates charged the creamery company and that such rates charged did not violate the trial court’s decree. See 2 Pond, Public Utilities (4th Ed.), p. 1064, §573; Reed, Municipal Management (1941), p. 606. Plaintiffs further contend that, in order to make up the loss of revenue occasioned by the alleged discrimination in rates in favor of the Constantine Creamery Company, defendants have improperly increased the rates charged the defendant village for street lighting far beyond the value of the service received and that such increase constitutes an unlawful invasion of the general fund of the village. The record shows that prior to the construction and operation of its own municipal light plant the village had paid a private utility company $175 per month for street lighting and that such rate was continued by the municipal plant until about March, 1941, when the rate was increased to $215.60 per month, and again increased in April, 1941, to $269.15 per month. ,It reasonably appears that one of the reasons for constructing the municipally-owned light plant was to provide defendant village with better street lighting. Prior to erecting the municipal plant the village had paid $175 per month for approximately 6,922 kilowatt hours, and at the time of the hearing in August, 1941, was paying the municipal plant $269.15 per month for 32,200 kilowatt hours. The rate charged the village for street lighting was apparently not out of proportion to the rate charged other users of current, as the evidence indicates that the cost of producing current for street lighting is considerably more than the cost of producing current for other consumers. The trial court, in its findings on the question of rates charged for street lighting, stated, in part: “Plaintiffs complain that the defendants have raised the rates as to street lighting and contend this was done so that defendants could sell to the creamery company at less than the cost of production. It is apparent from what has been said that the rate at which electrical energy is furnished to the creamery company does not violate the terms of the decree or the injunction. The defendants had a right to raise any of its rates to meet the terms and conditions of the trust mortgage, including the rates for furnishing energy or power for street lighting for the village and if the same is fair and reasonable then no one has a right to complain. * * # The testimony now shows that the Constantine Electric Company is collecting $269.15 from the village for street lights. However, the rate at which these lights are furnished is $.025 per k. w. h. and that under their former contract with the Michigan Gas & Electric Company the village was paying $.0662 per k. w. h. for said street lights. “It is also apparent from the testimony that the rate charged the village for street lighting is not out of proportion to the rate charged other users of electrical energy, especially when the evidence discloses that it costs more to furnish the energy required by a street lighting load than it does to other consumers of a diversified load. The testimony shows that under the present rate residential consumers pay as high as 7 cents per k. w. h. and may obtain a rate as low as 1% cents per k. w. h. if they used sufficient current to meet that class, and the power users including the creamery company pay as high as 7 cents per k. w. h. and can obtain a rate as low as 2 cents per k. w. h. if they use sufficient current to come within that class, it is therefore apparent that the charge of $.025 per k. w. h. to the village for street lights, which costs more than a diversified load, is not unreasonable and unfair, and it is not therefore subject to the objection raised by plaintiffs that the increase in street lighting is merely a device or subterfuge used by defendants to discriminate in favor of the creamery company, but is a just and fair rate that tbe defendants have a right to charge for the street lighting service, and which under the terms of their trust mortgage they are to furnish at a fair rate along with other rates charged consumers sufficient to meet the requirements of said trust mortgage, and the defendants are not therefore guilty of contempt in raising said rates for street lighting. ’ ’ From our examination of the record and exhibits, we find no evidence of fraud or abuse of discretion by defendants in increasing the charge for street lighting. It was not an unlawful invasion of the village general fund to increase the charge for street lighting in view of the increased service rendered. We agree with the conclusion of the trial court that defendants were not guilty of contempt of court by reason of their increasing the charge for street lighting. Plaintiffs next contend that defendants are guilty of contempt, because about May 6,1941, after adopting a new rate schedule, they sent a post-card notice to their customers, which stated: “Residential rates and commercial rates REMAIN THE SAME as set when the municipal plant was first started. There has been an adjustment in commercial power rates only.” Plaintiffs argue that such notice was a “deception calculated to lull the users into the belief that while the residential and commercial rates remained the same, that there had been a substantial change in power rate, which was not the truth.” In its findings on this point, the trial court said: “I cannot agree with plaintiffs’ construction of said notice. The statement was evidently intended to assure the consumers there was no change in the rates charged for residential and commercial pur poses, so that they would not become alarmed that a change was to be made therein and stop the service. The statement as made was true.” We are satisfied that the trial court was correct in its determination that defendants were not guilty of contempt in sending such notice regarding rates to customers of the light plant. Plaintiffs further contend, in substance, that defendants are violating the trial court’s decree of January 25, 1941, by failing to increase the rates for all electric current sold so as to produce revenue sufficient to meet the expense of operation and maintenance of the light plant and system, interest payments and bond retirement, and to build up a reserve for depreciation which will equal the replacement cost of the plant and system at the end of its life. In other- words, plaintiffs claim that the decree of the trial court requires defendants to charge rates which, in addition to all other necessary disbursements, will build up a reserve for depreciation sufficient to replace the plant and system. It should be noted that the light plant revenue bonds issued by defendant village were not in default, and the bondholders and their trustee are not parties to this suit and are not, so far as the record shows, complaining of defendants’ acts and doings. The record indicates that defendants have set up a reserve of $1,000 per year for depreciation. It is admitted that such amount of reserve will not build up the replacement cost of the plant. Neither the trust mortgage nor the decree requires defendants to set up a “reserve for depreciation” sufficient to meet the replacement cost of the plant. However, the provisions of the trust mortgage (above quoted) do require the defendant village “to build up a reserve for depreciation” and, from sur plus revenues, to ‘ ‘ establish and maintain a reserve for depreciation.” The decree of January 25, 1941, also provides for the building up of “a reserve for depreciation of said plant.” In its findings the trial court stated: ‘ ‘ The trust mortgage does not state what amount is to be set aside as a cash reserve for depreciation, it merely states, ‘and to build up a reserve for depreciation of said plant.’ The court on the former hearing for contempt after listening to the testimony of the defendants’ auditor, Mr. Morton, suggested that said reserve for depreciation should be not less than $1,000 per year. The audit of May 31, 1941, shows that they have set aside a cash reserve of $1,000 for depreciation for the year and that there is a profit before book depreciation of $6,303.95 and after book depreciation, a net profit of $722.61. It is apparent from said audit that the rates as now established are sufficient over the year to build up a cash reserve of at least $1,000 for the year, and pay all other expenses required by the trust mortgage.” From examination of the financial statements and excerpts from the testimony, contained in the record, it fairly appears that defendant village, at the time of the hearing in August, 1941, was charging rates for electric current reasonably calculated to produce a revenue sufficient to cover the operation and maintenance of the plant and system, interést payments and bond retirement, and an annual reserve for depreciation, though not a sufficient reserve to cover the replacement cost of the plant and system at the end of its life. The pertinent question on this point of the case is whether the trial court’s decree of January 25, 1941, requires defendants to charge rates sufficient to set up a reserve for depreciation to meet ordinary contingencies and emergencies, or whether such decree requires defendants to charge rates which will build np a reserve equaling the replacement cost of the plant and system at the end of its life. Plaintiffs apparently fail to take into consideration the basic difference in the nature, ownership, and purpose of a municipally-owned utility and a privately-owned utility. A privately-owned utility is created and operated primarily for the purpose of profit for the shareholders. Such private utility is expected to earn a return on the investment therein and to pay its indebtedness and keep the corpus of the investment intact by building up a reserve for depreciation equaling the replacement cost of the utility. Public regulatory bodies, recognizing the nature and purpose of private utilities, permit them to charge rates which will return an income to investors and will build up a reserve for replacement of the property. Michigan Public Utilities Commission v. Michigan State Telephone Co., 228 Mich. 658 (P. U. R. 1925C, 158); Ann Arbor R. Co. v. Fellows, 236 Fed. 387. See, also, Federal Power Commission v. Natural Gas Pipeline Company of America, 315 U. S. 575 (62 Sup. Ct. 736, 86 L. Ed. — ). The question as to what amount a municipally-owned public utility should set aside for depreciation does not appear to have been determined in this State. A municipally-owned utility is built and operated, not for a corporate profit, but for the purpose of providing utility services at a reasonable cost to the citizens of the municipality, who are generally identical with the customers. For a municipally-owned light plant to charge rates which will, in addition to the necessary expenses of construction and operation, build up a reserve for depreciation equaling the replacement cost of the plant, is to require the citizens and customers not only to pay for construction of their own utility but also to provide the capital for the construction of a new plant to serve future users. The distinction between rates to be charged by a municipally-owned utility and a privately-owned utility is well expressed in Eeed, Municipal Management (1941), p. 616, as follows: “It is not necessary for a municipal utility, which is required by law to amortize its debt and which possesses the legal capacity to borrow, to accumulate also a reserve fund to replace its properties as they wear out. This is properly required of private utilities which expect to retain their bonded debt as a permanent part of their financial structure. To require it of a municipal utility, however, is to ask the consumers to pay off the capital investment twice, once as a debt service and again in the establishment of a depreciation reserve.” See, also, 1 Spurr, Guiding Principles of Public Service Eegulation, p. 616 et seq.; Buck, Municipal Finance (1930), p. 530 et seq. The trial court’s decree of January 25, 1941, and the trust mortgage securing the bond issues do not require defendants to charge rates for electric current which, in addition to all other necessary^ disbursements, would build up a reserve for depreciation sufficient to equal the replacement cost of the plant and system. It reasonably appears from the record that the rates being charged by defendants at the time- of the hearing in August, 1941, were sufficient to build up such a reserve for depreciation as was required by the trust mortgage and the trial court’s decree. We conclude that defendants were not guilty of contempt of court in failing to further increase such rates. We do not pass upon the wisdom or judgment of defendants in fixing the rates in question. We only determine that the record does not disclose fraud, dishonesty, abuse of discretion, or violation of public duty by defendants, and does not disclose acts of commission or omission for which defendants should be adjudged guilty of contempt of court. The trial court had jurisdiction to make and enter its decree of November 1, 1941, though such decree might result in some modification of its prior decree of April, 1941. In view of our conclusions other contentions by plaintiffs do not require consideration. The decree of-the trial court entered November 1, 1941, dismissing plaintiffs’ petition is hereby affirmed. Defendants shall recover costs. Chandler, C. J., and Boyles, North, Butzel, Bushnell, and Sharpe, JJ., concurred. Wiest, J., took no part in this decision.

Bushnell, C. J. This is an appeal by defendant from a judgment for restitution of the premises entered by the circuit court on appeal from a like judgment entered by a circuit court commissioner. Plaintiff served defendant with a notice on September 12,1939, to terminate its tenancy and filed a complaint in writing with the circuit court commissioner on October 26th. On the return date of the summons, plaintiff took a default judgment. Defendant filed a claim of appeal to the circuit court on November 4th. Defendant, whose written lease had expired several months previous to the notice, was holding under a month-to-month tenancy. While the circuit court appeal was pending and before its determination, plaintiff rendered a statement to defendant for the amount of the October rent, plus some electric and telephone charges, totaling $390.70, which was paid by defendant prior to the trial in the circuit court. The court held that the acceptance by plaintiff of the October rent did not constitute a waiver of its demand for possession and had no effect upon the judgment appealed from. Appellant claims that the acceptance of the rent was an express waiver and operates as a withdrawal of plaintiff’s notice, continues the tenancy, and bars judgment for possession in the absence of a new notice. Appellee contends that the payment by defendant of accrued rental after the judgment of restitution entered by the circuit court commissioner has no effect upon the enforceability of that judgment. The statute, 3 Comp. Laws 1929, § 14975 (Stat. Ann. §27.1986), provides that: “The person entitled to any premises may recover possession thereof in the manner hereinafter provided, in the following cases: * # * “4. When any tenant at will or by sufferance shall hold over, after the determination of his estate, by a notice to quit, as provided by law. ’ ’ Subsequent sections provide for summary proceedings before a circuit court commissioner, among which are the requirement that, upon appeal to the circuit court, the appeal bond of the defendant “shall be in a penalty to be fixed by the officer taking the same, not less than double the amount of the annual rental value of the premises in dispute.” 3 Comp. Laws 1929, § 14987 (Stat. Ann. § 27.1998). These sections contemplate a recovery by plaintiff of the rent due or to become due up to the time plaintiff shall have obtained possession thereof. A preceding section (3 Comp. Laws 1929, § 14986 [Stat. Ann. § 27.1997]) permits a recovery of double damages from the time of the notice to quit or demand for possession. The action in the instant case ,by plaintiff was for the purpose of recovering possession of the premises on which it had terminated the tenancy. It was entitled to possession one month after giving notice of termination of the tenancy. (3 Comp. Laws 1929, § 13492, as amended by Act No. 145, Pub. Acts 1935 [Comp. Laws Supp. 1940, § 13492, Stat. Ann. § 26.-1104]). Plaintiff was also entitled to recover the rent which it collected; and the fact that it was paid before the appeal was determined rather than after decision in the circuit court has no bearing upon the judgment of restitution. Palmer v. City Livery Co., 98 Wis. 33 (73 N. W. 559), and see Hanaw v. Bailey, 83 Mich. 24 (9 L. R. A. 801). The judgment is affirmed, with costs to appellee. Sharpe, Potter, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.

Sharpe, J. For some time prior to the month of March, 1929, the plaintiff was engaged in the restaurant business in the village of Plymouth, across the street from the Mayflower Hotel, owned and operated by the defendant company. On the 25th day of that month a written agreement was executed by the parties, whereby the defendant leased to the plaintiff the dining room, coffee shoppe and kitchen, and the equipment thereof, for the term of three years, beginning on April 1, 1929. The plaintiff agreed to pay therefor a certain percentage upon his gross receipts for each month. It contained a provision that the plaintiff might renew it for two years by giving the defendant a notice in writing of his intention to do so 45 days prior to its expiration, and it is undisputed that such a notice was given. On March 26, 1932, the defendant gave plaintiff a' notice that the lease would be terminated on March 31, 1932, the reason given therefor being— “that the dining room service furnished under your agreement is not, and has not been, of the quality and character contemplated by the agreement. ’ ’ On March 31, 1932, the plaintiff filed the bill of complaint herein, setting np the terms of the agreement and his rights thereunder, and that he had given the notice above referred to and received the one from the defendant. In his prayer for relief he asked that the defendant b'e enjoined from interfering with his peaceful possession of the premises and from taking possession or attempting to take possession thereof and that the lease be declared to be in full force and effect until March 31, 1934. Other pleadings were filed and orders made, from which it appears that the defendant was in possession at the time of the hearing. The trial court entered a decree dismissing the bill, from which the plaintiff has taken this appeal. The issue presented, as stated by his counsel in his brief, is whether the trial court should have decreed specific performance of the contract under which he claimed the right to possession. It is apparent that plaintiff is not entitled to this relief. In the early case of Smith v. Lawrence, 15 Mich. 499, 501, it was said:' “The specific performance of contracts must always rest in the sound discretion of the court, to be decreed or not as shall seem just and equitable under the peculiar circumstances of each case.” The rule thus stated has become the fixed law in this State. Later cases so holding are Waller v. Lieberman, 214 Mich. 428; Brear v. Baumgartner, 249 Mich. 633; Farrell v. Hannan Real Estate Exchange, 251 Mich. 669; Worsham v. McCall, 259 Mich. 630. Under the terms of the agreement, or so-called lease, had the plaintiff abandoned the premises, the defendant could not have enforced specific performance on his part. In Buck v. Smith, 29 Mich. 166 (18 Am. Rep. 84), this court held (syllabus): “Equity will not enforce specific performance of a contract upon one side where the duties to be performed on the other side are such as to be incapable of being specifically enforced.” There must be “a mutuality of remedies as well as of obligations.” Heth v. Smith, 175 Mich. 328, 338. See, also, Gannon v. Stansfield, 216 Mich. 440; Harmon v. Muirhead, 247 Mich. 614; Bame v. Bame, 250 Mich. 515. The' decree is affirmed, with costs to defendant. McDonald, C. J., and Weadock, Potter, North, Pead, Wiest, and Butzel, JJ., concurred.

Butzel, J. On July 22,1930, the Union Guardian Trust Company filed a bill of complaint against Glendon A. Richards, Charles E. Norton, the Commercial Realty Company, and Julius Berman. The latter is the sole appellant herein and will be referred to as the defendant. The bill alleged that plaintiff, formerly known as the Union Trust Company, was the trustee of a bond issue, secured by a mortgage dated April 2, 1923, on property in Grand Rapids, Michigan, improved with a commercial building, portions of which were rented to tenants; that the original mortgagor, the Peninsular Fire Insurance Company, had been dissolved, and its property sold by a receiver; that Richards, Norton, and the Commercial Realty Company acquired an interest of record in the property. It was charged on information and belief that Berman held an unrecorded deed to the property, but that plaintiff had no knowledge of its terms; that there had been seri ous defaults in the payment of principal, interest and other charges provided for in the mortgage, that the city, school, State and county taxes for the years 1928 and 1929 were unpaid; that the original amount of the bond issue had been reduced by serial payments from $70,000 to $58,000, but that, through defaults in interest, taxes, etc., the amount due on the mortgage exceeded the sum of $70,000; and that, in pursuance of the instructions of a bondholders ’ committee with whom more than a majority of the bonds had been deposited, plaintiff had declared the entire amount due and instituted the foreclosure proceedings under a clause providing for the acceleration of the due date in the event of default. The bill asked, that the trustee be authorized to collect the rents and revenues from the property as provided in the mortgage. Inasmuch as the mortgage was executed prior to 1925, the decision is not governed by 3 Comp. Laws 1929, §§ 13498, 13499. Upon the filing of the bill, a summons and order to show cause were issued and served. No answer was filed by defendant until November 28, 1931, more than 15 months after he had filed his appearance in the suit. In the meantime, on June 11, 1931, affidavits of nonanswer and regularity were filed, and an order pro confesso was signed, declaring defendant in default. On August 16, 1930, after a hearing on the order to show cause, the trial judge authorized the plaintiff trustee to take possession of the property, collect the rents, and apply the income to the payment of taxes, and enjoined all defendants from interfering with such possession. The record reveals no objection to the authorization by defendant Berman, who claims to be the owner of the property by virtue of the unrecorded deed. On November 28, 1931, tbe court ordered defendant’s default set aside and granted bim leave to file an answer, provided that such action would not require tbe taking of additional testimony. This order was entered in accordance with a stipulation entered into by counsel for plaintiff and defendant, in which it was agreed that “plaintiff did at the hearing of said cause present testimony establishing all of the allegations of fact set forth in the bill of complaint.” Appellant thereupon filed an answer, denying the allegations of the bill, particularly attacking plaintiff’s right to possession and the-collection of rents. On January 16, 1932, the court denied a motion that defendant be restored to possession and the trustee compelled to account for the rents collected. At the same time, on petition of plaintiff, he issued an order granting leave to file an amended bill of complaint and to take additional proofs with regard to plaintiff’s right to collect the rents, an issue -raised for the first time by defendant’s answer and motion. This order was opposed by defendant and is now assigned as error, but a determination of this question is not necessary to the decision. In its amended bill of complaint, plaintiff alleged that the mortgagor was insolvent, that the security was inadequate and that serious waste was being committed through nonpayment of taxes. The testimony bore out the allegations in the amended bill on the issues of insolvency and inadequacy of security. It also showed that on September 3, 1930, the property had been sold for city and school taxes for the year 1928; that on May 5, 1931, it had likewise been sold for the State and county taxes for the same year. The plaintiff redeemed from these tax sales. The amendment to the bill of complaint also alleged a sale for the 1929 city and school taxes, still unredeemed at the date of the second hearing. The State and county taxes for 1929 and all taxes for 1930 and 1931 are also due and unpaid. At the conclusion of the testimony, counsel for defendant stipulated, without prejudice to his client’s rights on the main question, that, should plaintiff be required to account to defendant for the rents collected, plaintiff was to be allowed a credit or deduction of the amount it had expended in redeeming from the sales of the 1928 city, school, State and county taxes. Defendant’s deed reveals that it was given subject to the 1928 city, school, State and county taxes, amounting to $2,440.58 without interest. He testified that his failure to record the deed was occasioned by reason of the nonpayment of these taxes. Had appellant opposed the order authorizing the trustee to collect the rents at the original hearing, an entirely different question would be presented to us. The allegations of the bill of complaint did not set forth waste of such a nature as would justify a transfer of possession to the trustee. Detroit Trust Co. v. Lipsitz, 264 Mich. 404. The court would have been correct had it denied plaintiff’s prayer for possession. Appellant cannot sit by, however, acquiesce by his silence for 15 months in the collection of the rents and their application to the payment of taxes under a court order, and then request a court of equity to turn over the rentals to him. Inasmuch as defendant’s default was set aside on stipulation, the trial court was in error in confirming its original order in the decree of foreclosure. An examination of the present record does not reveal sufficient waste to justify the continuation of the possession by the trustee. Plaintiff redeemed from the sale of the 1928 taxes. Consequently, it cannot be claimed that the security was impaired or endangered by tax titles for that year. Plaintiff is entitled, however, to exhaust as much of the fund accumulated from the collection of rents, up to the date on which defendant’s default was set aside, as may be necessary to discharge taxes due and unpaid up to that time. Reasonable collection fees and expenses incurred in making the premises tenantable may also be paid. Such allowances are made in accordance with the original order of August 16,1930, authorizing plaintiff to collect rents for the payment of taxes. Inasmuch as the court was in error in continuing the trustee in possession after the second hearing, defendant is entitled to a return of the rents collected following the issuance of the second order confirming the trustee’s original appointment. Plaintiff may, however, deduct such additional tax payments as may have been made during that time under absolute necessity, in order to prevent tax titles from becoming absolute during the trustee’s occupancy. The decision herein will not prejudice plaintiff’s right to re-petition the court for possession, should defendant fail, within a reasonable time, to free the property from such further tax liabilities, if any, as may become absolute prior to the expiration of the period of redémption from the foreclosure sale. Appellant has only appealed from the order confirming the appointment of the trustee to collect rents, and not from the decree of foreclosure. The case is remanded to the lower court with instructions to enter an order in accordance with this opinion. Appellant will recover costs. McDonald, C. J., and Weadock, Potter, Sharpe, North, Pead, and Wrest, JJ., concurred.

Wiest, J. May 5,1926, Harold McNinch and Gertrude McNinch, his wife, mortgaged certain premises to the Highland Park State Bank for $2,700, to be paid in three years. December 14, 1929,. with the mortgage upon the premises, the McNinches sold the premises to Vinco Urban, under land contract, calling for a down payment and monthly payments amounting in all to the sum of $4,500. Mr. Urban died January 26, 1931, having kept up all payments to the time of his death. Payments were hot made after his death, and the vendors presented to the commissioners on claims in the matter of Mr. Urban’s estate a claim for payments due, amounting to $540. The claim Avas disallowed by the commissioners. An appeal was taken to the circuit court, and judgment rendered for the sum claimed. In behalf of the estate, it is contended that the vendors were in default upon the mortgage, and, therefore, could not exact payments under the land contract. The land contract not only provided that the vendors might, at any time, incumber the premises by mortgage to secure the balance OAving on the contract, but not' for more than 50 per cent, of the purchase price, to constitute a first lien, but also provided: “That if the title of the seller is evidenced by land contract or now or hereafter incumbered by mortgage, the seller shall meet the payments of principal and interest thereon as they mature and produce evidence thereof to the purchaser on demand, and in default the purchaser may pay the same, which payments shall be credited on the sums matured or first maturing hereon with interest at seven per cent, per annum and in event proceedings are commenced to recover possession or enforce the payment of such contract or mortgage because of the seller’s default the purchaser may at any time thereafter while such proceedings are pending incumber said land by mortgage securing such sum as can be obtained upon such terms as may be- required and Avith the proceeds pay and discharge such mortgage or purchase money lien, and any mortgage so given shall be a first lien upon the land and superior to the rights of the seller therein and thereafter the purchaser shall pay the principal and interest on such mortgage so given as they mature, which payments shall be credited on the sums matured or first maturing hereon, and when the sum owing hereon is reduced to the amount owing upon such contract or mortgage or owing to any mortgage executed under either of the powers in this contract contained, a conveyance shall be made in the form above provided with a covenant by the grantee to assume and pay the same.” There does not appear to have been any attempted foreclosure of the mortgage, but rather an extension of time, under an arrangement between the vendors and the mortgagee, that payments upon the land contract should be credited upon the mortgage. This was' evidenced by a memorandum entered upon the records of the mortgagee, as follows: “Monthly payments every time to be credited to this account. O. K. J. A. S.” Jesse A. Snyder, a clerk in the mortgage department of the Highland Park State Bank, was permitted to testify that he had charge of the records and mortgages in that department, identified the mortgage, and that he made the mentioned memorandum and initialed the same; that the writing was made July, 1930, and that— “The mortgage at that time was overdue and the title holder (the McNinches) arranged with Mr. Janise that we would carry the mortgage as long as there were payments applied on the liquidation. The arrangement was made with Mr. Janise, the assistant vice-president, and he expected me to put the notation on the ledger sheet.- I had no talk with the McNinches before that arrangement was made. The arrangement was made with Mr. Janise. Mr. Janise told me that the arrangement had been made, and he instructed me to make that notation on our balance sheet.” It is claimed that this memorandum was a contract and could not he ‘supplemented by parol evidence. It was not a contract executed by the parties to the mortgage, but a memorandum by officers of the mortgagee, showing extension of time of payment, and did not fall within the rule barring parol evidence. It is also claimed it was void for want of consideration. If the mortgagors turned the contract payments over to be applied upon the mortgage, and payment of the mortgage was to be worked out in that way, and it was satisfactory to the mortgagee, then there was consideration. But it is said there appears to be nothing to prevent foreclosure. The land contract provides remedy to the vendee in such event. The land contract payments were past due and there was no defense. The judgment is affirmed, with costs to appellees. McDonald, C. J., and Weadock, Potter, Sharpe, North, Pead, and Butzel, JJ., concurred.

Potter, J. Plaintiffs, beneficiaries under two trusts created by John Kelsey, deceased, filed their bill of complaint against defendants for their removal as trustee, disclosure of assets, injunction against Harry J. Fox, conservator, and to compel defendants to turn over to a trustee to be appointed the assets of the trusts, accounting, and for damages for breach of trust. From a decree for plaintiffs, defendants appeal. The attorney general intervened. John Kelsey, now deceased, in his life time provided: First, — By a deed of trust of December 15, 1921, to the Security Trust Company for certain trusts; and Second, — By his last will and testament for certain testamentary trusts, of which the Security Trust Company was trustee. The Security Trust Company accepted the trust first above-named. John Kelsey died January 19,1927.' His will was pro bated. The Security Trust Company, named as executor, was duly appointed as such by the probate court, and later qualified as trustee under his last will and testament. It is alleged the Security Trust Company changed its name to Detroit & Security Trust Company, and later to Detroit Trust Company. The bill of complaint charges defendants with gross mismanagement of the trusts, violation of the trusts, acting antagonistic to the terms of the trusts, in its own interest, against the interest of the beneficiaries of the trusts, unloading on the trust estate worthless securities, charging excessive commissions, breach of faith, neglect of duty, refusing to properly account, preventing the beneficiaries of the trust from inspecting the securities belonging to the trust, refusing to permit an auditor employed by the beneficiaries of the trust to audit the accounts, books, records, and documents relating to the trusts. It charges defendants with gross negligence, breach of trust, taking excessive feés, and insolvency, and the conservator of the Detroit Trust Company with usurping the functions of trustee. The conservator was appointed under Act No. 32, Pub. Acts 1933, as amended by Act No. 95, Pub. Acts 1933, which acts plaintiffs claim are unconstitutional. Defendants affirm the constitutionality of the acts and the attorney general intervenes and asserts their validity.' The defendants raised and argued the constitutionality of Acts Nos. 32 and 95, Pub. Acts of 1933. Since the cáse was submitted to this court the Detroit Trust Company, has been reorganized. In a supplemental brief defendant waives the question of the constitutionality of these statutes. It.is not considered. Other statutes provide for the removal of trustees and the selection of successor trustees in case of the insolvency, incapacity,. misconduct, or violation of trust by the trustee, or when the best interests of the trust demand it. 3 Comp. Laws 1929, §§ 12992, 12993,15892,15893. The right to remove trustees and to appoint successor trustees existed at common law. If, at common law a trustee could not effectually execute the trust (O’Reilly v. Alderson, 8 Hare, 101 [68 Eng. Repr. 289]; In Re Ledwick, 6 Ir. Eq. 561; Farmers Loan & Trust Co. v. Hughes, 11 Hun [N. Y.], 130); absconded (Millard v. Eyre, 2 Ves. Jr. 94 [30 Eng. Repr. 540]); became bankrupt (Bainbrigge v. Blair, 1 Beav. 495 [48 Eng. Repr. 1032]; Harris v. Harris, 29 Beav. 107 [54 Eng. Repr. 567]); misconducted himself (Thompson v. Thompson, 2 B. Mon. [41 Ky.] 161; Deen v. Cozzens, 7 Rob. [30 N. Y. Sup. Ct.] 178); dealt with the trust fund for his own personal profit and advancement (Kraft v. Lohman, 79 Ala. 323; Gregg v. Gabbert, 62 Ark. 602 [37 S. W. 232]; Ex parte Phelps, 9 Mod. 357 [88 Eng. Repr. 505]); committed a breach of trust (Thompson v. Thompson, supra; Mayor, etc., of Coventry v. Attorney General, 7 Brown P. C. 235 [3 Eng. Repr. 153]); refused to apply the income as directed (In re McGillivray, 138 N. Y. 308 [33 N. E. 1077]; Wilcox v. Quinby, 62 Hun, 620 [16 N. Y. Supp. 699]); failed to invest as directed (Cavender v. Cavender, 114 U. S. 464 [5 Sup. Ct. 955]); or acted adversely to the interests of the beneficiaries (Dickerson v. Smith, 17 S. C. 289); neglected to use due care in protecting the trust estate (Jones v. Dougherty, 10 Ga. 273); or was guilty of gross misconduct in the execution of the:'trust (Babbitt v. Babbitt, 26 N. J. Eq. 44; Sparhawk v. Sparhawk, 114 Mass. 356); or showed a lank of fidelity to the interests of the trust (Cavender v. Cavender, supra), or for any other good cause (Piper’s Appeal, 20 Pa. 67); a trustee could be removed and a new trustee substituted in his place by a court of competent jurisdiction. 1 Perry on Trusts (6th Ed.), §§ 274, 275; 28 Halsbury’s Laws of England, p. 114; 39 Cyc. pp. 261, 268. The power recognized by Act No. 32, Pub. Acts 1933, and Act No. 95, Pub. Acts 1933, to appoint successor fiduciaries, is a recognition of the judicial power of removal and appointment which existed at common law and is confirmed by statute. A trustee has no right to act when duty is opposed to interest, fidelity to cupidity, honesty to the desire for personal gain. To act as trustee for dead men carries with it the duty to exercise honesty, good faith, and active diligence; the duty to disclose to the beneficiaries and account for the estate, and, stringent as the law is in prohibiting trustees acting in violation of their trust, the rules of law should be more strict rather than be relaxed. A trustee has no right to act in the double capacity of broker or purchaser, to sell alleged securities at a profit to trust estates of which it is trustee, or to unload upon such trust estates worthless securities. These methods of plundering the estates of dead men cannot receive the approval and commendation of this court. Honesty, good faith, and reasonable diligence within the limits of the trustee’s authority are adequate protection to such trustees. Nothing else may be substituted therefor. It is claimed by defendants the probate court of Wayne county has exclusive jurisdiction of this case, and the circuit court for the county of Wayne in chancery has no jurisdiction; that the accounting had in the probate court in the matter of the estate of Dallas Kelsey, deceased, is former adjudication and that such accounts may not be impeached or inquired into. Defendants further ask for a writ of prohibition against the further prosecution of this case. We think the circuit court for the county of Wayne in chancery had jurisdiction. We cannot determine in advance what facts may be disclosed on trial. Out of the facts the law arises. How far the accounts of the trustee filed in the probate court may be former adjudication may depend upon many things; whether particular items were in the account or not, notice whether there was actual fraud practiced and other things, all of which it is unnecessary to specifically mention. We decline to determine in advance questions not before us and to issue a writ of prohibition. The order denying the motion to dismiss the bill of complaint is affirmed, costs to abide the final disposition of the case. McDonald, C. J., and Sharpe and North, JJ., concurred with Potter, J. Wiest and Butzel, JJ., concurred in the result. Fead, J., did not sit. Clark, J., took no part in this decision.

Wiest, J. Winifred Sunday, six years of age, was with, her mother in the home kitchen when the mother poured oil into the cook stove from a kerosene can. The kerosene can exploded and both mother and daughter died from burns within a few hours. This action was brought, in behalf of the estate of the little girl, against the alleged purveyor of the oil and resulted in a verdict of $9,000. It was.claimed at the trial that defendant negligently permitted gasoline to pass from one compartment in a tank upon a delivery truck to that of another compartment containing kerosene, thereby rendering the kerosene oil highly explosive. The oil was procured by the Sunday family, some days before the explosion, from a neighbor who vended to a few of his neighbors as an accommodation, and it was furnished to him by defendant company. At the trial a can of oil, procured by a neighbor from the same source, was admitted in evidence, together with testimony of a chemist that he had analyzed the contents and found the same explosive. This was objected to, on the ground that the can of oil tested was not properly identified in passing to the chemist, and, besides, was not sufficiently identified with the oil used in the home of the Sundays. The evidence presented a question of fact for the jury. Plaintiff’s case was based upon the claim that gasoline passed from its compartment and fused with kerosene in an adjoining compartment of a tank used for delivering both oils. The tank was furnished by defendant company and installed upon a truck belonging to and operated by a third party. It was claimed by defendant at the trial that , the two compartments mentioned were not only separated by metal ends, but as well by a baffle plate and subsequent inspection and cutting into the tanks disclosed no possible connection between the two. The tanks were inspected by the jury, and it is claimed in behalf of plaintiff that the riveting disclosed but a single metal plate between the two compartments and no baffle plate. View by the jury constituted proper evidence. The circuit judge instructed the jury as follows: “The statute provides that no person shall adulterate with benzine or other substance, for the purpose of sale, or for use, any kerosene oil, to be used in lighting or heating, in such manner as to render it dangerous to use; nor shall any person, knowingly, sell or offer to sell, or, knowingly, use such adulterated oil; nor shall any person, knowingly, sell, or offer for sale, or knowingly use, any coal or kerosene oil, or any products of petroleum for illuminating or heating purposes which, by reason of being so adulterated, or for any other reason, will emit a combustible vapor at a temperature of 120 degrees, or less, of Fahrenheit thermometer, where tested as provided by law of this State.” This instruction was based upon 1 Comp. Laws 1929, § 601. The court was in error in so instructing the jury. That statute prohibits a trade practice or an intentional act, and bears no relation to unintentional and negligent infusion of the two oils. For the error pointed out the judgment is reversed and a new trial granted, with costs to defendant. Potter, North, Fead, and Butzel, JJ., concurred with Wiest, J.

Retaxation of Costs. Per Curiam. This is appeal from taxation of costs by the clerk. The item objected to is the premium for five years on a surety bond of $20,000 given by defendant to release garnishments and which was taxed in favor of defendant under Court Rule No. 5, § 7 (1933), on the ground that the sums impounded were excessive. Plaintiff claimed damages of $100,000 on two items. He had directed verdict and judgment for $766.09 on one item and verdict was directed against him on the other. He appealed and the judgment was affirmed, 264 Mich. 280. As plaintiff had judgment, including costs, in circuit court, the matter of costs to that date thereby became closed. Defendant, having prevailed on the appeal, is entitled to costs of this court (3 Comp. Laws 1929, § 15450), which means subsequent to judgment. Court Rule No. 5, § 7 (1933), affects only the items taxable, not the right of a party to costs. Obviously part of the garnishment bond was necessary to protect plaintiff’s judgment during the appeal. Defendant is entitled to tax the cost of bond only from the time of judgment in circuit court and in such amount as was in excess of double the amount of the judgment. 3 Comp. Laws 1929, § 14900. The facts to permit the computation are not in the record before us and the matter will be referred to the clerk for retaxation in accordance with this opinion.

Fead, J. Plaintiff had judgment for negligent injuries. The question is whether the court erred in submitting to the jury the issue of subsequent negligence. Plaintiff was riding east on Grand River avenue in Detroit as a guest in an automobile driven by Roy Olde. The traffic was heavy. When about 150 feet west of the Twelfth street safety zone, Olde, traveling 20 miles per hour, attempted to get into the right-hand line of traffic. He was unable to do so because cars were many and close together, and, when about eight feet from the posts of the safety zone, he decided to stop. He applied his brakes vigorously and stopped, either just before or just after striking a post. Immediately thereafter his car was struck in the rear by a taxicab owned by defendant. It was an issue of fact whether plaintiff’s injury was caused by Olde’s running into the post or by the taxi striking his car after he had stopped. Subsequent negligence presupposes that Olde was guilty of contributory negligence and requires that defendant’s negligence, arising after the taxi driver saw or should have seen Olde’s peril, was the sole proximate cause of the collision. There was no testimony of the location of the taxicab when Olde’s car stopped, nor of its speed. The record contains no showing of facts from which it could be found that the taxi driver, in the exercise of reasonable care, saw or should have seen the predicament of the Olde car after it was in a dangerous place and that he could have stopped or turned aside in time to avoid a collision. Judgment reversed, with costs, and new trial. McDonald, C. J., and Weadock, Potter., Sharpe, North, Wiest, and Btjtzel, JJ., concurred.

Butzel, J. Plaintiffs H. L. Fahrney and Grace C. Cowen are the owners of property in the city of Boyal Oak, Oakland county, Michigan. Plaintiff School District of the city of Boyal Oak, Oakland county, Michigan, a municipal corporation, is interested in maintaining its public schools and the collection of taxes levied for that purpose. Plaintiff Michigan Tax Adjustment Bureau, Inc., is a Michigan corporation whose purpose is to assist taxpayers in the adjustment and payment of taxes. The State had bid in Fahrney’s property for the unpaid taxes for the year 1929 and Cowen’s for those of 1931. In October, 1933, the petitioners sought to make specific payment solely of the school taxes of the city of Boyal Oak, which were included in the items making up these unpaid taxes. Under the general tax laws prior to 1933, it was permissible to pay any one of the several taxes on any parcel or description of land both prior to and after the return of the lands for unpaid taxes, but before their sale by the State. See 1 Comp. Laws 1929, §§ 3444, 3449, 3450. ■ • However, tlie auditor general refused to accept the amounts so tendered on the ground that under Act No. 126, Pub. Acts 1933, such delinquent taxes could be paid only in general instalments of 10 per cent, of the entire amount due and in no other manner. It is his contention that any other construction would lead to difficulties in accounting, as well as in the proper apportionment of the balances from time to time, and would create much confusion and possible errors in computation. Plaintiffs contend, however, that the act was remedial and for the very purpose of enabling the payment of the school tax, or any other part of the taxes. The query in the instant case has been narrowed down to whether, under the 1933 statute, petitioners may, at any time before the taxes are again sold, pay such particular special items as they-may designate. The statute in question was adopted as'-an emergency measure to offer relief to delinquent taxpayers. It provides in section 2 that the auditor general shall return to the county treasurer all general and special assessment taxes for the year 1931 and prior years not theretofore cancelled, paid, sold or redeemed j that a special roll shall be maintained in the office of the several county treasurers’ termed the “returned delinquent roll,” in the preparation of which the tax should be “spread in separate columns in a manner to correspond with the original levy of said-taxes and special assessments, but-without the addition of collection fees,' interest or penalties.” Section 3 of the same act declares that these taxes may-be paid “in 10 equal annual instalments on or before September 1, 1935, and annually thereafter,” with interest at four per- cent..per annum.on each instalment from September 1, 1935, until the date of the several payments. But it is further provided that: “The return of such delinquent taxes and special assessments as herein provided shall not preclude the payment of the whole or any part of said taxes and special assessments, either to the auditor general or to the county treasurer * * * at any time prior to the time of payment specified and provided for in this act.” This does not limit the payment to one or more of the 10 per cent, instalments. The effect of the act-was to restore the lands bid in by the State for unpaid taxes for 1931 and prior years to the status they were in when the taxes were merely delinquent and as vet unsold, interest and other charges being cancelled thereon. The statute also re-spread the payment of such delinquent taxes under certain conditions over a period of 10 years from September 1, 1935, at the same time by its express language preserving to the taxpayer the right he had under prior statutes to pay separately such specific items or parts as he desired. It is not within our province to state any formula for the collection of balance of payments when the taxpayer exercises this right to pay a specific item; nor do we overlook the difficulties that may arise. We must give a fair meaning to the words of the law, as adopted. It plainly gives the taxpayer the right to pay the whole or any part of the taxes at the time hereinbefore stated. This right cannot be denied to the plaintiffs. It is only within the province of the legislature to change the law. Taxpayers frequently desire to pay certain items of the taxes and defer or contest payment of others. In the present instance, the parties might want to pay the school taxes so as to relieve the financial distress in which many school districts find themselves, as a result of the very conditions which prompted the adoption of the emergency measure under consideration. The auditor general is directed to accept the school taxes as tendered, or else immediately return the roll to the county treasurer where they may be paid. If this is not done within 20 days from the time of the handing down of this opinion, mandamus will issue. The question is a public one and there will be no costs. Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bushnell, and Edward M. Sharpe, JJ., concurred.

Fead, J. This is review of judgment dismissing a declaration for failure to state a cause of action against defendant Eding. The declaration alleges in substance that Eding operates an automobile sales and service garage, in which Harvey Zeerip was manager and Harry Brower was an employee; that defendant Yredeveld delivered a car at the garage in exchange for a new one; that the exchange was completed except that Yredeveld did not deliver a certificate of title; that Zeerip and Brower took the car from the garage with Eding’s consent, and, while Brower was driving it negligently, it struck and injured plaintiff ; and that Eding knew, when he gave his consent to Brower’s taking the car, that he was a careless, reckless, and incompetent driver. The claimed defect is that the declaration did not allege that Brower was agent or servant of Eding, engaged upon his business at the time of the injury. Eding was not liable, under 1 Comp. Laws 1929, § 4648, as owner of the car, because he had not received certificate of title. Kimber v. Eding, 262 Mich. 670. Defendant relies on Johnston v. Cornelius, 193 Mich. 115, in which the car was driven without the owner’s consent; Hartley v. Miller, 165 Mich. 115 (33 L. R. A. [N. S.] 81, 1 N. C. C. A. 126); Loehr v. Abell, 174 Mich. 590, and Brinkman v. Zuckerman, 192 Mich. 624, in which it was not claimed the driver was incompetent. These cases are authority that, independently of statute, the loan of an automobile does not render the owner liable for the negligence of the driver under the doctrine of “dangerous instrumentalities,” but liability is governed by the law of master and servant. This is the general rule. 16 A. L. R. 270. At bar, however, we have the added charge that the lender knew the borrower was an incompetent driver. The precise question is new in this State. The overwhelming weight of authority supports the following : “The general rule that an owner of an automobile is not liable for the, negligence of one to whom the automobile is loaned has no application in cases where the owner lends the automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, and likely to cause injuries to others in the use of the automobile; in such cases the owner is held liable for injuries caused by the borrower’s negligence on the ground of his personal negligence in intrusting the automobile to a person who he knows is apt to causé injuries to another in its use.” 36 A. L. E. 1148. See, also, 42 C. J. p. 1078; 68 A. L. R. 1013; Babbitt on Motor Vehicle Law (4th Ed.), § 1315. The rule is sound and is applicable here. Judgment reversed, with costs, and cause remanded for trial. McDonald, C. J., and Weadook, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred.

North, J. Acting under 2 Comp. Laws 1929, §§ 9710-9716, defendants organized an unincorporated association and conducted a private banking business. After operating eight or nine years the bank became insolvent. September 27, 1930, plaintiff, on petition of a majority of association’s trustees, was appointed receiver. Some months later, it being made to appear to the court that the bank’s assets were insufficient to meet its -liabilities to the extent of ma-ny thousand dollars, the receiver was directed by the court to file a bill in equity against the members of the association to collect from them ‘ ‘ an amount sufficient to liquidate the ob ligations” of the bank, then estimated at $65,000. The receiver filed such a bill and defendants made answer thereto. The case was heard and the court decreed: ‘£ That the plaintiff is entitled to recover from the defendants the sum of $70,000 as hereinafter set out, and that for the payment of said sum of $70,000 the defendants hereinafter named are liable as partners for the payment to the plaintiff, or its successor, of the sums set opposite their respective names, but that the personal liability of each of said defendants is limited to the amounts so set out.” Liability to the extent of $70,000 was decreed as to each of appellants excepting the following: Mittie E. Bachelor, $47,985; Albert R. Richardson, $33,361; Grlen Buff my er and Ira S. Carnes, each $27,462. As to Mr. Frank Nook, who was joined as a party defendant by order of the court, the bill was dismissed. From the decree so entered this appeal has been taken. Appellants assert that the receiver is not a proper party plaintiff and that the chancery court is without jurisdiction. Neither contention can be sustained. Liability of the members of this association is fixed by statute. Section 1 of the act (2 Comp. Laws 1929, § 9710) requires, among other things, the filing of a certificate with the county clerk setting forth the full name of every person composing the firm. Section 2 reads: ££In case there shall be, at any time after the making and filing of said certificate, any change in the name or style of said firm, or in the terms of their partnership, then a new certificate, verified as before specified, shall in like manner be filed, as required by section one of this act, before such change shall take effect; and until such new certificate shall have been made and filed, as above specified, the individual member or members of the firm, as set forth in the certificate on file, shall be held to be the actual members of the firm, and in all respects holden and liable for any obligation, debt or liability, incurred by the said company, as brokers or exchange dealers. ’ ’ 2 Comp. Laws 1929, § 9711. The liability imposed by the foregoing statute is that of a partner. As to creditors of the association this statutory liability cannot be restricted by agreements entered into between the members of the association. Tierney v. McKay, 232 Mich. 609. When, as here, they expressly organize themselves for the purpose of doing business under this statute, the members of the association thereby bind themselves by the provisions of the statute and assume the liabilities imposed by it. The right of the court to appoint a receiver is not here challenged, nor could it be. Having been appointed, it was the receiver’s duty to take over the assets of the association. When required to satisfy the obligations of the association, the property of its respective members (unless needed for payment of personal debts) becomes part of the assets of the association. “A receiver (of a partnership) has been held to be under the duty of taking into his custody all assets of each individual partner not required to pay the partners’ individual debts.” 47 C. J. p. 984. “It will be conceded withoiit citation of the authorities that when a partnership is formed the property of the partnership, and, subject to individual debts, the property of the several partners, stands as an initial asset for the payment of all debts which the partnership may incur, and that after-acquired property of partnership or individual continues as such an asset. Ordinarily, therefore, the receiver of a partnership would be under the duty of taking into his custody all partnership assets and all assets of each individual partner which were not required to pay the individual debts of those partners respectively. Assets thus taken into custody would be reduced to cash, and, under proper orders of the court, used to pay the expenses of receivership and liquidating claims of creditors against the partnership.” Fogg v. Tyler, 111 Me. 546 (90 Atl. 481, 7 A. L. R. 986). Creditors have filed in these proceedings approximately 700 claims totaling in excess of $129,000. Before decree herein a dividend of 25 per cent, had been paid. Remaining assets in the hands of the bank, eliminating those which the court found to be slow and of questionable character, amounted to approximately $29,000. Incident to the discharge of its trust the receiver had advanced upwards of $1,700- These facts justified the court in determining that substantially $70,000 of the bank’s liabilities must be met by the members of the association. The members had the right in these proceedings to have a determination, at least approximately, of the bank’s liabilities. Also, if they were made parties, the liability of any and all persons who were claimed to be members of this association could be determined in these proceedings, and, ultimately, contribution decreed as provided in the articles of association. If proper parties were brought in, the validity of any claim asserted against the bank could be adjudicated herein. Indeed, without the consent of the court, claims against the bank in the hands of the receiver could not be adjudicated in any other court. The total of claims against the bank bears materially upon the amount' of liability of the members of this association. These and many other phases of these proceedings disclose that the whole matter is in the nature of an 'accounting and subject to equity jurisdiction. The equitable remedy is also peculiarly applicable in that it avoids a multiplicity of suits. This is of particular importance in the instant case in which hundreds of claims have been filed against this insolvent bank. Obviously the receiver was the only person who could properly prosecute these proceedings in chancery. He was the proper party plaintiff and the equity court the proper forum. “The appointment of receivers in actions between partners for an accounting and a settlement of their partnership affairs, to take charge of the assets, collect the debts and wind up the business of the firm, is a legitimate exercise of the jurisdiction of courts of equity, and one which is clearly sustained 'by the authorities. And the power of thus appointing a receiver in an action for the dissolution of a partnership and the settlement of the firm business, is regarded as essential to the object sought by such suit, and falls within that class of incidental powers which the courts having jurisdiction over such cases have full authority to exercise.” High on Receivers (4th Ed.), § 472. “Where creditors filed their claims in a proceeding to wind up a partnership, the court of equity, which necessarily determines the validity and extent of the claims for the purpose of devoting any partnership assets to the payment thereof before distribution, will not remit claimants to another tribunal for full relief, if the partnership assets are deficient, but will give personal judgment against the partners for the deficiency.” Lackner v. McKechney (syllabus), 164 C. C. A. 327 (252 Fed. 403). Before authorizing the receiver to proceed against the individual members of the association, the cir cuit judge determined that the firm assets would be insufficient to meet its liabilities by approximately $70,000. Insufficiency of firm assets having been determined, suit by the receiver was proper. Everall v. Stevens, 158 App. Div. 723 (143 N. Y. Supp. 874); In re Roberts, 214 N. Y. 369 (108 N. E. 562); Anderson v. Stayton State Bank, 82 Ore. 357 (159 Pac. 1033); Torbe v. Strauss, 155 Wis. 518, 528 (144 N. W. 184, 1136); Beaver Boards Companies v. Imbrie, 275 Fed. 437. While the facts involved are different, the attitude of this court relative to appointing a receiver in partnership matters is indicated by our decision sustaining such appointment in Dolenga v. Lipka, 224 Mich. 276. Appellants’ contention that, under the circumstances presented by this record, the receiver could not bring this suit and that equity did not have jurisdiction cannot be sustained. These proceedings in equity were not prematurely instituted. Appellants ’ claim to the contrary is based on provisions contained in the articles of association entered into by its members. It is therein provided that depositors in this bank shall in the first instance look to the funds and property in the hands of the association’s trustees for pay-, ment, and that the trustees in conducting the association’s business have no power to bind its members personally except as provided in the articles of association. As hereinbefore stated, the members of this association organized themselves and proceeded to transact a banking business under the provisions of the statute hereinbefore cited, and having done so they are subject to the liabilities imposed by the statute. They could no more limit their personal liability by an agreement inter se in the manner above noted than they could repeal or obviate by their Agreement the provision of the statute making each of them personally liable for “any obligation, debt or liability” of the association. While procedure in a case of this character is not governed by statutory provisions relating to State or national banks, the reasoning underlying decisions enforcing stockholders’ liability under such statutes is in a large degree applicable here, especially as to the time of enforcement. Depositors in banks are entitled to prompt repayment. If the bank becomes insolvent they need not wait during the long period usually necessary to liquidation of slow assets before enforcing payment by those who, under the law, become personally liable. ‘ ‘ The liability of the stockholders is fixed by statute. It is not a mere collateral undertaking. When the bank became insolvent, and closed its doors, the depositors were entitled to an immediate payment of their money; and, when it was shown that the assets were insufficient to pay them, it became the duty of the stockholders to pay the necessary amount, not exceeding the par value of the stock, to meet the demand.” Foster v. Row, 120 Mich. 1 (77 Am. St. Rep. 565). See, also, Bushnell v. Leland, 164 U. S. 684 (17 Sup. Ct. 209). And the amount collected need not be limited to the exact amount of the apparent deficiency. If there is an excess it will be ratably returned to those from whom it was received. It was expressly so provided in the order of the court directing prosecution of these proceedings. Appellants challenge the constitutionality of 2 Comp. Laws 1929, § 9711; and they also assert that decreeing liability to the amount of $70,000 was arbitrary and not justified by the testimony. These and other questions bearing upon the general right of the receiver to recover have been considered and found to be without merit. Appellants Marley S. Bachelor, Mittie E. Bachelor and Herbert G. Roach assert that they should have been decreed free from liability as members of the association because they had disposed of their respective interests in the association prior to the receivership. Under a provision in their articles of agreement, there were issued to its members certificates evidencing the interest each held in the association. These articles further provide: “The interests of said subscribers in said business may be transferred by an assignment thereof in writing filed with the secretary of said board, of trustees and upon such assignment being so filed, the interest of the assignor shall cease and the rights of the assignee shall vest the same as though he were an original subscriber hereto.” On the face of each certificate it is provided that the holder’s interest in the association is “transferable only on the books of this organization.” These three appellants assert that their respective interests in the association had been transferred to Frank S. Nook prior to the receivership. Nook denied this. There was no transfer entered on the books of the association. An issue of fact was presented. The testimony was conflicting. The trial judge found there was no transfer. ‘We think determination of the issue of fact was correct. But entirely aside from this, both Mr. Bachelor and Mr. Roach must be held liable as a matter of law. They were original members of the association and so listed in the certificate filed with the county clerk. A new or subsequent certificate of the association’s membership was not filed. Hence, under section 9711, above quoted, liability of these original subscribers continued. For this reason others of the appellants than those just above named who were parties to the original certificate must also be held liable as a matter of law. As to liability of both original and subsequent members see Wright v. Weimeister, 87 Mich. 594; Power v. Brigham, 237 Mich. 172. Decree affirmed. Costs to appellees. McDonald, C. J'., and Weadock, Potter, Fead, Wiest, and Btjtzel, JJ., concurred with North, J.

North, J. In this replevin suit tried before the court without a jury defendant Roper had judgment. Plaintiff, asserting that it is entitled to judgment under the record, has appealed. Plaintiff claims the right to possession of the replevined goods under a chattel mortgage given to it by defendant Moss, an insurance agent. So far' as involved in this appeal the mortgaged property consists of the furniture and equipment used by Moss in his insurance office, such as chairs, desks, book cases, filing cabinets, typewriters, storage cabinet, safe, rugs, etc. Plaintiff’s right to recover turns upon whether its chattel mortgage is within the- provisions • of 2 Comp. Laws 1929, § 9548, -as amended by Act No. 198, Pub. Acts 1931, which in part reads: “Every mortgage or conveyance intended to operate as a mortgage of the whole or any part of a stock of merchandise or fixtures or merchandise and fixtures, pertaining to the conducting of any said business which shall hereafter be made for a past consideration other than the purchase price of the property mortgaged without notice to the creditors of . the mortgagor as herein provided, shall be void as against said creditors not so notified.” There was no notice of the giving of this chattel mortgage to the mortgagor’s creditors. Appellees assert, and the circuit judge held, that because notice was not given the chattel mortgage is void as to the mortgagor’s creditors. Because of the similarity of purpose and provisions counsel for the respective litigants rely largely upon decisions under the bulk sales law (2 Comp. Laws 1929, § 9545 et seq.). Appellees cite People’s Savings Bank v. Van Allsburg, 165 Mich. 524; Patmos v. Grand Rapids Dairy Co., 243 Mich. 417; Michigan Packing Co. v. Messaris, 257 Mich. 422. The purpose and the scope of legislation of this character have been pointed out by previous decisions of this court. “Inasmuch as this law is aimed at the business of merchants, we think the word ‘fixtures’ as used in the statute, must have reference to such chattels as merchants usually possess and annex to the premises occupied by them, to enable them the better to store, handle, and display their goods and wares.” Bowen v. Quigley, 165 Mich. 337 (34 L. R. A. [N. S.] 218). . “Its (bulk sales act) purpose is to prevent the purchase of a stock of merchandise from various persons on credit and then selling it ont in bulk for the purpose of defrauding the rights of the creditors who extended the credit. Gallup & Co. v. Rozier, 172 N. C. 283 (90 S. E. 209). It should he construed so as to cure the evil at which it was aimed, defrauding creditors by secret bulk sales. 27 C. J. p. 875.” Patmos v. Grand Rapids Dairy Co., supra. It is appellant’s contention that the types of merchandise and fixtures which fall within the provisions of the quoted act are those that are commonly used in mercantile business, and that such construction is in harmony with and renders effective the purpose of the legislation. We think this contention must be sustained and that the instant case fallá within and is controlled by our decisions in Bowen v. Quigley, supra; People’s Savings Bank v. Van Allsburg, supra; McPartin v. Clarkson, 240 Mich. 390 (54 A. L. R. 1535); Michigan Packing Co. v. Messaris, supra. Appellees call attention tQ the insertion by the 1931 amendment of the word “any” in the above-quoted phrase “pertaining to the conducting of any said business; ’ ’ and from such change contend that the statute should be made applicable to any business. We think the amended statute is not subject to this construction. It still bears the same title: “An act to regulate the mortgaging of stocks of goods, merchandise and fixtures, in bulk.” Its provisions must still be confined to mercantile business or at most extended only to business of a type and character closely allied and very similar to a mercantile business. The statute is not applicable to the chattels mortgaged in the instant case. Plaintiff’s' chattel mortgage was valid and at the time it replevined these chattels it was entitled to possession of them. Judgment entered in the circuit court is reversed and the case remanded with direction to enter judgment in accordance herewith. Costs of both courts to appellant. McDonald, C. J., and Weadock, Potter, Sharpe, Read, Wiest, and Butzél, JJ., concurred.

North, C. J. This is a suit in ejectment which has been before this court on a former occasion. Jeffries v. Sheehan, 242 Mich. 167. Plaintiff claims to have acquired title to the strip of land in dispute by acquiescence and agreement incident to an alleged settlement of a boundary line. The defendants had judgment on a directed verdict. Plaintiff has assigned error as follows: “1. The court erred in not allowing plaintiff’s counsel in his opening statement to the jury to state his theory of the law applicable to said cause. “2. The court erred in refusing to allow plaintiff to testify as to what her grantor, David W. Simons, told her with regard to the boundaries of the property in question at the time she purchased the property from him. “3. Because the court erred in directing a verdict in favor of the defendants. * * * “4. Because the court erred in refusing to grant a new trial.” As to plaintiff’s first assignment of error, it need only be said that her theory was fairly presented to the jury notwithstanding the court’s ruling; and further, since the verdict was directed by the court, plaintiff was not prejudiced. The testimony referred to in the second assignment was hearsay and not at all material to plaintiff’s claim that she had title by acquiescence. The conversation which plaintiff sought to prove occurred in 1913 between herself and her grantor. He was an entire stranger to these defendants, and the conversation did not occur in the presence of any of them, and was not at all connected with the circumstances happening in 1922 in consequence of which plaintiff claims title by acquiescence. We have gone through this record with care, and are convinced that the plaintiff did not make out a case for the jury on her theory of having acquired title by acquiescence. The alleged agreement out of which such title is claimed to have arisen was between plaintiff and defendants’ predecessor in title, who was not living at the time this suit was started. If the testimony relative to it is given the construction most favorable to the plaintiff, it can mean no more than that defendants’ predecessor in title agreed orally with plaintiff that she might have right of driveway across his land to the alley. It was not an agreement to fix a boundary line between properties or an acquiescence in the location of such a boundary. As an oral agreement for or a consent to a right of driveway it was at most only an attempted grant of an interest in real estate and was void under the statute of frauds because not in writing. 3 Comp. Laws 1915, § 11975; Dummer v. U. S. Gypsum Co., 153 Mich. 622. The plaintiff acquired no interest in the land as a result of this alleged oral agreement. The trial judge was correct in directing a verdict for the defendants and in subsequently denying plaintiff’s motion for a new trial, which was based on the same reasons as the first three assignments of error above noted. Judgment of the lower court is affirmed, with costs to the appellee. Fead, Butzel, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.

North, C. J. The plaintiff, Edna Wehling, was injured while riding in a motor vehicle operated by her husband and going in an easterly direction on Court street in the city of Flint. As they approached the intersection at Liberty street they saw a Ford truck about 100 feet distant in a southerly direction and which was approaching the intersection rapidly, approximately 30 miles per hour. Court street is a through street. Plaintiff and her husband, assuming that the driver of the truck would slacken his speed and give the right of way to traffic on Court street, proceeded across Liberty street driving at substantially 20 miles per hour. Near the center line of Liberty street, the Ford truck, which belonged to the defendants Linder and Schneider,'and which was driven by the defendant Quisenberry, ran into the right side of the vehicle in which plaintiff was riding, and her injuries resulted. Plaintiff’s claim of right to recover is upon the ground that the Ford truck was operated in a careless manner in violation of the city ordinance, which gave Court street traffic the right of way at this intersection, and that it was being driven in excess of 12 miles per hour, which was also in violation of the city ordinance. The principal question presented in this record is raised by the contention of the defendants Linder and Schneider that Quisenberry was not in their employ at the time of the accident, and that he was driving the truck without their consent and against the express orders of their foreman. The jury rendered a verdict in favor of the plaintiff; but on defendants ’ motion the trial court entered a judgment in their favor non obstante veredicto. Plaintiff reviews by writ of error. Defendants’ motion for judgment non obstante was granted on the ground that in this record the proof in support of defendants’ contention stated in the next preceding paragraph was positive and uncontradicted. We have given careful attention to the record, and find that it fully sustains the action of the circuit judge. One who is driving a motor vehicle incident to the owner’s business is presumed to be duly authorized to so drive the vehicle; but it is the established law in this State that such a presumption prevails in favor of the litigant relying thereon only so long as that phase of the case is not covered by testimony to the contrary. Gillett v. Michigan United Traction Co., 205 Mich. 410; Union Trust Co. v. Car Co., 219 Mich. 557; Depue v. Schwarz, 222 Mich. 308; and Noonan v. Volek, 246 Mich. 377. If the testimony opposed to the presumption is clear, positive, and uncontradicted, it becomes the duty of the trial judge to direct a verdict if the issue is a controlling one in the case. Union Trust Co. v. Car Co., supra. At the time of the trial of this case it was not possible to locate the driver Quisenberry, and hence his testimony was not available. The defendants Linder and Schneider were co-partners and under the firm name of Flint Sanitary-Wiping Rag Company were doing a laundry business and also furnishing machine shops with baled rags. They were erecting a new building close to the one occupied by their business, and at certain times they had hired Quisenberry to do odd jobs about this new building. He had never been employed in the plant that was then being operated. But he was a roommate and pal of a young man named Phillips who was employed by the partners to drive one of their two delivery trucks. The other truck when used seems to have been operated by one of the partners. On the day of the accident there was a call for a bale of rags to be delivered that afternoon. The call came in around 5 o’clock and after the regular time of closing. The driver Phillips was still out delivering with one of the trucks. Quisenberry heard the foreman who received the call say to another employee: ‘ ‘ The delivery has got to be made this evening;” and Quisenberry thereupon volunteered to make the delivery of the bale of rags upon which the foreman placed a delivery slip. The foreman testified: “I said, ‘Leave it alone. Phillips will be back in a little while.’ ” The foreman and the other employee then went to do some work in a remote part of the establishment from which the foreman could not or at least did not see either the bale of rags which stood out in front of the building or the other delivery truck belonging to the partnership. He testified that he was not aware Quisenberry had taken the truck until after the accident. Only one of the partners (Mr. Schneider) was called as a witness, and he testified that Quisenberry was not employed by ¡¿them on the date of the accident. He produced the firm’s time books showing their employees of that date and also a check register covering payment of wages to employees by which his testimony was corroborated. The foreman testified to the same effect. The latter’s testimony relative to forbidding Quisenberry to undertake this delivery was corroborated by another employee, who testified: “Quisenberry was standing around, that is all I saw him do; I heard Mr. Gibson (the foreman) say there was a bale to be delivered, and Quisenberry told him he would deliver it, and Gibson told him, no, never mind, that Phillips would be back in a while and he would take it over. That is all the conversation I heard him say. Then I went back of the boiler, quite a distance back, and Gibson came back to the boiler, too.” Plaintiff attempts to claim that certain admissions were made by Mr. Schneider relative to Quisenberry having been in the firm’s employ on the day of the accident. The record does not justify this claim. All of the testimony bearing upon that question is against plaintiff’s claim that Quisenberry was then in the employ of the other defendants or that their truck was being driven by him with their knowledge or consent either express or implied. By statute it is expressly provided that: “The owner shall not be liable, however, unless said motor vehicle is being driven with his or her express or implied consent or knowledge.” 1 Comp. Laws 1915, § 4825, as amended by Act No. 287, Pub. Acts 1925. In using this truck at the time, Quisenberry, under the undisputed proof, was a trespasser, and, regardless of how commendable his motives may have been, the owners cannot be held liable for his unlawful act. The uncontradicted proof opposed to the presumption as to Quisenberry’s authority to use the truck was direct, positive, clear, and credible. While the trial judge did not place his ruling as to entering judgment non obstante on the ground of ■ contributory negligence, we think he might well have done so. Plaintiff claimed the right to recover' on the ground that Quisenberry was driving in violation of a city ordinance which provided: “No vehicle shall cross the street or make a turn thereon, at a rate of speed exceeding ten miles per hour, in business sections, and twelve miles per hour in residence sections.” Not only did the testimony show that Quisenberry was violating'this ordinance by driving at an excessive speed, but according to the testimony of all of plaintiff’s own witnesses who gave evidence on that subject, her husband was also violating this ordinance by driving across Liberty street at substantially 20 miles per hour. Violation of the ordinance by plaintiff’s husband did not constitute negligence per se which could be imputed to her; but this, together with the failure of both the plaintiff and her husband to continue to make reasonably careful observations of the approaching truck driven by Quisenberry at the excessive rate of 30 miles per hour, after each had seen him when he was approximately 100 feet from the intersection, unquestionably had a causal relation to this accident and constituted contributory negligence. The facts in this case bring it within the ruling of Molby v. Detroit United Ry., 221 Mich. 419; Halzle v. Hargreaves, 233 Mich. 234; Molda v. Clark, 236 Mich. 277; and Kerns v. Lewis, 246 Mich. 423. The judgment entered in the circuit court is affirmed. Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision.

Wiest, J. In August, 1928, W. E. Wood Company-operated under the workmen’s compensation law, and, by its clerk, reported that a compensable accident had happened to Jacob Aske, one- of its employees. Mr. Aske applied for compensation and defendants appeared and denied liability, claiming’ plaintiff sustained no accident while in the employ of W. E. Wood Company, and had suffered no injury by accident. Upon hearing the deputy commissioner found for defendants. Upon appeal the department of labor and industry, by its commissioners, found for plaintiff and made an award. Defendants review by certiorari. Defendants’ point in this court is that plaintiff, at the time of the claimed accident, was a loaned employee. The denial was broad enough to cover the point now urged, although not mentioned in the opinion rendered by the commission. The attorneys for plaintiff claim that the point-is raised for the first time in this court. Plaintiff claimed an injury to his right wrist, occasioned by a sudden grasping of a support to prevent a fall while in the performance of his work. Defendants asserted that plaintiff’s trouble-was arthritis, caused by some foci infection. Such was evidently the issue before the commission. •That issue is not here presented. The rules of the department of labor and industry require an employer, if denying liability, to set forth with reasonable detail and certainty the grounds of defense, relied upon. Review here is limited to points made and presented there. We will consider such points only as the record affirmatively shows were presented to the commission for decision. This record does not show that the point of loaned employee was submitted to the commission. It is not enough that the point could have been presented under the notice of contest and the evidence. This record is very unsatisfactory and is silent upon facts essential to the rule of loaned employee. Why was plaintiff, a general employee of W. E. Wood Company, working upon the A. C. Spark Plug Company building? Was it under contract between the. W. E. Wood Company and the A. C. Spark Plug Company? If so, what did the contract provide, and which company was to pay plaintiff for his labor? If plaintiff was loaned, was he so informed and did he consent? If not informed, were the circumstances such that he must be held to have been aware of the change of employers and of implied consent thereto? The record affords no answers to these questions and does not present facts calling for consideration of the rule of loaned employee. The award of the commission finds support in the evidence, and is affirmed, with costs against defendants. North, C. J., and Fead, Butzel, Clark, McDonald, Potter, and Sharpe, JJ. concurred.

Wiest, J. The bill herein was filed to have money on deposit in a bank impressed with a trust or held as a gift inter vivos in payment of a claim of plaintiff for care and board furnished the depositor, now deceased, and whose estate is in course of probate under will in the-State of New York. Plaintiff claims that for many years Elizabeth Currey, the deceased, made her home, a part of each year, with plaintiff and her husband, now also deceased, under promise to recompense them. Mrs. Cnrrey was Mr: Rasey’s aunt, and she had a savings deposit in the Old State Bank of Fremont, which was opened in the names of John Rasey or Elizabeth Currey, and was carried under these names on the bank records until March, 1932, when, at the request of Mrs. Currey, the name of John Rasey and the word “or” were stricken out hy T. I. Fry, cashier of the bank, leaving the account on the bank records in the name of Elizabeth Currey alone. Later she directed that, after the name of Elizabeth Currey, there be written in “or Mrs. Dora Corey, or survivor of either.” This was done during the lifetime' of Mr. Rasey. Mr. Rasey died May 22, 1932. ' In June, 1932, from her home in. New York, Mrs. Currey sent a draft for withdrawal of the whole deposit. The bank at Fremont thereupon notified her that: “Under the agreement of the banks of this county, we are only permitting limited withdrawals at this time and wish to state that we would be pleased to send you $100 or up to $500 at any time you wish it. ’ ’ We assume that Mrs. Currey left a will for Dora B. Corey, a stepdaughter, is averred to be executrix and sole beneficiary of the estate, but when the will was admitted to probate in New York or what proceedings have there been had is not made to appear. No ancillary probate proceedings have been had in this State. • Plaintiff claims that the ■ deposit was impressed with a trust use-to pay for Mrs. Currey’s care and board and, if not so' found, then there was a gift inter vivos. Counsel for defendant estate contends that there was no such trust use or gift inter vivos because a trust agreement was not shown and there was no passing of ownership or sole dominion over the deposit to plaintiff’s husband, The circuit judge found the alleged trust and underlying agreement and decreed the deposit to plaintiff as survivor of herself and husband in specific performance thereof. The executrix of the estate prosecutes review by appeal. The claimed agreement rests mainly upon the testimony of the attorney for plaintiff, and we state the substance thereof: “Some time in August of 1931 * * * I was in the bank in -Fremont and someone — I don’t know whether it Avas Mr. Fry or someone else in the bank — but somebody told me that someone in the back room wanted to see me and so I went in there and John Rasey and this old lady were there. Apparently they had been going through some papers as they were sitting there and had some bank books and one thing and another and they were talking among themselves. I don’t know whether I got the' information from Mrs. Currey or from John Rasey that they had just returned from New York, Avhere Mrs. Currey had been liAdng with some relatives, but she wanted to know of me if any of her relatives could come in and disturb an account that she had made at the Old State Bank for the benefit of John Rasey and his Avife. I asked her something about the details and she said that she had been living Avith John and his wife and that she had also lived in New York a number of years since the death of her son and she stated that * * * she had about $8,000 in money and that when her son went the only friends she had left were John Rasey and his Avife and this relative in New York. I don’t think she told me what the nature of this relationship was between her and this woman in New York but she said she wanted John and his Avife to have about half of the money and this girl in New York to have half of the money and so she had made this ac count, and arranged it at the banks, both in New York and in Fremont; that John and his wife had been very good to her; that they had made a home for her and in fact it was the only home she had. * * # Well, I asked her the nature of the arrangement under which she had deposited this money and I understood her to say that she had made an account in the name of herself and John Rasey and Alice Rasey; that it was to be John Rasey’s and Alice Rasey’s money when she was through with it to sort of compensate them for what they had done for her, but that she was to have the income from this money as long as she lived, if she wanted it. * * * I asked her why she didn’t make a will and she said that she didn’t want to make a will because she didn’t want Mr. and Mrs. Rasey to go to the expense of probating this estate. That is about the substance of all that was said; I told Mrs. Currey that if that was what she wanted nothing further was necessary and that is the only talk I ever had with John Rasey and Mrs. Rasey and Mrs. Currey on the subject.” Outside of this testimony there was some to the effect that Mrs. Currey had said that she intended to recompense the Raseys for their care of her. It is clear that Mrs. Currey felt very friendly toward Mr. Rasey, who was her nephew, and intended at one time to make him a gift to take effect at the time of her death, but she was shrewd enough to not place her means bejmnd her control, and later she expressly withdrew the prospective gift. The money was all deposited by Mrs. Currey. Here was no gift, by way of absolute transfer, or to take immediate effect, but, at the inception of the arrangement and in its very designation of terms, was contingent upon survivorship of John Rasey. It was not irrevocable and did not impress a trust upon the deposit. If a-depositor directs a bank to pay the deposit to the depositor, or another designated, the depositor may change the designation or limit payment to himself or his order. The designation of the'bank account as one subject to the order of Mrs. Currey or Mr. Rasey did not constitute a gift inter vivos, for it did not strip Mrs. Currey of all ownership of and dominion over the deposit. The 'death of Mr. Rasey preceded that of Mrs. Currey and, had the designation continued until his death, then Mrs. Currey, in any event, would take the deposit as survivor. Plaintiff in this case can assert no greater right under' the theory of trust than could Mr. Rasey during his lifetime. This is not an instance where-Mrs. Rasey can claim by right of survivorship of herself and Mr. Rasey, for the-right of Mr. Rasey to the deposit, in any event, depended upon his surviving Mrs. Currey. The deposit was at one time on the books of the bank in the name of John Rasey or Elizabeth Currey and the authorized withdrawal signatures were John Rasey and Elizabeth Currey. Under' the evidence relating to the deposit and the disclosed intention of making it joint, with right of withdrawal not only in, but repeatedly exercised by, Mrs. Cur.rey, and recognized as of right by the bank under the form of deposit, it clearly appears that the deposit was joint and, even if it so remained to the time of death of Mr. Rasey, right of. survivorship was,in Mrs. Currey and became'vested. 3 Comp. Laws 1929, § 12063; First National Bank & Trust Co. v. Huntley, 251 Mich. 483; Equitable & Central Trust Co. v. Zdziebko, 260 Mich. 366. At the death of Mr. Rasey, Mrs. Currey,' as survivor, remaihed sole owner of the deposit. Mr. Rasey was not the survivor and plaintiff is not survivor of the survivor. When the deposit was joint it was not in the nature of a trust fund. Subsequent direction by Mrs.Currey to make it payable to her alone, and later direction to pay to her or Dora B. Corey, or the survivor, did not in any sense constitute the deposit a trust fund. There was no gift inter vivos of the deposit for no separate right thereto was vested in Mr. Rasey. Snyder v. Snyder, 131 Mich. 658; Chaddock v. Chaddock, 134 Mich. 48; First National Bank & Trust Co. v. Huntley, supra. If the deposit were a trust fund it would pass to the estate of Mr. Rasey and not to plaintiff, as survivor. If plaintiff has a claim it is one at law against the estate and should be presented in the manner provided by law. The bill cannot be maintained under the theory of specific performance of a contract to transfer' the deposit to Mr. Rasey. Such a contract is negatived by the-evidence in the case and, besides, plaintiff’s remedy, if she has any claim, is adequately provided for by law and equity may not, in a case like this, grant' specific performance. Plaintiff established no case for equitable relief. The decree is reversed and the bill dismissed, with costs to defendant estate. McDonald, C. J., and Weadock, Potter, Sharpe, Fead, and Butzel, JJ., concurred with Wiest, J. North, J., concurred in the result.

Wiest, J. Plaintiffs, husband and wife, were vendees in a land contract and in default in payments. Defendant, vendor, prepared two identical notices of forfeiture for nonpayment of. instalments and inclosed the same in a registered letter to Morris Sriro, one of the vendees, then brought summary proceedings against Morris Sriro to recover possession, was awarded restitution by a circuit court commissioner, who also made a finding that the amount due and unpaid on the contract was $210. Writ of restitution was not issued. Plaintiffs were not occupying the premises but had a tenant in possession. Defendant demanded and received one payment of rent from the tenant and, with the money, made a slight repair and also insured the building, and sent his wife, on one occasion, to collect the rent, but it does not appear that she obtained any money. For want of notice of forfeiture served upon Mrs. Sriro and failure to- make her a defendant in the summary proceeding the summary proceeding was a nullity. This suit was brought by plaintiffs on the ground that by the mentioned notice, suit, and acts defendant rescinded the contract and evicted plaintiffs, and they asked judgment for the whole amount paid on the contract amounting to $6,810. The court denied recovery, holding there was no rescission of the contract but an ineffectual effort to have remedy in accordance with its terms. Insurance on the building was no repudiation of the contract and much less an eviction. The vendor had an insurable interest in the buildings on the land by virtue of his legal title. The defendant, by attempted notice of forfeiture and the summary proceeding, acted in affirmance and not in rescission or repudiation of the contract, for he was en deavoring to enforce remedies expressly reserved in case of default of the vendees. An abortive attempt to obtain remedy, under the terms of the contract and applicable law, did not constitute rescission or repudiation of the contract any more than a successful effort would. That a successful proceeding is in affirmance and not in rescission of the contract, see Hansbrough v. Peck, 5 Wall. (72 U. S.) 497, 505. It would be anomalous to hold that an unsuccessful effort to enforce the contract constituted rescission or repudiation and entitles the defaulting vendees to have recovery of all paid thereon. Plaintiffs’ action is planted on want of valid notice of forfeiture and a void summary proceeding and this, without more, left the contract rights intact. But, it is said, there was an eviction of plaintiffs ’ tenant. The invalid notice of forfeiture and the void summary proceeding left the relation of landlord and tenant in effect and defendant but an intruder upon plaintiffs’ rights. There was no eviction in fact and none in point of law for no dispossession was worked but only a temporary interference. Plaintiffs rely upon our holding in Schon v. Lawrence, 258 Mich. 543. In that case there was an eviction in fact, without notice of forfeiture and under an abandoned summary proceeding. There, efforts, if any, to have remedy in accord with contract rights were flouted and a high-handed method of unlawful ouster substituted and such, we held, a repudiation of the contract and constituted rescission. Such is not the case at bar, and we are not disposed to extend that ruling to an abortive attempt to enforce contract rights, for that would render enforcement proceedings, if invalid, ex tremely hazardous and bring a relation exactly opposite to relief sought. The judgment is affirmed, with costs to defendant. McDonald, C. J., and "Weadock, Potter, Sharpe, North, Fead, and Butzel, JJ., concurred.

North, J. Upon careful consideration of the briefs filed on this rehearing by the respective parties, no reason appears for modifying our former decision. 261 Mich. 188. At the original hearing all parties agreed the purpose of this whole transaction was to give plaintiff a “mortgage” as security incident to a loan which it made to defendant John R. Rood. This security covered real estate owned by defendant. For that reason this court held that the mortgage lien must be foreclosed as a real estate mortgage rather than as a chattel mortgage. ' Under the circumstances involved in this case, we held the doctrine of equitable conversion is not applicable notwithstanding a portion of the mortgaged property was subject to prior contract of sale. The reason given for so holding was that application of that doctrine in the instant case “would accomplish a decidedly inequitable result.” In so holding we are not departing from our former decisions in which the doctrine of equitable conversion has been applied, nor from our former decisions holding that under certain circumstances this doctrine should not be deemed applicable. Detroit & Security Trust Co. v. Kramer, 247 Mich. 468. We reaffirm our former decision, without costs on this rehearing. McDonald, C. J., and Potter, Sharpe, Wiest, and Butzel, JJ., concurred. Fead, J., did not sit. Clark, J., took no part in this decision.

Sharpe, J. On July 14,1925, the plaintiff entered into a contract with the defendants to purchase from them 80 acres of land in the township of Browns-town, in Wayne county. Through mutual mistake, the land was described as being in section 4 instead of in section 9. The agreed purchase price was $67,040, of which $1,200 was then paid, $9,800 was to be paid on or before one year, and the balance in annual payments of $10,000. The defendants had the right to possession until $6,000 had been paid to them. An abstract of title was furnished plaintiff’s attorney. He called the attention of defendants’ attorney to certain defects in the title, and a bill of complaint was filed by defendants to quiet their title thereto. An additional payment of $2,000 was made by plaintiff on August 25, 1926. Soon thereafter, defendants began proceedings to recover possession for default in payment, and secured a judgment of restitution. Plaintiff’s attorney then discovered the error in the description, and filed the bill of complaint herein, asking for reformation of the contract and that defendants “be ordered and decreed to abide by and fully carry out the terms of said agreement” as reformed. In their answer defendants concede the error in the description, and avow their willingness at all times to have corrected the same had their attention been called to it. They also concede the invalidity of their proceeding to obtain possession. By cross-.bill they seek foreclosure for plaintiff’s default in meeting the payments as provided for in the contract. In answer thereto, plaintiff averred that defendants were not entitled to a decree for the reason that certain defects in their title, alluded to in the bill of complaint, had not been removed. This answer was filed on May 9, 1927. On February 8,1928, plaintiff filed a supplemental pleading, in which he averred that, as the defend ants’ title had not yet been perfected, he elected to surrender his interest in the property and recover from the defendants the amounts paid by him on the contract and certain other expenses, and he prayed for a decree so providing. The facts were stipulated in open court, after which a decree was entered reforming the contract as prayed for in the bill and granting foreclosure as prayed for in defendants’ cross-bill, of which plaintiff now seeks review in this court by appeal. The record contains the calendar entries and a decree quieting title in defendants, entered on August 16, 1927, in a suit brought for that purpose by the defendants against Isaac Townsend el al. Whether this decree removed the defects of which plaintiff complained is, however, immaterial, for the reason that plaintiff by seeking specific performance “necessarily admits he is content with the title.” Levin v. Hamilton, 233 Mich. 203, 204. Both parties sought reformation, and it was properly granted. Lane v. Neifert, 240 Mich. 475. When reformed, defendants were entitled to the relief prayed for in their cross-bill. The decree is affirmed, with costs to appellees. North, C. J., and Fead, Butzel, Wiest, Clark, McDonald, and Potter, JJ., concurred.

Clark, J. Defendant reviews on error judgment upon conviction of possession of intoxicating liquor. The question presented is whether defendant’s constitutional right to be secure against unreason able searches and seizures was violated by the officers in procuring the evidence on which the conviction is based. A house stood on a “U” shaped driveway connected with a public highway. It was a saloon quite fully equipped, where intoxicating liquors were sold and drunk. The officers came to the place for evidence of the business there conducted, and while they were there defendant drove a sedan loaded with 20 cases of beer in paper cases and burlap sacks to a stop beside the house. An officer testified at the trial: “When it stopped I walked up alongside of the car, and when I walked up there I saw the car contained beer and I opened the front door and told the man to get out and I told him he was under arrest. This car right by the lazy back of the front seat was piled up with cases and there was a blanket covering these cases. It covered them except the end of about six inches; nearly six inches on each case was sticking out from under the blanket and as I walked past, I could See those burlap sacks containing beer sticking out from under that blanket. These lights from the house made the contents of the car plainly visible to me. I found the car contained cases of beer in paper cartons inside the sack, with the burlap sack sewed over the carton. * * * “During my four years as sin officer, I have, seen many burlap sacks, perhaps 1,000 or more, similar to the burlap sacks in this case and found that they contained beer. ’ ’ Another officer testified: “When the car stopped, it was practically west of the windows in the rear of the house used as a bar room. I do not know if the car was under the lights. The lights were shining on the car and from the light furnished from the house you could see the car plainly. You could see what was in the inside of the car without artificial light other than that given by the house. When I came up to the car I could see burlap bags which contained beer. They were partially covered. I had seen quite a number of similar burlap bags before that night and on previous experience had found that similar bags contained Canadian beer or ale.” Substantially the saíne testimony was given at the examination. The sedan, so loaded, had been driven to the saloon. This fact, together with the officers’ observations at the time gave reasonable grounds of belief that intoxicating liquor was being possessed in their presence, and hence justified the arrest. People v. Kamhout, 227 Mich. 172. Whether the officers were in and at the saloon in violation of the constitutional right of its proprietor to be secure against unreasonable searches and seizures is no concern of defendant. It is sufficient that his like constitutional right was not invaded. People v. Amkauckas, 241 Mich. 182. Affirmed. North, C. J., and Fead, Butzel, Wiest, McDonald, Potter, and Sharpe, JJ., concurred.

Potter, J. Petitioner asks mandamus to compel circuit judge Fred S. Lamb, acting in the Wayne circuit court, to settle a bill of. exceptions. February 26, 1929, judgment was ordered by Judge Lamb for plaintiff for $6,324.04 in the case of Hovey v. Wark-Gilbert Company. The next day demand for findings of fact and conclusions of law was filed. March 5th, Judge Lamb ordered the judgment be changed from $6,324.04 to $8,137. March 22d, Judge Lamb ordered that defendants be allowed 20 days’ stay of all proceedings from entry of judgment. March 25th, demand for findings of fact and conclusions of law was filed. March 30th, judgment was entered for plaintiff by Judge Gilbert for $8,137, no findings of fact and conclusions of law having been filed. A stenographer’s certificate was filed March 27th, and April 19th a bond on appeal was filed. April 30th, an execution issued. May 9th, findings of fact and conclusions of law were filed by Judge Lamb, and May 13, 1929, an order was entered by Judge Clyde I. Webster that the judgment entered March 30, 1929, was prematurely entered, and that “Such judgment be entered as of the 9th day of May, A. D. 1929, findings of fact and conclusions of law having been filed on that date. * * * that a stay of all proceedings in said case of thirty (30) days, dating from May 9, 1929, be entered and in which to settle a bill of exceptions.” A bill of exceptions was prepared and noticed for settlement on June 8th, and the parties appeared before Judge Lamb June 7th to settle the bill of exceptions, at which time Judge Lamb refused to settle it, claiming he had no right to do so in view of the decision of this court in Krell v. Wayne Circuit Judge, 246 Mich. 412. Under the statute (3 Comp. Laws 1915, § 12586), the filing of findings of fact and conclusions of law was a condition precedent to the entry of a valid judgment. Judge Lamb apparently so found, though he had previously ordered that judgment be entered for $8,137. He did not enter the judgment, and its entry by Judge Gilbert prior to the filing of the findings of fact and conclusions of law by Judge Lamb was irregular. If, after filing findings of fact and conclusions of law by Judge Lamb, Judge Webster had authority to enter a judgment as of May 9,1929, then he had authority to grant the stay of proceedings and the extension of time for 30 days, and the bill of exceptions was presented for settlement within the time fixed by Judge Webster in the same order which directed that judgment be entered as of May 9th. The writ will issue, if necessary. North, C. J., and Fead, Butzel, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.

Sharpe, J. (dissenting). The proponent filed the will of Mary A. Reid in the probate court for the county of Wayne on the 28th day of January, 1926, accompanied by a petition praying that it be ad mitted to probate. Tbe hearing was set for April 7th. On April 5th, the contestant, by her attorneys, filed a notice stating that she and the other heirs — “will'contest-the validity of said will and will ask the court here on motion of Ernest N. Papps and Clara A. Marks, their attorneys, that said will not be admitted to probate until such time as the same will be proven to be a valid will in accordance with the requirements of the statute of the State of Michigan.” Accompanying this notice was an affidavit of the contestant, in which she stated that she was a sister of the deceased; that — “she was acquainted with the mental condition of Mary A. Reid, deceased, her said sister, prior to her death and particularly at the time she executed the will;” that she was authorized to file the notice by the other heirs and that “said will ought and should be held for naught.” An appearance was entered by the attorneys for Alfred and Marie Chaput, two of the legatees named in the will. The trust company apparently took no further part in the proceedings. The hearing was much delayed. On October 4th the contestant filed a petition in the probate court reciting such fact, and asking that the proceedings be certified to the circuit court for that county, and such an order was made pursuant to the statute. On the hearing in the circuit court, after counsel for the legatees named above, who assumed the role of proponents, had submitted proof of the due execution of the will, counsel for the contestant filed objections in writing to the probate of the will, for the reason, among others, that its execution was procured by fraud and undue influence and that the testatrix was at that time of unsound mind. Counsel' for the proponents then moved for a directed ver diet sustaining the will. This was taken under advisement by the court. After contestant’s proof? had been submitted, the motion was renewed and a verdict so directed. The court was of the opinion that, as the notice of contest filed in the probate court did not specifically assign any other reason for denying probate except that it was not executed in compliance with the statutory requirements, no other question could be then litigated. Contestant seeks review of the judgment entered, pursuant to such direction, by writ of error. Section 14145, 3 Comp. Laws 1915, provides that any person aggrieved by any order or decree of the probate court may appeal therefrom to the circuit court by filing a notice thereof —“giving the reason.for such appeal,. * * *: Provided, however, That any probate judge shall have power in all contests over the allowance or disallowance of wills, before the hearing thereof in probate court, to certify the same to the circuit court for the same county for hearing, upon application-of any interested party in said contest, in the same way and subject to the same provisions as are now provided for in appeals from the probate court to the circuit court mentioned in this section.” This provision was added to the statute by Act No. 238, Pub. Acts 1911. Counsel for proponents call our attention to the decisions of this court in which it has been held that “the scope of the review in the circuit depended upon reasons stated in the appeal from the probate court” (Johnson v. Bullard, 241 Mich. 170, 172), and to the language of the section above quoted that the certification shall be “subject to the same provisions as are now provided for in appeals from the probate court to tbe circuit court mentioned in this section.” It is true that, when an appeal is taken, the notice, thereof must state the reasons therefor. This com fines the issue in the circuit court to that tried and disposed of by the probate judge. In that respect it differs much from appeals from justices’ courts or from circuit court commissioners. As was said in the early case of Holbrook v. Cook, 5 Mich. 225, 230: “The great desideratum in proceedings in probate cases is despatch, and hence the reason of the peculiar jurisdiction conferred upon the circuit courts by this remedy. ’ ’ But the certification provided for is in no sense an appeal from the probate court. The petition for probate required that court to determine whether the instrument in question was the last will and testament of Mary A. Eeid. At the hearing thereof, “all concerned may appear and contest the probate of the will.” 3 Comp. Laws 1915, § 13780. Appearance may be had by an attorney. 3 Comp. Laws 1915, § 13781. Had no notice been filed by the contestant, and the hearing been had in the probate, court, any facts disclosed by the proofs submitted on behalf of the proponents or contestant would have been considered by that court in determining the question presented. Under the power conferred upon the court, by the statute (3 Comp. Laws 1915, § 14145), and doubtless satisfied that an appeal would be taken from its determination to the circuit court, where a trial by jury might be had, it certified the proceedings to the circuit court “for hearing’.” The hearing to be there had was upon the petition of proponents praying that the instrument filed be admitted to probate, and the issue pre sented was the same as if determination had been had in the probate court. The statute contains no requirement that parties appearing in the probate court to contest a will shall file their reasons therefor. In Turnbull v. Richardson, 69 Mich. 400, 409, it was said: “It is a peculiarity of our probate practice that a written issue need not be made up or joined in contests before the probate court, but the party who feels aggrieved by the order or decree of the probate court may appeal to the circuit court, and there the circuit court may direct an issue to be framed if it deems it'essential.” This case was decided in 1888. The statute then in force (2 How. Stat. § 6779) contained a similar provision- relative to appeals and notice thereof as that above referred to (3 Comp. Laws 1915, § 14145). It was the practice in the early days to have such issue framed in the circuit court (Kempsey v. McGinniss, 21 Mich. 123), and we do not think our recent holdings that the question to be determined is limited to that stated in the notice is intended to change it, as an issue may well be framed to present the question in a proper way for determination by that court. The notice of contest, while not very carefully drawn, expresses an intent to attack the validity of the instrument proffered as a will. When read with the affidavit filed in support thereof, it cannot well be said that proponents were not informed thereby that contestant would insist that the deceased was not mentally competent to make a will. The circumstances under which it was executed were unknown to her. The deceased, who had no children, had been living with her sister, the contestant, for several years. She had been in the habit of going away from her home and getting lost, and had been frequently brought back by the village officers. In July, 1925, she was reported lost, and on the following day was found by the officers in the home of the proponents, who were strangers to her. When her sister went after her, proponents refused her permission to take deceased to her own home, saying that she did not want to return there. The instrument in question bears no date, nor did the petition for its probate state the date when it was executed. These facts doubtless had much to do with the manner in which the notice of contest was worded. It is apparent that neither the probate judge nor counsel for the proponents understood that the only question for determination in that court was whether the instrument was executed in the manner required by the statute, else the hearing would undoubtedly have been there had and this question determined. 3 Comp. Laws 1915, § 14151, reads as follows: “The circuit court to which such appeal is taken, may for cause shown, and upon motion to be heard after reasonable notice shall have been given the opposite party, and upon such terms as may be imposed by said court, allow such amendment or amendments to the reasons assigned for such appeal, as in the opinion of the court justice may require.” The objections filed were in the nature of an amendment to the notice, and, if necessary, might well have been treated by the court as such. It is but fair to say that it does not appear that this section was called to the attention of the trial court. The judgment entered should be reversed and set aside and a new trial granted, with costs to appel lant against the legatees who assumed the role of proponents. McDonald and Potter, JJ., concurred with Sharpe, J. Clark, J. I adopt the following opinion prepared by Mr. Justice Fellows: I am unable to agree that the trial judge was in error in holding that the issue made in the probate court was the issue to be tried and the only issue to be tried'in the circuit, or that he should have permitted an amendment changing the grounds of contest and abused his discretion in refusing so to do. The circuit court has no original jurisdiction in probate matters. Its only jurisdiction in such matters is appellate, obtained either by appeal provided for by statute or in case of will contests by certification which this court has uniformly held was in the nature of an appeal. In Newell v. Kalamazoo Circuit Judge, 215 Mich. 153, Mr. Justice Wiest, speaking for the court of this amendment, said: “Under the statute the contest must be had in the probate court unless an interested party petitions that the contest be certified to the circuit court for hearing and such petition is allowed by the probate judge. It is significant that the provision'of the statute permitting this was added to the section regulating appeals to the circuit; and upon reflection it will be apparent that'it is in the nature of an appeal by the petitioner to another forum and removes the trial to an appellate court where a jury trial may be had. “The legislature may provide an appeal in a broader sense than a review of orders, judgments, sentences, or decrees and treat the invoking of another judicial forum for the trial as in the nature of an appeal and make existing laws relative to appeals applicable thereto.” This was followed in Re Zinke’s Estate, 235 Mich. 201, where we pointed ont that, in disposing of a case certified to it under this statute, the circuit court was exercising appellate jurisdiction. This must be so. Claims against estates must be presented to commissions appointed by the probate court except where the probate judge hears them; matters pertaining to the settlement of estates there originate; contests over the admission of wills start there. The probate court by the terms of statute (3 Comp. Laws 1915, § 14145) can only certify “contests over the allowance or disallowance of wills.” Probate matters must originate in probate courts, and when they are sent to another court either by appeal or certification, the latter court exercises appellate, not original, jurisdiction. Before the probate court could certify the -case to the circuit under this statute there must be a contest. In the instant case there was one and the objection and the only objection stated in the notice of contest was: ‘ ‘ The within-named heirs will contest the validity of said will and will ask the court here on motion of Ernest N. Papps and Clara A. Marks, their attorneys, that said will not be admitted to probate until such time as the same will be proven to be a valid will in accordance with the requirements of the statute of the State of Michigan.” On the same date another paper was filed reciting: “That the above-named heirs will and desire to contest the validity of the will and request the court here to refuse the probating of said will until it is proven that said will has been executed in accordance with the requirements of the statute of the State of Michigan.” It was not until around 20 months later, and’after the proponents had rested their case on the trial in the circuit, that contestants asserted any claim of mental incompetency or undue influence, and then asked to amend their ground of contest. I do not think 3 Comp. Laws 1915, § 14151, referred to by my Brother, changed the practice. From time out of mind the framing of an issue on appeals from decisions of commissions and probate courts has been allowed. Usually on claims a declaration and plea and notice are filed as in the ordinary suit. From time out of mind amendments in matter of form have been allowed, and from time out of mind this court has held that the issue made in the probate court was the issue, and the only issue, triable in the circuit, and that while amendments in matter of form were permissible, amendments in matter of substance were not. In Re Beers, 148 Mich. 300, Mr. Justice Moore, speaking for the court, said: “The first question presented is: Was the circuit court limited in its hearing to the reasons stated in the petition for an appeal? In 1 Chatterton on Probate Law, § 1499, it is said: ‘ The notice of appeal must be in writing, containing the reasons for appeal, and filed with the judge of probate. All of the reasons upon which the appellant relies must be stated therein, as the trial in the circuit court will be restricted to the reasons assigned.’ “This we understand to be the rule.” In re De Haan’s Estate, 169 Mich. 146, it was held (quoting from the syllabus): “On appeal from the commissioners on claims, the circuit court, not having original jurisdiction, cannot permit a claimant to amend his claim so as to present matters which the commissioners did not pass upon.” In the recent case of Goodrich v. Hubbard’s Estate, 233 Mich. 346, it was said: “In the final analysis the meritorious question before us is whether the court erred in refusing an amendment of the claim. “This court has never applied strict rules of pleadings to claims presented to commissioners, and the propriety of amendment in matter or form has been frequently recognized. But this court has consistently held that the circuit court exercises appellate jurisdiction and that the claim there tried must be substantially the claim tried before the •commissioners.” We then quoted the following language of Mr. Justice Campbell found in Patrick v. Howard, 47 Mich. 40: “The case made before the commissioners can never be enlarged or changed on appeal, unless by reductions or immaterial alterations, and no claim can be heard that was not passed on by the commissioners. The circuit court has no original jurisdiction over claims against estates, and no new claim can be made there. The probate issues need not be changed in form in such cases or in analogous cases, and whether changed in form or not cannot be added to in substance.” Mr. Justice Campbell then cites eight of the early cases so holding. Among the numerous cases to the saine effect, see: Luizzi v. Brady’s Estate, 140 Mich. 73; Raub v. Nisbett, 111 Mich. 38; Jersey v. Jersey, 146 Mich. 660; In re Ward’s Estate, 152 Mich. 218; In re Mills’ Estate, 158 Mich. 504; In re Murray’s Estate, 219 Mich. 70; In re Barney’s Will, 187 Mich. 145; Johnson v. Bullard, 241 Mich. 170. But if the circuit court had the power to permit an amendment materially changing the issue, as here, from an issue of due execution of the will in accordance with the statute,to one of mental incompetency and undue influence, it must be patent that there was no abuse of discretion in refusing such amendment at the time it was offered. The notice of contest in the probate court was filed April 5, 1926, the contest was certified to the circuit October 4, 1926. The trial in that court began December 12, 1927, and although proponent’s testimony was confined to the question of due execution of the will, there was such lengthy cross-examination of the witnesses that proponent did not rest until the 13th. The contestants then submitted an amendment setting up for the first time their claim of mental incompetency and undue influence. If the trial judge was authorized to permit amendments in matter of substance, he was quite right in denying such an amendment at the time the offer was made. The trial judge after refusing the amendment declined to receive evidence on the question of mental incompetency, and whatever appears on that subject in the record comes from counsel’s offers of proof. I think the judgment should be affirmed. North, C. J., concurred with Clark, J. Wiest, J. (for affirmance). If a will is to be contested an issue to such effect must be presented in the probate court, by notice, stating the grounds thereof. Such contest (issue presented -by notice) may be certified to the circuit court for hearing. 3 Comp. Laws 1915, § 14145. The statute grants power to certify to the circuit only in case of contest and limits the power of the circuit to the hearing of such contest. The contest must originate in the probate court and reach its full scope and purport there, for the contest of record in that court is the contest certified to the circuit for hearing. Under the statute permitting such certification, the jurisdiction of the circuit court is special, limited to the issue or issues certified for hearing, and may not be enlarged by any amendment in the circuit court. This, I think, clearly appears in the very language of the statute and in our holdings in Newell v. Kalamazoo Circuit Judge, 215 Mich. 153; In re Murray’s Estate, 219 Mich. 70; Johnson v. Bullard, 241 Mich. 170. The judgment should be affirmed, with costs against contestants. Fead, J., concurred with Wiest, J.

Sharpe, J. On May 5, 1923, the plaintiff executed a written lease to the defendant of the second floor of a building, then in the course of construction, at an agreed rental of $18,000 for a 5-year term, payable monthly in advance. It was agreed that it should become operative when the building was completed and ready for occupancy. The lessor agreed to equip it for office use, and to “furnish steam heat at his own cost for said entire second floor.” On August 4, 1923, defendant served a “notice of cancellation” of the lease on the plaintiff. The material specific reasons assigned therefor were, the failure to partition and equip the premises as agreed; the failure to provide for the furnishing of steam heat; the permitting the floor below to be used for a pool room. The premises leased were completed and ready for occupancy on August 15th; The plaintiff was unable to rent them for the sum defendant agreed to pay, and brought this action to recover the damages sustained by him thereby. The case was tried before the court without a jury. He filed findings of fact and conclusions of law, and entered a judgment for plaintiff for $4,470, of which defendant seeks review by writ of error. The lease was prepared by the defendant’s attorney on a form in common use. It stated that,the premises were leased for the term of five years “from and after the......day of July, 1923,” but provided, as before stated, that it was “to operate from.the day the building now being built by first party is complete and ready for occupancy.” It was insisted that the 31st day of July was the time limit for completion of the building. The trial court said: “These two provisions of the lease, taken together, mean simply that the parties were expecting to have the premises ready in July; if they were ready earlier, then the defendant company would be ready to occupy the premises, and would be liable for rent. On the other hand, if the premises were not ready by July, the defendant company would not be responsible for rent until such time as the premises were ready for occupancy. There is no ambiguity about these provisions of the' lease, and if there were any such ambiguity as claimed by the defendant’s counsel, the counsel himself is responsible for the ambiguity, as the testimony shows that the plaintiff went with the defendant’s president to the attorney of the company and prepared the lease which was signed by both parties.” In our opinion this conclusion was justified by the above provisions. The plaintiff undertook to complete the building within a reasonable time, and the testimony shows that he did so. The trial court found that the partitions and equipment as installed were’ approved of by the president of the defendant company. He also found that it was contemplated that special heat from the Central Heating Company would be secured, but that at the time the building was completed this-company’s mains had not reached the building. Plaintiff did install what is spoken of as an “Areola System,” which furnished the heat by hot water instead of by steam. It "was carried through the radiators as steam would be, and the lack of installation of the steam heat was, under the circumstances, no sufficient justification for the cancellation of the lease. The occupancy of the first floor was in no way restricted under the terms of the lease. Its use. as a pool room in no way violated any of its provisions. When the plaintiff was examined as a witness, he testified to conversations had with T. L. Gillespie, defendant’s president at that time, in which he expressly consented to the changes made in the partitions and equipment of the premises. He was- cross-examined by defendant’s counsel relative thereto. At the conclusion of his testimony, defendant’s counsel moved that all conversations with Mr. Gillespie be stricken out because he was the'n deceased. This was the first intimation the court had of Gillespie’s death. Error is assigned on the court’s denial of the motion. It is without merit. “Counsel camiot sit by and permit incompetent • testimony to be introduced without objection and afterwards, when it is found to be unsatisfactory, have it stricken from the record.” Simmons v. National Live Stock Ins. Co., 187 Mich. 551, 560 (Ann. Cas. 1917D, 42). It is urged that this testimony was inadmissible because it varied the terms of the written contract. "While a contemporaneous parol agreement is inadmissible to vary the terms of a written contract, it is competent for the parties thereto “to add to, take from and modify the terms of the written agreement” by a parol agreement entered into after the execution of the contract. Kennedy v. Lynch Timber Co., 227 Mich. 269, 273. Plaintiff’s declaration was filed- on February 18, 1925. In the bill of particulars, filed on the 27th, he claimed for loss of rental to that time. • On May 26, 1928, plaintiff moved to amend the bill of particulars by extending the claim for loss of rental to May, 1927 — in all, $5,270. An order granting such leave was made on that day. Defendant moved to vacate this order. There was dispute as to whether a written motion had been served. This motion was reserved when made to be presented to the judge trying the case. It was then renewed, and denied. The granting of the motion to amend was within the discretion of the court, and, as the trial was not had until several months thereafter, no prejudice justifying a reversal resulted to the defendant therefrom. The other errors assigned have received due consideration. They present no reversible error. • The judgment is affirmed. North, C. J., and Fead, Butzel, Wiest, Clark, McDonald, and Potter, JJ., concurred.

Clark, C. J. Michele Poma, the plaintiff, sued defendant bank for a deposit evidenced by savings passbook. The defense is that at the suit of Associates Investment Company, a corporation, as plaintiff, against Poma, in which such plaintiff had judgment, defendant was garnishee of Poma and disclosed the indebtedness to him, upon which and pur suant to statute judgment was rendered against defendant as garnishee, which judgment defendant paid. The garnishment proceedings are conceded regular except the affidavit for the writ. The affidavit recites that “Howard C. Chilson of Detroit, being duly sworn, deposes and says that he is attorney for and makes this affidavit for and in behalf of,” etc., that “deponent further says,” etc., usual recitals, and the affidavit is subscribed and sworn to by Joseph C. G-lazer. The misrecital “Howard C. Chilson” was urged and held to be a fatal defect. Plaintiff had judgment. Defendant has appealed. It has been said many times that garnishment is a harsh remedy and the statute must be followed strictly. It has also been said many times that proceedings for substituted service must be strictly regular, the statutes must be strictly complied with. Yet, in case of an affidavit of publication, containing recital “Fred B. Lee of said county, being duly sworn, ’ ’ etc., and subscribed and sworn to by Charles II. Lee, it was held rightly in Torrans v. Hicks, 32 Mich. 307, opinion by Mr. Justice Cooley, that the misrecital was apparently clerical error and not fatal, and it was said: “But this affidavit is in legal effect the same, we think, that it would have been if in the body of it there had been no recital of any name as that of an affiant. ’ ’ Howard C. Chilson was not the affiant, and recital of his name is clerical error, so it is overlooked, and the affidavit treated as though no name of an affiant were there recited. The affidavit then reads,'“-, being duly sworn, deposes and says,” etc. But who deposes and says? The answer follows in next paragraph of the affidavit, “deponent further says.” So the entire affidavit is by deponent, Joseph C. Glazer, who subscribed and was sworn. The affidavit is not fatally defective, and, if perfection of record were desired, it might be amended. Reversed, with costs, and remanded with direction to enter judgment for defendant. McDonald, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred.. Fead, J., did not sit.

McDonald, J. The defendant has appealed from a judgment of conviction on a charge of embezzlement. At the time the offense is alleged to have been committed, he was president and general manager of the Marx Brewing Company, a Michigan corporation. As such he received a stipulated salary. By resolution of the board of directors, he was authorized to withdraw funds from the bank for corporate purposes upon checks signed by himself as president. In this manner, on February 21, 1928, he drew a check for $1,695 payable to the order of Ochs, Crowley & Horger, automobile dealers, of Dearborn, Michigan. This check was paid out of the company’s funds. It was'not for corporate purposes, but was used in payment of an automobile which defendant purchased in his own náme and for his own use. On February 23, 1928, he caused the amount represented by this check to be entered in the books ofVthe, corporation as a charge' against himself. It was neher paid. The facts are not in dispute. ' .. .. - The information was" drawn under Act No. 48, Pub. Acts 1927 (3 Comp. Laws 1929, § 16980), which defines embezzlement by agents, servants, and employees. It is charged in the information that the money alleged to have been embezzled by the defendant came into his possession as agent, servant, and employee of the Marx Brewing Company, and, in that capacity, he fraudulently disposed of it and converted it to his own use. The defendant contends that he was not the agent, servant, or employee of the company; that the property embezzled did not come into his possession as such; that it came into his possession as president of.the company; that the president of a corporation is not an agent, servant, or employee within the meaning^ of the statute, and that therefore he is not guilty of the crime charged. With this contention we are unable to agree. The question is not whether the president of a corporation comes within the scope' of the statute. We need not consider the general status of officers and directors of incorporated companies; for, in this case, the defendant’s authority to withdraw corporate funds upon his check did not arise from his position as president. It was expressly conferred on him by resolution of the board of directors. He was made the agent of the company to handle its funds. As president he had no control over the money in the bank. He was employed by the directors of the company to manage its business, subject to their supervision, and was empowered to draw checks for corporate purposes. For these services he was paid a stipulated salary. Nothing further was necessary to create the relation of master and servant. The fact that he was also president did not alter, this relation. He was given-powers and duties that did not belong to the president. He was employed and paid for certain services, ánd in respect to them his relation was the same as though he had no official connection with the corporation. He was an agent, servant, and employee of the corporation within the meaning of the statute. The court did not err in holding that he was properly informed against under an applicable statute. Equally untenable is the defendant’s contention that felonious disposition was not established because he caused the transaction to be entered and openly carried as a charge against himself in the books of the corporation. It is true the books show that $1,695 was charged against the defendant in February, 1928, and was carried as a debit entry until March, 1930. An audit in March revealed this charge and others totaling $10,000. These charges and the transactions which gave rise to them were without the knowledge and consent of the board of directors or any other of the officials. They were not known except to the defendant until they were uncovered by the audit. If there had been an honest intent on the part of defendant in using the corporation money for his own purposes, it would seem that he would have obtained permission from the directors to have it charged against him on the books. The defendant was not a witness on the trial, and, in the absence of any explanation by him, it may be said that the entry indicates an intention to repay the money when it was discovered; but that would not remove the criminality from the act in taking it without the consent of the corporation and converting it to his own use. People v. Butts, 128 Mich. 208. We find no error. The judgment of conviction is affirmed. Clark, C. J., and Potter, Sharpe, North, Fead, Wiest, and Btjtzel, JJ., concurred.

Butzel, J. Plaintiff Refrigerating Equipment Company, a Delaware corporation, brought suit on three notes amounting with interest to $1,464.35, given to it by defendant W. Gr. Finch, one of its salesmen. His compensation was $500 per month, and, in addition, he was to receive under a stock bonus agreement 1,000 shares of stock in plaintiff company at the rate of 200 shares on the first day of July of each year of a five-year term. The agreement provided that defendant might be discharged without notice, and thereupon plaintiff would be relieved from all liability to pay any stock bonus on the contract from the previous. 1st day of July. On February 10, 1930, plaintiff wrote to defendant stating that it was supplementing a letter of February 8, advising defendant of plaintiff’s arrangements with two other companies, and, in accordance- with a previous discussion- held with defendant, it' notified him as follows: “You hereby agree to discontinue your present working-arrangement with the -Refrigerating Equipment Company and to report not later than Monday, Fébruary 17th, to Mr. MacDonald of- the .Grothe Company., - ■ . ‘ ■ , “In the discontinuance of our business connections, the Refrigerating Equipment Company is to pay you up to February 15th and on our stock agreement you are to receive your proportionate share, which is due in July according to the agreement.. “Yours very truly, “Refrigerating Equipment Company, (Signed) “Severn P. Ker, Jr., “President.” Plaintiff claims that it ceased selling refrigerators, and that it changed the character of the business, and that defendant was to look to another company for his compensation. Defendant, on the other hand, contends that he was to continue in plaintiff’s employ, and he was directed to assist in some patent litigation to which plaintiff was a party. He claims that, upon the termination of his former contract, he became a consulting engineer, and that he charged $50 a day for his services. He filed a notice of set-off and recoupment, in which he claimed $750 to be due him for 15 days’ services in the patent litigation, and also $467.88 for expenses incurred by him. He also claimed the sum of $1,000 for 100 shares of stock in plaintiff company, at $10 per share, which he asserts was due him in accordance with the letter hereinbefore referred to. The trial judge, sitting without a jury, allowed defendant’s claim of set-off almost in its entirety. He deducted the sum due on the notes and rendered a judgment in favor of defendant against plaintiff in the sum of $718.75, and costs. It is claimed on appeal that there was no proof of the value that would justify a valuation of $1,000 for the 100 shares of stock that defendant claims were withheld from him under the bonus agreement, even if it was modified by the letter hereinbefore quoted. Defendant testified that he did not know what the value of the stock was, but had been told by a former treasurer of. the company that it had a value of $10 a share in July, 1930. Plaintiff’s president testified that this treasurer had left the employ of the company on February 10, 1930, and therefore was not an employee of the company in July, 1930; that the stock was practically valueless February 10, 1930, and also the following July. The former treasurer was not called as a witness. The testimony as to what he said in July, 1930, had no probative force. There was no competent testimony introduced as to the value of the stock, unless it was that of the president of plaintiff company, who stated that the stock was valueless. The burden of proof is always upon the one asserting a claim not only to show his cause of action, but also to give competent testimony as to damages. This must be done by legal testimony. Without it there may not be a judgment in his favor for an amount not proven. See Caruso v. Weber, ante, 333. Also, see Lendberg v. Brotherton Iron Mining Co., 75 Mich. 84. Plaintiff for the first time on appeal claims that there was no competent testimony as to the reasonableness of the charges of defendant. It also claims that the court erred in its refusal to permit ■the introduction of a letter without giving defendant previous notice to produce. We. shall not discuss these claims. Even if there is any merit to them, they should not arise on a new trial. The judgment is reversed, with costs to plaintiff, and the case remanded for a new trial. Clark, C. J., and McDonald, Potter, Sharpe, , North, Fead, and Wiest, JJ., concurred.

North, J. Plaintiff, a corporation operating flour and feed mills at Grand Rapids, brought suit against defendant, a retail dealer in flour and feed, for $2,092.93 alleged by plaintiff to be due as balance on account. Under the plea of general issue, defendant gave notice of overpayment on his account in the sum of $225.89. The jury rendered a verdict for the amount claimed by defendant. Plaintiff’s motion for a new trial on the ground that the verdict was contrary to the great weight of evidence, and also on other grounds, was denied. Plaintiff has appealed. For many years defendant incident to the conduct of his retail business had purchased flour and feed from plaintiff corporation; but tbe portion of the account involved in this litigation is that between October 5, 1928, and September 2, 1930. On the former date plaintiff claims these parties entered into a written contract whereby it sold to defendant for future delivery 1,000 barrels of flour at fixed prices, some of which was $6.50 per barrel, some $6.90, and some $7; also 75 tons of bran at $32 per ton, and middlings at $39 per ton. On December 6, 1929, the parties entered into a similar contract by which plaintiff claims it sold to defendant 400 barrels of flour at $6.90 per barrel, and 75 tons of bran and middlings at $31 and $35, respectively, per ton. There is no controversy as to the amount delivered, and at .the contract prices named plaintiff would be entitled to recover the amount for which it brought suit. On the part of defendant it is claimed that the two above-mentioned contracts were signed by him in blank as to the amount of flour and other mill products purchased and also as to prices; and that the prices as subsequently inserted in these blank contracts were in excess of those the parties had agreed upon and which were to be inserted in the written contracts. In this connection it is defendant’s claim that the agreed price of one brand of flour was $5 per barrel, and the others $5.35 per barrel, and the bran and middlings respectively at $25 and $28 per ton. The ground of appeal most strongly pressed is that the verdict and judgment were contrary to the overwhelming weight of the evidence. In considering this ground of appeal, we will not attempt to review in every detail the testimony taken. Plaintiff’s contention is supported by the testimony of Charles P. Voigt, with whom defendant had his dealings. The testimony of Mr. Voigt is corroborated by plaintiff’s bookkeeper and also by Mr. Saxton, who was a salesman in connection with the business between plaintiff and defendant. Plaintiff’s case was further supported by the book account which it kept in detail of the various items. A rather singular phase of this record is that defendant also kept a book account which corresponded in every essential detail with plaintiff’s account; but in this connection defendant seems to claim he kept two accounts, and he testified: , “I just simply kept that book for the price they had given me, and I had another book where I had the rate price the same as he has, he has got two books too. * * * I kept one book for to know where I was at, and I knew where the prices was when I got the prices; I always had that in the book too.” It also appears from the record that on statements rendered to him in accordance with the prices contained in the written contracts defendant made payments from time to time. During the period covered by this record he made 17 such payments and on three occasions the payments made balanced the account to date. The contrary showing in, behalf of defendant is confined largely to his own oral testimony. He testified that on each occasion after signing a contract in blank he received a copy within a few days, that he thereupon discovered that it did not conform to thé oral agreement of the parties, that he took the matter up in person on various occasions with Mr. Voigt and was assured that the -terms of the written contract would be changed, that he relied upon Mr. Voigt and continued to transact the business upon the strength of this assurance. Mr. Voigt denied having had interviews of this character. The defendant produced a memorandum as to the prices which he claimed were orally agreed upon, which memorandum he testified he had made at the time of the October, 1928, agreement. His explanation as to how he came to enter into a second contract of the same character more than a year after the first contract, notwithstanding plaintiff’s failure to correct the first one, is not at all satisfactory. The bookkeeping entries of each of the parties disclose that many deliveries were made by plaintiff and the billing accepted by defendant on the basis of the prices embodied in the written contracts; and on such billings without protest other than that, to which defendant- testified, as above noted, payments were made to plaintiff from time to time. These and other circumstances disclosed by the record convince us that the verdict rendered was contrary to the overwhelming weight of the evidence. Appellant assigns as error that the trial court excluded from evidence a general price list of flour and feed bearing date of October 4, 1928, which was within a day or two of the date of the contract. On cross-examination defendant testified: “Q. * * * You don’t claim that you were buying flour and feed from them below the market prices ? “A. Why certainly not. They ain’t going to give it to me for less than anybody else in this respect. # * * “Q. And you also claim * * * that the prices in these contracts are way above the prices at which they were selling the same flour, bran, and middlings for, to other customers at the same time? * * * “A. Yes, sir.” Following this cross-examination plaintiff offered the price list in evidence, asserting it was material in connection with, the defendant’s testimony “that he. expected that he was buying flour and produce at the current market prices.” If there was testimony that fair market prices at the time were set forth in the price list we think it was admissible as bearing upon defendant’s claim, notwithstanding it was not exhibited to him at the time the contract was consummated. 4 Jones on Evidence (2d-Ed.), p. 3225; 13 Encyclopedia of Evidence, p. 517. Without holding this ruling of itself amounted to- reversible error, we think the price list should have been received in evidence in view of defendant’s testimony on cross-examination. It is unnecessary to discuss other reasons assigned in support of plaintiff’s appeal. Judgment entered in the circuit court is set aside, and a new trial ordered. Appellant will have costs of this court. Clark, C. J., and McDonald, Potter, Sharpe, Fead, Wiest, and Butzel, JJ., concurred.

Carr, J. Plaintiff herein is a Michigan corporation organized in 1949 and having among its corporate purposes the purchasing, selling and leasing of real estate for the corporation’s use, and the exhibiting and racing of horses. It owns a track located in the city of Hazel Park, Oakland county, on which it conducted racing meets during the years 1949 to 1952 inclusive. It holds a track license from the State, issued to it in accordance with pertinent statutory provisions. Under date of December 23, 1952, it made application to the defendant, the racing commissioner of the State, for a license to conduct racing meets at the track during the 1953 season, specifically covering dates commencing August 6th to and including October 10th. The record discloses that defendant did not make any formal written order denying the application but indicated that it would not be acceptable unless and until there was compliance with certain conditions hereinafter mentioned. The defendant racing commissioner is subject, in the administration of his duties, to the provisions of PA 1933, No 199 (CL 1948, § 431.1 et seq. [Stat Ann and Stat Ann 1951 Cum Supp §18.941 et seg.]). Attention is also directed to PA 1952, No 197 (CL 1948, § 24.101 et seq. [Stat Ann 1952 Rev § 3.560(21.1) et seg.]), regulating procedure by and before State administrative agencies. CL 1948, § 431.9 (Stat Ann 1951 Cum Supp § 18.949), provides in part as follows: “Any person or persons desiring to conduct a racing meet within the State of Michigan, shall apply to the commissioner for a license to do so. Such application shall be filed with the secretary of the commission at least 10 days prior to the first day of each horse-racing meeting, which such person or persons propose to hold or conduct. Such application shall specify the day or days on which such racing is de-' sired to be conducted or held, and such application shall be in such form and supply such data and information as the commissioner shall prescribe. The commissioner shall have the power to reject any application for a racing meet license for any cause which he may deem sufficient, which rejection may be appealed to the circuit and Supreme Court.” Plaintiff seeks to compel defendant, by writ of mandamus, to issue the license for which it has applied. It- alleges in its petition that it has outstanding 1,374,970 shares of common capital stock, the ownership of which is divided among 490 persons residing in various parts of this country and in Canada. It does not appear that its financial operations are in question, or that any criticism has been made with reference thereto. Following the submission of the application for the license conferences or discussions were had between defendant and representatives of the plaintiff, and also an interchange of correspondence. In answer to the application defendant stated, in a letter to plaintiff bearing date February 20, 1953, that the days sought to be covered by the license had been tentatively allocated but subject to confirmation “only after all requirements contained in the attached report have been fulfilled in addition to such other requirements as may be laid down in the course of our continuing negotiations.” Accompanying the letter was a copy of a report made by defendant to the Governor of the State, in which the following statement appears: “The Hazel Park application was denied by me on February 9, 1953, on the ground that several .sizeable blocks of stock in the association were held by persons who through family relationships or adverse police records were unacceptable to the racing commission as part owners of a licensed racing association.” As before noted, defendant did not make a formal written order but the record fully justifies the conclusion that he repeatedly indicated to plaintiff that its application would not be given favorable consideration unless certain designated shareholders, referred to ■ in general. terms in the excerpt above quoted from the report to the Governor, divested themselves of ownership of their stock, and that pending sale thereof such shareholders should relinquish their voting rights to a voting trust. The amount of stock held by such shareholders is, it is claimed, n.ot in excess of 200,000 shares. There is no showing as to how many of the persons that defendant insisted should dispose of their interests in the plaintiff corporation actually had adverse police records, nor as to the number that were unacceptable to defendant because of family relationships. Neither is it claimed on behalf of defendant that any of such stockholders are now participating in any way in criminal activities. ' Obviously the statute defining the powers arid duties of the' defendant with reference to the issuance of licenses may not be construed a,s, vesting in him arbitrary authority to reject an application. The fact that an order made by him is specifically declared subject to judicial review is conclusive in this respect. An attempt to vest absolute and final authority might well be challenged on' constitutional grounds. It is defendant’s position, as appears from his answer and the return to the order to show cause issued by this Court, that he is vested with discretion and that the exercise thereof should not be subject to judicial interference or control, unless it' appears that the act, or refusal to act, that is'in question was not a proper exercise of powers granted by the statute and was in consequence unwarranted. ' Emphasis is placed on the duty of 'the defendant to perform the functions of'his office for the benefit of the public, and it is argued in his behalf that he may properly refuse to grant a license of the character involved in" the instánt case if the public interest would thereby be harmed or jeopardized. However, no attempt has been made here to point out how any such result may follow from the granting of the license sought by plaintiff without compliance with the imposed conditions. As before noted, plaintiff conducted racing meets for the past 4 years under licenses granted to it. It is not claimed that the public was harmed as a' result of such operations. '■ Neither is it claimed that the stockholders, or any of them, referred to, in the conditions of acceptance of the application for the 1953 season, as imposed by defendant, are active in the management of the corporation or that they,, or any of them, are directing its ¡policies and activities. The'right of defendant to'decline to grant a license where reasonable and-proper grounds appear therefor is not an issue in this case. Rather the situation is that defendant by refusing to. grant the license, unless the conditions imposed by him aré performed, seeks, to' require plaintiff to bring1 about a situation that it lias no power to compel.. It is claimed, and-not disputed, that plaintiff há¿,'¡30ught to persuade the stockholders in question, or at. least some' of them,,to, dispose of'jtheir,.stock, ,an4 that such efforts haye met with refusals: ■ 'Plaintiff corporation, which' ¡is not itself accused of improper conduct' of any kind inimical to the welfare’ of the people of this-State', cannot compel'the'minority stockholders in question to dispose of théir'-p'ropérty. Under these circumstances it must be said that the statute under which defendant is functioning does not authorize him to demand compliance with the conditions imposed on plaintiff as-a necessary'prerequisite to the granting of a license. Cases involving analogous questions to that presented here have arisen in other States. In People, ex rel. Empire City Trotting Club, v. State Racing Commission, 190 NY 31 (82 NE 723), the defendant refused to issue a license to conduct races on the ground that the season had been divided among 6 other tracks. It ivas the claim of the defendant that to grant the license would cause an interference with racing upon such other tracks. It was held that the object of the statute was to insure the proper conduct of racing but that the refusal of the commission to grant the license to the moving party was not justified. In commenting on the situation presented, it was said in part: “There áre to be found in the affidavits in answer to the application for the writ denials by the appellants that the relator has complied with the requirements of the statute, and that he is entitled to a license. But these denials in gross are merely of conclusions, and too indefinite , to raise an issue to ■defeat a peremptory writ where the facts should have been explicitly alleged. * * * The only specific reasons given by the respondents for refusing to issue the license to the relator are that the racing season allowed by law, to wit, from April 15th to November 15th, in each year, has been divided up among 6 other tracks in the vicinity of the city of New York and the Saratoga Racing Association, that the allotment of dates is a proper regulation of racing, and that to grant the relator any dates would interfere with the racing upon the other tracks. None of these considerations,- in our opinion, had the commission the right to entertain, nor should they have had any influence on its action.” Of like import is State, ex rel. Kinsella, v. Florida State Racing Commission, 155 Fla 387 (20 So2d 258). There the relator, acting as agent of the Daytona Jockey Club, made application for a racing permit in accordance with the provisions of the Florida statute. The information submitted complied with the statutory requirements. The application was denied and an action of mandamus was instituted to compel the granting of the permit. Defendant, by motion to quash and by answer to the petition, raised the claim that it was vested with a discretion which could not be controlled by mandamus, that there was no showing, that such discretion had been abused, and that the denial of the permit was in behalf of the general welfare. Further averments in the answer apparently were designed to raise the question that the contemplated project of relator’s principal would, or might, be financially unsound. It was the holding of the court that relator had complied with the statute in making application for the permit, and his principal was entitled thereto, and that mandamus was a proper remedy. In reaching such conclusion, it wassaid: • “We hold that the several allegations of the answer or return of the respondents to the alternative writ fail to state or constitute a legal defense and therefore the peremptory writ of mandamus is hereby awarded as prayed for.” In the recent case of Jones v. Kind, 61 So2d 188, decided by the supreme court of Florida on October 24, 1952, it was held that the State racing commission had no authority to cite the plaintiff before it to show cause why he should not be required to sever his financial interest in Florida race tracks. Following such citation plaintiff Kind filed a bill for a declaratory decree and- for an injunction against the racing commission and others and obtained the relief sought. In sustaining the decree of the trial court, it was said:. , ....... “There is no yardstick or limitation as to what would make, in the opinion of the members of the commission, the stockholder ‘undesirable’ and would cause him to be ‘regarded by all members of- the commission’ as being- undesirable and hurtful in this State and because of ‘public opposition’ to the stockholder’s connection with Florida racing. “To. many..people who are opposed to pari-mutuel racing in Florida, all persons owning stock in a corporation conducting a race track may be ‘undesirable’ and such people may be a part of the ‘public’ which would constitute ‘public opposition’ to the particular stockholder’s connection with Florida racing and to all other persons owning stock in Florida racing. The words ‘undesirable’ and ‘public opposition’ are very elastic terms. To the owners of' stock of a competing race track all stockholders of another race track may be undesirable and the owners of the stock or the competing corporation may be a part of the public which would be in opposition to stockholders owning stock in another corporation conducting racing. Many people in the State (a part of the public) are opposed to race tracks, poolrooms, barrooms, cocktail lounges and many other things which may be distasteful to them, but- -which have been legalized and licensed to operate in-this State. “It appears to be the contention of the appellants that they have uncontrolled, unbridled -and unlimited authority to determine who is undesirable as a holder of stock in á corporation conducting racing or that public Opposition to thé stockholdér’s connection with Florida racing is sufficient justification for the commission to order the stockholder to dispose of his stock. The law in question does not attempt to grant any such authority or power to the appellants and so far as the record shows they have not attempted to arrogate to themselves any such- power.’’- Based on the provisions of the statute, above quoted in part, authorizing appeals to the circuit and Supreme Court from orders rejecting an application for a racing meet license, and also on the provisions of PA 1952, No 197, defendant argues that mandamus is not a proper remedy in the instant case. In effect the claim is made that plaintiff should await the making of a formal order rejecting its application for a license, and. take an appeal therefrom. Defendant suggests in this connection that he is willing to hold a formal hearing, if plaintiff seeks such, .and to make a written order disposing of the matter. In the light of what appears in the ■record before us, it may be assumed that such order would be in the form of a denial of the license sought. On the facts here, defendant’s argument is not well founded.' He has taken the position, expressing it in unequivocal terms, that the license sought by-plaint-tiff would be denied -in the absence of compliance with the conditions imposed. As hereinbefore pointed out, such conditions were unwarranted, and compliance therewith could not properly be required by defendant as a condition prerequisite to the granting of plaintiff’s application. ‘ It' further appears that if plaintiff is to operate during the period of time tentatively set for its racing meet it will be required to. make preparations' therefor, and to, enter into contracts incident to the contemplated-s-nperation. Hinder, the circumstances plaintiff is entitled to,invoke the remedy of mandamus on the ground that any .other remedy that .'is or may be available to it is.inadeqñaté.to fully and properly protect its rights. The further claim is advanced that this'-motion is premature. Defendant says that negotiations betweenthe parties áre. still in progress. It is apparent that the negotiations fhat have been'Conducted since the making of the application by plaintiff have had reference to compliance with the conditions, imposed by defendant on the granting of the application. Unquestionably further negotiations, if held, would relate to the same subject, in other words to the matter of compliance with requirements beyond the power of defendant to impose. Without legal justification defendant has put himself in the position of declining, without a formal order, to issue a license to which the plaintiff is entitled. Plaintiff’s right to the relief sought is not open to the objection that this' proceeding was prematurely brought. In Chemical Bank & Trust Co. v. County of Oakland, 264 Mich 673, 678, 679, this Court, in discussing the right to the remedy of mandamus, quoted from People, ex rel. Township of LaGrange, v. State Treasurer, 24 Mich 468, 477, as follows: “ ‘In cases where the right is clear and specific, and public officers or tribunals refuse to comply with their duty, a writ of mandamus issues for the very purpose, as declared by Lord Mansfield, of enforcing specific relief. It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it usually is practicable.’ ” See, also, National Bank of Detroit v. State Land Office Board, 300 Mich 240; Howard Pore, Inc., v. State Commissioner of Revenue, 322 Mich 49, 75, 76 (4 ALR2d 1041). The writ of mandamus will issue as prayed. In view of the nature of the questions involved, no costs are allowed. Dethmers, C. J., and Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred with Carr, J. Adams, J., concurred in the result.

Dethmers, C. J. This matter was assigned to the late Chief Justice North, who, due to ensuing illness, was . unable to complete an opinion. It is an appeal by defendant, on leave granted, from an order of the circuit court granting plaintiff’s motion for ■discovery and for a temporary injunction restraining defendant from continuing the course of conduct, hereinafter considered, charged against it in plaintiff’s bill of complaint and denying defendant’s motion to dismiss in part said bill filed in 1950 under the provisions of CL 1948, § 692.251 et seq. (Stat Ann and Stat Ann 1949 Cum Supp § 18.901 et seg.) (later amendment, PA 1951, No 80, not applicable)T to enjoin and abate an alleged nuisance. Plaintiff’s bill of complaint alleges, in substance, inter alia, that defendant is engaged in the business of receiving, transmitting and sending by wire or telegraph, dispatches, messages and money, for compensation, and that it maintains 2 specified offices for that purpose in the county in question; that it has, in said offices, knowingly accepted bets, or money bet on horse races, for transmission to addresses outside the State to be placed there as bets on horse races, and transmitted the winnings therefrom sent by persons at such out-of-State addresses to local bettors in said county, knowing that it was thereby aiding unlawful gambling transactions; and that it has knowingly permitted persons to be in said offices for those purposes. Pertinent portions of section 1 of the cited statute, under which plaintiff’s bill recites that it was brought, read as follows: “Any building, vehicle or place used for the purpose of * * * gambling * * * is hereby declared a nuisance * * * and all such nuisances shall be enjoined and abated as hereinafter provided.” Section 12 of the act provides that, if the existence of a nuisance be established in the manner provided in the act, an order of abatement shall be entered, which shall provide for removal from the building and sale of its contents and padlocking the place for 1 year. Do such averments of the bill as are summarized above serve to allege the existence of a nuisance on the premises within the meaning of the statute! “A bet, like an ordinary contract, involves a concurrence of wills; there must be an offer and acceptance thereof in accordance with its terms.” Mc- Questen v. Steinmetz, 73 NH 9 (58 A 876, 111 Ana St Rep 592). “If, therefore, an offer to bet is telegraphed by a person in this city to another in New York, and the latter accepts by telegraph, the betting is done, not in Richmond, but in New York, because the offer, being accepted there, takes effect there.” Lescallett v. Commonwealth, 89 Ya 878 (17 SE 546). In Klock v. Brown, 172 Mich 379 (Ann Cas 1914 D, 48), it was held that a betting contract did not result from a principal’s placing in the hands of a faithless agent money “with instructions to make a bet of the same,” when the agent appropriated it, instead, to his own use. The Kloch Case announced a rule in Michigan in line with that of the quoted New Hampshire and Yirigina cases to the effect that a bet is made at the time and place where the offer of it is accepted. Under the noted allegations of plaintiff’s bill of complaint such acceptance occurred, if at all, out of the State and in no sense in the said 2 offices of defendant located within the county in question in this State. Those offices were not, therefore, buildings or places “used for the purpose of * * * gambling” as defined in the statute. Accordingly, the averments of the bill of complaint so far considered, taken as true, fail to establish a case of nuisance under the statute so as to entitle plaintiff to the injunctive relief therein provided. We are cited to no authority for the view, nor do we entertain it, that they make out a case of nuisance, independent of the statute, at common law, enjoinable in a court of equity. Other allegations in the bill of complaint, although perhaps susceptible of the narrow interpretation that they charge gambling on the said premises unrelated to the above-described transactions, nevertheless, fairly construed, as we think, and read in the light of all the averments of the bill, have refer ence only thereto. That is to say, they reiterate, in vague and indefinite generalities, the definite allegations concerning the transmission of messages and money to out-of-State points for placing there as bets and the transmission of the winnings therefrom to the bettors in the local offices in this State. If it were plaintiff’s contention that the said allegations do not refer to transactions of that character but to other matters altogether, they suffer from the infirmity of amounting to no more than conclusions and generalities unsupported by any statement of the facts or the nature of the transactions upon which they are based and, in that event, defendant would be entitled to the granting of its motion that such allegations be stricken or the bill of complaint dismissed in part to eliminate them, inasmuch as plaintiff made no offer to amend to supply the defect. Allegations in the bill of complaint that defendant aided gambling by the above-described practices or that it entered into gambling conspiracies relate to subjects foreign to the statute in question and, if proved, fail to establish a nuisance under it or at common law warranting exercise of the injunctive power of the court. Nor is plaintiff aided by such allegations if, perchance, they effectually charge the commission of crimes by defendant inasmuch as equity will not, independent of the element of nuisance or interference with the property or pecuniary rights of another, enjoin the commission of a crime. United Detroit Theatres Corp. v. Colonial Theatrical Enterprise, Inc., 280 Mich 425. The temporary injunction should have been denied. Mr. Justice Reid, in writing that the 2 telegraph offices here involved were “used for the purpose of gambling”, cites People, ex rel. Wayne Prosecuting Attorney, v. Tate, 306 Mich 667; People, ex rel. Wayne Prosecuting Attorney, v. Sill, 310 Mich 570; and People, ex rel. Wayne Prosecuting Attorney, v. Bitonti, 306 Mich 115. In each of those cases an automobile, used, as an “essential tool” and vital link in a gaming operation, to transport mutuel betting tickets, was held to be a nuisance, subject to seizure and sale. This was corollaiy to the provisions of CL 1948, § 750.306 (Stat Ann § 28.538), declaring the gambling paraphernalia contained in the vehicles to be a common nuisance and their possession a misdemeanor. The distinction is clear. In the instant case the allegations of the bill fail to make out not only a case of gambling in defendant’s offices but also of possessing anything there which may not lawfully be possessed. Assume, however, that defendant, as a public carrier, instead of wiring money and messages, as here, engaged in transporting, in interstate commerce, between points inside and outside of Michigan, gambling devices which may not lawfully be possessed in this State. Would its actions in that respect come within the purview of the nuisance statute here involved? In Grand Trunk W. R. Co. v. City of Lansing, 291 Mich 589, we held in effect that certain gaming devices, namely, slot machines, the keeping or maintaining of which, as such, constituted a misdemeanor under CL 1948, §750.303 (Stat Ann § 28.535), were not subject to statutory seizure when in possession of a railway company for transportation, in interstate commerce, from a point outside Michigan and delivery to a consignee in Michigan. Utterly incompatible with that holding is the idea that the railway company might, under the facts in that case, have been restrained from possessing, transporting or delivering the slot machines. At greater variance therewith is the suggestion that the transportation, by defendant public carrier in interstate commerce, of money, which it is still lawful to possess in Michigan, from this State to points outside the State, for placing there .as bets, may be restrained by onr courts or defendant’s places of business used in connection therewith • declared nuisances, subject to abatement. What of the order for discovery? In People, ex rel. Moll, v. Donziger, 238 Mich 39, after discussing the rights protected by the provision of Michigan Constitution of 1908, art 2, § 16, that “no person shall be compelled in any criminal case to be a witness against himself” this Court quoted with approval from 3 Story’s Equity Jurisprudence (14th ed), § 1942, the following: “In the next place, courts of equity will not entertain a bill for a discovery to aid the promotion or defense of any suit which is not purely of a civil nature. Thus, for example, they will not compel a discovery in aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such a character, or in a case involving moral turpitude; for it is against the genius of the common law to compel a party to accuse himself; and it is against the general principles of equity to aid in the ■enforcement of penalties or forfeitures.” We then went on to say: “The cases are quite uniform in holding that where the bill is filed solely for discovery, and the facts upon which discovery is sought are such as would tend to criminate defendant, the bill can not be maintained at all and should be dismissed on demurrer. The bills in these cases were filed solely to require defendants to disclose by answer what they could not be required to disclose as witnesses on the stand, and sought to accomplish by indirection what ■could not be accomplished directly. * * * “The cases both in England and in this country are quite uniform in holding that a defendant may not be required in his answer to state facts which would tend to criminate himself.” Then, after quoting from Robson v. Doyle, 191 Ill 566 (61 NE 435), of which a part is the following: “Now, courts of equity have always withheld their aid in actions which were penal in their nature, and would never compel a defendant to disclose facts which would expose him to criminal punishment or prosecution, or to pains, penalties, fines or forfeitures. A defendant may refuse to answer, not only as to facts directly criminating him, hut as to any fact which might form a link in the chain of evidence establishing his liability to punishment, penalty or forfeiture.” This Court, in speaking of the Illinois case, said further: “This case, it will be noted, belongs to that class of cases to which we have adverted, where the bills are filed solely for discovery of acts criminal in their nature. These bills show upon their face that the disclosure sought is of facts which tend to establish the violation of a penal statute and are, therefore, bad on demurrer. But the case is in line with the many other holdings that a defendant may not be required by his answer to state facts which will tend to criminate himself, and this must be regarded as the settled law both in England and in this country.” We further said: “We have pointed out that in a considerable number of the cases the bills were filed solely for discovery, and where they show on their face that to require an answer would invade defendant’s constitutional rights they have been dismissed on demurrer. In such cases the discovery sought was of facts which would tend to criminate defendant and his answer under such circumstances could be used in evidence against him in a criminal proceeding. Such bills were properly dismissed on demurrer, and in Claridge v. Hoare, 14 Ves Jr 59 (33 Eng Rep 443), it was held that the defendant conld protect himself from discovery by plea.” Discovery was permitted in the Danziger Case, brought under the statute here in question, only because there the allegations of the bill were sufficient to charge the maintenance of a statutory nuisance. It is, then, clearly the rule in Michigan that discovery will not be permitted in aid of criminal prosecutions or penal actions, but only in cases purely of a civil nature. Accordingly, plaintiff urges in support of its claim of right to discovery that, despite numerous statements in its bill in the nature of (conclusions that defendant has been guilty of the commission of crimes, this is not a criminal case but a civil matter in equity for abatement of a nuisance. That, under thq circumstances and our [opinion in the Danziger Case, is a prerequisite to plaintiff’s right to discovery. As we have already seen, however, plaintiff’s bill fails to make out a case of nuisance. Nothing of a civil nature remains. We quote with approval from O’Brien v. O’Brien, 362 Pa 66 (66 A2d 309, 10 ALR2d 714), the following: ■ “It is axiomatic that a bill for discovery in aid of an action or a defense at law cannot be maintained if the action or the defense itself cannot be maintained; this is because a bill for discovery in aid of a claim at law is wholly an ancillary proceeding, and if the asserted claim is itself invalid a bill for discovery in support of it must necessarily fall on demurrer.” It follows that the order for discovery was improperly entered. Under the heading “Relief” in its brief on appeal defendant for the first time asks that these proceédings for abatement of nuisance be dismissed. While our views on the subject of the sufficiency of plaintiff’s bill of complaint are made evident here in, we can scarcely direct dismissal thereof in the ■absence' of a motion for that purpose in the court below. The order appealed from, denying defendant’s motion to dismiss the bill of complaint in part, and granting plaintiff’s motion for temporary injunction and discovery, is reversed, vacated and set aside and the cause remanded for such further proceedings, not inconsistent herewith, as may be deemed proper. No costs, a public question being involved. Butzel, Carr, Bushnell, and Sharpe, JJ., concurred with Dethmers, C. J.

Bushnell, J. Joseph Petrak, administrator of the estate of Thomas Petrak, deceased, brought suit against Cooke Contracting Company, claiming that the death of his son, Thomas, was caused by the “wilful, malicious, intentional, wrongful, and negligent actions” of the Cooke company. For some months prior to the death of Thomas on October 29, 1946, defendant Cooke, with the permission of the owner, had been using a vacant lot in the city of Crosse Pointe for the storage of its road construction materials and equipment. These included hoppers for cement, sand and gravel, a crane, a sub-grader, and a flat 4-wheel trailer. There were also a number of barrels of tar and large piles of sand and gravel stored on the premises. On the morning of the day before the fatal accident, defendant’s employees placed a 24-foot steel beam weighing between 1,500 and 2,000 pounds on the trailer. One end of this beam was placed at about the center of the rear of the trailer, and the other about 1J feet from the front corner. At about 5:15 p.m. the following day, Thomas, then 11 years old, and a school companion, Paul Hoey, about the same age, went to the lot and played for a while in. the sand. They later became interested in a barrel of tar that was stuck to the ground near the trailer. The boys attempted to tip over this barrel. Thomas-braced himself against the trailer and pushed the barrel with his feet. Paul testified that Thomas did not touch the beam, but that he may have “jiggled”' the trailer. As he did so, the beam fell on him. Paul was so frightened that he ran away and said nothing about the accident until he was questioned the next day. The following morning Thomas’ body was. found pinned under the beam. The lot was not inclosed, and there is testimony that it was a common occurrence for children to play on the premises. They had been warned not to do' so and at various times were ejected. The trial judge directed a verdict for the defendant. He held that “the iron beam was not an inherently dangerous item, and that the boy had no right to be where he was when he was killed.” (See in this connection Jaworski v. Detroit Edison Co., 210 Mich 317.) He stated that, in granting defendant’s motion, he was following the rule in LeDuc v. Detroit Edison Co., 254 Mich 86. In the LeDuc Case the doctrine of “attractive nuisance” is discussed at length. Mr. Justice Fead,, writing for the Court, pointed out the conflicting; authorities on the subject and stated: “However, the cases affirming liability recognized the trespass rule and the point of distinction is this: Where the child is where he has a right to be, as in the street or as a licensee on private premises, and 'his trespass is technical rather than wilful, i.e., consists of playing with or taking the property of another as the spontaneous and natural act of an irresponsible child immediately attracted to the object, recovery is not barred by the trespass.” A judgment against a highway contractor for injuries sustained by a 9-year-old boy was upheld in Butrick v. Snyder, 236 Mich 300. The contractor, who had been using dynamite to break up a large stone, had left some dynamite caps in a box on a shelf of a tool shed located on private premises near a school. School boys, with permission of their teacher, had been in the habit of playing on the land where the shed was located. The decision in this case is based on the inherently dangerous nature of the instrumentality which was the cause of the accident. Powers v. Harlow, 53 Mich 507 (51 Am Rep 154), was cited as decisive. Ryan v. Towar, 128 Mich 463 (55 LRA 310, 92 Am St Rep 481), was not discussed, but in the LeDuc Case, supra, the Court pointed out that the “attractive nuisance” doctrine has been conservatively applied. In that case it was held that a work cart containing a supply of gasoline which was left on the parkway between the sidewalk and the street did not constitute an “attractive nuisance.” It was further held that the boys in opening the faucet of the work cart and taking the .gasoline therefrom committed an actual and not a "technical trespass. The Court stated: “The faucet was not opened in the course of the investigation and experimentation of an irresponsible child but by an instrument, the intentional selection and use which demonstrated a considerable -degree of mechanical skill and intelligence. “The gasoline was not taken in the ordinary course •of childish play about the machine but as the deliberate, understanding and conscious appropriation of the goods of another for a definite use elsewhere.” The steel beam which fell and caused the death of Thomas was not an inherently dangerous instrumentality, and is not within the rule applied in the Butrick Case. Thomas and his companion did not have permission to play on the storage lot. These boys were neither invitees nor implied licensees (see Anderson v. Newport Mining Co., 202 Mich 204) but were trespassers. To such persons defendant owes no duty except that it must not wantonly or intentionally injure them or expose them to injury. Ryan v. Towar, supra. Defendant was lawfully in possession of the premises. Although neither owner nor lessee, it is entitled to assert in its defense the rule of nonliability to a trespasser for injuries not wilfully, wantonly or negligently inflicted after the trespasser’s presence is known. 38 Am Jur, p 773. See, also, McCaughna v. Owosso & Corunna Electric Co., 129 Mich 407 (95 Am St Rep 441); Parshall v. Lapeer Gas-Electric Co., 228 Mich 80; and 90 ALR 886. A reasonably prudent person would not anticipate that children in the vicinity would he likely to play with the trailer. A 24-foot steel beam thereon weighing 1,500 to 2,000 pounds was not inherently dangerous even though lying in a diagonal position. Defendant was not guilty of committing acts of negligence. The trial judge, in the light of the undisputed, facts, did not err in holding, as a matter of law, that plaintiff’s decedent was a trespasser, and that the same rules of law, under the circumstances of this case, apply to infant trespassers as well'as to adults. Ryan v. Towar, supra. The jury was properly directed to bring in a verdict for the defendant. Graves v. Dachille, 328 Mich 69. The judgment entered upon that verdict is affirmed, with costs to appellee. Reid, C. J., and Boyles, North, Dethmers, Butzel, and Carr, J J., concurred. Sharpe, J., concurred in the result.

Reid, C. J. This is an appeal from a judgment in favor of plaintiff in an action of replevin. Issue was joined on a declaration and on the answer of the interpleaded defendant, National Acceptance Company of Chicago, the original defendants Leonard M. Rozner and L. M. Rozner Manufacturing Company, a Michigan corporation, were defaulted and judgment also ran against them.. Defendant National Acceptance Company of Chicago, a Delaware corporation, which claims to he chattel mortgagee of the goods taken on the writ of replevin, took upon itself the active defense of the case and will hereinafter be referred to as the defendant. On October 7, 1946, plaintiff, doing business as Economy Refrigeration & Air Conditioning Service, hereinafter referred to as plaintiff Lynch, sold to L. M. Rozner Manufacturing Company on a conditional sales contract, an air conditioning system, described in and according to the terms of exhibit No 1 (the first conditional sales contract). It is admitted by defendant that plaintiff retained title to the equipment. On October 30, 1946, Rozner company mortgaged to defendant all of its assets, some 692 items of factory equipment, referred to in exhibit No 7, which included either by inadvertence or fraudulent design on the part of Rozner, the air conditioning unit described in exhibit No 1 and to which the Rozner company then had no title. On November 25, 1946, plaintiff sold to Rozner company a bar, sometimes called barette (exhibit No 5), and on December 4, 1946, a heating coil and thermostat (exhibit No 6), which 3 items were taken on the writ, the return of which defendant waived and on which the court fixed a value of $325, and for which defendant was given judgment. The matters mentioned in the paragraph next above are of no concern to plaintiff here because no cross appeal was taken and that phase of this case is res judicata. In December, 1946, plaintiff Lynch needed money, negotiated with the Industrial National Bank, pro- ■ cured from Rozner company a note payable directly do the bank and a second conditional sales contract, exhibit No 2, payable to plaintiff Lynch covering not only the air conditioning unit but also the bar and heating coil and thermostat and also finance charges, and plaintiff Lynch pledged exhibit No 2 with the bank, with the Eozner company promissory note attached to exhibit No 2 and with plaintiff’s full indorsement with recourse, and received from the bank 90 per cent, of the moneys owing under exhibit No 2. Eozner company made no payments on the contract and plaintiff was obliged to take a re-assignment of the collateral and pay the bank, which he did, July 28, 1947. Plaintiff then started this replevin action against Eozner and L. M. Eozner Manufacturing Company, and John Doe, later the National Acceptance Company of Chicago impleaded as John Doe. Eozner was defaulted and defendant National Acceptance Company of Chicago contests the replevin action, claiming the right to the air conditioning unit, bar, heating coil and thermostat by virtue of the foreclosure of its chattel mortgage. It waived return of the property and asked for money judgment for the value. The circuit court gave plaintiff, the.air conditioning unit and defendant the money value of the bar, heating coil and thermostat, and fixed the value at $325, from which latter part of the judgment no .appeal was taken. Defendant Acceptance company admits that exhibit No 1, the contract of October 7, 1946, was a conditional sales contract, but claims that exhibit No 2 and the giving by Eozner company of the note direct to the bank, followed by payment to plaintiff Lynch of money received on the note, operated as payment of exhibit No 1, the contract of October 7, 1946, and that the cashing of the note by plaintiff paid up the balance that was unpaid under exhibit No 1, thereby giving Eozner company title to the apparatus which was then in place and in operation •on Eozner company’s property and as subsequently acquired property such apparatus became subject to defendant Acceptance company’s mortgage, which covered after-acqnired property and was filed October 30,1946. Mr. Rozner testified that hy the note, exhibit No 2, he obligated himself (and his company) to pay the hank $3,081.19 and that that was more than was owing on the air conditioning system under exhibit No 1, which sum ($3,081.19) included the balance under exhibit No 5 for the bar and for the heating-coil and thermostat under exhibit No 6, also finance charges which Rozner further testified were added hy the bank to be included in the note to the extent of two or three hundred dollars. Rozner, who was plaintiff’s witness, gave testimony which is convincing that exhibit No 2 was made as a financing transaction and such was the purport of the testimony of Mr. Malcho, the officer of the Industrial National Bank, indicating that the making of exhibit No 2 was for the purpose of furnishing-money to Mr. Lynch,-the plaintiff. The deal with the hank was -entirely made by Lynch. Exhibit No 2, the second so-called conditional sales contract, is in part as follows: “Conditional Sales Contract “The undersigned seller does hereby agree to sell and the undersigned purchaser does hereby agree to purchase, upon the terms and conditions hereinafter set forth, the following- goods and chattels, complete with standard attachments and equipment, which shall he installed and kept at 542 E. Fort, Detroit, Michigan. “1 new 1947 model SCY-501 Worthington 5-ton air conditioner, complete with heating unit and ducts, serial No 1755 ................................................. $3,488.25 “1 new 1947 model HB2, Empire red refrigerated bar, serial No 126 ..............'.......................... 514.00 “Total cash price......................... $4,002.25 “Statement of transaction “Total cash purchase price ...... $4,002.25 “Tax........................... 96.32 “Total ......................... $4,098.57 “Unpaid balance ................ $4,098.57 “Cash down payment ........ $1,347.50 “Deferred balance ............... $2,751.07 “Time charge, 24 months......... 330.12 “Time balance .................. $3,081.19 “The time balance shall be paid in monthly instalments of $128.38 on the tenth day of each month hereafter until the entire amount is paid. All payments shall be made to the seller at Industrial National Bank—Detroit and shall bear interest at the highest legal contract rate from their maturity until paid. “It is further agreed: The title to above described property shall not pass by delivery but shall remain vested in and be the property of the seller or assigns until the purchase price has been fully paid, together with the interest and any other moneys becoming due hereunder, at which time th'e seller or assigns will transfer title to the purchaser. The purchaser acknowledges receipt of said property and shall have temporary possession of the same and the right to use and retain it so long as there shall be no default in any of the terms and conditions of this contract to be performed by said purchaser. ■ The above property shall be and remain personal property regardless of the manner in which it is affixed or attached to the structure. The purchaser agrees to take good care of said property at his or her expense and not to sell or rent any part thereof, or assign this agreement, or part with possession of said goods or chattels or remove or permit the same to be removed from said premises without the written consent of the seller or assigns, and further agrees to save the seller and assigns harmless on account of any dam age which may occur to said goods either by reason of fire, accident, neglect or abuse but the injury or destruction thereof shall not operate to release the purchaser’s covenants. If the purchaser fails to make any payment when due or otherwise violates this contract the seller may either (1) declare the entire sum remaining unpaid immediately due and payable and sue for the payment thereof, or (2) treat this contract as at an end, and with or without notice or legal process take possession and remove said merchandise, hold the same free of all claims of the purchaser and retain all payments made hereunder as rent for the use thereof, the purchaser hereby waiving all claims and rights of action for trespass or damages by reason of said entry and repossession. This contract shall inure to the benefit of, and bind the heirs, executors, administrators, successors and assigns of each of the parties hereto. There are no understandings, agreements, representations or warranties, express or implied, not specified herein, respecting this contract or the property above mentioned. Any provision of this contract prohibited by law or inconsistent with a pure conditional contract of sale shall be ineffective to the extent of such provision without invalidating the remaining provisions hereof. Any extension or assignment of this contract shall not constitute a waiver of the conditions hereof. The purchaser acknowledges delivery and receipt of a copy of this instrument at the time of its execution. “In witness whereof, the parties hereto set their hands and seals this sixth day. of January, 1947. “L. M. Rozner Manufacturing Corp. “Purchaser’s signature “Leonard M. Rozner, President “Purchaser’s signature “Economy Refrigeration & Air Cond. “Seller “By George F. Lynch (owner) “Authorized signature * * * “Conditional Sales Contract Note “$3,081.19 Date: January 6,1947 No 10-303599 “On or before 24 months, after date, for value received, I/We, the undersigned, jointly and severally promise to pay to the order of Industrial National Bank—Detroit, the sum of $3,081.19. “The principal sum shall be paid in monthly instalments of $128.38 on the tenth day of each month hereafter until the entire amount is paid. “This note and all monthly instalments are payable at the office of Industrial National Bank— Detroit, 1408 Washington boulevard, Detroit, Michi-. gan, or any of its branches. If any instalment aforesaid is not paid on its due date then the entire principal sum shall become due and payable at once, without notice, whether due according to its face or not, and shall bear interest at the rate of 7 per cent, per annum until paid. “Presentment, demand protest and notice are hereby waived by each party primarily or secondarily liable (whether hereon or otherwise) for the above indebtedness, and any extension or indulgence to any such party (whether with or without notice) shall not affect the obligation of any other such party. “Signature: “L. M. Rozner Manufacturing Corp: “Leonard M. Rozner—president u A rlrlpAcjc! * “542 E. Fort—Detroit.” Plaintiff Lynch indorsed the note with full recourse and waived presentment,, demand, protest and notice of protest and nonpayment. Exhibit No 3 is as follows: “Assignment of Title Retaining Contract “For value received Industrial National Bank— Detroit, does hereby sell, assign and transfer unto Economy Refrigeration & Air Conditioning Service without any recourse or warranties whatsoever all of its right, title and interest in and to the following title-retaining contract: “Dated January 6, 1947 in the amount of $3,081.19 executed by L. M. Rozner Mfg. Corp. as purchaser, and Economy Refrigeration & Air Conditioning Company, as seller, which covers the sale of the following described property: “1 new 1947, model SCY-501 Worthington, 5-ton air conditioner, complete with heating unit and ducts, S.N.1755. “1 new 1947 model HB2 Empire red refrigerated bar, S.N. 126. “In witness whereof, Industrial National Bant— Detroit, by its duly authorized officer, has hereunto set'its hand and seal this 9th day of December, A.D. 1949 but as of July 30,1947. “Industrial National Bank—Detroit “By L. Malcho (sgd.) “L. Malcho, assistant cashier. “Witnesses: “Virginia Brzezina (sgd) “Helen Shokaluk (sgd)” In exhibit No 2, hereinbefore set forth, the Empire refrigerated bar at $514 was an item sold on open account and was not mentioned in or subject to the preceding conditional sales agreement, exhibit No 1. The trial court considered exhibit No 2 as being a conditional sales contract, as contended by plaintiff. The principal question in this case is whether it is to be treated as such or whether in view of all the circumstances it amounted to a chattel mortgage. In Cooper v. Brock, 41 Mich 488, 490, the Court said, “If from the entire instrument, either standing alone, or read in the light of the surrounding circumstances, it appears to have been given as a security, it must be considered as a mortgage, and the law will apply thereto the rules applicable to mortgages,” i.e., what was a bill of sale in form was held to be chattel mortgage in effect. See Burroughs Adding Machine Co. v. Wieselberg, 230 Mich 15, where we said at pages 19, 20: “The character of the instrument is to be determined from its terms, from a consideration of rights and remedies stipulated therein or allowed by law as between the parties, and to some extent in the light shed by the circumstances surrounding the transaction. If the seller is not limited to right to retake the property and retain the payments made, but after reclamation may. enforce payment of the remainder of the full agreed price, and the instrument is so worded as to permit this to be done, then the courts will recognize the instrument for what it is in fact and law, security in the nature of a chattel mortgage. If the title is retained as security for the payment of the full price and the obligation to further pay is not abated by a retaking of the property and retention of partial payments, then it is not a pure conditional sale but an undertaking in the nature of a chattel mortgage. Instruments giving the seller the rights and remedies of a mortgagee against the buyer and chattels the subject of sale, if rights of third persons do not intervene, but so colored as to be employed in support of a claim of conditional sale only, when rights of third persons do intervene, are ab initio instruments in the nature of a chattel mortgage.” Exhibit No 2 was not placed on record as a chattel mortgage. Defendant’s chattel mortgage was placed on record immediately after it was given, October 30, 1946. Counsel cite and the court have in mind several cases decided in this and in other courts concerning conditional sales agreements but in none to which our attention has been directed do we find an agreement upheld as a conditional sales agreement where-the following elements were all present: 1. A detachable promissory note payable to a third party for an amount more than the original conditional sales contract purchase price was a part of the transaction. 2. The vendor received payment from the third party payee in the promissory note. 3. Chattel purchased on a previous conditional sales agreement, for which the claimed conditional sales agreement sued on, was a substitute, was subject to the questioned conditional sales agreement. 4. Chattels purchased on open account were comingied with chattels purchased on a previously existing conditional sales agreement, as items sold under the claimed conditional sales agreement sued on. In Federal Commercial & Savings Bank v. International Clay Machinery Company, 230 Mich 33, we held, pages 36, 37 (43 ALR 1245), as follows: “That the agreement required the buyer to give negotiable promissory notes, or negotiable trade acceptances, for the deferred instalments of the purchase price, or that they or either of them were in fact given, is not inconsistent with the retention of title in the seller pending payment, and does not of itself characterize the instrument as one for security in the nature of a chattel mortgage.” In that case we upheld the instrument as one of conditional sale. However, in the later case of Klingensmith v. James B. Clow & Sons, 270 Mich 460, we quote with approval at pages 465, 466, from 3 Pomeroy’s Equity Jurisprudence (4th ed), § 1195, as follows: “While each case must involve its own special facts, the following circumstances are regarded by the courts as important, and as throwing much light upon the real intent and nature of the transactions: The existence of a collateral agreement by the grant- -,or to pay money; his liability to pay interest; where a debt existed antecedent to the conveyance, the surrender or cancellation of the evidences of such indebtedness, or the suffering them to remain outstanding and operative, or the substitution of others in their place; the price of the conveyance being inadequate ; the grantor still left in possession; an application or negotiation for a loan preceding or pending the transaction.” (Italics supplied.) In the instant case we deem it of very great importance that plaintiff Lynch prepared or caused to be prepared the so-called conditional sales contract with a note attached thereto with a perforated line, that the note did not run to plaintiff Lynch, the vendor, but ran directly to the bank, so that the Bozner company, according to the face of the papers, became on the same day, January 6, 1947, indebted to the bank on the note for $3,081.19 and on that day, on exhibit No 2, became liable to plaintiff Lynch for the same amount of money, $3,081.19. The note with its perforated line was intended to be detachable. Included in the amount which the Bozner company became obligated to pay was not only the amount that was then unpaid for the air conditioning system under exhibit No 1, but also $528.85 for a Hollywood bar or barette, $495, and the sales tax thereon, $14.85, with charge for service, delivery and freight of $19. This bar as well as a heating coil and thermostat together with sales tax thereon, amounting to $201.69, were all bought on open account and were not subject to a conditional sales contract therefor. Such items (other than the air conditioner with heating unit and ducts) were not included in the preceding title retaining contract of October 7, 1946, exhibit No 1, and having been before January 6, 1947, sold on open account, were not properly included in the exhibit No 2 as goods sold on a title-retaining contract of sale. The inclusion in exhibit No 2 of items of personal property which had theretofore been sold and delivered to the Rozner company on open account along with the air conditioning apparatus which had theretofore been sold on title-retaining contract, would require us, if we found for plaintiff, to find that the same document, exhibit No 2, is a conditional sales agreement as to the air conditioning apparatus and a chattel mortgage as to the items theretofore sold on open account. It is further to be noted that because plaintiff drew or caused to be drawn exhibit No 2 and the detachable note attached thereto, that as to ambiguity created by the form and purport of the instruments read together, the ambiguity must be resolved against Lynch who caused the preparation of the instruments, and in favor of Rozner company, and those claiming under the Rozner company. Rozner testified: “Mr. Lynch told me that he wanted money to finance this purchase through the Industrial National Bank—Detroit so that he could be paid off on exhibit No 1 and for the other items purchased.” The signatures of Rozner company to exhibit No 2 and the accompanying note to the bank were obtained and the instrument delivered before the payment of moneys by the bank to the plaintiff Lynch and the assignment by Lynch of exhibit No 2 to the bank. The execution and delivery of exhibit No 2 and the promissory note superseded and abrogated the preceding conditional sales agreement, exhibit No 1. The intention of the parties, plaintiff Lynch and ■ defendant Rozner, is to be gathered from the instruments that were executed and the surrounding cir,cumstanees. Plaintiff Lynch caused and required that what in form was a conditional sales agreement should cover not only the air conditioning apparatus but other articles that had been sold on open account, and he further caused and required that the Rozner company execute a note for the total amount unpaid not only on the air conditioning apparatus which was a subject of the preceding conditional sales agreement, but also on the other items which were not purchased on any title-retaining contract basis whatever, and caused that the note be payable by Rozner company not to plaintiff Lynch but to the bank, for all of which reasons we conclude the trial court was in error in considering exhibit No 2 to be a conditional sales agreement. Under all the attendant circumstances and in view of the decisions hereinbefore cited, it is considered by us to be a chattel mortgage. It was not on file. The defendant Acceptance company in taking its chattel mortgage on October 30, 1946, took the mortgage including not only the property covered by exhibit No 2 but also a great many items of other property lo'cated at the place of business of the Rozner company and the mortgage also covered future-acquired property, so that when on January 6,1947, exhibit No 2 with the accompanying note was executed and transactions of that date were completed, the title to the air conditioning apparatus, which was the subject of the replevin, passed to Rozner company and under the future-acquired property clause of defendant Acceptance company’s chattel mortgage, the chattel mortgage of defendant Acceptance company attached to and became operative on the air conditioning apparatus which was later on taken under the writ of replevin in the case at bar. The taking of the apparatus under the writ of replevin was under such circumstances unlawful. The judgment appealed from is reversed. The defendant National Acceptance Company of Chicago waiving the return of the goods is entitled to a judgment against' tbe plaintiff and its surety for $1,550, the amount in value of the air conditioning unit, in addition to $325 for the other goods taken, with inT terest upon said sums from July 29, 1950, the date of the seizure of the air conditioning unit under the writ of replevin. In view of our decision, other questions raised in the briefs do not require a determination by us. The case is remanded to the trial court with instructions to enter a judgment for defendant Acceptance company against plaintiff and his surety for the value of goods so taken, a total of $1,875. Costs in both circuit court and in this Court are awarded to defendant Acceptance company. Boyles, North, Dethmers, Butzel, Carr, Bus-hnell, and Sharpe, JJ., concurred.

Butzel, J. Martin Popielarski and Marie Popielarski, his wife, brought suit against Edward Jacobson and Mollie Jacobson, his wife, and Raymond Schreiber, Nathan Schreiber, Forest Miller and Leonard Badgley, claiming that they had conspired to induce plaintiffs by false representations to buy the Forest theater, a moving picture house situated on Woodward avenue near the corner of West Forest avenue, 2 main thoroughfares in the city of Detroit, Michigan. The case was dismissed as to Mrs. Jacobson, it being conceded that she had nothing to do with the sale. The theater evidently was not a new one. Defendants Sehreiber, as copartners, doing business as Midwest Theater Company, owned a number of moving picture theaters, including the Forest theater, in the city of Detroit. Nathan Sehreiber was an uncle of Jacobson, and Raymond Sehreiber a cousin. They had given Jacobson and wife a 5-year lease beginning July 1, 1948, for the Forest theater and personal property, consisting of accessories necessary to run a moving picture theater, at a rental of $500 a month. The Jacobsons, as lessees, also agreed to pay the Schreibers, their lessors, an additional $2,000 for entering into the lease. There was also deposited with them the further sum of $3,000 as security for prompt payment of rent and performance of other covenants of the lease, the amount so deposited to be applied at the option of the lessees if they lived up to the terms of the lease on the last 6 months’ rent to become due under the lease. The lessees further agreed to run only films that had not been previously shown at 3 other theaters owned by the lessors, unless such films had been rejected by lessors for such theaters, 2 of which were within 3 blocks of the Forest theater, and the third was not so near. Lessees thus agreed not to compete with the lessors oh motion picture films which the lessors desired to display at 3 competing theaters. On Sunday, January 8, 1950, plaintiffs Popielarski were attracted by the following advertisement in a local paper: “Theater. Hot spot. Good money maker. Full price, $5000, $2500 down. Ask for Mr. Sherlock. B. & M. Realty, TR. 5-3350. 2294 West Grand Boulevard. Open 9 to 9.” The B & M Realty Company was a copartnership, consisting of Leonard Badgley and Forest Miller, defendants lierein. In the afternoon of the day the advertisement appeared, plaintiffs went to the office of the realty company and were told by Mr. Sherlock, mentioned in the advertisement and in charge of the office, that he did not have the keys, but he gave plaintiffs the location of the theater so that they could see the exterior. The theater was closed, but plaintiffs were attracted by its front. That evening they returned to the real estate office where they met defendants Jacobson and Badgley and also Sherlock, all of whom took plaintiffs to the theater. It was dark, only 1 light in the lobby being lit. It was explained to plaintiffs that the fuses were disconnected. A cursory inspection of the premises was made. Plaintiffs saw that the lobby was upset, the candy concession in disorder, and a section of .the seats roped off, but nevertheless they were well impressed as far as they could determine. At that time it was also suggested that a film be run in order to try out the projection equipment. The Popielarskis accompanied Jacobson to the projection booth, where a film was run off. When Mr. Popielarski noticed that there was no sound, Jacobson explained that he did not have any sound film available, but he assured plaintiffs that the sound equipment was in good working order. This was not true, but it was subsequently put in , good order at some expense. Jacobson at that time, reading from a memo book which he took from his pocket, made the statement that the theater had grossed $28,000 in 1948 and also in 1949; that he had made a profit of $20,000 in the previous year; that the reason he was selling was in'order to pool his resources with another person in order to open a large theater in Texas; that as he did not have the time to look after the Forest theater he had closed it; and that he had run it on New Tear’s Eve and made $500 on that one night, an amount sufficient to pay a month’s rent. After seeing the film Popielarski asked to see the heating system. Jacobson took him down the stairway, but they were unable to see the heating equipment because the basement was flooded. Jacobson explained that the sump pump needed repairs, but that he would take care of it. After this inspection, all of the parties returned to the real estate office. Plaintiffs testified that they then stated that they desired to look at the theater the following day, when there would be better light, but they offered a $25 deposit on the purchase of the lease. At that time, Badgley stepped out of the room and returned with a check for $1,800, which he said had been left during their absence as a deposit for the purchase of the theater. He told plaintiffs that their $25 was insufficient ■ in view of the other check, and that they would have to deposit that amount or more. Plaintiffs responded with a check for $2,000. The following afternoon plaintiffs returned to the real estate office for the keys, intending to examine the theater further. Jaeobson, Badgley, Sherlock and Miller were present when they arrived. Badgley presented plaintiffs with a preliminary agreement of sale for their signatures, saying that before they could go any further they had to have the instrument signed and additional money, before they could get approval of the landlord. Plaintiffs stated that they thought they should see a lawyer before they signed, but were told by Badgley that the signing of the agreement was standard practice and that they did not need a lawyer at that time because they (the realtors) were there to look out for them. Plaintiffs paid the additional $2,000 called for and signed the agreement, which reads as follows: “Detroit, Michigan, January 8,1950. “Received from Martin H. Popielarski and Marie Popielarski, his wife, the sum of $2,000 as deposit and part payment for Forest theater lease and de posit. Business located at 4635 Woodward áve. in the city of Detroit, county of Wayne, State of Michigan, which .the above-mentioned party has offered to purchase (subject to approval of owner) for the sum of $5,000 in the manner as specified below, viz: down payment $4,000 and monthly payments of see below, per annum. “Remarks: Seller is to take notes for the $1,000 balance to be paid as follows: $500 within 60 clays from date—$500 within 120 days from date. Seller agrees to put sump pump in basement and plumbing in good working order so that it will pass city inspection. Money to be held in escrow until license has been secured. Lease dated Feb. 1st. If opened before Feb. 1st rent to begin on opening date. “It is further agreed that an additional deposit of $2,000 will be paid by the purchaser when this agreement is accepted by the owner, or if business place is under lease, sublease on similar terms shall be given, or lease assigned at option of seller, and in any event sale shall be contingent upon approval of landlord; if assignment of lease involves escrow deposit, seller shall be reimbursed therefor and assign same. “Deal to be closed on or before January 19, 1950, and possession given the purchaser by the owner immediately on closing of said deal, and a complete adjustment of all rents, insurance, taxes, et cetera, complying with the bulk sales law as required by the State of Michigan. “The stipulations aforesaid are to apply to and bind the successors, heirs and assigns of the respective parties. “The commission of 10% shall be paid by the owner to B & M Realty & Investment Company out of the first money received, whether paid as a deposit or for any other purpose. “It is hereby understood that all terms, conditions, and representations in the listing contract executed and signed by the owner prior to this agreement are hereby made a part of this agreement and are binding to the said owner. “I have read the above receipt and agreement and agree to purchase the said business and/or property in accordance with all the terms and conditions as herein set forth. Both parties hereby acknowledge receipt of a true copy of this agreement. (Sgd) Martin H. Popielarski ■ Martin Popielarski (Sgd) Marie Popielarski Marie Popielarski (Sgd) Edward Jacobson Edward Jacobson. Witness: (Sgd) F. L. Miller. “Purchaser’s Eeceipt op Accepted Opper. “The undersigned purchaser hereby acknowledges the receipt of the seller’s signed acceptance of the foregoing offer to purchase. (Sgd) Martin H. Popielarski (Sgd) Marie Popielarski “Dated: 1-9-1950.” After the agreement was signed, and plaintiffs thus were bound, plaintiffs and Jacobson went to the office of the Sehreibers, doing business as the Midwest Theater Company, the lessors whose consent was necessary to the assignment of the lease which contained some restrictions. On the way Jacobson told plaintiffs that they could not go wrong in their purchase, that he had made money while he operated the theater, and he showed them a picture of an uncle who, he stated, had made large profits from the theater and who was a retired millionaire living-in Florida. Upon arriving at the office of the Midwest Theater Company, plaintiffs were asked to wait in the lobby while Jacobson went in to talk with Nathan Schrieber. What transpired between them- is not shown. Five minutes later plaintiffs were called into Nathan Schreiber’s office and were introduced to him. He said: “Well, You want to make lots of money? Eddie made lots of money in this show. Fine. Get your lawyer.” Plaintiffs were unable to get the attorney whom they first selected, but they did get in touch with Attorney Shur, who some years previously had done some work for them. Attorney Shur was not selected nor suggested by defendants, for whom he had never done any business although he may have once met one of them socially. He was called to testify by defendants but he claimed that his conferences with plaintiffs were privileged communications. He was only willing to testify as to what occurred in the presence of defendants. His further testimony was elicited by attorney for plaintiffs on cross-examination and thus practically the entire conversations were disclosed. Attorney Shur told plaintiffs that they should have retained him before they entered into the preliminary sale agreement which might be binding. It developed during one of several conferences that the theater had remained closed for some time except on the previous New Year’s Eve, and that Jacobson had run what were known as exploitation pictures, which consisted largely of sex pictures, some with lurid titles. Plaintiffs stated, however, that they would gamble on the business. On January 19, 1950, a sale agreement was executed between Jacobson and wife and plaintiffs. It contained an escrow agreement in which Samuel Shapero was appointed escrow agent, both for the $4,000 cash which plaintiffs had paid to Badgley and the $1,000 in notes, in order to insure first parties making certain repairs to the sump pump and plumbing so as to comply with the ordinances of Detroit, payment of bills, prorating of insurance and taxes, and that Jacobson would assist plaintiffs in opening the theater and booking pictures until the theater was in full operation. An escrow deposit to insure repair of the sump pump and plumbing so they would pass city inspection was provided for in the agreement of January 9, 1950. The sale agreement further provided that: “No representations have been made as to income, operations or expenses in the operating of this theater, and second parties take said premises as is and at their own risk.” Mr. Shapero, as escrow agent, acknowledged receipt of the $4,000 in cash and the notes. At the same time, an agreement was entered into between the Jacobsons, the Popielarskis and the Midwest Theater Company, as follows: • “For and in consideration of $1 and other valuable consideration, to us in hand paid, the undersigned Edward Jacobson and Mollie Jacobson, his wife, herewith assign, sell and transfer unto Martin H. Popielarski and Marie Popielarski, his wife, all their right, title and interest to and in that lease entered into between the Midwest Theater Company, a registered copartnership, as landlord, and the undersigned Edward Jacobson and Mollie Jacobson, his wife as tenants, covering the Forest theater, known as 4635 Woodward avenue, Detroit, Michigan, together with the enumerated personal property therein described, which said lease is dated September 22, 1948, and which said assignment includes the right to the deposit of $3,000 heretofore deposited as security with the landlord under provision of paragraph 1 (a) of said lease; subject, however, to the following changes: “(1) In place of 2 Simplex projection machines, there are now 2 Brinkert projection machines and heads. “(2) In place of 2 Strong arc lamps, there are-now 2 Brinkert lamps. “(3) In addition, there is R.C.A. sound equipment, carpeting and an upright piano, all of which personal property belongs to the landlord and is. to be held and returned in accordance with the provisons of the lease. “Rent on this lease is paid to February 1, 1950,. and all other conditions to date hereof have been paid by lessee. “The undersigned assignees agree to and with the Midwest Theater Company, a registered copartnership, that they shall and will carry out the lease in accordance with its terms. “The Midwest Theater Company, a registered co-partnership, herewith accepts the said Martin H. Popielarski .and Marie Popielarski as tenants for and in place of Edward Jacobson and Mollie Jacobson, his wife. . “In witness whereof: We have set our hands and seals this 19 day of January, 1950. Signed: Edward Jacobson Mollie Jacobson Martin H. Popielarski Marie Popielarski Midwest Theater Company,, By: Raymond Schreiber Partner” It will be noted that the right to the $3,000 deposit was thus assigned to plaintiffs subject to their carrying out the provisions of the lease. After the agreements of January 19, 1950, were signed and plaintiffs were bound, Jacobson went with plaintiffs to the theater, where he explained how he had operated the establishment. He told them that at the refreshment counter extra salt was-added to the peanuts and popcorn in order to make-the customers more thirsty. The drinking water would be turned off so that the patrons bought soft drinks in order to slake their thirst. Jacobson also> explained how, after he had run a film for a while,, he would change its title and thus entice the same customers to pay to see it again. Plaintiffs ran the theater for approximately 2 months during which they refused to run exploitation pictures. They claim to have lost upwards of $6,000 in the short time they conducted the theater. About a week before they finally closed it they inserted an advertisement in a Detroit paper as follows : “Theater, ideal location on Woodward avenue, in the heart of Detroit. Has 500 seats at present. Can have 600 seating capacity, if desired. Recent added improvements made on R.C. current and sound, marquee, and house lights. Equipped with the new R.C.A. sound, and late project equipment. Also has been redecorated. Said to be one of the prettiest •small theaters on Woodward avenue. Price, $11,500, full price. Selling due to poor health and nervous condition. Now in operation! If interested, call Lakeview 7-4143, or Temple 2-9862. Ask for Mr. Henry.” Plaintiffs claimed that the poor health and nervous condition mentioned in the advertisement was brought on by their losses. There are many other facts that were brought out by the testimony, including the difficulty of obtaining a license from the police until $25 was paid because of a previous violation. It was shown that plaintiffs were not wholly inexperienced in business. Mrs. Popielarski was a high school graduate, and she and her husband had had considerable experience in the used automobile, business. Prom the exhibits it appears that they had run a motor sale business, also located on Woodward avenue, in Detroit. It was shown also that during the time plaintiffs ran the theater, the weather was bad* that television was just coming in, and that there was. a strike in progess in a large industry that affected business. It would serve no purpose to further set forth the many other facts, statements, denials and explanations appearing in the testimony of this case, as set forth in a voluminous record. Neither defendants Jacobson, Schreiber nor Badgley took the witness stand. Badgley sent word he was sick at the time when he might have testified. A largo part of plaintiffs’ testimony is denied by defendant Miller, who ivas the only one of the defendants who testified. Defendants rely largely upon the- cross-examination of plaintiffs and on questions of law. It became a jury question whether defendants or some of them conspired by false representations to defraud plaintiffs and whether plaintiffs relied on such representations. One fact Avas brought to the attention of the jury by the trial judge, although there was not a word of testimony in regard to it at the trial. He called attention to the statement or admission made in the Schreibers’ answer that at the time of the sale of the theater to plaintiffs there was $1,700 due for past rent, that this Avas known to plaintiffs, and that there was a cash security deposit of $3,000 to insure the observance of the lessees’ covenants under the lease. The record is not clear as to Avhen the 2 notes of $500 each were signed, but they were both delivered to the escrow agent. When defendants Schreiber consummated the assignment of the lease to plaintiffs, defendants distinctly agreed that the assignment included the right to the deposit of $3,000, and that the rental had been paid to February 1, 1950. Just what arrangements were made in regard to the $1,700 past due rent was not shown. Plaintiffs at no time denied that they knew of this $1,700 past due rent, no testimony was offered in regard to it and except for the allegation in the Schreibers’ answer, it was only referred to by the judge in his charge to the jury, in which he stated that defendants were bound by the allegations in their answer. However, the entire statement was not referred to, but only part of it. The testimony as well as the agreement still showed the entire $3,000 would be applied on the last 6 months’ rent so that if the lease had been continued to the end of the term, plaintiffs would have become entitled to the $3,000. In that event the cost to plaintiffs would be $2,000—the $4,000 paid less the $3,000 deposited with the lessee, plus the $1,000 in notes, which evidently were never paid. We pass the representation as to “hot spot” in the advertisement as this term is subject to various interpretations. It does not become important in view of the fact that the main misrepresentation consisted of the statement that the theater was a money maker. Defendant Jacobson unquestionably made false1 representations in order to sell the theater to plaintiffs. He stated that it was a money maker, and that it had a “gross” of $28,000 in 1948 and 1949, and a “net” of $20,000. While in his answer and brief,, he denies plaintiffs’ claims in regard to these representations, he did not take the stand to so testify. He also claims that plaintiffs could not possibly have relied upon such representations, if made, for they must have known if the theater grossed $28,000' a year, the rent was $6,000 a year, and that in addition there was the cost of the film rentals, services of a ticket seller, projection operator and other-help, as well as advertising, heating, lighting and other expenses, all of which show that the theater could not possibly have been netting $20,000 a year. On the other hand, there is the testimony of plaintiffs that Jacobson read the profit figures of $20,000 from-a memorandum book, and plaintiffs naturally were1 impressed. "Whether this representation was false, and whether plaintiffs relied on it were proper questions for the jury to decide. Plaintiffs testified that he represented the theater as netting $20,000 per year, and the fact that after deducting expenses the net would be for less than that amount was indicated to the jury on the cross-examination of Popielarsld. Mrs. Popielarsld testified, however, that later after the $4,000 had been paid and at the time the consent to the assignment of the lease was obtained, Jacobson had stated that he made money only on the “exploitation” films, that he did not make money on the other kind. Much stress is placed upon the fact that in the agreement of January 19, 1950, between Jacobson and the Popielarskis it was stated that there were no representations made as to income, operations and expenses, and that plaintiffs took the premises “as is” and at their own risk. It is further shown that plaintiffs’ attorney prior to the execution of the agreement of January 19, 1950, called attention to this clause and told them just what it meant and they apparently understood the meaning of the term. However, at that time they had already been told about the money that Jacobson claimed to have made and they had already relied upon it in signing the agreement of January 9, 1950, which was binding. In view of the fact that the fraudulent representations were made before the binding agreement of January 9,1950, had been entered into and the money paid, the statement contained in the instrument of January 19, 1950, after the parties were bound, was not a waiver, but at most a statement that plaintiffs subscribed to when they were already bound. At most it became a question of fact for the jury to decide whether there was a waiver or not. In Fignar v. Schreiber, 255 Mich 661, we held that such a clause was ineffective against fraud. there said: “The contract of sale and purchase contains a clause, ‘It is hereby understood by the lessees herein that they are purchasing said theater and entering* into this lease in reliance upon their own observations and not because of any representations or any facts made by Raymond Schreiber or any other person.’ There was no reason to insert this clause in the contract unless it was prompted by a consciousness upon the part of Raymond Schreiber that he had successfully perpetrated a fraud upon the plaintiffs. Such clause is ineffective against fraud.” Defendants Miller and Badgley claim that when they advertised “Hot spot. Good money maker” they, were simply acting as agents for Jacobson and on the information he gave them. This might excuse them under ordinary circumstances. Agents, as a rule, without any other actions on their part would not be liable for puffing up the advantages of a sale or in good faith imparting information given by their principal. However, defendant realtors did not stop there. When plaintiffs suggested that they should have an attorney, Badgley stated that none was necessary, that they would look after plaintiffs’ interests. Miller drafted the agreement of January 9, 1950. This was not merely making out a receipt for money, but it was a formal contract and, as the circuit judge stated, it approached, if it did not constitute, an unlawful practice of the law. Further, defendant Badgley exhibited a check for $1,800, which plaintiffs claim was represented to them as being an offer for deposit from someone else, although defendant Miller testified that the check was not represented as being a deposit or an offer for the Forest theater, but instead that it was a deposit to purchase on the sale of another theater. Badgley and Miller thus actively entered into a conspiracy to defraud so as to become liable. While it is true that attorney Samuel Shapero acted as escrow agent, probably at the suggestion of Jacobson, and he appeared at the trial of the case as the attorney for defendants Schreiber, nevertheless there is nothing in the record which would reflect upon his conduct, or indicate that he failed to do anything that he was legally bound to do. As a matter of fact, when it came to drawing the escrow agreement, according to the testimony of Mrs. Popielarsld, he asked her how an inexperienced operator like herself expected to make money on a theater when an experienced operator was unable to do so. In reference to the clause that there were no representations made as to income and expenses in the oxoeration of the theater and that plaintiffs took it at their own risk, Mrs. Popielarsld stated that Shapero told her that the clause was being inserted because the plaintiffs were taking a gamble at their own risk; that he further told her that the only thing the sellers would guarantee was that the apparatus was in good condition and that on the rest of it she would have to take her own gamble. She. further stated that in sxdte of all this, she decided to take a gamble, that “We figured any business was a gamble;” further, that she was determined to go into the picture business and that she knew what she was doing' and could take care of it. However, this all occurred after the agreement of January 9, 1950, had been made and the $4,000 xoaid over. Plaintiffs were already bound, so too much importance cannot be placed on what occurred 10 days later, when the escrow agreement was drawn. Plaintiff stated in their brief: “It should be borne in mind that this (a statement made by Raymond Schreiber through his agent) occurred after the preliminary agreement had been drawn up and signed and the purchase price had been xoaid over to the defendants and after Nathan Schreiber had on the 9th day of January, the day the preliminary agreement was signed, told both plaintiffs that his nephew had ‘made a lot of money operating this same Forest theater.’ ” The conversation with Schreiber, however, took place after the money had been paid and the agreement signed prior to the meeting with Schreiber. As to defendants Schreiber, we run into an entirely different question. Nothing can be said in exoneration of their conduct either, though it is true that there was no showing whatsoever that defendant Jacobson did'not make money in the Forest theater when he first entered into the lease, though not later. The Schreibers had absolutely nothing to do with the binding contract that was made between plaintiffs and Jacobson on January 9, 1950. They were not parties to it; one of them never saw plaintiffs prior to the time of the trial of the case; and the other first saw them after the contract of January 9th had been executed, the $4,000 paid, and plaintiffs bound. Plaintiffs, therefore, could not have relied on any statement thereafter made by Nathan Schreiber. There was nothing left for defendant Schreiber to do except to give their consent to the assignment of the lease. This they did in a short agreement, which referred to some small changes in the personal property and which stated that the rent was paid to February 1, 1950, and also transferred to plaintiffs the right to the $3,000 as security deposit, to be returned to lessees if they carried out the terms of the lease or at their option to be used for payment of the last 6 months’ rent. Towards the end of the long trial the court stated as follows: “The Court: Mr. Freed, if at the time when the parties got together on the 19th of January it had already been determined by the Midwest theater that it would accept the Popielarskis as their ten ants, that acceptance by the Midwest Company made the agreement an absolutely binding agreement. The question of' the acceptance of the Popielarskis as tenants was the only condition precedent to the agreement becoming a fully binding agreement. The other matters that are related in there that are mentioned as to some repairs to be made, and the fixing of the pump, and so on, are not conditions precedent at all. They are only agreements on the part of the Jacobsons that they will do certain things, and they are a part of the contract. They are not conditions precedent to the attaching of the contractual obligations. “Mr. Freed: They are not conditions precedent, your Honor, but they are indicative as to what the parties did do, and what they relied on, and what rights they had coming. “The Court: I only made that statement in view of the position that you evidently take that those agreements as to repairs and so on were conditions precedent which prevented the preliminary agreement from being a binding agreement. “Mr. Freed: .1 think that that is true substantially also, your Honor, that conditions precedent in Exhibit No 3, which had to be performed, and this is a consummation of their performance, or a waiver of their nonperformance. “The Court: They are not conditions. They are just agreements'. As far as the status of the preliminary agreement is concerned, the situation after they signed the preliminary agreement and paid over the $4,000 was not one in which they could back out of the agreement, because at that time they had agreed that they would take the premises, and the only condition, precedent to their getting them, was the consent of the landlord; and it was their duty to await and give the other side a fair opportunity to get that consent. They couldn’t pull back at that time without giving the Jacobsons an opportunity to get that consent.” "We believe tbe judge was absolutely correct in his last statement. However, in his charge, he left the question of liability of the Schreibers to the jury who, with the testimony of what occurred after the execution of the agreement of January 9, 1950, held the Schreibers liable. In Sobin v. Frederick, 236 Mich 501, the law was clearly stated as follows: “In form and allegations, plaintiff’s action is planted on the theory of a conspiracy. There can be no ex post facto conspiracy-—to do that which has already been done. The root principle' upon which the law of conspiracy rests is a preconceived plan to unlawfully work some public or private wrong or injury by concerted action, originating in combination, either carried out by joint action or at least pursuant to a joint arrangement and understanding.” The judge should have directed a verdict in favor of defendants Schreibor. The question of damages presents a' somewhat more difficult question. ' It is conceded that plaintiffs paid $4,000 for the lease of the theater and personal property; that they further paid $1,500 rent; that they also paid $114.93 to prorate the taxes and insurance; also $200 for an operator, $200 for a cashier ; $100 for a janitor, or a total of $6,114.93. Mrs. Popielarski testified that the loss from operations was $6,121 after crediting $1,067 receipts. Difficulty, however, arose when she attempted to introduce the accountant’s statement to show that the amount of the loss was $6,121. It was objected to and excluded on the ground that the books themselves are the best evidence. It was shown that the accountant’s statement was not written up until the business had closed. This left the amount of the out-of-pocket loss somewhat uncertain. It must be noted, however, that this was not a suit for rescission, but one for damages arising out of a conspiracy to defraud, and there was-evidence which the jury evidently believed that the business was represented as making $20,000 a year and instead of that it was run at a very great loss.. Plaintiffs had a right to recover damages for representations that were false. Had they been true,, plaintiffs would have made a large sum of money. The judge reduced the amount of the verdict from $10,000 to $8,000. Under the circumstances we conclude that the amount of $8,000 judgment was not excessive. Judgment is affirmed as to defendants Jacobson,, Miller and Badgley. It is reversed as to defendantsSchreiber. Plaintiffs will recover costs against defendants Jacobson, Miller and Badgley. DefendantsSchreiber will recover costs against plaintiffs. Dethmers, C. J., and Adams, Carr, Bushnell,. Sharpe, Boyles, and Reid, JJ., concurred: See CL 1948, § 442.1 et sea- (Stat Ann §19.361 et seq.).~Reporter.

Butzel, J. Stanley Chlebek and Thaddeus :Chlebek, plaintiffs, in.a bill of complaint against Valentine Mikrut and Sophie Mikrut, his wife, defendants, allege that they are sons of Sophie Mikrut and stepsons of Valentine Mikrut; that in the latter part of February, 1941, defendants' expressed .their désire to buy a house but stated that they could not do so unless the plaintiffs who were then residing with defendants would become co-owners, with them; that thereafter a house was located at’ 5415 Mt. Elliot avenue, Detroit, Michigan; that it could be purchased from the receiver of a Detroit bank for the sum of $4,000 with a $600 down payment and the balance payable on lánd contract; that on or about March 21, 1941, plaintiffs paid from their own funds the sum of $500 of the $600 required as the down payment on the contract; that thereafter the said parties moved into the house; that, it was necessary tonx-pend a considerable amount for repairs and extensive alterations and additions, including a 2-car garage; and that in order to make the payments on the contract and to pay for the improvements, .alterations and additions plaintiffs turned over all of their earnings to defendants with the exception of $25 a week which they each retained and from which each of the said plaintiffs paid $10 a week for room and board. The contract and the subsequent deed were taken in the name of defendants. Plaintiffs, however, claim that defendants, and each of them, in consideration of the moneys paid by plaintiffs, on numerous occasions promised to have the contract and • deed “changed” so as to include the names of the plaintiffs. They further allege “that as a result of the numerous demands made by the defendants upon the plaintiffs” (sic) and their repeated promises.to have their names included in the title, the said defendants did on the 16th day of August, 1944, make a joint '“Last Will and Testament” wherein one-quarter of the property was devised to each of the plaintiffs and the said defendants further on the same day contracted not to change their will. Plaintiffs further allege that as a result of the execution of the will and agreement not to change it, they felt that their interests in the premises were secure; that on or about May 2, 1949, when divorce proceedings were instituted by one defendant against the other in the circuit court for the county of Wayne, State of Michigan, plaintiffs became fearful that their interest in and to the property might be destroyed and denied by the defendants who might sell and dispose of their interest in the property unless enjoined by the court. -Evidently, because of repairs, extensive alterations and additions and increment in values in general, the property has become far inore valuable than when originally purchased from the receiver. It now consists of a 4-family apartment house and a garage. Defendant Yalentine Mikrut' alleges it is worth $15,000. Defendant Sophie Mikrut filed an answer in which she admits all of the allegations in plaintiffs’ bill. Defendant Valentine Mikrut, however, filed an answer and cross bill in which he denies all of plaintiffs’ material allegations except in reg'ard to the will, which he says he executed only because of his wife’s nagging and insistence. In his cross bill he denies that plaintiffs contributed anything toward either the initial or subsequent payments in purchasing the property, or the costs of the repairs, alterations and additions. He further denies that he promised to make plaintiffs co-owners of the property. According to his cross bill it appears that he and Sophie Mikrut entered into a common-law marriage in 1935, living together until April 29, 1943, and that they were legally married on or about the 10th of February, 1937. He charges that the instant suit is brought principally in collusion with Sophie Mikrut, plaintiffs’ mother, and in furtherance of her divorce suit so as to deprive him of his real interest in the property. He intimates that the instant suit is an outgrowth of or collateral to the divorce suit although the 2 are entirely separate and neither depends upon the other, except that in the divorce proceeding no final adjudication can be made as to the property until the instant case is disposed of. He asks that plaintiffs’ bill of complaint be dismissed. Although the bill of complaint was filed on January 23, 1951, and defendant Valentine Mikrut’s answer and cross bill were filed on February 19,1951, it was not until February 4, 1952, that he moved to “dismiss and transfer” (sic) the ease to the law side of the court. He claims that the alleged agreement, as stated by plaintiffs, is so indefinite and vague as to be incapable of being carried out; that the alleged agreement is defective because it lacks mutuality of obligation, since plaintiffs do not allege any contract on their part to pay any stipulated amount; that the court cannot decree performance of the alleged agreement because plaintiffs do not show in what proportions the title was to be held; and that the alleg’ed agreement is unenforceable in equity because it lacks mutuality of remedy, inasmuch as both of the plaintiffs were minors at the time and Sophie Mikrut, their mother, was under certain disabilities as a married woman. He contends that in 1935, Stanley and Thaddeus were 13 and 15 years of age respectively, which would make Stanley 19 and Thaddeus 21, or thereabouts, in 1941, but specific dates are not shown. A fair reading of the bill of complaint, however, indicates that plaintiffs had already made their payments towards the purchase price, repairs, improvements and additions prior to the filing of the bill of complaint. At the hearing on the motion, the judge ruled that the bill lacked sufficient allegations to show an enforceable contract and ordered the case transferred to the law side of the court. It appears that a very short time prior to the hearing on the motion plaintiffs had secured new counsel to represent them. Plaintiffs’ present attorney moved orally to amend plaintiffs’ bill at the hearing but the judge refused to allow any substantial amendments, holding that such a motion came too late. He did, however, permit both sides to amend their pleadings'as to minor matters. With the insufficient facts before us we cannot determine now whether plaintiffs would be confronted with the defense of the statute of limitations on the law side of the court. They were over 21 years of age when the bill was filed. It further appears that Thaddeus Chlebek is a member of the armed forces of the United States and, although he was home for a few days while the proceedings on the motion “to dismiss and transfer” were had, he is now in. Korea. He claims that because of the provisions of the Michigan soldiers’ and sailors’ relief act (CL 1948, § 32.53 [Stat Ann 1952 Rev § 4.644]), he is entitled to an adjournment of all proceedings in this case, including decision on the motion to dismiss or transfer. The judge ruled that since he was present and available he was not entitled to an adjournment of the hearing on the motion. We granted plaintiffs leave to appeal from the order transferring the case to the law side of the court. Notwithstanding the fact that the hill of complaint is very poorly drawn, it contains sufficient allegations so as to set forth an equitable cause for action. Taking the statements in plaintiffs’ bill as true, for the purposes of deciding a motion to dismiss or transfer to the law side of the court, there are allegations which show that plaintiffs put up $500 of the $600 down payment on the property and made substantial payments thereafter on the promise that the title to the property should vest in the 2 plaintiffs and the 2 defendants together. Plaintiffs are no longer minors. The case comes within the rules set forth in Linsley v. Sinclair, 24 Mich 380; Ridky v. Ridky, 226 Mich 459; Stephenson v. Golden, 279 Mich 710; Ridky v. Ridky, supra, was a case in which a husband sought to establish a half interest in the family home. He claimed that his wife had taken title to their house in her own name, when it had been mutually understood that it was to have been taken in their joint names as tenants by the entireties. In holding that the situation gave rise to a constructive trust, we said: “ ‘All instances of constructive trust may he referred to what equity denominates “fraud,” either actual or constructive, including acts or omissions in violation of fiduciary obligations. If one party obtains the legal title to property, not only by fraud, or by violation of confidence or of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner. 1 Pomeroy, Equity Jurisprudence, § 155.’ Nester v. Gross, 66 Minn 371 (69 NW 39).” Such trusts arise by operation of law, and are, therefore, not within the statute of frauds, although they may arise because of an oral agreement or undertaking. For a collection of cases dealing with the rights of parties to an oral agreement to purchase land for another or together, see the annotations in 42 ALR 10, 62; 135 ALR 232; 27 ALR2d 1285, 1300. As already indicated, the judge was of the opinion that plaintiffs’ motion to amend their bill came too late. However, the objections to the sufficiency of the bill of complaint were not filed until over a year after the bill of complaint was filed and almost a year after the answer and cross bill was filed. ■ Consequently the delay was also caused by Valentine Mikrut, who now seeks to take advantage of it. We believe that the plaintiffs should have an opportunity to amend their bill of complaint as quickly as possible, taking into consideration that plaintiff Thaddeus Chlebek is now in Korea. We hold that the order of the trial court transferring the case to the law side of the court should ■be set aside, and that the case remain on the equity side. We further hold that plaintiffs should have 90 days in which to amend their bill of complaint. It appears that plaintiff Thaddeus Chlebek expects to make the army his career, and that it may be many years before he leaves it. The Michigan soldiers’ and sailors’ relief act (CL 1948, § 32.53 [Stat Ann 1952 Eev § 4.644]), provides in part: “And all suits in the courts of this State, pending against any such person at the time of entering such actual service, or commenced at any time during such service, shall stand adjourned until after the termination of such service.” Section 201 of the Federal Soldiers’ and Sailors’ Relief Act of 1940, 50 TJSCA, App, § 521, provides as follows: “At any stage thereof of any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within 60 days thereafter may, in the discretion of the court in which it is pending*, on its own motion, and shall, on application to it by such person or some person in his behalf, be stayed as provided in this act, unless, in the opinion of the court, the ability of the plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.” Defendant Valentine Mikrut should not be obliged to wait until Thaddeus gives up his career as a member of the armed forces, which may be many years from now, in order to determine his rights in the premises. Although the Michigan act, supra, unlike the Federal act, supra, does not provide in so many words that a serviceman is not entitled to the stay, of a suit where his ability to prosecute or defend the suit is not materially impaired by reason of his military service, still the Michigan act must be reasonably construed so as to protect the rights of all of the parties. We find nothing in the case that prevents Thaddeus from prosecuting this suit through his brother, co-plaintiff, or his attorney, except that he should have a right to testify at the hearing. The case should be heard at the first opportunity when Thaddeus can come home on furlough and, if not within a reasonable time, his deposition should be taken. His brother Stanley is here to prosecute the case. In any event, Valentine Mikrut’s rights in the property must also be recognized. The trial court shall ascertain when Thaddeus will again be able to come home on furlough, and, if it will not be within a reasonable time, to be determined by the court, then his deposition may be taken, at a time and manner to be determined by the court. The case is remanded to the trial court for proceedings in conformance with this opinion. As neither of the parties has prevailed in full, no costs are allowed. Dethmers, C. J., and Adams, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. See CL 1948, § 611.2 (Stat Ann § 27.652).—Reporter.

Adams, J. This is an action in chancery brought in the circuit court of St. Clair county in which the plaintiff and appellant seeks to restrain the Michigan liquor control commission, defendant, from issuing a class “A” hotel license to the Algonquin Hotel located in the city of Port Huron, Michigan. The plaintiff is a member and officer of the Port Huron Corps of the Salvation Army, a religious corporation incorporated under the laws of the State •of Michigan, and the defendant, Algonquin Hotel Company, is a Michigan corporation operating the Algonquin Hotel which is located within 500 feet of the Salvation Army Citadel. The sole issue to be determined in this appeal is whether the Salvation Army Citadel is a “church” as defined in section 2 of the Michigan liquor control act (PA 1933 [Ex Sess], No 8, as amended [CL 1948, § 436.1 et seq., as amended (Stat Ann and Stat Ann 1949 Cum Supp § 18.971 et seq.)]), the pertinent portion of the section being: “ ‘Church’ to mean an entire house or structure set apart primarily for use for purposes of public worship, in which religious services are held and with which a clergyman is associated. The entire house or structure is kept for that use and not put to any other use substantially inconsistent therewith.” If the citadel is a “church” as above defined, the commission would be required to deny the application for a license under the provisions of section 17a of the above-quoted act. The circuit judge found that it was not a church within the meaning of the act and denied plaintiffs prayer for an injunction. Plaintiff appeals from the decree. The citadel is a 3-story brick building fronting on Huron avenue with a total floor space of approximately 12,255 square feet. It has a sizeable auditorium, a gymnasium, a lower hall used for Sunday school classes, an office, other smaller .yooms and storage space. At the front of the building and on either side of the main entrance, 2 rooms comprising approximately 7-1/2% of the total floor space of the building- are rented to commercial concerns on a month-to-month basis. One of these rooms is occupied by a barber and the other by a vacuum cleaner company. The combined rental of the 2 rooms is $110 per month and this income is used to assist in the maintenance of the building and the promotion of the Salvation Army’s program. Religious services are conducted in the building on Sundays by a clergyman and throughout the week portions of the building are used by religious and civic groups. Charges made for certain of these weekday activities are computed on a basis of the cost of maintaining that portion of the building used. It is the plaintiff’s position that the citadel’s primary use is for public worship, that a clergyman is associated with religious services held therein, and that it is used for no purpose substantially inconsistent ivith its primary purpose of providing a place for public worship. He contends further that the renting of the 2 rooms for commercial purposes is not an inconsistent use for the reason that the rental income is used to maintain the building and to promote the program of the Salvation Army. He concludes, therefore, that given a liberal construction of the statutory definition, the citadel is a church as contemplated by the legislature and that the hotel company should be denied a license because of its proximity to the citadel. Plaintiff’s position would be tenable were it not for the fact that the statute in defining a church building twice uses the word “entire”, the obvious purpose being to make it clear that while the use of a building for public worship might vary slightly from area to area, depending upon the character of the community, the denomination of the church, or other related exigencies, neverthless such use must encompass the entire building. While a liberal construction of the act is suggested by the act itself (section 54) and approved by this Court (Morse v. Liquor Control Commission, 319 Mich 52) in order that the intent and purposes of the law may be effectuated and particularly that churches, schools and the general public may be protected from any detriment arising out of the conduct of the liquor business, still it is not the province of this Court to alter or change the clear, distinct and unequivocal wording of a legislative enactment. If the statute in question lacked clarity, its wording might well require construction by the Court, but here we find neither vagueness nor doubt. In order to have a church within the meaning of the statute, the entire building must be used primarily for purposes of public worship. That the entire building here-considered is not so used seems too clear to require discussion. The front of the building at ground level, excepting only the entrance way, is used for secular purposes. From an income standpoint, that portion of the building is of substantial value. The area of the 2 rooms comprises a sizeable part of the useable floor space of the building. Discontinuance of the secular use of the rooms would materially change the public’s use of the building. Using the rental income for the maintenance of the building and religious purposes does not alter the secular character of the use of the 2 rented rooms. Such has been the holding of courts of other States. “The meaning of this law is, as applied to religious buildings and furniture, that they must be used directly for sacred and not for secular purposes. It is not enough that the profits or income of the secular uses are to be applied to sacred purposes.” First Methodist Episcopal Church of Chicago v. City of Chicago, 26 Ill 482, 487. “Entertainments, whether gratuitous or for revenue, may properly be included among church purposes ; but, if the legislature intended to protect buildings used for church purposes generally, it may reasonably be assumed that it would have said so in unequivocal language. As it is, section 24, subd 2, ■of the liquor tax law, prohibits the issuance of a certificate only when the building is used ‘as a •church’ exclusively; thus seemingly permitting the certificate if the building is used for purposes other than worship. It could not reasonably be contended that the protection would apply if the building is in part used for business or dwellings, though the revenue thus derived contributed towards the church’s support. In re Rupp, 55 Misc Rep 313 (106 NYS 483, 484). ¥e conclude, therefore, that the Citadel of the Salvation Army in the city of Port Huron is not a church as defined by the Michgan liquor control act. The decree of the circuit court is affirmed. No costs,, a public issue being involved. Dethmers, C. J., and Butzel, Carr, Bushnell,. Sharpe, Boyles, and Reid, JJ., concurred. The bill of complaint was filed December 18,1951.—Reporter. CL 1948, § 436.2, as amended by PA 1951, No 219 (Stat Ann 1951 Cum Supp § 18.972).—Reporter. See CL 1948, § 436.17a, as amended Toy PA 1949, No 106 (Stat Ann 1951 Cum Supp § 18.988 [1]).—Reporter.

Reid, J. Plaintiff, as executor of the will of deceased testatrix, and also as legatee named in the will, filed this bill to obtain a construction of a clause of the will containing inconsistent provisions. From a decree construing the will as claimed by the plaintiff, defendants appeal. The portion of the will in dispute is as follows: “Article 4. To my friend, Boscoe G. Goembel, I give and bequeath the sum of Twenty-five ($2500.00)' Dollars, to be his absolutely and forever. This bequest is made out of friendship and to pay him for services rendered to me and for services rendered in settling the estate of my late husband, John A. Sipley.” Plaintiff claims that the article or clause in question should be construed to give him 2,500 dollars. Defendants claim that the bequest is so vague as to be without meaning and void for uncertainty, or that at utmost it could be construed to give plaintiff only 25 dollars. The following facts were shown by extrinsic evidence : In 1909, plaintiff came to Kalamazoo, Michigan, to establish a law practice. John A. Sipley, husband of testatrix, was in the real estate business and had his office in the same building as that of plaintiff Goembel. Sipley became a client of plaintiff and plaintiff became a roomer at the Sipley residence. A very warm friendship grew up between the Sipleys and plaintiff similar to the love of parents and son. Mr. Sipley died in 1926. Plaintiff was attorney for Mrs. Sipley in the settlement of Mr. Sipley’s complicated estate including a contest over the construction of Mr. Sipley’s will. Plaintiff also advised and assisted Mrs. Sipley about her other affairs. He never rendered her a bill for his services, nor received pay therefor. The will in question was drawn in plaintiff’s office under his direction and was witnessed, July 9, 1946, by Annabelle Van Sweringen, who then had been for many years an employee in plaintiff’s office, and also witnessed by Betty B. Feltes. Carbon copies of former wills were introduced in evidence, one dated November 30,' 1944, and one November 10, 1930. Each contained a bequest to plaintiff similar to article 4 in question, except that in both words and figures the amount was $2,500. The will in question in article 24 thereof directed that the residue of the estate should be divided between 5 legatees in proportion to their respective legacies, plaintiff being one of the 5 legatees. Defendants claim that the residue of the estate is about $30,000; plaintiff claims that it is about $15,000. . Objections had been offered to the extrinsic evidence and a motion was made to strike it out, as equally within the knowledge of the deceased, †contrary to the statute of wills, an attempt to vary a written instrument by parol, attempt to correct a mistake by oral testimony, and that parol evidence is not admissible to explain an “unintelligent” bequest. In Morrow v. Detroit Trust Co., 330 Mich 635, we say (syllabus 4): “Interpretation of a will ends by consulting the document if its terms are clear and unambiguous, but if they are not, the uncertain words and phrases used are weighed and interpreted in the light of pertinent surrounding facts and circumstances which may tend to indicate what the testator had in mind at the time he used them.” In view of the fact that the clause in question expressly points out friendship for plaintiff and pay for his services as the reasons for testatrix’s bequest to plaintiff, we need to and should, in resolving the ambiguity, consider extrinsic evidence only on those matters thus expressly mentioned in the will as hex-reasons for making the bequest. From such extrinsic evidence, it is clear that the services rendered have not been paid for, but are worth very much more than $25 and in fact probably worth the $2,500 mentioned in figures in the parentheses in the clause in question. It seems clear from the will and the pertinent extrinsic evidence that the testatrix intended to bequeath to plaintiff $2,500 by the clause or article in question. We consti-ue the clause to i-ead $2,500 to plaintiff and not $25. The distribution of the residue is clearly indicated in the will and propei’ly computed by plaintiff in his brief. The decree appealed from is affirmed. Costs to plaintiff. Dethmebs, C. J., and Adams, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred. CL 1948, § 617.65 (Stat Ann § 27.914).—Reporter. CL 1948, § 702.5 (Stat Ann 1943 Rev § 27.3178[75]).—Reporter.

Bushnell, J. Plaintiff Denver C. Lynch was an employee of defendant Briggs Manufacturing Company. He is about 59 years of age and a steam fitter by trade. While so employed by Briggs he sustained a compensable injury oh March 26, 1946, when an 800-pound washbowl fell against him and fractured his left knee. He was hospitalized for about 3 months and was voluntarily paid total compensation until September 7, 1946. He then returned to Briggs, where he was given favored work at his skilled rate of pay. His injured knee “flies out of place” so that he cannot do overhead work or any that requires climbing. On October 3, 1946, he applied for a hearing and adjustment of this claim. The hearing was scheduled for February 11, 1947. On November 13, 1946, he was assaulted, robbed, and his jawbone was broken. He was again hospitalized until April of 1947. During this time his application for hearing was withdrawn. Lynch returned to work at favored employment in April, 1947, still suffering, however, from his knee disability. His so-called “trick knee” was described by plaintiff’s physician as a “marked lateral instability of the knee joint, with looseness of the medial and lateral collateral ligaments of the knee joint.” The employer’s medical witness described this condition as “lmock-knee” or “genu valgum.” On May 5, 1947, he filed a second application for a hearing which was scheduled for August 28, 1947. While standing in a safety zone near the Briggs plant with another workman on May 27, 1947, an automobile came directly towards them. The other man. jumped out of the way but when Lynch attempted to jump, his injured knee slipped out of place and. he was struck by the car. As a result his left leg was broken. While still in the hospital with this injury, his second application was dismissed on September 2d “for lack of prosecution.” He filed a third application on April 23,1948. His leg was then still in a cast and he had not yet been able to resume any kind of work. The hearing on June 24, 1948 resulted in a denial of compensation by the deputy commissioner. On review the commission held that Lynch was “entitled to compensation of $21 a week for total disability from November 13, 1946 to April 16, 1947 and from May 22, 1947 until further order of the commission.” The order of the commission, however, reads: “$21 per week for total disability from March 27, 1946 to September 7, 1946, from November 13, 1946 to April 16, 1947 and from May 22, 1947 until the further order of the commission.” The commission determined that Lynch was totally disabled as a skilled steam fitter in March of 1946, and that his favored work thereafter did not establish a wage-earning capacity “as a steam fitter, the skilled occupation in which he was engaged when the injury occurred.” Defendant was granted leave to appeal from this award. The appellant claims that there was no proof of total disability; that Lynch was not entitled to compensation because his present loss of earnings is due to a disability unassociáted with his employment; and that the commission should not have granted compensation for a period of more than 1 year prior to the filing of plaintiff’s last (third) application. The finding of Lynch’s total disability as a skilled steam fitter is' supported by the evidence. The purpose of the workmen’s compensation act (CL 1948, § 411.1 et seq. [Stat Ann § 17.141 et seq.]) is to provide compensation for disability resulting from an occupational injury. Prior to the 1927 amendment to the act, Lynch would have received compensation even though he worked at another job paying higher wages. Geis v. Packard Motor Car Co., 214 Mich 646. A subsequent amendment to part 2, § 11, altered this situation. See CL 1948, § 412.11 (Stat Ann 1949 Cum Supp § 17.161). Under this proviso the employer is permitted to set off, against compensation payable, the employee’s “wage-earning capacity” after the injury. MacDonald v. Great Lakes Steel Corp., 268 Mich 591, 594; Markey v. S. S. Peter & Paul’s Parish, 281 Mich 292, 298; and Parling v. Motor Wheel Corp., 324 Mich 420. Lynch’s favored work after his total disability did not, however, establish his wage-earning capacity. Smith v. Pontiac Motor Car Co., 277 Mich 652, 657. Nevertheless, if physically able to perform the favored work, he could not be awarded compensation if he refused such work. Pigue v. General Motors Corp., 317 Mich 311. An employee, entitled to compensation for partial disability, cannot be awarded an increase in compensation because of a subsequent nonoccupational disease creating permanent disability, but the partial disability payments may be continued. Dunavant v. General Motors Corp., 325 Mich 482. Lynch at the time of hearing was not physically capable of performing the favored work. He was prevented from doing so by events not under his control. Yet he was still totally disabled in his skilled employment because of his occupational injury of 1946. Supervening events, stopping his favored work and not attributable to him, will not defeat his compensation as a skilled employee. Ward v. Heth Brothers, 212 Mich 180; Letourneau v. Davidson, 218 Mich 334; Neal v. Stuart Foundry Co., 250 Mich 46; Cundiff v. Chrysler Corp., 293 Mich 404; and Parling v. Motor Wheel Corp., supra. Lynch, was voluntarily paid compensation until September 7,1946. He later filed three separate applications for compensation. The first was withdrawn on application of his counsel, and the second was dismissed “for lack of prosecution.” The third application filed on April 23, 1948, is the only one involved in the present proceedings. The power of the commission to award compensation is expressly limited by the following applicable statutory provision: “If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any, period which is more than 1 year prior to the date of the filing of such application.” CL 1948, § 413.14 (Stat Ann 1949 Cum Supp § 17.188). Under this statutory provision the period for which compensation could be awarded in the instant case could not extend retroactively beyond 1 year prior to April 23, 1948, the date upon which plaintiff’s present petition was filed. It follows that the award of the commission for March 27, 1946, to September 7, 1946, and for November 13, 1946, to April 16, 1947, must be vacated; but the award “from May 22, 1947 until the further order of the commission” should be and is affirmed. The cause is remanded to the workmen’s compensation commission for entry of an award in accordance herewith. Reid, North, and Dethmers, JJ., concurred with Btjshnell, J.

Dethmers, C. J. Plaintiffs are owners of lots fronting on White lake in Muskegon county. The lake is a navigable body of water into which White river flows, and has an outlet through a channel into Lake Michigan. Defendant owns and operates a 25-by-40-foot floating raft called “The Ark” off the shore of plaintiffs’ lots, keeping it continuously anchored to the subaqueous lands of some' of them,, at a location 600 to 1,000 feet from plaintiffs’ shore- and between it and the center of the lake, in waters 40 to 50 feet deep. A house and fishing wells have been constructed on the raft and defendant permits persons to fish therefrom for a. consideration' paid to him. Plaintiffs filed a bill of complaint praying for a perpetual injunction restraining defendant from mooring or anchoring the “Ark” along the shore of their properties. Prom decree dismissing their bill of complaint plaintiffs appeal. The trial court’s opinion, after stating that owners-of property fronting on “small inland lakes * * * own the land under the water to the middle of the lake,” suggests that a different- rule obtains in that regard with reference, to large, navigable, inland, lakes, at least at points where the waters are deep.. In that vein there is quoted from Rice v. Ruddiman, 10 Mich 125, the following: “If the water becomes so deep in approaching the-center of the lake as to render the lands under it incapable of such private or individual use, the question of ownership, beyond where it is available for such purpose, becomes as barren as the use itself;, and is of no practical importance whatever.” The quoted' language is that of 1 of the 4 judges-then serving on this Court, each of whom wrote a separate opinion in the case. It is dicta inasmuch as the holding in the case was that ownership of land bordering on the lake carried with it ownership of the particular land under water there in eontroversy.. It happens that in that case the waters at the point in question were shallow. There was no occasion to> consider whether the rule announced might have been otherwise in the case of deep waters. As the writer of the quoted opinion stated, whether riparian owner- sMp extended to the center of the lake was not involved in the case, the only question being whether it extended to the point in controversy which was rather near shore in shallow waters. It is apparent that the language quoted by the trial court stemmed from (1) uncertainty on the part of the then members of this Court as to whether Muskegon lake, there involved, was to be treated as being an inland lake or an arm of Lake Michigan, (2) the apparent belief, as appears from expressions of some of the judges in the case, that the riparian rights of owners on the Great Lakes and those on inland lakes are indistinguishable, and, finally, the consequent difficulty encountered by the Court with the thought that it might be forced to an absurd holding concerning the nature of a riparian owner’s rights to the subaqueous lands in the middle of Lake Michigan. That the riparian rights of owners on the Great Lakes and those on inland lakes are not identical has long since been established in this State. See Bauman v. Barendregt, 251 Mich 67; Hilt v. Weber, 252 Mich 198 (71 ALR 1238); Burt v. Munger, 314 Mich 659. Had this concept been clearly established at the time this Court was considering Bice v. Budcliman, supra, the unfortunate dicta therein undoubtedly would have been avoided. At the same time, there is considerable language in the opinions in the Bice Case which indicates that the Court was of the view tlmt riparian rights on all interior waters are the same. No Michigan case has come to our attention in which it has been held that the riparian rights of an owner on an inland lake do not extend to the center merely because the waters are at that point so deep as to render the subaqueous lands incapable of private use. The holdings in the cited cases of Sterling v. Jackson, 69 Mich 488 (13 Am St Rep 405); and Jones v. Lee, 77 Mich 35, are definitely not of that purport. The problem, touched upon in the Jones Case, of' how to determine, as between adjacent lot owners on-an irregular or curved shoreline, the respective boundaries of the subaqueous lands of each, necessitating, as the Court there stated, reference not only to the filum aquae but recourse as well to some other-rule of proportion, is a question not before us here, inasmuch as the adjacent lot owners, who undisputedly own between them the riparian rights relating to the subaqueous lands in question, if anyone-does, have joined as party plaintiffs in a suit against the defendant who owns no property on the lake-shore or riparian rights whatsoever. Our attention is directed to no Michigan case in which the holding, as distinguished from dicta, is-that, rights of navigation assumed, the riparian rights of owners on large, navigable, inland lakes differ from those on small inland lakes. ("We are-mindful of the different situations presented by-meandered as distinguished from nonmeandered lakes.) On the contrary, as was said in Bauman v. Barendregt, supra: “In this State, natural waters have been divided into 2 classes, the Great Lakes and inland waters.. Titles and rights in the latter were early declared to. be governed by the same rules of law, whether they were rivers, lakes, or ponds, and whether the lakes-were large or small. Rice v. Ruddiman, 10 Mich 125; Turner v. Holland, 65 Mich 453. They are treated and designated generally as watercourses. The titles to the beds are in the riparian owners.” In the recent case of Burt v. Munger, supra, we reiterated the rule “that under the law of Michigan-the riparian proprietors own to the middle of the-lake.” It is recognized that the rights of riparian owners are subject to the right in other riparian owners to- use the surface of the whole lake for boating and fishing in the case of private inland lakes (Burt v. Munger, supra) or an easement of navigation in the public in navigable inland lakes, with inlets and outlets, where access may be had without trespass tipon the fast land of riparian owners. Douglas v. Bergland, 216 Mich 380 (20 ALR 197); Collins v. Gerhardt, 237 Mich 38. The easement or right of navigation in members of the public, who are not riparian owners, does not include the right to anchor or attach traps to the subaqueous lands of the riparian owner or to the ice covering it for the purpose of catching fur-bearing animals. Johnson v. Burghorn, 212 Mich 19 (11 ALR 234). In Paterson v. Dust, 190 Mich 679, it was held that while a riparian owner’s property rights to sub-aqueous lands are subject to an easement in the public for navigation purposes and are subject to the right to anchor as an incident to the right of navigation, nevertheless the right of navigation does not include, as an incident thereto, the right to anchor indefinitely off the riparian owner’s premises, particularly when, as claimed in this case, it is attended with dumping of refuse, pollution of the waters, and consequent impairment of the riparian owner’s use .and enjoyment of his property rights. The rights of a riparian owner are somewhat similar to those of an abutting owner in the case of highways and streets. The latter owns the fee to the middle of the highway or street, subject only to the easement in the public to use the same for highway or street purposes. Werner v. Hinz, 172 Mich 360; Loud v. Brooks, 241 Mich 452. In People, ex rel. Director of Department of Conservation, v. LaDuc, 329 Mich 716, after restating the rule that the fee in the soil is in the abutting owner where a public road is established over it, subject to use by the public as a road, this Court said: “In Furlong v. Deringer, Inc., 111 Vt 220 (13 A2d 186), the court in a like case granted injunctive relief and said: “ ‘That the public is entitled to a proper viatic use of a highway is too well established to need argument or citation of authority. However, this fact does not avail the defendant in this case. * * * It (defendant) is here claiming the right to occupy plaintiff’s land (within the highway boundaries) for the purpose of conducting a business for its private gain and profit. It makes an attempt to justify its claim upon the ground that the nature of its business is such that the travelling public is convenienced thereby. This same argument may be used with equal force to one who sets up on another’s land within highway limits a gas station, garage, restaurant and dozens of other business stands. Here the defendant is attempting to take another’s property for its private use against the will and without the consent of the owner. This cannot be done. (Citing-authorities.)’ “In State v. Muolo, 119 Conn 323 (176 A 401), in passing upon an issue like that in the instant ease, the court said: _‘“For one otherwise (than in lawful use of the highway) to maintain a place of private business in the highway in front of another’s property is to commit a wrong against the owner of the fee. (Citing-numerous cases.)’ “While we deem it unnecessary to analyze or quote from them, as being quite pertinent to the phase of the law involved in the instant case, we cite the following: People v. Foss, 80 Mich 559 (8 LRA 472, 20 Am St Rep 532); Smeberg v. Cunningham, 96 Mich 378 (35 Am St Rep 613); Crosby v. City of Greenville, 183 Mich 452.” It was held in the LaDuc Case that plaintiff, as-abutting owner on both sides and therefore owner in fee of the soil over which the highway was established, was entitled to injunctive relief restraining defendant from conducting a boat livery for hire from a dock extended from the end of such highway into a river of which plaintiff owned both hanks at that point and, hence, the riparian rights pertaining thereto. The holding was predicated on a finding that defendant was not merely making such use of the highway as the public in general is entitled to, hut, instead, was using it at the place indicated as a situs for carrying on a private enterprise. Defendant, in the instant case, is not confining himself to the exercise of the rights of the public generally to navigation hut goes beyond that to engage in a practice not incident to or a part of the right of navigation, namely in permanent or indefinite anchoring of his “Ark” to plaintiffs’ subaqueous lands and keeping the same in waters over such lands for the purpose of conducting a business there. Rosema v. Construction Materials Corp., 258 Mich 457, and McMorran v. Cleveland-Cliffs Iron Co., 253 Mich 65, are cited for the proposition that plaintiffs’ remedy, if any, is at law. While we are satisfied that statements in those 2 cases to that effect were incorrect, it is to be observed that in neither of those cases did the Court hold that defendant was guilty of trespass. In the instant case we have no doubt that defendant is guilty of a trespass, and, under such circumstances, plaintiffs’ right to injunctive relief is well established. People, ex rel. Director of Department of Conservation, v. LaDuc, supra; Davis v. Township of Frankenlust, 118 Mich 494; Putnam v. Kinney, 248 Mich 410. Decree of the trial court dismissing plaintiffs’ hill of complaint is vacated and a decree may enter in this Court granting to plaintiffs a permanent injune tion as in their bill of complaint prayed, with costs of both courts to plaintiffs. Adams, Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, J J., concurred.

Dethmers, C. J. John H. Wandel, deceased, was, in his lifetime, the owner of a 197-acre farm, the subject of this litigation. Defendants are husband and wife, the husband and both plaintiffs being the sons and sole heirs at law of deceased. In June of 1946, deceased conveyed the farm to defendants. Validity of that conveyance is not here involved. Defendants testified, over plaintiffs’ objection, that in the fall of 1946 they intended to take a trip and, desiring that decedent should be protected and not left without a home if anything happened to them on the trip, they executed a deed of the farm to him and read it to him; that they then placed the deed in an envelope on which, after sealing, defendant Eva wrote, “In case of our death this is the property of John H. Wandel” (deceased), signed Henry and Eva; that before leaving on the trip, and also on subsequent occasions when they left on like excursions, they placed the envelope, containing the deed, in a desk in the bedroom in their home occupied by deceased, where he could get it in the event of their deaths, and apprised him thereof on each occasion; that upon their return from such trips defendants always removed the deed from the desk and returned it to their own strongbox; that all this was done with deceased’s full knowledge; that shortly before his death in February of 1949, at his request, defendant Eva burned the deed and envelope. After deceased’s death plaintiffs instituted discovery proceedings in probate court, requiring defendants to answer interrogatories put to them concerning the execution and alleged delivery of said deed by them. Their testimony, reduced to writing and signed and sworn to by them, was made a part of the probate file in the estate of John H. Wandel, deceased. Thereafter plaintiffs brought this suit seeking a decree restoring the destroyed deed and decreeing the farm to belong to the heirs at law of deceased. On trial the plaintiffs offered and there was received into evidence the probate file containing defendants’ testimony given in probate court. Thereafter plaintiffs objected to substantially the same testimony, given by defendants orally as witnesses at the trial, on the ground of its relating to matters equally within the knowledge of the deceased. Defendants were allowed to testify over plaintiffs’ ob jection and the latter assign error. The very proofs objected to were already before the court by reason of plaintiffs’ offer of the probate files. They also touched on the subject matter in cross-examination of defendants on trial. Plaintiffs may not open the door and close it again at will. See In re Bennett’s Estate, 52 Mich 415; Beardslee v. Reeves, 76 Mich 661. Was there delivery of the deed by defendants to deceased? Plaintiffs cite Dyer v. Skadan, 128 Mich 348 (92 Am St Rep 461); Commercial State Savings Bank v. Bird, 254 Mich 418; Tabor v. Tabor, 136 Mich 255; Dawson v. Hall, 2 Mich 390; and Hojnacki v. Hojnacki, 281 Mich 636, for the proposition that a deed cannot be delivered to the grantee in escrow or subject to some condition not expressed therein, but that such delivery effectuates a present transfer of title to the grantee free from condition. Also cited are Wipfler v. Wipfler, 153 Mich 18 (16 LRA NS 941), and Tabacs v. Takacs, 317 Mich 72, as holding that delivery cannot be made to the grantee subject to recall unless it is expressly so provided in the deed and that without such provision the delivery results in the deed taking immediate effect. These propositions of law, sound though they be, are beside the point inasmuch as the primary question raised is whether defendants ever delivered the deed to decedent at all. Plaintiffs contend that defendants’ burning of the deed at decedent’s request disclosed that both parties considered it to be under his control. His request was as consistent with refusal to accept delivery. Plaintiffs also point to the conduct of parties after execution of the deed, claiming that it was inconsistent with ownership in defendants and, therefore, persuasive that the parties considered delivery to have been consummated. Stressed is divi sion of income from the farm between the parties, decedent’s payment of taxes, insurance and 1/2 of other farm expenses, and his making of repairs and improvements on the farm. Defendants point out, however, that decedent lived with them, that they took care of him, that they were in possession and worked the farm, made substantial improvements thereon at their own expense and effort, and had the taxes assessed in their name. In view of all the facts in the case and the relationship between the parties their acts in the above respects were not necessarily inconsistent with ownership of the farm by defendants. Statements by decedent that he wanted the farm to belong to defendants and asking defendants’ son-in-law to act as administrator of his estate (consisting of considerable property aside from the farm in question), et cetera, do not appeal to us as disclosing a belief on his part that he owned the farm. In Schuffert v. Grote, 88 Mich 650 (26 Am St Rep 316), a father executed a deed of real estate to his son, handed it to him and stated that he would not like it to be recorded until after his death, whereupon the son handed it back to him saying that he did not want possession of property until after the father’s death. The father retained possession of the real estate and of the deed, which he later destroyed. Held, that the deed was not delivered and conveyed no title to the son. Decision was predicated on a finding, equally appropriate to the facts in the instant case, that, “It was clearly not the intention of the grantor in this case to convey to his son either possession or title until his death.” This Court said, “The object of a delivery is to indicate an intent on the part of the grantor to give effect to the instrument.” Such was not the intent of the defendants in this case at any time. In Hynes v. Halstead, 282 Mich 627, where grantor placed a deed in the hands of an escrow agent for delivery after his death to grantee, we held that any act presumptively a delivery of a deed will not he a delivery if the intent to make it such is wanting; that to constitute delivery the deed must be given to another with intention to place it beyond grantor’s recall and to vest title presently and unequivocally; that the act of depositing a deed with a third party, to he delivered by him to grantee after grantor’s death, would be testamentary in character and could not be consummated by a deed; that the test of conveyance is whether it can be said that delivery of the deed was such as to convey a present interest in the land. Applied to the facts in the instant case these tests impel to the conclusion that there was no delivery. To the same effect see Noakes v. Noakes, 290 Mich 231, and Pollock v. McCarty, 198 Mich 66, and cases therein cited. In Wilcox v. Wilcox, 283 Mich 313, the grantor executed a deed and placed it in a safety deposit box, to which she and the grantee had joint right of access, with the intention that grantee should own the property at her death. We held delivery was wanting because delivery is dependent upon an intent on the part of grantor to have the deed presently operative to convey an interest to grantee. Such was not the intent of defendants when they placed the deed in the desk before departing on a journey. For facts similar to those at bar, see Dillon v. Meister, 319 Mich 428. There the grantor executed a deed, placed it in an envelope, sealed it, wrote grantee’s name thereon and, all with grantee’s knowledge, caused it to be placed in a locked desk located in a room in grantee’s home adjacent to the room which he occupied and rented from her, stating, in grantee’s presence, that he wanted her to receive the property at his death. We held that these acts of the grantor did not constitute delivery and that-title had not passed to grantee. There was no manual delivery of the deed by defendants to the deceased. When they placed the deed in the desk on different occasions they contemplated a testamentary arrangement. On no one of those occasions was it intended by any of the parties that the deed should operate presently to convey title to decedent. While it may have been within the power of decedent to take- the deed from the desk, plaintiffs have not sustained the burden, reposing on them, of showing that decedent ever accepted delivery, even if defendants’ placing it in the desk were to he termed a tender of delivery. Decree quieting title in defendants as against the claims of plaintiffs and ■ dismissing the bill of complaint is affirmed, with costs to defendants. Adams, Btjtzel, Carr, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred.- ■ CL 1948, §617.65 (Stat Ann § 27.914).—K-epoeteb.

jR.gid, J. This action was brought in chancery by 2- school districts to enjoin defendants from taking further action to transfer property from the. 2 plaintiff districts to the defendant Brighton Area school district in a proceeding for alteration of boundaries of school districts, which proceeding is claimed to be void for want of notice. From a decree for plaintiffs, defendant Brighton Area school, district appeals. Involved is the construction of 4 sections of the statutes, CL 1948, §§ 353.1, 353.2, 353.13 and 353.-14 (Stat Ann 1953 Rev §§ 15.407, 15.408, 15.419 and 15.420), which are as follows: “A township hoard may in its discretion detach the property of any person or persons from 1 district and attach it to another, or divide or consolidate districts: Provided, however, That no land which has been taxed for building a schoolhouse shall be set off into another district for the period of 3 years thereafter except by the consent of a 2/3 majority of. the resident owners of said land to be set into another district; and no district shall be divided into 2 or more districts without the consent of the majority of the qualified school electors of said district present and voting at a meeting called for such purpose, and. 2 '¡or more districts shall not be consolidated without the consent of a .majority of the qualified school electors- of :each district present and voting at a meeting called for that purpose.” CL 1948; § 353.1. “Whenever the township board shall contemplate an alteration of the boundaries of a district, the township clerk shall give at least 10 days’ notice of the time and place of the meeting of said board and of the alteration proposed, by posting such notice in 3 public places in the township or townships, 1 of which notices shall be in each of the districts that may be affected by such alteration. For meetings of boards to act in relation to fractional districts, the county commissioner or commissioners of schools shall designate which clerk shall give the notice. Whenever the township boards of more than 1 township meet, they shall elect 1 of their number chairman, and another clerk thereof.” CL 1948, § 353.2. “Whenever a change in, or the establishment of, the boundaries of a school district composed in whole or in part of a city having a population of less than 10,000, which such city lies wholly or partially within the boundaries of such school district, is desired or becomes necessary, and in any case where a petition signed by the qualified school electors of such district, to a number, which shall not be less than 25 per centum of the number of children in such district as shown by the then current school census, has been filed with the commissioner of schools of the county in which said school district is located, such change or establishment shall be made by the joint action of the board of education of such district, the township board of the township in which the territory may be located, or the township boards if the territory affected is located in more than 1 township, adjoining such district and the city governing body. Whenever any change is contemplated in regard to the boundaries of the school district, and a majority of the members of the board of education shall vote, in favor thereof, it shall be the duty of the said board to elect 4 of its members as a committee to meet with the city governing body and the proper township board in the joint meeting herein authorized, and the secretary of the board of education shall notify the township board or boards of the township or townships in which the territory intended to be attached to or detached from the school district is located and the city governing body, that a joint meeting of such township board or boards and the city governing body will be held with the committee of the board of education of "the city at a place, on a date, and at an hour named in said notice, but not within 10'days of the date of said notice. The secretary of the board of education shall notify the township board or boards, through the township clerk of such township or townships, and he shall also notify the committee representing the members of the board of education of the district including the city of the time and place of such meeting. It shall be the duty of each member of the board or committee to attend such meeting.” CL 1948, § 353.13. “When the joint boards and committee have assembled they shall elect from their number a chairman and a clerk and shall proceed to consider the changes contemplated and it shall require a majority vote of all the members of the joint board for affirmative action. When said joint board has made alterations in the boundaries of the school districts, it shall prepare a map showing in detail the boundaries of the original school district and the boundaries of the territory annexed or detached, and a copy of such map shall be kept on file in the office of the secretaries of the boards of education, in the office of the city clerk in which either school district is located in whole or in part and in the office of the township clerk or clerks of the township or townships in which the school districts, or any part thereof may be located: Provided, That section 5 of chapter 3 of part 2 of this act shall be applicable.” CL 1948, § 353.14. The 2 plaintiff school districts are primary school districts. The defendant Brighton Area school district is a rural agricultural school district, the boundaries of which compose in whole or in part a city having a population of less than 10,000. Defendant Brighton Area school district, acting solely in the manner provided by CL 1948, §§ 353.13 and 353.14, claims to have detached certain territory as in the records and proceedings described, from the 2 plaintiff school districts, attaching the same to the Brighton Area school district. It is stipulated that all proceedings in and about the changing or establishment of boundaries of Brighton Area school district were consummated by the Brighton Area school district, Livingston county board of education and Brighton city council, being the governing body of the city of less than 10,000 population located within defendant school district, that all proceedings as required by sections 353.13 and 353.14 were carried out and completed as therein described and set forth, and that no com plianee ■ with any other statutory provisions was attempted, it being the position of defendants that compliance with the 2 sections above is all that is required of them. ' It is further stipulated that no notices were posted in plaintiff school districts relative to the transfer of the property and the alteration of school district boundaries. . , The county board of education is made defendant instead of the township board, evidently on account of the provisions of CL 1948, §388.177 (b), as amended by PA 1951, No 268 (Stat'Ann 1953 Rev § 15.167), by which the county board of education is “to have all of the authority and powers and duties given to township boards by the school code, with respect, to the organization of school districts and the alterations of boundary lines of school districts.” The trial court considered that the 4 sections in question should be read together in arriving at the necessary procedure for alteration of boundaries such as that undertaken to be made in the instant case. Defendants claim the law to be otherwise and that sections 353.13 and 353.14 are the ony sections to be complied with. The 4 sections in question are parts of chapter 3 of part 2 of the school,code. Chapter 3 is entitled, “Alteration and consolidation of districts.” Sections 353.1 to 353.12, inclusive, are under a subtitle, “Districts the territory of which does not lie wholly or partly within a city.” Sections 353.13 and 353.14 are in a portion of chapter 3 entitled, “Districts composed in whole or in part of a city of less than 10,000.” The provisions and requirements of section 353.2, as to notice, are not limited by its terms to proceedings brought under section 353.1, and are broad enough to cover proceedings under sections 353.13 and 353.14. The provisions of section 353.2, as to notice, can be construed as applying to sections 353.-13 and 353.14. It cannot be presumed that the legislature intended that a meeting such as is provided for in sections 353.13 and 353.14 should be held without the actual knowledge of the officers of each district to be affected by proposed alterations of boundaries. Public interests are involved. It is the duty of public officers to obtain the best available information upon matters requiring their action. Plaintiffs could give highly useful information regarding the feasibility and desirability of the proposed alterations. No need is shown for notice of meetings held under section 353.1 more than in ease of meetings held under sections 353.13 and 353.14. Plaintiffs as part of the general public had a right to be heard at the meeting in question. The inference from the foregoing that the legislature intended section 353.2 to apply to meetings held under sections 353.13 and 353.14, as well as meetings held under section 353.1, outweighs the inference that because section 353.2 is grouped under a different heading or subtitle than that under which sections 353.13 and 353.14 are grouped, that therefore section 353.2 does not apply to sections 353.13 and 353.14. ■ We construe the first full sentence in section 353.2 to apply just as it recites, -vis., that whenever the county board of education (successor to the township board in this particular) shall contemplate an alteration of the boundaries of a school district, .the notice, as provided in said section 353.2, shall be given, regardless of whether the meeting shall be held-in a proceeding brought in a section of the statute grouped under .the same subtitle with section 353.2 or not. Defendant county board of education claims that it never contemplated the change within the meaning of section 353.2 because the alteration was proposed by the Brighton Area school district. However, the action complained of was joint; the county board of education actually was a party to the joint action. The county board of education must be held to have “contemplated” the matter, within the meaning of section 353.2. The action of defendants complained of is void for want of compliance with section 353.2, as to notice. Plaintiffs did not, in their bill nor in their brief, raise or discuss the proposition that in this case it was necessary for the defendants to have complied with the provisions of section 353.1, but rest their case solely on the ground of want of posting of notice before the meeting at which the property was undertaken to be transferred away from plaintiff districts. The trial judge determined that it was necessary that defendants should have complied with section 353.1, as well as section 353.2, and, also, with sections 353.13 and 353.14. We decline to determine whether there should have been a compliance with section 353.1 because that question was not presented in the pleadings nor sufficiently briefed, and is not necessary to a determination of this case because we dispose of the case on other grounds, which portion of the decree must therefore be eliminated as undetermined matter. The decree, however, in all other particulars we affirm. A decree will be entered in this Court in accordance with this opinion. No costs, a matter of public importance being involved. Dethmbrs, C. J., and Adams, Btjtzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred.

Edward M. Sharpe, J. These cases were consolidated and seek by a bill in aid of execution to set aside as in fraud of creditors a deed given by defendant Constance Sauer to defendant Gerald H. Thompson, trustee. Plaintiffs in the bank case are vendors in a land contract in which defendant Constance Sauer is the vendee. The vendee defaulted in her payments in June, 1931. Suit was brought for the defaulted payments and a judgment was obtained December 27, 1932, for $10,425. A levy was made January 14, 1933, on the five city lots-described in the deed here involved. These are not the same premises as covered by the land contract. Plaintiff in the Keeling case is an attorney at law who commenced suit against defendant Constance Sauer on August 19, 1932, for services rendered from December 1,1930, to September 1,1931. Judgment was rendered in favor of plaintiff on March 22, 1933, for $1,182.50. Levy was made on this judgment April 19, 1933, on the same property as levied on by the judgment creditor in the first suit. Prior to either levy and on May 24, 1932, the defendant Constance Sauer had given a quitclaim deed on the five city lots to defendant Gerald H. Thompson, trustee. This deed was part of a living trust agree ment made by Constance Sauer for tbe benefit of her sons. On tbe trial of the suits to set aside the deed as a fraudulent conveyance, the plaintiffs introduced documentary evidence to support their cases. The defendants offered no evidence, but in their answer admitted that defendant Constance Sauer owned no other substantial property subject to execution. The circuit court held that plaintiffs had made a prima facie case of a fraudulent transfer and, as defendants had produced no evidence of a valuable consideration for the deed of May 24, 1932, or any evidence of solvency at the time the deed was given or at the time of the trial, ordered that the deed be set aside and that plaintiffs have execution upon the lands in question. The defendants claim in the bank case that the defendant Constance Sauer is still the owner of the vendee’s equity in the land contract (which has not been foreclosed), and that the bank must levy on this equity before resorting to other property of the defendant. In the Keeling case it is the claim of defendants that plaintiff was' not determined to be a creditor until judgment was rendered, which was approximately 10 months after the conveyance complained of was made. Section 13434, 3 Comp. Laws 1929, provides: “Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, Or of any rents or profits issuing therefrom, and any charge upon lands, goods or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed or defrauded, shall be void. ’ ’ Section 13395, 3 Comp. Laws 1929, provides: “Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation incurred without a fair consideration. ’ ’ Section 14617, 3 Comp. Laws 1929, provides: “All the real estate of any debtor, including legal and equitable interests in lands acquired by the parties to contracts for the sale and purchase of lands, whether in possession, reversion or remainder, including lands fraudulently conveyed, with intent to defeat, delay or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, liabilities and obligations, and may be levied upon and sold on execution as hereinafter provided. In all suits begun or hereafter to be begun by the filing of bills in aid of execution, the complainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution with the levy or levies thereon indorsed and proof of the conveyance or conveyances complained of. The burden of proof shall then be upon the judgment debtor, or the person or persons claiming through or under him or the person or persons whom it is claimed are holding property in trust for said judgment debtor to show that the transaction or transactions are in all respects bona fide or that such person or persons are not holding as a trustee or trustees of said judgment debtor. ’ ’ The statute putting the burden of proof on defendant was construed and applied by this court in Corbett v. Williams, 248 Mich. 541. Under 3 Comp. Laws 1929, § 14617, after the showing made by the plaintiffs in these cases, it became the duty of defendants to show that the transaction was in all respects bona fide. This the defendants failed to do. No consideration or other evidence of good faith having been shown, the presumption that the conveyance was fraudulent prevails. Upon default, the vendor in a land contract may at his option treat the contract as continuing in force and sue for payments due. Chicago Boulevard Land Co. v. Apartment Garages, 245 Mich. 448. Under this rule, the plaintiffs in the first case could, after securing judgment, levy upon any property of the vendee and not be compelled to resort to the vendee’s equity in the land contract. First National Bank of Petersburg, Ill., v. Shipley, 109 Cal. App. 194 (292 Pac. 996); Greene v. Wilson, 90 Col. 562 (11 Pac. [2d] 225); Botsford v. Beers, 11 Conn. 369; Weightman v. Hatch, 17 Ill. 281; Hughes v. Noyes, 171 Ill. 575 (49 N. E. 703); Spooner v. Travelers Ins. Co. of Hartford, 76 Minn. 311 (79 N. W. 305, 77 Am. St. Rep. 651); Peaslee v. Ridgway, 82 Minn. 288 (84 N. W. 1024); Dalton v. Barron, 293 Mo. 36 (239 S. W. 97, 22 A. L. R. 187); Daggs v. McDermott, 327 Mo. 73 (34 S. W. [2d] 46); Smith v. Muirheid, 34 N. J. Eq. 4, reversed on other grounds; Muirheid v. Smith, 35 N. J. Eq. 303; Gormley v. Potter, 29 Ohio St. 597; Hoffman v. Fleming, 43 W. Va. 762 (28 S. E. 790). As to the second case, plaintiff’s legal services were performed between December 1,1930, and September 1, 1931. The conveyance in question was made May 24, 1932. On August 19, 1932, plaintiff started suit against Mrs. Sauer on an implied contract and recovered judgment March 22, 1933. The fraudulent conveyance statute defines “creditor” as “a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.” 3 Comp. Laws 1929, § 13392. One who has a tort claim is a creditor from the date of the tort. Morse v. Roach, 229 Mich. 538; Dutcher v. Van Duine, 242 Mich. 477; Iden v. Huber, 259 Mich. 3 . Similarly, any liability is considered as existing from the date the cause of action arose. “Whoever has a claim or demand on a contract in existence at the time when a fraudulent conveyance is made is a creditor within the meaning of the statute, and the holder of a contingent claim is as fully protected by the statute as one that is absolute. Consequently liability as surety is as clearly within the statute as liability as principal. In cases of contingent liability, the liability, whenever happening, relates back to the date when it was originally incurred.” 12 R. C. L. p. 492, § 25, quoted in Peterson v. Wahlquist, 125 Neb. 247, 252 (249 N. W. 678, 89 A. L. R. 747). It is therefore quite clear that the plaintiff in the second case must be considered a creditor as of the time of the conveyance and therefore protected by the fraudulent conveyance act. The status of creditor is determined, not as of the date of judgment, but as of the date the cause of action arose. Defendant raises in her brief an issue not presented by the evidence, that is, that the land in question is a homestead. If it is homestead, it can be such only to the extent of one lot not exceeding $1,500 in value (3 Comp. Laws 1929, § 14608). This is a question that need not be decided now, but may be taken care of at the execution sale. Both decrees will be affirmed, with costs to the plaintiff in each case. Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Bushnell, JJ., concurred.

Boyles, C. J. This is a second appeal after this Court had vacated a judgment for the defendants on a directed verdict and granted plaintiff a new trial. Rumbos v. Singos, 326 Mich 654. On the record before us on the first appeal the plaintiff’s declaration had joined claims of fraud, duress, and lack of consideration with the common counts, in an assumpsit action. The trial court erred in requiring the plaintiff to elect between the claims of fraud and lack of consideration, and in excluding testimony as to plaintiff’s claims based on tort, thus limiting recovery to plaintiff’s claims on the common counts. In granting a new trial, this Court said: “The pleadings are not clear and the' issues remain in doubt. The judgment is vacated, a new trial is granted, and the cause js remanded with leave to amend the pleadings. Costs in both courts to abide final disposition of the matter.” " ..... On the new trial, the plaintiff filed an' amendment to her declaration, merely setting up that, in addition to the $2,270 which she claimed had been obtained from her by the defendants, “by continuance of their duress, fraud, coercion and connivance,” another amount of $1,000 had been obtained by the defendants “surreptitiously as a commission, for which plaintiff was not liable, * * * increasing-plaintiff’s damages * * * to $3,270.” A similar amendment to plaintiff’s bill of particulars was filed. The defendants filed a motion to strike from the declaration all reference to fraud, duress and tort, on the grounds (1) that the allegations were general and indefinite, (2) failed to allege any acts tending to show fraud, (3) that the amendment failed’ to make the declaration more definite as to fraud and duress. The court ruled that the -plaintiffj instead of amending and clarifying the allegations of 'fraud, had merely added another claim for damage's, and granted to plaintiff an additional 15 days to file an amended declaration specifically alleging and setting forth acts of fraud, misrepresentation or “su.rreptitiousnessand the amendment to the declaration was withdrawn by plaintiff. Counsel for the parties filed a stipulation that the amendment to the declaration and the bill of particulars, claiming additional damages of $1,000 and increasing the claimed damages from $2,270 to $3,2.70, “be and hereby is withdrawn and excluded from the files and records and shall not be. interposed on jury retrial ordered by the Supreme Court and that the original declaration and amendment for claimed $2,-270 damages upon which the case was originally tried and appealed by plaintiff shall in all respects remain in full force and effect for retrial by jury at tbe April, 1950 term.” Thereupon tbe defendants filed a motion to dismiss tbe cause on the following grounds: “(1) That the declaration now on file in this cause contains no allegations of fraud, duress, misrepresentation or any other allegations of tort resulting in said plaintiff’s right of recovery being based solely upon the assumpsit claim for money had and received without consideration moving from the defendant to the plaintiff. “(2) That the claim of the plaintiff based upon the common counts of money had and received without consideration has been fully adjudicated in a trial held before Honorable Frank L. Doty in the circuit court for the county of Oakland. “(3) That upon the failure of the plaintiff to file an amended declaration as heretofore ordered, the issue between the parties is left wholly in assumpsit and not in tort, and that all questions raised by such assumpsit action have been heretofore adjudicated and passed upon by Honorable Frank L. Doty in a trial held on the 5th and 6th days of October, 1948, wherein said court granted a motion for a directed verdict in favor of the defendants holding that the moneys sued for were paid to the defendants upon the passing of a good and valuable consideration. “(4) That upon plaintiff’s failure to file an amended declaration as heretofore ordered, this court is left without any issue to pass upon by a trial of this cause.” Tbe court, relying on tbe situation tbat tbe declaration had not been amended to state a cause of action in tort, granted tbe motion. Plaintiff appeals. Tbe motion was properly granted. Plaintiff obviously refused to amend and clarify her declaration and tbe court properly held, as suggested by this Court, that tbe declaration was not clear, tbe issues remained in doubt, and tbat it should be amended. There is no merit in appellant’s present claim tbat tbe stipulation entered into and filed by counsel was for a retrial by jury without regard to tbe sufficiency of tbe declaration on which plaintiff insisted upon relying. Other questions raised by appellant are equally without merit. Affirmed, with costs to appellees of both courts in both appeals. Reid, North, Dethmers, Butzel, Carr, Bushnell, and Sharpe, JJ., concurred.

North, J. By their bill of complaint plaintiffs seek a decree construing the fifth paragraph of the will of Philip T. Colgrove, deceased. Defendant’s motion to dismiss was granted. Plaintiffs, as executor and executrix of the will of Lawrence E. Col-grove, have appealed. Under plaintiffs’ contention in the instant case Lawrence E. Colgrove, a son of Philip T. Colgrove, became the sole devisee of the Philip T. Colgrove estate, subject however to certain rights of Philip’s widow, Carrie Gr. Colgrove, and also certain other testamentary provisions in Philip T. Colgrove’s will which are not material here. In the accompanying footnote we quote in full paragraph 5 of Philip T. Colgrove’s will. He died in 1930 and Ms will was probated. His widow, Carrie G. Colgrove, who died on July 19, 1947, elected to take under the terms of her husband’s will in lieu of her statutory rights. By her will, which was admitted to probate, Carrie G. Colgrove left, with certain exceptions not material to decision, the property involved in the instant suit to the defendant herein, David S. Goodyear. Lawrence E. Colgrove died testate on the 10th day of February, 1949. Representatives of his estate in this suit seek a construction of the pertinent portion of the will of Philip T. Colgrove that in effect would vest title in the estate of Lawrence E. Col-grove to the property which Carrie G. Colgrove bequeathed to defendant David S. Goodyear. It should be noted that 2 of the 4 lots bequeathed by Philip T. Colgrove to his wife were sold and conveyed by her. Other matters pertinent to the factual background of the instant case appear quite fully in our opinion in Colgrove v. Goodyear, 325 Mich 127 (10 ALR2d 1029), to which we shall refer as the Goodyear Case. Decision herein turns on whether plaintiffs are entitled to a decree construing the fifth paragraph of Philip T. Colgrove’s will, or whether, for reasons assigned in support of defendant’s motion to dismiss plaintiffs’ bill of complaint, plaintiffs are not entitled in this suit to have that portion of Philip T. Colgrove’s will construed. By their bill of complaint plaintiffs contend that the fifth paragraph of Philip T. Colgrove’s will should be so construed that they would take under the will on 1 of 3 grounds: (1) That under the fifth paragraph of Philip T. Col-grove’s will his widow, Carrie G. Colgrove, took only a life estate, not the absolute ownership of the property as defendant herein asserts; (2) that under the fifth paragraph of Philip T. Colgrove’s will Carrie Gr. Colgrove took the real estate and personal property therein described only as a trustee and for the benefit of Lawrence E. Colgrove and his sister, Mabel Colgrove (Stebbins) ; and (3) that the fifth paragraph of Philip T. Colgrove’s will imposed a condition upon any devise to his widow, Carrie G-. Colgrove, to the effect that she would accept such devise subject to her obligation to make a will whereby the property on the death of Carrie Gr. Colgrove would be left to Lawrence E. Colgrove and his sister, Mabel Colgrove. In support of his motion .to dismiss, defendant contends that the allegations of the bill of complaint are insufficient to justify recovery by plaintiffs on any of the 3 grounds just above noted; that plaintiffs’ cause of action is barred by the decision in the Goodyear Case, supra; and that by the former suit Lawrence E. Colgrove, and subsequently the representatives of his estate, made an election of remedy inconsistent with that sought in the instant case and hence have waived and are now estopped from successfully asserting their claims in the instant suit. Defendant’s motion concludes as follows: “This motion is based upon the files and records of this cause, upon the files, records and briefs in the case of Lawrence E. Colgrove v. David S. Goodyear, previously heard and decided in this court, Chancery No. 1957, and thence appealed to and affirmed by the Supreme Court of Michigan, * * and upon the affidavit of Julius PI. Amberg annexed hereto.” Further, in the instant case the parties entered into a stipulation: “That the files and records of the case of Lawrence E. Colgrove v. David S. Goodyear, * * * in the circuit court for the county of Barry, in chancery,, No. 1957, and the briefs and letters in the nature of briefs submitted to said circuit court, and the record and briefs on appeal of said case to the Supreme Court of the State of Michigan, Calendar No. 44,344, may be tendered in evidence upon the defendant’s, motion herein to dismiss said cause; * * * provided that such records, briefs, files, or other documents, or copies thereof, shall not be otherwise objectionable, counsel hereby expressly reserving the right to object to the admission of any such documents or files on grounds of materiality, or relevancy to the issues presented on said motion.” We do not find in the instant record that any objection was made incident to the documents referred to in the above stipulation or to the subject matter of the Amberg affidavit at the time of the hearing on the motion to dismiss. Plaintiffs herein, as representatives of his estate, stand in the shoes of Lawrence E. Colgrove, who instituted the suit in the Goodyear Case, sufra. Hence it becomes of first importance to determine whether in prior litigation between these parties there was an adjudication adverse to plaintiffs herein of the proper construction of paragraph 5 of Philip T. Colgrove’s will, because if such is the fact dismissal in the circuit court of plaintiffs’ suit on defendant’s motion should be sustained on the ground of res judicata. As bearing upon this issue, particularly as to the real estate involved, we note the following. Incident to probating the will of Philip T. Col-grove the executors were discharged and on or about December 2, 19.30, an order of distribution and assignment of the assets of his estate was made. But through inadvertence the probate court “failed to assign” the real estate. In consequence an amended order assigning the residue of the Philip T. Colgrove estate was entered in the probate court January 30, 1931, from which we quote: “Amended Order Assigning Residue “It further appearing that said deceased, by his last will and testament, gave the above described real estate (which included that involved in the instant case) to his wife Carrie Gr. Colgrove as shown by paragraph ‘Fifth’ of said will. “It further appearing that the original order assigning residue in said estate * * * failed to assign the hereinbefore described parcel of land to the said Carrie Gr. Colgrove wife of said deceased, * * “It Is Therefore Ordered, That the administration of said estate be and the same is hereby reopened for the sole purpose of assigning said real •estate to the said Carrie Gf. Colgrove. “It Is Further Ordered, That the said real estate hereinbefore described be and the same is hereby assigned to the said Carrie G. Colgrove according to the terms of the will of said deceased.” It seems too clear for argument that the foregoing order of assignment was intended to and did construe paragraph 5 of the will as vesting title in fee to the described real estate in Carrie G. Colgrove. In point of law that construction was correct. Killefer v. Bassett, 146 Mich 1; Hawley v. Grand Rapids Trust Co., 267 Mich 232; Withey v. First State & Savings Bank of Holly, 271 Mich 549. And plaintiffs’ decedent, Lawrence E. Colgrove, in seeking specific performance in the Goodyear Case, supra, so construed the fifth paragraph of the Philip T. Colgrove will. He was a party to the probate proceedings in which the above order was entered. No appeal was taken, from the amended order assigning the real estate. That order constituted an adjudication of the construction of paragraph 5 of the will of Philip T. Colgrove, insofar as it pertained to the real estate described therein. It follows that plaintiffs in the instant case cannot obtain a readjudica-, tion of the pertinent portion of paragraph 5 of Philip T. Colgrove’s will. As to the real property the amended order of distribution in the probate court constitutes res judicata. “The orders of probate courts disposing of estates have the force and effect of judgments in courts of record, are res judicata of the matters therein disposed of, and therefore may not be collaterally attacked.” Chapin v. Chapin (syllabus), 229 Mich 515. “In order to properly declare the succession, the [probate] court is obviously called upon to construe the will, where the deceased died testate, and a special petition for the construction of the will is not necessary.” Calhoun v. Cracknell (syllabus), 202 Mich 430. In Bishop v. Hartman, 325 Mich 115, 126, we quoted with approval from MacKenzie v. Union Guardian Trust Co., 262 Mich 563, the following: “ ‘If, however, upon the conclusion of the probate of the estate of a testator, upon the allowance of the administrator’s final account, the assignment of the residue of the property of the estate is made in accordance with the construction of the will of the deceased by the probate court, then, under such circumstances, the court having to construe the will in order to make a proper order of distribution, such order of distribution properly entered is valid and binding as a construction of the will, if not appealed from.’ ” Plaintiffs in the instant suit also seek a decree requiring defendant “to account to this court for (and deliver to plaintiffs) the contents of the dwelling-located on the aforesaid real property and described in the aforesaid will of Philip T. Colgrove.” We think the following is decisive of this phase of the instant case. Throughout all of this Colgrove litigation all parties involved have at all times uniformly taken the position that the property right to the personalty devised by the fifth paragraph of Philip T. Colgrove’s will to Carrie Gr. Colgrove was of the same character and extent as that therein devised to her in the real property. And we think it appears from the wording itself of the fifth paragraph of the will, no other conclusion is tenable. Hence, in our opinion, it is a necessary inference from the record that in ordering a distribution of Philip T. Colgrove’s estate, particularly the portion which passed under the fifth paragraph óf his will, the probate court as to the personalty must have held, as it expressly held concerning the real property, that unqualified title to the personalty passed to Carrie Gr. Colgrove. We are mindful that presently in the instant case the matter of construing the pertinent portion of Philip' T. Colgrove’s will is not the exact issue presented. Instead, on this appeal the sole issue is whether in granting defendant’s motion to dismiss the circuit judge ruled correctly. But incident to hearing that motion the will of Philip T. Colgrove was before the circuit court and is here on this appeal. The fifth paragraph of the will is copied in full in plaintiffs’ bill of complaint. Hence the terms of the will and any previous relevant adjudication thereof appearing in the record are material and proper for consideration in passing upon defendant’s motion to dismiss, providing they do not conflict with proper allegations of fact in the bill of complaint. After providing- in the fifth paragraph of his will: “To my wife, Carrie Gr. Colgrove, I give, devise and bequeath the (real estate) * * * together with the contents of the home of every name, nature, kind and description,” Philip T. Colgrove, in the same paragraph, using what we consider precatory words, recited: “It being understood and agreed between my wife, Carrie G. Colgrove, and myself, that the home, in the event she survives me, is to remain undisturbed during her life time and that she is to have the absolute title to the property, * * * but that at the death of my said wife, she has promised and agreed to carry out my wishes that * * * she shall make her will conveying to my 2 children (the property involved in the instant case). “This latter clause is only explanatory and in no way to interfere with her title to the home, the real estate and the personal property in connection therewith, as I have implicit faith and confidence that in the event she survives me, her will will be made immediately in accordance with this understanding.” We think it appears as a matter of law from the above recital in Philip T. Colgrove’s will that he intended to and did bequeath to his wife, Carrie G. Colgrove, absolute title to the personalty involved in the instant suit. It appears from the record that the testator was an experienced attorney. The above quoted recital from his will, which was before the circuit judge when he heard the motion to dismiss and is now before us on this appeal, is conclusive that Carrie G. Colgrove, under the will of her husband, took absolute title to the personal property here in suit; and therefore it afforded valid reason for dismissal of plaintiffs’ suit insofar as it pertained to personal property. “If the intent of the testator is expressed in clear and unambiguous language, there is no occasion for the application of technical rules of construction.” In re Blodgett’s Estate, 197 Mich 455, 461. Since we conclude that the foregoing is decisive of the matter before us on this appeal, we deem it not necessary to pass upon the merits of appellee’s contention that since Lawrence E. Colgrove in the Goodyear Case, supra, took a position entirely inconsistent with that taken by the executor and the executrix of his will in the instant case, the latter are estopped from obtaining the relief herein sought. The decretal order of the trial court dismissing plaintiffs’ bill of complaint on defendant’s motion is affirmed. Appellee may have costs of this Court. Boyles, C. J., and Reid, Dethmers, Carr, Bushnell, and Sharpe, JJ., concurred. Bittzel, J., did not sit. “Eifth, To my wife, Carrie G. Colgrove, I give, devise and bequeath the home and 4 lots we now live upon at the corner of Green and Washington street, described as lots Nos. 836-837-867-868 of the city of Hastings, together with the contents of the home of every name, nature, kind and description, including my private library together with automobiles and other personal property. It being understood and agreed between my wife, Carrie G. Colgrove, and myself, that the home, in the event she survives me, is to remain undisturbed during her life time and that she is to have the absolute title to the property, and to sell or dispose of the home and lots, or any of them, and if she shall so desire to rebuild a smaller home on one of the back lots, but that at the death of my said wife, she has promised and agreed to carry out my wishes that the library shall be given to my daughter, Mabel C. Stebbins and my son Lawrence E. Colgrove, and all of the household goods except such goods and furnishings as came from her girlhood home shall be given in equal shares to my 2 children, Mabel C. Stebbins and Lawrence E. Colgrove; and that m the event she shall survive me that she shall make her will conveying to my 2 children the homestead and lots we now occupy and the personal property herein named. “This latter clause is only explanatory and in no way to interfere with her title to the home, the real estate and the personal property in connection therewith, as I have implicit faith and confidence that in the event she survives me, her will will be made immediately in accordance with this understanding. “I do hereby direct my executors hereinafter named to pay to my wife, Carrie G. Colgrove, the sum of $250, the first of each and every month during her life time, and that this my fifth bequest be accepted by my wife in lieu of dower and all statutory rights in my estate except such as is bequeathed to her under the terms of this wiU.” In consequence of Mabel Colgrove’s subsequent death any interest she might have had under the fifth paragraph of the will of her father, Philip T. Colgrove, vested in her brother, Lawrence E. Col-grove.

Butzel, J. In May, 1924, Willis McDonald suffered an incomplete fracture of a bone in his left foot, and damages to his left leg and side, while employed by the Ford Motor Company at Iron Mountain, Michigan. He was awarded compensation and signed a settlement receipt for $44.33. In June, 1929, he filed a petition with the department of labor and industry for further compensation. The hearing was noticed for August 5, 1929, when a further small sum was paid to him and he signed an additional settlement receipt for compensation to that date. He claims that when his application came on to be heard before the deputy commissioner, George Kuss, an agent duly authorized by the Ford Motor Company, stated that it would be unnecessary to take any testimony, that the defendant would send plaintiff to the Ford Hospital in Detroit for treatment, and would give him suitable work during his stay in Detroit; and that after he returned to Iron Mountain he would be given such work as his condition permitted. Plaintiff claims that in response to his inquiry as to how long the job would last, Kuss stated it would be for life, at $6.40 a day, the wages he had previously received, and for six days a week. While the award denying compensation does not appear in the record, counsel have filed with the clerk of the court a certified copy of the award of August 5, 1929, which states as follows: “That the plaintiff now has some disability as a result of the accidental injury he received on May 8, 1924. Defendant has offered plaintiff employment at such work as he can do at Detroit, and has also offered him the medical services and treatment while he is at Detroit as seem necessary to remedy his disability. Plaintiff has accepted the defendant’s offer of employment and medical treatment, compensation having been paid him for the time he lost to date. In view of this the plaintiff’s petition for further compensation is denied until facts and circumstances warrant a change.” Plaintiff claims that while he did receive medical treatment at the Ford Hospital, as well as work both in Detroit and subsequently at Iron Mountain, he was afterwards discharged. He contends that this constituted a breach of defendant’s alleged agreement to give him life employment at $6.40 a day for six days a week, and has brought an action ex contractu against the Ford Motor Company and George Kuss to recover damages for the breach. We note in passing that, according to the exhibit introduced, plaintiff on the 23d day of October, 1929, sought permission to appeal from the order of August 5, 1929, notwithstanding the' fact that he claims to have had a binding agreement with the defendant. Other parts of the record of the department of labor and industry, but not part of the record in the instant ease, have been filed with this court by plaintiff’s attorney, showing further proceedings before the department of labor and industry during the year 1930. We may only consider the record in the case at bar. At the conclusion of plaintiff’s testimony the trial judge directed a verdict for defendants, on the ground that the alleged agreement was void and unenforceable under the statute. Since the defendants introduced no testimony, we may assume, solely for the purpose of this discussion, that plaintiff’s testimony is true. We shall limit our discussion to the question whether such a contract, if it were entered into, would be of any legal effect. In Harrington v. Department of Labor and Industry, 252 Mich. 87, plaintiff, an injured employee, sought a writ of mandamus to compel the commissioners of the department of labor and industry to consider and approve an agreement entered into between plaintiff and his employer in regard to compensation. The writ was denied on the ground that the terms of the agreement did not conform to the provisions of the act. Mr. Justice Clark, speaking for the court, stated: “The statute permits the parties to make an agreement in regard to compensation and when filed with, and approved by, the department it is binding. But such agreement may be approved ‘only when the terms conform to the provisions of this act.’ 2 Comp. Laws 1915, § 5458 (2 Comp. Laws 1929, § 8444). A mere glance at the stipulation shows terms neither provided nor contemplated by the act. It seeks to fix by contract rather than by fact the period of disability and to fix the same finally and beyond right of further recourse to the department. “See Detloff v. Hammond, Standish & Co., 195 Mich. 117 (14 N. C. C. A. 901); Brabon v. Gladwin Light & Power Co., 201 Mich. 697; Kirchner v. Michigan Sugar Co., 206 Mich. 459. “Compensation is not a private matter between employer and employee. The public is interested. The act declares a State policy that the burden of industrial accidental personal injuries shall be borne by the industries, not by the general public. To effectuate this policy, the act provides for frequent regular payments, weekly, not monthly, or quarterly, or annually. It opposes payments in gross or in lump sum, except in certain ‘special circumstances.’ Subject to its limitations, it contemplates weekly payments of compensation during disability, no more, no less. “In short, an agreement respecting compensation, to merit approval, must follow and conform to the provisions of the act. The agreement before us violates both the letter and the spirit of the act. The department properly refused it.” The following three sections of the workmen’s compensation act are applicable: “Nor shall such employer be subject to any other liability whatsoever, save as herein provided for the death of or personal injury to any employee, for which death or injury compensation is recoverable under this act, except as to employees who have elected in the manner hereinafter provided, not to become subject to the provisions of this act” (2 Comp. Laws 1929, § 8410). “No agreement by an employee to waive his rights to compensation under this act shall be valid” (2 Comp. Laws 1929, § 8436). “If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the industrial accident board, and, if approved by it, shall be deemed final and binding on the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act” (2 Comp. Laws 1929, § 8444). The law is well stated in Dettloff v. Hammond, Standish & Co., 195 Mich. 117, 135. (14 N. C. C. A. 901), wherein the court stated: “Upon the second point it is urged that the State through its officials, the industrial accident board, is intrusted with the enforcement of the provisions of the act, and the spirit, as well as the letter of the law, prohibits the employer and employee from frittering away its salutary provisions; that this is evidenced by the fact that while the act countenances and encourages agreements between the employer and employee with reference to compensation arising from accidental injuries, yet all such agreements are under the direct supervision of the State, and they must be filed with, and be approved by, the board, and that such approval may not be given unless the terms conform to the provisions of the act, and the contract is not final and binding* upon the parties until filed with, and approved by, the board. We think this position well taken. The interest which the State has in these matters is well expressed by the Ohio Industrial Commission in Rosen steel v. Niles Forge & Manfg. Co., 7 N. C. C. A. 798.” The case of Rosen-steel v. Niles Forge & Manfg. Go., supra, emphasizes the fact that the State, as the representative of society at large, becomes a party to snch proceedings, and that no settlement can therefore be made without its consent. It is largely to the benefit of the workmen that the law demands specific compliance with the terms of the act under the supervision of the department of labor and industry. Otherwise an unscrupulous employer could take advantage of the economic pressure on a disabled workman who, because of his great need, might be unable to withstand the temptation to accept an immediate offer of an inadequate amount, or a doubtful promise, in lieu of the compensation to which he would be entitled under the act. In order to prevent such a situation, the legislature has set up under the workmen’s compensation act the machinery by which employees injured in their employment may secure compensation under the impartial supervision of the department of labor and industry. Although it is true, as pointed out in Dettloff v. Hammond, Standish & Co., supra, that the act countenances and encourages agreements between the employer and employee with reference to compensation for accidental injuries, such agreements must be made under the direct supervision of the State and in accordance with the provisions of the act. Otherwise they can have no binding force or effect. This court will not countenance any attempt to oust the department of jurisdiction in such cases. The effect of a settlement without the consent of the board was carefully considered in Richards v. Rogers Boiler & Burner Co., 252 Mich. 52, and in that case the court stated: “No settlement can be made under this act without the approval of the board, and section 5458, 2 Comp. Laws 1915 (2 Comp. Laws 1929, § 8444), expressly so provides. No final receipt has any binding force and effect when made by the parties alone. The State is a party to every proceeding before the department of labor and industry. The statute is a constitutional exercise of the police power. The employee is expressly prohibited by the language of the act from waiving his right to compensation, and compensation, when fixed, must be fixed in accordance with the statute. If the department of labor and industry, charged with the administration of the act, approve a final settlement, it is valid and binding, if in accordance with the act, but until so approved, it is not binding and conclusive. This must be so, if we are to give section 5458, 2 Comp. Laws 1915 (2 Comp. Laws 1929, § 8444), and the other sections of the act force and effect.” The alleged agreement was void as an attempt to establish the rights of the parties by a private agreement not within the purview of the compensation act, nor filed with or approved by the department of labor and industry, which had the sole jurisdiction of the subject-matter. The agreement being void, defendants were not estopped from denying its validity. The judge was correct in directing a verdict for defendants. The judgment is affirmed, with costs to defendants. Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, and Edward M. Sharpe, JJ., concurred. Btjshnell, J., did not sit.

Butzel, J. Proceedings to widen Woodward avenue in the city of Detroit to the width of 120 feet as authorized by the common council on July 12, 1927, were begun in the recorder’s court the latter part of the following year. The property sought to be acquired for the project included the easterly 20 feet of the land and building thereon at the southwest corner of Woodward and Baltimore avenues, the property of A. M. Campau Realty Company, plaintiff. It is part of a parcel with a frontage of 120 feet on the west side of Woodward avenue and 215 feet on the south side of West Baltimore avenue. A one-story building, used as a retail store and having large display windows, stood on the Woodward avenue side of the property with an entrance at the corner of the building at the intersection of the two streets. The southerly side of the property adjoined a wide railroad right of way on which there were five sets of tracks which extended across Woodward avenue by means of a viaduct spanning the street. The jury found necessity and awarded plaintiff a substantial sum for the loss of the 20 feet appropriated and damages to the building. The verdict was affirmed on July 21, 1932. The original plan as presented in the recorder’s court proceedings called for a very slight and almost imperceptible lowering of the grade along the Woodward avenue side of plaintiff’s property, so that the level of the street in front of the property nearest to the railroad crossing would be but two and one-half feet lower than the show windows of the building. On January 5,1934, plaintiff received payment of the amount of its award. On December 11, 1933, almost six years after the court proceedings, showing the original plan, .were instituted, and over 17 months after the verdict was confirmed, the city filed with the proper authorities a new plan providing for a much lower grade of the street at the crossing. As a result, the Woodward avenue frontage of plaintiff’s building with the 20 feet removed would be much higher than the street level. It showed that Woodward avenue would taper down from Baltimore avenue to such an extent that at the most southerly point of plaintiff’s property the show windows would be seven and one-half feet above the street level. Plaintiff, claiming that its building thus was ruined for retail purposes, filed a bill seeking an injunction to restrain the city from lowering the grade without first determining and paying such damages as plain-, tiff claimed it would suffer. Defendant in its motion to dismiss contends that plaintiff has an adequate remedy at law. The trial court so found and entered a decree dismissing the bill. Plaintiff has appealed from the order of dismissal. Many of the facts stated in the judge’s opinion are not fully set forth in the pleadings, but inasmuch as the trial judge was undoubtedly familiar with the Woodward avenue condemnation proceedings out of which so many questions have arisen for judicial determination, and appellant has not found any fault with such findings, we shall assume them to be true in discussing the question of law, which is the sole question on appeal. Through the condemnation proceedings, which are res judicata, the city acquired and paid for the easterly 20 feet of plaintiff’s land and the buildings thereon. Plaintiff does not claim that when the proceedings were instituted or while they were pending, the city intended to lower the grade to a greater depth than was shown by the plan presented at that time. The good faith of the city is not impugned. The consequential damages resulting from a subsequent lowering of the grade could not have been considered in the main proceeding. Plaintiff calls our attention to a number of cases where the question of damages for lowering of the grade was considered in condemnation cases or not long after the proceedings were' concluded. We have repeatedly held that the lowering of the street grades is not the taking of abutting property without due process of law. City of Detroit v. Railway Co., 163 Mich. 229; Mead v. Railroad Co., 174 Mich. 521. The city may proceed to lower the grades and then begin appropriate proceedings under the grade separation act. 1 Comp. Laws 1929, § 4481 et seq., as amended. The appellant, however, claims that the 20 feet had not yet become part of the street and that, therefore, the grade crossing act is not applicable. The 20 feet had been acquired-and paid for for street purposes by the city. The razing of the building had been begun and it had been tom down to the level of the street. If the city had undertaken to separate the grade in front of plaintiff’s property prior to the condemnation, plaintiff would have been relegated to the damages in a grade crossing proceeding. The grade was being lowered along the street at the crossing. This included the 20 feet acquired by the city. Plaintiff has an adequate remedy at law and the trial judge was correct in entering a decree dismissing the bill of complaint. The decree is affirmed, with costs to defendant.- Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bushnell, and Edward M. Sharpe, JJ., concurred.

Caer, J. Plaintiff sustained personal injuries in a traffic accident occurring in the city of Detroit on the 18th of May, 1946, between 10 -.30 and 11 o’clock in the evening. At the time of the accident plaintiff, a young woman 18 years of age, was riding as a guest passenger on the rear seat of a motorcycle operated in an easterly direction on Joy road. At or near the intersection of said highway with Spinoza drive the driver of the motorcycle undertook to make a left turn. He was at the time proceeding near the center line of Joy road, a four-lane highway approximately 40 feet in width. While in the north lane the motorcycle was struck by a car which was proceeding westerly :on Joy road, the injury to plaintiff resulting from the impact. Such car was operated by the defendant Ernest E. Huffmaster with the knowledge and consent of the owner, the other defendant in the case. On the trial in the circuit court it was the claim of the plaintiff that the driver of the automobile was guilty of negligence in failing to keep a reasonable and proper outlook for other traffic on the highway and in driving at a rate of speed that was, under the circumstances, unreasonable, and which did not permit him to stop within the assured clear distance ahead. It was her position that such negligence constituted a proximate cause of the accident. She further denied any contributory negligence on her part. On behalf of defendants it was insisted that no negligence on the part of the driver of the automobile was established by the evidence and that the sole proximate cause of the accident was the negligent operation of the motorcycle by its driver. At the conclusion of the proofs, counsel for plaintiff moved that the court direct a verdict in her favor, leaving to the jury merely the question of damages. Such motion was denied and the case submitted to the jury, by which a verdict in favor of defendant was returned. A motion for a new trial was also denied. Plaintiff has appealed, claiming that said motions should have been granted and that other prejudicial errors occurred in the course of the trial. The testimony of the witnesses was not in accord as to how and where the collision occurred. The driver of the motorcycle testified in substance that on beginning his turn to the left he crossed the center line of Joy road somewhat to the west of the center of the intersection, that he saw the defendants’ car approaching, and that he accelerated the speed of the motorcycle in an attempt to avoid a collision. He placed the point of impact at the north side of Joy road, approximately in the center of Spinoza drive. He further testified that the speed of defendants’ car was somewhat accelerated as it approached and entered the intersection. The driver of the automobile claimed that he approached the intersection at a reasonable rate of speed, that he saw the motorcycle approaching, that when the automobile was approximately half way across thp intersection of Joy road and Spinoza drive the motorcycle suddenly turned in front of it and that he applied his brakes but could not prevent the collision. He placed the point of impact approximately 10 feet west of the west curb of Spinoza drive and about 4 feet from the north edge of the pavement on Joy road. A police officer, called as a witness in plaintiff’s behalf, testified to marks on the pavement on Joy road near the west curb line of Spinoza drive. In view of the conflicting testimony of the witnesses, it was for the jury to determine how and where the collision occurred and the proximate cause or causes thereof. Under the testimony plaintiff was not entitled to a directed verdict. In passing on the motion it was the duty of the trial court to construe the testimony in the light most favorable to the defendants. The rule is well settled that a verdict may not properly be directed in favor of either party when an issue of fact is presented for the jury’s determination. Michigan Pipe Co. v. Michigan Fire & Marine Ins. Co., 92 Mich. 482 (20 L. R. A. 277); Davis v. Belmont Creamery Co., 281 Mich 165; Selman v. City of Detroit, 283 Mich. 413; Anderson v. Kearly, 312 Mich. 566. After the jurors had deliberated for some time, they returned to the courtroom. In answer to the court’s question as to the verdict that had been reached, the foreman stated: “We feel that both were guilty of negligence, but the motorcycle driver was the direct cause.of the accident and. the defendant should not be held liable.” The court declined to receive the verdict in the form stated, and after some colloquy the foreman indicated that the verdict was one of “no cause for action.” Thereupon, at the suggestion of the court, the jury was polled. In answer to the question propounded by the clerk, one of the jurors indicated that the verdict stated by the foreman was not her verdict, whereupon the court proceeded no further with the poll and directed the jurors to return to their jury room for further deliberations. Counsel for the plaintiff at the time moved for a mistrial, which motion was not granted. Before retiring, one of the jurors addressed the following.question to the court: “May I ask one more question? Did you say that we could find the defendant guilty of negligence and also find the driver of the plaintiff- — the driver of the motorcycle guilty of negligence also?” To this question the court replied: “The driver of the motorcycle is not a party.” In behalf of plaintiff it is argued that the court should have accepted the statement of the foreman, above quoted, as a verdict in plaintiff’s favor, inasmuch as it indicated that the jurors thought the driver of the automobile was guilty of negligence. It is also insisted that the court erred in failing to declare a mistrial, and in not making a more responsive answer to the question of the juror as to possible finding’s under the charge of the court. Clearly, however, the mere statement that the jurors had concluded that both drivers were guilty of negligence was not a proper verdict. Such statement wholly ignored the matter of the proximate cause or causes of the accident. The trial court correctly advised the jury as to the form in which the verdict should be presented. Neither was there any abuse of discretion in returning the jurors to their room for further deliberations. The situation that developed when the jurors were polled was not of such character as to require the court to declare a mistrial. There was in consequence no error in the refusal to grant such motion. The question asked by the juror as to 'possible findings that might be made clearly indicated, in connection with other occurrences, that the jurors, or some of them, were confused as to the issues in the case. It is a fair inference that the juror asking the question did not understand from the charge of the court precisely what the issues were. Under the circumstances disclosed by the record, including the charge itself, we think the trial court should have given to the jurors such explanation as would have reasonably clarified the situation. Failure to do so was error. It appears from the charge that this was the first negligence case that these jurors had considered; and the instructions of the court, as hereinafter pointed out, contained contradictory and somewhat ambiguous statements. The principal assignments of error have reference to the charge of the court. It is claimed specifically that the court erred in instructing the jury as follows : “Now, members of the jury, if you answer that question in the affirmative and you find that he (the driver of the automobile) was guilty of negligence— such negligence as I have pointed out — failure to exercise the degree of care in all of these respects required by these statutes and the law to protect the interests of persons likely to be affected by the lack of exercise of those faculties, then you may find a verdict for the plaintiff and against the defendant. But before you do that, you must consider and determine whether or not the driver of the motorcycle was negligent, and whether such negligence was a proximate cause of the accident and injury. As I have already indicated to you, the driving, on (the) approaching an intersection, and driving at a different angle or different side of the centerline as provided in this statute, would be, itself, negligence as a matter of law. That is a violation of the State statute, definite and specific. * * * Considering all those circumstances, it is for you to answer that question, whether or not the driver of the motorcycle was guilty of contributory negligence, or whether he was free from negligence. “Under the law, it is required that the plaintiff establish by a fair preponderance of the evidence, both that the defendant was negligent, and that the plaintiff was free from negligence. But in this case the driver of the motorcycle was not — is not the plaintiff. It is a passenger. And if you answer that question, that the driver of the motorcycle was negligent, you will also consider and answer the question as to whether his negligence was a proximate — contributing cause to the injury that followed.” It is argued that the language quoted might have been interpreted by the jury as meaning that plaintiff could not recover if the negligence of the driver of the motorcycle was a proximate cause of the accident. Attention is further called to the fact that throughout the charge references were made to the conduct of plaintiff’s driver in such form as to suggest that his negligence was a decisive factor in the case. It should be said in fairness to the trial court that in other portions of the charge the jury wrns told that the negligence of plaintiff’s driver would not preclude recovery on her part unless such negligence was the' sole proximate cause of the accident. It was not, however, clearly explained to the jury that plaintiff was entitled to recover if she was not her self guilty of negligence contributing to tbe accident, and if tbe negligence of each driver constituted a proximate cause. It has been repeatedly recognized that there may be more than one proximate cause of an accident of this character. Bordner v. McKernan, 294 Mich. 411; Banzhof v. Roche, 228 Mich. 36; Reed v. Ogden & Moffett, 252 Mich. 362; Camp v. Wilson, 258 Mich. 38; Wiles v. Railroad Co., 311 Mich. 540. We think the language quoted is subject to the objection urged, and that it, in connection with the balance of the charge, may have confused the jury. As suggested above, it seems apparent from the record that such confusion existed. The trial court correctly told the jury that the negligence of plaintiff’s driver could not be imputed to her. Bricker v. Green, 313 Mich. 218 (163 A. L. R. 697); Sedorchuk v. Weeder, 311 Mich. 6. However, in the course of the charge, he made the following-statement which plaintiff’s counsel insist was error: “As a rule, the negligence of the driver of the motorcycle would not be imputable to the particular passenger riding on that motorcycle, but that is not necessarily a determination that that negligence is not imputable. In each case, it is for you to determine.” It is quite possible that the jury understood from this statement that it rested with them to say whether the negligence of plaintiff’s driver, if he was negligent, might be imputed to her if the jury thought it proper to do so. This was clearly error. The character of the instructions to be given in a case of this nature was considered in Sedorchuk v. Weeder, supra, where it was said: “The jury should be instructed that it should first determine whether defendant was guilty of negligence and whether such negligence was a proximate cause of the accident. If the jury should so find, then the negligence of plaintiff’s driver has no hearing in the case.” It cannot be said that this erroneous instruction was cured by other statements in the charge. It was not withdrawn, nor did the court indicate that he wished the jury to understand that it was in any way corrected or modified. In Pettersch v. Grand Rapids Gas Light Co., 245 Mich. 277, this Court quoted with approval the general rule on the subject of contradictory instructions as stated in 14 R. C. L. pp. 777, 778: “Where instructions give to the jury contradictory and conflicting rules for their guidance, which are unexplained, and following either of which would or might lead to different results, then the instructions are inherently defective and erroneous. And that is true though one of the instructions correctly states the law as applicable to the facts of the case. The reason for this is that where the instructions on a material point are contradictory, it is impossible for the jury to decide which should prevail, and it is equally impossible, after the verdict, to know that the jury was not influenced by that instruction which was erroneous, as the one or the other must necessarily be, where the two are repugnant. A further reason is that conflicting and contradictory instructions in effect leave the jury without instrucr tions to guide them with reference to the law arising upon the evidence in the cause.” See, also, Herzberg v. Knight, 289 Mich. 29; Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528. It cannot be said in the instant case that the jury did not follow the erroneous instructions. It must be held, in consequence, that the giving of such instructions constituted prejudicial error. In view of the conclusions above indicated it is not necessary to consider specifically other portions of the charge on which plaintiff has assigned error. Consideration has been given to other matters raised in the briefs of counsel, but comment thereon is not required. They are of such character that in all probability they will not arise on a retrial. Because of the errors above pointed out, the judgment is reversed and the case remanded for a new trial, with costs to appellant. Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred. See 1 Comp. Laws 1929, § 4697, as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4697, Stat. Ann. 1947 Cum. Supp. § 9.1565).—Reporter.

Reid, J. These two cases were separately begun to recover moneys paid for stock sold in violation of the Michigan blue-sky law. The pleadings are separate but the two cases were consolidated for purposes of trial and are submitted together on appeal. In the Veenstra case, the jury rendered a verdict for plaintiff in the sum of $4,236, and in the Fox case, a verdict in the sum of $6,354. Defendants moved for a directed verdict at the conclusion of plaintiffs’ case and again at the conclusion of all testimony. The court reserved decision under the Empson act. Later, on motion of defendants, the court rendered judgment for' defendants notwithstanding the verdict. Plaintiffs appeal. The verdicts of the jury seem to have determined in fávor of plaintiffs all facts which were essential to plaintiffs’ case. Defendant Associated Broadcasting Corporation is a Michigan corporation. The incorporators were Boy C. Kelley and defendant Leonard A. Versluis. The principal objective of the corporation was the development and operation of a national radio network. A directors’ meeting August 6, 1945, authorized the sale of 50 remaining shares of treasury stock at $2,000 per share. Defendant Versluis made known to plaintiff Fox that some of the stock was for sale. Plaintiff Fox purchased through Versluis three shares for $6,000 and plaintiff Veenstra, to whom defendant Versluis made recommendation of the purchase, purchased two shares for $4,000. The purchases were made on or about September 12, 1945. Defendant Versluis was the agent of the defendant corporation in making the sales. No stock certificates were ever delivered to plaintiffs. For the amounts of the purchase price with interest, plaintiffs brought suit. After the plaintiffs had made their purchases, defendants made application to the Michigan corporation and-securities commission for authority to sell the stock. The commission refused to accept the stock for filing and with the consent of the commission the corporation withdrew the application. The stock was never authorized for sale by the Michigan corporation and securities commission, of which fact neither plaintiff was advised until late in 1945. Plaintiff Fox was advised of the nonvahdation of the stock on November 21, 1945. In November, 1945, the corporation was losing money and was in dire need of additional capital. Versluis, the president and treasurer, went to New York and made an arrangement for a loan of $150,-000, in return for an option to the Atlas Corporation for a period of 30 days to purchase for $350,000 a two-thirds interest in a new corporation to be formed. The $150,000 loan was to be applied on the purchase. The option required, among other things, the procuring of releases from the stockholders of the Michigan corporation of their claims against the corporation and provided that a successor new corporation should be formed under the laws of Delaware. On November 21, 1945, a meeting was held in Versluis’ office at which Versluis, Kelley, Fox, Van Houtum, Dunn, Wagemaker, Kozak, Peters, Dr. Snyder, and possibly others were present. Most of those present were stockholders. It was not an official directors’ or stockholders’ meeting and there were no minutes of that meeting as a meeting of the stockholders or directors. Plaintiff Fox is not shown to have taken any part except as a listener; plaintiff Veenstra was not even present. Mr. Versluis stated at the meeting that the Atlas Corporation required extinguishment of all liabilities of the Michigan corporation on account of stock subscriptions. To obtain compliance with that requirement, the management of the corporation, Versluis and Kelley, and their attorney Dunn, had called the before-mentioned stockholders together and at the meeting, urged upon them a cancellation of causes of action for moneys paid by them for purchase of unlisted stock. From all the testimony, the jury had good grounds for believing that then, theretofore and thereafter, Versluis and Kelley, and their attorney Dunn, were not acting as agents for plaintiffs, although defendants claim they were agents for plaintiffs. We are not in accord with defendants’ claim that plaintiffs were in pari delicto with defendants, under the case of Schrier v. B & B Oil Co., 311 Mich. 118. In that case Schrier did not complete his purchase of stock until after he had been elected director and vice president of the corporation; he attended every meeting of directors and stockholders after his purchase of stock and before his rescission approxi mately 14 months later and had mnch to do with determining the corporation’s policies; he participated in the authorization of increases of capital stock; it was as much his duty as that of any other officer to see that the increased issue was approved by the State commission. On the contrary, in the case at bar plaintiffs were not officers or directors of defendant company and took no part in management of the company or determining the policy as to reorganization. The management leading up to reorganization was handled entirely by Versluis and Kelley and their attorney, Dunn. As hereinafter set forth, plaintiffs two days after the meeting of November 21,1945, signed agreements designated as exhibits Nos. 32 and 33. They did not sign any other agreement. Versluis and Kelley signed said exhibits Nos. 32 and 33 as “sole stockholders” and as directors of Associated Broadcasting Company and were the opposite parties to plaintiffs. Two days after the meeting above referred to and on November 23, 1945 (Thanksgiving Day), Kelley and defendant Versluis prepared a form of agreement of the general form of exhibits introduced in evidence, being exhibits Nos. 32 and 33. On that evening Mr. Kelley called at the-residence of Mr. Fox and explained the extreme urgency of the situation of the Michigan corporation. Between 10 and 11 o’clock the samé night Mr. Veenstra also came to Mr. Fox’s residence in pursuance to a call from Mr. Fox. Mr. Kelley stated to plaintiffs that exhibits Nos. 32 and 33 must be signed that night in order that the Atlas Corporation should make its investment of $150,000 and that it was essential that the agreements should be placed in the air mail on the airplane leaving Grand Rapids at midnight. Mr. Kelley told plaintiffs that with the additional capital the business would have a better opportunity of success. Air. Veenstra and Air. Fox asked for further time but Air. Kelley said it would be impossible, that he had to get other agreements that same night and get them out on the airplane, so that neither plaintiff Fox nor plaintiff- Veenstra had an opportunity to discuss with their attorney, Air. Norcross, the matter of signing the agreement. Exhibit No. 33 is as follows: “Agreement “This Agreement made this 23d day of November, A. D. 1945, by and between Leonard A. Versluis and Roy C. Kelley, of the city of Grand Rapids, Alichigan, herein called first parties, and Ray At. Veenstra of the city of Grand Rapids, Michigan, herein called second party, Witnesseth, “Whereas first parties are the sole stockholders of the Associated Broadcasting Corporation, organized and doing business under the laws of the State of Michigan, and are also directors of said corporation, said corporation being hereinafter referred to as ‘Associated’, “Whereas Associated did heretofore file with the "Alichigan corporation & securities commission an application to sell certain of its treasury stock under the provisions of [2 Comp. Laws 1929, § 9781, subd. 3, as amended by Act No. 165, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 9781)], Stat. Ann. 1945 Cum. Supp. § 19.753, subd. 3, and did accept subscriptions to said stock from certain persons, among whom was second party, “Whereas, after second party had paid Associated the amount of his subscription but before any stock was issued by said corporation, said • securities commission did refuse to'accept said securities for filing under said section of said statute, “Whereas it is now proposed to reorganize said corporation to enable it to finance its operations more adequately, by tbe organization of a new corporation and the sale to it of the entire business and assets of said corporation, subject to its outstanding-debts and liabilities, except for the liability of Associated to second party and said other subscribers, which liability it is necessary that first parties adjust directly with second party, “Therefore, It is agreed as follows: “1. After first parties shall have transferred a certain share, hereinafter designated, to their attorneys, of the stock received in the new corporation upon reorganization, the remaining stock shall be divided as follows: “a. Each of first parties shall retain a one-third share of said stock. “b. The remaining- one-third of said stock shall be divided into 31 equal parts to correspond with the 31 shares of stock of Associated subscribed and paid for, and one of said 31 parts shall be transferred to second party for each share of stock subscribed for and paid for by him. “c. First parties shall transfer said stock as soon as practicable after they shall have had such stock transferred to them. “2. In consideration of the premises and the above promises of first parties, second party does hereby remise, release, and forever discharge, and by these presents does for himself, his heirs, executors, administrators and assigns, remise, release, and forever discharge the Associated Broadcasting-Corporation, and its successors and assigns, of and from all and all manner of action and actions, cause * * * [or] causes of action, suits, debts, dues, sums of money, accounts, promises and demands whatsoever, in law or equity, which against said corporation he had had, now has, or which his heirs, executors, administrators or assigns, hereafter can, shall or may have, for or by reason of any matter or thing whatsoever. “3. Second party will accept said stock when so transferred to him in full and complete satisfaction also of any and all obligations, claims or rights of action, at law or equity, present or contingent, of any nature whatsoever, which he now has, or may in the future have against first parties, by reason of said stock subscription. “4. It is understood by the parties that the reorganization now proposed and contemplated is one by which the Atlas Corporation of New York City, or its related interests, shall be given an option to purchase the business, rights and assets of Associated, subject to its assuming the debts and liabilities of said corporation, upon the condition that it loan to Associated forthwith the sum of $150,000, upon the payment of which it shall have 30 days to examine further into the affairs of said corporation, provided that it may upon the payment of Associated as a loan of an additional $30,000 have an additional 30 days in which to continue its examination, and then, if it desires to complete said purchase, it will organize a new corporation to take over said business, and will give to first parties one-third of the authorized capital stock in said new corporation in exchange for the capital stock in Associated which first parties have heretofore subscribed and paid for. It is also understood that first parties are obligated to transfer 40 per cent, of the stock so received by them to their New York attorneys in payment for services connected with said sale and reorganization, and the balance of 60 per cent, of said stock is subject to be divided as above provided. “5. If for any reason said proposed sale to and reorganization by Atlas Corporation shall not be consummated, but another sale and reorganization agreeable to first parties shall be initiated and consummated, the parties hereto will make the same pro rata division and distribution of the stock received, and it will be accepted, on the same terms and conditions and with the same effect as hereinbefore provided for. “In witness whereof the parties have hereunto set their hands and seals in the day and year first above written. L. A. Versluis (L.S.) R. C. Kelley (L.S.) Ray M. Veenstra (L.S.)” Exhibit No. 32 is identical with exhibit No. 33 excepting for the name Martin M. Fox instead of Ray M. Veenstra in the premises and also as a signature. The proposed deal with the Atlas Corporation fell through; the Atlas Corporation refused to advance further money. The Delaware corporation which was formed never received any authorization of the Michigan corporation and securities commission to sell its stock in Michigan. Kelley and defendant Versluis were totally unable to fulfill their promises- and undertakings under exhibits Nos. 32 and 33. Shares of stock in the Delaware corporation were issued and mailed to Mr. Dunn at Grand Rapids; Mr. Dunn left them at Fox’s office for plaintiffs but plaintiffs refused to accept them and without having' been accepted, they are tendered back. Neither Mr. Fox nor Mr. Veenstra ever exercised any rights or authority under or by virtue of the shares of stock in the Delaware corporation. Plaintiffs claim (1) that the agreements of No-vember 23, 1945, were voidable at the option of the-plaintiffs under the Michigan blue-sky law (Act No. 220, § 20, Pub. Acts 1923 [2 Comp. Laws 1929, § 9788], as amended by Act No. 37, Pub. Acts 1935 [Comp. Laws Supp. 1940, § 9788, Stat. Ann. § 19.-760]); (2) that the unvalidated stock of the Delaware corporation tendered to but not accepted by plaintiffs was offered to plaintiffs in violation of the Michigan blue-sky law (Michigan being the jurisdic-tion in which the agreement for the delivery of such stock to plaintiffs was made and also the jurisdiction: in which the stock was undertaken to be delivered to plaintiffs); (3) that Kelley and defendant Versluis never performed the conditions in the agreements of November 23, 1945 (exhibits Nos. 32 and 33) in that Kelley and defendant Versluis did not consummate a sale to the Atlas Corporation, or any other corporation, or refinancing through the Delaware corporation, or any other corporation. Plaintiffs further claim that they had a right to avoid the two agreements in question, exhibits Nos. 32 and 33, and that they are entitled to recovery under tlie Michigan blue-sky law the same as though exhibits Nos. 32 and 33 had never been executed. Plaintiffs further in their brief speak of exhibits Nos. 32 and 33 as though they were executory in nature. Defendants claim (1) that plaintiffs’ pleadings did not raise an issue as to whether the agreements in question, exhibits Nos. 32 and 33, were illegal and voidable under the Michigan blue-sky law, and (2) that exhibits Nos. 32 and 33 constitute an election on the part of plaintiffs and a novation that bars their recovery on their original subscription to the Michigan corporation’s stock. Defendants in their brief speak of exhibits Nos. 32 and 33 as though they were of the nature of executed contracts. Plaintiffs in their replies to defendants’ answers in both cases denied defendants’ claim that the agreements, exhibits Nos. 32 and 33, terminated the liabilities of defendants arising from the stock subscription of the plaintiffs. The plaintiffs deny the allegations in the defendants’ answers that the plaintiffs became owners of stock in the Delaware corporation. In each case the reply of plaintiffs to defendants’ answer contains these words, “in support of said denial, plaintiff says that even if said agreement were valid, which he does not admit, it was never performed because the refinancing contemplated therein was never accomplished.” As we understand from the pleadings, plaintiffs’ claim is that the nonfulfillment by Kelley and defendant Versluis of their promises and the complete and entire inability of Kelley and defendant Versluis to perform their promises, which promises constitute the sole consideration moving to plaintiffs in exhibits Nos. 32 and 33, has operated to render the agreements void and has left the plaintiffs in the same position they would have been in had exhibits Nos. 32 and 33 never been made. In exhibits Nos. 32 and 33 the first parties, Kelley and Versluis, do not recite that they are signing on behalf of the corporation, but in the “whereas” clauses they do recite that they are the sole stockholders of the defendant corporation and also are directors of the corporation. The answers filed by the defendants in setting out affirmative defenses do not explicitly say that there is a different defense for one defendant as compared to the other. The third-party-beneficiary contracts statute (Act No. 296, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 14063-1 et seq., Stat. Ann. 1947 Cum. Supp. § 26.1231 et seq.]) is nowhere alluded to in the pleadings or briefs of the defendants. The two defendants seem to treat their defense as one and a common defense. Under all these circumstances, we treat the defendant corporation and defendant Versluis as though standing on a parity as to their defense. TVe consider the two contracts, exhibits Nos. 32 and 33, taken in their entirety, as executory in nature, for the reason that they contained conditions precedent. Those conditions were not performed. Defendants caused the drafting of the two contracts and any doubt or ambiguity concerning the nature of the contracts must be resolved against the defendants. Accordingly we consider that the plaintiffs are at liberty to treat the contracts as though containing no election on the part of plaintiffs to ratify the original stock transaction, and that the two contracts, exhibits Nos. 32 and 33, are entirely void. Efforts at compliance by Kelley and defendant Yersluis did not result in fulfillment of their obligation. Defendants are not by reason of the two contracts, exhibits Nos. 32 and 33, released from their liability under the blue-sky law, on account of the original stock purchase. The tender by Kelley and defendant Versluis of the new stock of the Delaware corporation, sale of which stock was not authorized by the Michigan corporation and securities commission, was in fact no legal tender at all, neither can it be considered to be in any sense a fulfillment of the undertaking of Kelley and defendant Versluis under exhibits Nos. 32 and 33. Plaintiffs had a right to rely upon the implied warranty by Kelley and defendant Yersluis that the new stock of the Delaware corporation would be validated by the Michigan commission. Defendant corporation is not entitled to rely upon exhibits Nos. 32 and 33 by reason of nonperformance of conditions precedent undertaken on behalf of the corporation by Yersluis and Kelley. By his nonfulfillment of his obligation under exhibits Nos. 32 and 33 the defendant Yersluis is estopped to assert the validity and effectiveness of the two contracts as an election or otherwise. The rights of no third party intervene. The stock of the Michigan corporation never having been authorized to be sold by the State corporation and securities commission, plaintiffs were authorized to rescind the transaction for the purchase of the stock of the Michigan corporation and have a right to sue and to recover therefor. The judgments appealed from are reversed. The cases are remanded to the trial court with direction to enter judgments npon the verdicts, with interest. Costs to plaintiffs. Btjshnell, C. J., and Sharpe, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred. 3 Comp. Laws 1929, § 14531 et seq., as amended by Act No. 44, Pub. Acts 1939 (Comp. Laws Supp. .1940, § 14531, Stat. Ann. and Stat. Ann. 1947 Cum. Supp. § 27.1461 et seq.).—Reporter.

Fead, J. This is certiorari to review an award of the department of labor and industry granting plaintiff specific compensation for 100 weeks for loss of an eye. The question is whether the claim is barred by the statute of limitations, 2 Comp. Laws 1929, § 8431, which provides that claim for compen sation shall be made within six months after an accident : “Provided, however, That in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within three months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within six months after the happening of the accident, but does develop and make itself apparent at some date subsequent to six months after the happening of the same, claim for compensation may be made within three months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within two years from the date the accidental personal injury was sustained.” Plaintiff was injured January 20, 1927, and, on approved agreement, was paid compensation until he returned to work for defendant in May, 1928. He continued in defendant’s employ until June 19, 1931, when he quit working. April 28, 1931, he had filed petition for further compensation, which was denied by the deputy commissioner on July 13th. The commissioner held that plaintiff was physically able to do the work he had been doing at the time of his injury. No appeal was taken from the award. Plaintiff was paid wages by defendant and treated by its doctor from June, 1931, to April, 1932. May 25, 1932, he filed a second petition for further compensation alleging, among other disabilities, the “left eye has been covered and is lost for all practical uses.” Defendant pleaded several defenses, including that the claim for loss of an eye was not made within the statutory time. The deputy commissioner denied the petition and, on appeal to the full board, the award was affirmed. The board held that the eye difficulty could be corrected by glasses. June 30, 1933, plaintiff filed the instant petition for further compensation, claiming total disability and specific loss of an eye. The deputy awarded compensation for total disability. The board on appeal modified the award to allow specific compensation for loss of an eye. It is undisputed the loss of eye developed more than two years after the accident. Counsel for defendant rely on Millaley v. City of Grand Rapids, 231 Mich. 10; Hayes v. Boutell, 253 Mich. 628. In both cases the disability developed and became apparent within the initial six-months’ period, compensation was paid for a time, the employee later resumed his employment and continued to work for several years and to the time of his death without claim of disability. It was held that his widow’s claim of compensation for his death was barred by the statute. Counsel for plaintiff cite Hovey v. General Construction Co., 242 Mich. 84, in which the disability developed within six months, compensation was paid to the employee continuously to the time of his death, and it was held the widow’s claim for the balance of compensation (2 Comp. Laws 1929, § 8428) was not barred by the statute. See, also, Greene v. City of Ann Arbor, 242 Mich. 452. The evident distinction is that where disability is actual and apparent within six months after the accident and continues to the time of death, death is merely a phase or climax of the disability and is not a separate “injury, disability or incapacity” within the meaning of the statute. But where incapacity to' labor has ceased, the employee has become able to resume his employment and has con- timed able to work to tbe time of death, death from the injury is a new and different disability or incapacity from that on which compensation to the employee was based. The above cases have no application to the situation before us. At bar, actual disability developed within six months after the accident and compensation was awarded. All subsequent proceedings for compensation are administrative of, or incidental or supplemental to, the original award. The department has authority to review payments from time to time and the statute of limitations is not applicable to proceedings therefor. Gallup v. Western Board (& Paper Co., 252 Mich. 68. The reason for such power is that the original injury may be cured, ameliorated or aggravated. The employee may be able to resume work at times and have recurrences of disability. The department is given the power to take into consideration the existing conditions and withhold or award compensation accordingly. We think that where a compensable injury makes itself apparent within six months after the accident, the two-year statute of limitations has no application to compensation to the employee for any developments of the same injury which may occur thereafter. If this were not so, an employee already receiving compensation would be required to make claim of complications developing after six months on penalty of loss of compensation for disability arising out of such complications. Affirmed. Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred.

North, J. In a suit for accounting in the circuit court of Kent county in chancery, George Fraam .had decree for $9,753.48 and taxable costs against Harry Melconian. Melconian appealed to this court and secured a reduction in the amount of the- decree against him to $2,800 and accrued interest. Melconian v. Fraam, 265 Mich. 378. Melconian had costs in this court which were taxed at $809.08. Prior to January 15,1934, Melconian’s counsel asserted a lien on the decree for costs, took an assignment from Melconian and notified opposing counsel. On the date above noted a writ of fieri facias was issued out of the Supreme Court in the name of Melconian’s attorney as assignee. On the date the writ was issued, the sheriff and deputy sheriff of Kent county, défendants herein, levied upon property belonging to Fraam. Two days later (January 17,1934), Fraam taxed his costs at $78.70 against Melconian incident to the decree theretofore rendered in the circuit court, placed the writ of fieri facias for $2,922.48 plus the taxed costs in the hands of the sheriff, and demanded that the execution issued to Melconian’s assignee for the $809.08 costs taxed in the Supreme Court be set off against the execution issued to Fraam. The sheriff and deputy sheriff refused to make the set-off. Mandamus proceedings in the circuit court followed and the writ issued commanding the set-off to be made. Leave having been granted, the defendants in the mandamus suit review in this court by certiorari. Decision in the circuit court was based upon the fact that since Melconian’s assignee had knowledge of all the facts he acquired no greater rights than those possessed by his assignor. Appellants contend that since Melconian’s assignee has an attorney’s lien upon the decree for costs in Melconian’s favor, as well as an assignment thereof, such assignee has a right of a different character and superior to that of an ordinary assignee; and since the assignee’s claim is based upon an attorney’s lien the Melconian execution cannot be used as a set-off against the Fraam execution. In this State there can be no question but that an attorney as between himself and his client has a lien upon a judgment obtained through the attorney’s efforts for services and disbursements in a particular case. Shank v. Lippman, 249 Mich. 22. Incident to setting off executions the following provisions from 3 Comp. Laws 1929 are pertinent: Sec. 14549. “If upon an appeal, a recovery for a debt or damages be had by one party, and costs be awarded to the other party, execution shall issue only in favor of the party to whom there shall be a balance due for the amount of such balance.” Sec. 14550. “Executions between the same parties may be set off one against another, if required by either party, in the manner, and subject to the provisions mentioned in the following sections.” When counter executions are delivered to the same officer the provision is as follows: Sec. 14551. “The officer shall apply it (the counter execution), as far as it will extend, to the satisfaction of the first execution, and make an indorsement of such application on each of said executions, and the balance due on the larger execution may be collected and paid in the same manner as if there had been no set-off.” Sec. 14552. “Such set-off shall not be allowed in the following cases: * * * “(2) When the sum due on the first execution shall have been lawfully and in good faith assigned to another person, before the creditor in the second execution became entitled to the sum due thereon. * * * “ (5) Nor shall it be allowed as to so much of the first execution as may be due the attorney in that suit, for his taxable fees and disbursements.” It may be noted that Fraam’s decree for the amount due him on the accounting and for costs was prior to Meleonian’s decree, although, subsequently modified by the Supreme Court decree; and costs to Fraam in the circuit were taxed after Meleonian’s costs were taxed in the Supreme Court. It may also be noted that Meleonian’s assignee, the attorney who had represented him throughout this litigation, had full knowledge of the whole situation; and therefore 3 Comp. Laws 1929, § 14552, subd. 2, above quoted, is not controlling in the instant case. In view of the provisions in 3 Comp. Laws 1929, § 14552, subd. 5, above quoted, it is plain that Meleonian’s assignee, both as an assignee and as the attorney in the case, has the first call upon so much of the costs taxed in favor of Melconian ‘ ‘ as may be • due the attorney in that suit for his taxable fees and disbursements.” This would cover the amount specifically taxed as attorney’s fees and for the attorney’s disbursements. There is no showing in this record as to what amount, if any, Meleonian’s attorney disbursed incident to the suit in which the costs were taxed. The case should be remanded to the circuit court and opportunity afforded Meleonian’s assignee to establish and have entered of record the amount of his disbursements, if any, in this suit. The Melconian execution should be held effective as to the amount of the assignee’s taxed attorney’s fees and disbursements; but any additional amount of the costs taxed in favor of Melconian should be set off and indorsed as a credit on the Fraam execution. Appellants will have costs of this court. See 3 Comp. Laws 1929, § 15506. Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred.

Carr, J. Plaintiffs brought suit in circuit court to have a deed construed as a mortgage, asking also for an accounting and other incidental relief with reference thereto. The facts are not in dispute. In 1919, plaintiffs, who are husband and wife, purchased a farm in Salem township, Washtenaw county. At the time, they executed a mortgage on the property to secure an indebtedness in the sum of $5,000. Shortly thereafter a second mortgage was executed by plaintiffs to secure repayment of a loan to them of $2,200. Through assignment, ownership of the mortgages was acquired by May N. Bradley, a resident of Eaton county. Mrs. Bradley deceased in 1931, and the defendant, George M. Bradley, was appointed executor of her estate. In 1934 Mr. Bradley as executor brought suit to foreclose the second mortgage. A decree of foreclosure was entered, a sale held thereunder, and the property was bid in for the estate by the executor. Shortly before the expiration of the equity of redemption plaintiff filed a petition under the mortgage moratorium act to obtain relief thereunder. Thereupon the executor of the estate, hereinafter referred to as the defendant, entered into an agreement with the plaintiffs providing for the execution by the plaintiffs of a quitclaim deed to defendant as executor of said estate, and the giving of a lease, with an option to the plaintiffs to purchase the property, executed by defendant. The details.of the proposed arrangement were set out in a petition which defendant filed in the probate court for the county of Eaton on or about July 3, 1935, for the purpose of obtaining authority from the court to enter into the transaction. After describing the property said petition read as follows: “3. That foreclosure proceedings have been commenced by your petitioner for the foreclosure of the second mortgage on said farm, and that a quitclaim deed from the mortgagors has been tendered to your petitioner upon the following conditions: “a. That a-lease be executed by your petitioner for the term of six months commencing July 1, 1935, at a monthly rental of $30 per month. “b. That the said lease shall contain an option for the purchase of said farm for the sum of $6,000 plus accrued taxes. “e. That the purchase price is to be paid as follows : $1,000 upon the exercise of the option, the balance of $5,000 to be secured by a land contract, the terms of which shall provide for the payment of interest upon unpaid balances at the rate of 5 per cent, per annum, payable semiannually and for the additional payment of $300 per year upon the principal payable semiannually. “d. That the option shall expire on January 1st, 1936, but in the event said option is exercised, all payments of rent under the lease up to the date of the exercise of said option shall be applied on the purchase price of said property. “3. That your petitioner believes that the acceptance of said quitclaim deed and giving of lease with option for purchase as described herein is for the best interest of the estate and prays the court for an order authorizing your petitioner to enter into said lease and option for purchase, and for an order permitting your petitioner to accept a quitclaim deed of the above described property from the mortgagors.” The probate court entered an order granting to the executor the requested authority and thereafter, under date of July 16,1935, the instruments referred to in the petition were duly executed and delivered. Plaintiffs’ petition for relief under the mortgage moratorium act was dismissed by order entered July 18th following, plaintiffs consenting to such dismissal. Plaintiffs remained in possession of the property, making, from time to time, payments aggregating the sum of $180 during the six months’ period prior to January 1, 1936. They were unable, however, to pay the sum of $1,000, as specified in the lease, on or before that date. However, they continued in possession of the property, and the undisputed testimony is to the effect that in March of 1936 plaintiffs offered to pay defendant the sum of $1,000. The record before us does not indicate that defendant declined to accept the money because of any claim on his part that plaintiffs had lost all their rights in the property, but rather for the reason, as stated by him at the time, that he had been informed that a payment in the sum of not less than $1,200 was required. In substance, he told the plaintiffs to continue to make such payments as they found possible until the said sum of $1,200 had been paid on principal. During the period from July 16, 1935, to and including February 4, 1943, plaintiffs paid to defendant a total of $3,580. It is not disputed that they also paid the taxes on the property, maintained the insurance, and expended considerable amounts from time to time for improvements. Included in the latter was a farm building claimed to have been erected at a cost of approximately $800. On or about February 4, 1943, plaintiffs remitted to defendant the sum of $350. As a result of such remittance the aggregate payment on principal which defendant had previously indicated he must receive was exceeded. Defendant further clearly indicated his position in the following letter which was dated February 5, 1943, and addressed to plaintiff Oscar Alber: “Dear Sir: “You will find attached receipted statement. Under the agreement and under the law which says 20 per cent, of the price must be paid before the contract can be taken, which I found out after that lawyer made out the papers. So now as I understand it, I can give you the contract as soon as the December 1942, taxes have been paid. You will find attached my account. Yours truly G-. M. Bradley, Executor. “P.S. I was going to ask you about that note of $300 or $275 now paid. I cut the mortgage from $7200 to $6000 and as you are getting on your feet it seems as though you can take care of it now with some kind of payment. I never made you nor your mother any trouble over it. I have always tried to do the right thing by you and this is an honest debt. G. M. B.” The statement referred to in the letter and attached thereto set forth the sum of $1,239.16 “Pd. off on contract,” and the total balance remaining in the sum of $4,760.84. Following the receipt of the foregoing letter plaintiffs paid the taxes referred to therein and mailed the receipt to the defendant. The latter, however, failed to forward the contract, and in December, 1943, served a notice to quit on plaintiffs. Suit was started on January 26, 1944, plaintiffs filing a bill of complaint asking the specific performance of an alleged land contract, an accounting, and injunctive relief. A motion to dismiss was denied. The case was tried in part in October, 1944, an adjournment taken, and in January, 1945, plaintiffs, having obtained leave of court to do so, filed an amended bill of complaint. Relief thereunder was sought on the theory that the deed executed by plaintiffs to defendant in July, 1935, was an equitable mortgage, and that plaintiffs were entitled to relief accordingly. Emma P. Henne and Charles P. Olson, who, with defendant Bradley, are the sole heirs of May N. Bradley, were joined as parties defendant. Trial was had in circuit court under the amended bill and the answer of the defendants thereto, and a decree entered for the plaintiffs granting the relief sought. Defendants Bradley and Henne have appealed. The trial court came to the conclusion that under the undisputed facts in the case the parties regarded the foreclosure proceeding as continuing at the time the agreement was entered into in July, 1935, and the deed and lease executed in accordance therewith. Attention is called to the language of the petition filed by defendant in probate court as supporting such conclusion. The trial judge further found that the so-called lease-option arrangement amounted to a compromise of the indebtedness owing by the plaintiffs to the estate of Mrs. Bradley, and that the order of the probate court, based on the petition, was, in effect, a confirmation of such compromise. In his opinion the trial judge further pointed out, after detailing the facts at length, that the parties had operated for approximately eight years under a definite understanding, on which the plaintiffs relied, and that under the circumstances defendants were estopped to claim that plaintiffs had no right or interest in the property other than as tenants. It is the claim of plaintiffs, in substance, that the trial court was correct in his conclusions and that in consequence the decree entered should be affirmed. Appellants assert that the execution and delivery of the deed extinguished the indebtedness owing by plaintiffs to the estate of Mrs. Bradley, that plaintiffs parted with all title that they had in and to the property, that their rights were measured solely by the lease and option agreement, that the failure to exercise the option within the time specified therefor terminated all their rights, leaving them merely tenants holding at the pleasure of the defendant, and that the decree of the trial court, construing the deed as an equitable mortgage, is not sustained by the proofs. ■ The principal question at issue in the case is the intention of the parties at the time they entered into their agreement in July, 1935. The determination as to such intention must be based on what was said and done tending to throw light on the matter, including of course the written instruments. It has been repeatedly held by this Court that an instrument in the form of an absolute deed of conveyance may be construed as a mortgage if given as security. Wells v. Park, 233 Mich. 277; Skupinski v. Provident Mortgage Co., 244 Mich. 309; Levenson v. Cohen, 250 Mich. 31; Rossman v. Hutchinson, 289 Mich. 577. In Spitzley v. Holmes, 256 Mich. 559, it was said: “When a deed given as security for an indebtedness is accompanied by a contract to repurchase, from the grantee to the grantor, the transaction is regarded as a mortgage.” In Jankowski v. Szpieg, 282 Mich. 397, this Court, in determining that the plaintiffs were entitled to have a deed construed as a mortgage, said : “In these cases the issue is solely one of fact, Coyle v. Sheehan, 251 Mich. 586, and the only criterion is the intention of the parties, Cornell v. Hall, 22 Mich. 377. The court must first determine whether the debt was extinguished by the delivery of the deed, for if it was the instrument was then a deed and not a mortgage. Swetland v. Swetland, 3 Mich. 482. In finding on this fact, the court may take into consideration the adequacy of consideration. Selik v. Goldman Realty Co., 240 Mich. 612; Emerson v. Atwater, 12 Mich. 314. Continued possession of the grantor long after the recording of his deed to another is sufficient to raise a presumption that he has retained some right in the land. Stevens v. Hulin, 53 Mich. 93.” Of like import is Miskinis v. Bement, 301 Mich. 365. In the case at bar, it clearly appears that at the time of the transaction the parties did not consider that the rights of the plaintiffs in the property had been terminated. The petition for relief under the mortgage moratorium act was pending and defendant recognized the situation in his petition to the probate court of Eaton county for authority to carry out the arrangement that had been made. During the ensuing period of approximately eight years plaintiffs dealt with the property as their own, and did so with the knowledge and consent of the defendant. As above pointed out, they paid the taxes and maintained the insurance. They improved the property at considerable expense to themselves. Their conduct is not consistent with any theory except that they considered themselves indebted to the defendant in accordance with the compromise of the indebtedness secured by the mortgages. At the suggestion of the defendant, they continued their payments to him until the total amount thereof to be applied on the principal of their obligation exceeded $1,200. The letter of February 5, 1943, written by defendant to plaintiffs, above quoted, indicates that at that time defendant did not consider that plaintiffs had lost all their rights in the property. The parties by their conduct placed a practical interpretation on the arrangement, thus evidencing the intention with which they had entered into it. In commenting on a somewhat analogous situation, it was said in McKeighan v. Citizens Commercial & Savings Bank of Flint, 302 Mich. 666: “In the case at bar the deed from McKeighan to the bank was in effect a mortgage. All interested parties treated it as a mortgage. The McKeighans made payments on the loan from the bank, platted the property, sold some pieces on contract, paid some taxes assessed against the property, exercised control over it and in all ways considered themselves the owners subject to the indebtedness owing to the bank. In Stevens v. Hulin, 53 Mich. 93, we held that continued possession of the grantor long after the recording of his deed to another is sufficient to raise a presumption that he has retained some right in the land.” Under the facts in the case, appellants are scarcely in position to contend that the deed in question was an absolute conveyance and terminated all rights of ownership in the property on the part of the plaintiffs. What the parties actually did is inconsistent with such theory. Plaintiffs liad a right to assume from defendant’s acts and statements that he considered that the debtor-creditor relation continued in effect. Under this record defendant is now estopped to repudiate the assurances that, by word and conduct, he gave to plaintiffs. Kole v. Lampen, 191 Mich. 156; Schudlich v. Yankee, 272 Mich. 482. The trial court correctly held that plaintiffs had made out a case entitling them to the relief sought. The decree, which was entered on the 16th of September, 1946, fixed the amount of the indebtedness owing by plaintiffs to the defendant as of that date, and required payment thereof within 30 days from and after the date of the decree. Because of the time that has elapsed, a recomputation of the amount of the indebtedness becomes necessary, as well as a modification of the time for payment as a condition to the granting of the relief sought. The cause is remanded to the trial court for the entry of a decree embodying necessary changes in the respects indicated. As so modified, the decree of the circuit court is affirmed, with costs to plaintiffs. Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Butzel, JJ., concurred. Act No. 98, Pub. Acts 1933, as amended by Act No. 20, Pub. Acts 1934 (1st Ex. Sess.), Acts Nos. 3, 158, Pub. Acts 1935 (Comp. Laws Supp. 1935, § 14444-1 et seq.; Stat. Ann. § 27.1321 et seq.).

Fead, J. Contestant reviews judgment, on direction of verdict, allowing the will of his mother, Nettie Townley, against his claims of (a) her mental incompetency, (b) undue influence of his brother Neal, and (c) her insane delusions. Montgomery and Nettie Townley, first cousins, were married in Arkansas, where their three sons, Richard (42), Neal (37), and Fay (36) were born. In 1906 they returned to Michigan, built a home in the city of Jackson, later acquired large contiguous farms formerly owned by their fathers some 14 miles from Jackson, built a home and lived on the farm for the rest of their lives. They took title by the entireties. Richard married in 1909, later went west, where he has since lived. His wife divorced him and he remarried. Neal, except while in the world war service, has been connected with the Walcott Lathe Company in Jackson. Fay conducted his parents’ farm from 1917 to 1921, then acquired a ranch in Colorado, and has since engaged in different sorts of labor. Montgomery Townley died in April, 1923, leaving an estate appraised at $361,000, but with losses of $135,000 accruing during administration. He had properties in Missouri, large stockholdings in the Walcott Lathe Company, other corporate shares and real and personal property. Claims of $405,000 were allowed against the estate, principally on his indorsement of obligations of the Lathe Company. In his will be gave Richard and Neal each a parcel of land, Richard the Missouri property, Neal the Lathe Company stock, Fay the life income of a trust fund of $5,000, a grandchild a similar trust income, Nettie $100,000 and some personal property and life income in the residue, with remainder to charities. Fay was dissatisfied with the will, threatened contest, and in a few days his mother paid him $1,000, engaged in writing to pay him $26,000, and took an assignment of his legacy. She made various payments to him on the contract. In 1925 she was in default. The claims against her husband’s estate had not been settled. She did not know how much could be salvaged for her. Fay brought suit against her on the contract and moved for summary judgment. The matter was settled by Nettie conveying to Fay a farm at $15,000 and paying him cash of $8,000 or $9,000'. Nettie died in July, 1931, leaving a will executed in 1928. Her estate inventoried $158,000. She gave a grandniece $1,000, Neal a 480-acre farm .and certain personal property appraised at about $38,000, and divided the residue in trust equally between Richard and Neal, each to have income for life, with principal to his heirs. As to Fay she provided: “Sixth. In making and executing this my last will, I am not unmindful of my son, Fay V. Townley. Inasmuch, however, as by written contract, entered into with him on the 16th day of April, 1923, I among other things, obligated myself for the payment to him of $26,000 (which obligation I have since met), I do not, for such and other reasons, which, to my mind, abundantly justify my action, feel called upon to make provision for him in this my last will. ’ ’ The scrivener testified that testatrix said Fay had abused her verbally. Mrs. Townley was queer. She worshipped her husband. She became jealous at his slightest attention to another woman, even a daughter-in-law. She was melancholy, often despondent, cried frequently, threatened suicide but never attempted it, and sometimes shunned callers and friends. Fay said both his parents were accustomed to charge virtuous girls with immoral conduct and he had remonstrated with them often about it. Testatrix told folks that Fay’s wife, Grace, had to get married and had induced an abortion. She made similar statements .regarding other daughters-in-law. A doctor, who thought her sane when he treated her, expressed an opinion on hypothetical question that she was “mentally abnormal.” But he did not say she did not have competency to make a will under the legal test. Nor did incidents related by other witnesses so tend. Fay did not question her capacity to contract, be sued or make a settlement; she managed a large farm, with advice from Neal, and no unskilful business transaction was recounted; alone she instructed her attorney to draft her will, told him how, and gave reasons for the disposition of her property. The testimony did not raise an issue of fact as to her mental competency. In re Walkey’s Estate, 249 Mich. 653; In re Aylward’s Estate, 243 Mich. 9. The record is barren of evidence that Neal dominated his mother or attempted to influence the disposition of her property. As late as 1927 he tried to reconcile his mother and Fay. The evidence demonstrates that testatrix’s feeling toward Fay was personal, deep-seated and of long standing, dating from before her husband’s death and before Neal became her adviser. The insane delusions claimed are that testatrix believed (a) Fay had abused her and called her a liar, (b) he had tried to kill her and poison her, (c) he had tried to kill his father, (d) Fay’s wife, Grace, was immoral and, unworthy and her mother conducted a lewd resort. These claims must be viewed against the background of the relations of the parties. ■ In 1917, when Neal went to war, Fay was induced by his parents to remain at home and conduct the farm on salary and profit, his father to make necessary advancements of money. When Fay began courting Grace in 1918 and became engaged to her in September, Ms parents were pleased. They often invited her to the farm. Grace’s mother opposed the marriage because Mr. and Mrs. Townley were first cousins. In November, when Mr. Townley was bringing Grace to the farm for a surprise visit, his car ran off the road and he was delayed beyond his usual time, testatrix’s attitude toward Grace changed. It is said she became jealous. At all events, she opposed the marriage. Fay and Grace were married at a neighbor’s home in January, with no parent present. They went at once to the farm and lived with Fay’s parents for three months. They then moved to a bungalow on the farm. Trouble arose. Fay and Grace put all blame on testatrix. They do not give the details but the trouble evidently was serious because it resulted in quarrels which sent Grace home to her mother several times; and in August, 1919, Mr. Townley offered Fay $100,000 if he would desert Grace and go west. Fay and Grace remained on the farm until 1921. To Fay as well as others Mrs. Townley said Grace’s mother conducted a bawdy house. She told Fay that Grace would kill him for his life insurance. Mr. Townley gave Fay a new car but with injunction that Grace should not drive it. The prohibition was withdrawn when Fay refused to accept the car on that condition. Fay claims he overpaid Ms father on settlement of advances in 1920 and his salary was discontinued. Early in 1921 testatrix received a party invitation which included both Grace and Neal’s wife. She promised to take them. She did not come for Grace. Fay took her to task for it. She said Grace was not included in the invitation. Fay testified he told her she was mistaken. There was no ground for mistake and she evidently understood Mm to use the stronger term, because, as lie was about to leave, his father and brother upbraided him and referred to Grace in degrading terms. At once after this incident Fay prepared to leave the farm. He wanted to conduct an auction sale. There was controversy as to the property belonging to him. Through the ministrations of Mr. Townley’s attorney, whom Fay consulted, an agreement was reached that certain property should be left there until fall. Further trouble occurred in the fall. Shortly afterward, Mr. Townley advised Fay to go west. He helped him finance the purchase of a ranch in Colorado. His estate later paid the loan. Mr. Townley cautioned Fay to conceal from testatrix the fact he was aiding him. Thereafter Fay spent his summers in Colorado for some years, returning to Michigan in the winter and working at various jobs. At times his mother was cordial to him and at other times unfriendly. When the father died, Fay’s mother took occasion to tell him that she thought his practical disinheritance by his father was deserved by him: After they entered into the contract their relations were not cordial except on a few occasions. In 1927, shortly before the will was executed, when Fay, at Neal’s suggestion, attempted a reconciliation with his mother, she stated that while she might forgive what he had done to her, she could not forgive what he had done to his father. The tests of an insane delusion are set up in Re Barlum’s Estate, 240 Mich. 393. To defeat a will on this ground it is not enough to show that testator has made false accusations. Wilful slander is not a delusion. Contestant had the burden of proving that testatrix believed her statements, she had no reasonable information or evidence support ing them and, but for such belief, she would not have disinherited him. Testatrix’s charge that Grace and her mother were immoral may have been a vicious statement arising from the habit of speaking evil of women or from dislike of Grace. In any event, contestant failed to show the information or evidence upon which testatrix believed the charge, if she believed it, and there was no testimony connecting it with the will. Testatrix’s charge that Fay wanted to kill her was a casual remark, made while the lawsuit was pending and she was complaining of him, and in connection with an incident where testatrix and a companion were almost struck by a car. There was no indication that she seriously believed it then or thereafter. If she did, it obviously was a conclusion from years of controversy. The incident as to poison occurred when Fay gave his mother a box of candy. After it had been eaten, an employee suggested it might have been poisoned. Testatrix merely told what the employee had said. Any delusion about it was his, not hers. Testatrix’s charge that Fay did not love her was a conclusion from his conduct. She may have been mistaken. But, aside from the general quarrels, his suit against her when she was anxious about her finances furnishes reason for the feeling. The charges which appear to have directly influenced the will are that Fay had abused testatrix and had tried to kill his father. Testatrix made these charges as an eye-witness and of her own knowledge. The record shows many controversies between Fay and his parents. It is not for a jury to appraise the impressions which a testator receives from personal conflict and controversy and hold them insane delusions, without knowing all the facts as they appeared to the testator and, not then,. if there was basis for the impressions however exaggerated they may be. The testimony is conclusive that all the conclusions of testatrix, her bitterness of feeling toward Fay and her charges against him arose out of family conflict and controversy. The will was the result of such feeling and not of an insane delusion. We think the court properly directed the verdict and the judgment is affirmed, with costs. Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnbll, and Edward M. Sharpe, JJ., concurred.

Butzel, J. The Michigan National Bank, Charles Raymond Viele and Plattie E. Trankla were testamentary trustees under the will of Charles Trankla, who died in July, 1930, leaving a sizable estate. A vacancy in the trusteeship occurred upon the death of Hattie E. Trankla on January 30,1947, whereupon the two surviving trustees petitioned the probate court for Kent county to appoint Michael Leonard of Grand Rapids as successor trustee. The petition set forth that Mr. Leonard had been a friend of the testator and of his family for many years and that petitioners had been advised by Carrie Trankla Viele and Edward Trankla, daughter and son respectively of the testator, that they desired the appointment of Mr. Leonard as successor trustee because of their friendly relationship with him and his ability as a businessman. The petition also set forth the following provision contained in a codicil to the testator’s will: “Fourth. In the event that a vacancy shall occur in the office of any one of the executors, executrix or trustees named in this will, a successor shall be appointed by the probate court for Kent county, and I request said court to give all due consideration to the wishes expressed by the immediate members of my family in that regard. The powers herein conferred upon my executors and executrix and trustees may be exercised by their successors in-office, if any there be.” For personal reasons, the judge of probate asked an associate judge to act with him in appointing a successor trustee. A hearing was had on the petition at which, upon their own motion, the probate judges brought up the name of a leading member of the Grand Rapids bar as a candidate for the position.- Upon being called before them, he stated that he had been acting as attorney for the estate for many years and was familiar with the matters involved in its administration, that,he had previously declined to accept the nomination for appointment, that he did not consider himself a candidate for it, and that he was- embarrassed by being asked by the court whether or not he would accept it. He further stated that, in spite of his desire not to be considered for the appointment, if the court saw fit to appoint him, he would accept. His entire attitude impresses us as being in character with the honorable reputation he enjoys among the members of the bar in his community. No third person was recommended or discussed at the hearing. The matter ivas taken under advisement by the probate judges, and some time later, they appointed Roland M. Shivel, also a member of the Grand Rapids bar, as successor trustee. He has qualified as such and filed his bond. A timely appeal was taken to the circuit court by one of the surviving trustees and by the son and, daughter of the testator. At the outset, in all fairness to Mr. Shivel, it should be stated that he enjoys a well-deserved reputation for the highest integrity and for legal and business ability. He has had immeasurably large experience in administering estates. He did not seek the position. At the hearing in the circuit court, it was shown that Mr. Leonard was a fully-qualified person to undertake the duties of trustee. The record does not contain a single word of criticism or reproach against him. The circuit judge, in no unqertain terms, stated that the action of the probate court was taken in total disregard of the prayer of the petition, the wishes of the immediate members of the testator’s family, of the surviving trustees, and of the beneficiaries of the trust, of the expressed desire of the testator as set forth in his last will and testament, and without any just reason for so doing; that the order appointing Mr. Shivel was made capriciously and arbitrarily, and constituted an abuse of discretion by the probate judges. The circuit court set aside the order appointing Mr. Shivel and remanded the case to the probate court with the direction that Mr. Leonard be appointed. Mr. Shivel has appealed in the belief that it is incumbent upon him to uphold the order of the probate court, and possibly also because he feels that there may be an erroneous impression created in the community that he is personally involved in the litigation. The action of the circuit judge is in no way any reflection on Mr. Shivel; on the contrary, he is referred to throughout the record in the highest terms of praise. Many questions are raised on appeal. Only one, raised by appellee, needs discussion. Has appellant any such interest in the subject matter of this litigation as will entitle him to appeal? “It is a cardinal principle, which, applies alike to every person desiring to appeal, that he must have an interest in the subject-matter of the litigation. Otherwise he can have no standing to appeal.” Allen v. Soule, 191 Mich. 194, 197. “This Court, in the case of Gorman v. Patrick Hirsch Co., 177 Mich. 382, 397, adopted the following proposition of law as applying to chancery appeals: “ ‘An appeal can only be taken by parties who are affected by the decree appealed from; there must be some substantial rights of the parties to which the appeal would be prejudicial. * * * Van Zile’s Equity Pleading and Practice, § 360, p. 494.’ ” George Realty Co. v. Paragon Refining Co. of Michigan, 282 Mich. 297, 300. “In legal acceptation a party is aggrieved by a judgment or a decree when it operates on his rights in property or bears directly upon his interest.” In re More’s Estate, 179 Mich. 237, 244. “To be aggrieved, one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and future contingency. This is the general rule.” In re Estate of Matt Miller, 274 Mich. 190, 194. In Cairns v. Donahey, 59 Wash. 130 (109 Pac. 334), the'court dismissed the appeal of an administrator whose letters of administration were revoked by a decree admitting to probate a will of the decedent, saying: “We fail to understand how the administrator has any interest in the subject-matter of this appeal, or how he is injuriously affected by the final order entered. He has no interest in the estate other than for compensation that may be due him.” See, also, In re Avery, 117 Conn. 201 (167 Atl. 544, 88 A.L.R. 1154), and Hartford National Bank & Trust Co. v. Malcolm-Smith, 129 Conn. 67 (26 Atl. [2d] 234, 140 A.L.R. 805). In the latter case, a trus tee was held not entitled to appeal from a decree removing him for alleged breach of trust. We are of the opinion that the appellant has no such direct pecuniary interest in the subject-matter of this ease as to constitute him an aggrieved person entitled to appeal. As this ruling is decisive, other questions raised by appellant become purely academic, and need not be discussed. The judgment of the circuit court is affirmed, but without costs. Bustinell, C. J., and Sharpe, Boyles, Reid, North, Dethmeks, and Carr, JJ., concurred.

Nelson Sharpe, C. J. On May 25,1932, the plaintiff took judgment, in the absence of defendants, for $15,000 on a charge of malicious prosecution and false imprisonment. A motion, filed by the defendants on July 25th to vacate the judgment and grant a new trial, was denied on October 8, 1932. On J anuary 16,1934, there was a substitution of defendants ’ present attorneys, followed by another motion to vacate the judgment and grant a new trial. No leave to make such motion was obtained, but on the court’s statement that he would grant leave there seems to have been no objection to proceeding to a hearing on the motion. After a consideration of the affidavits presented and the testimony submitted, an order was entered setting aside the verdict and judgment and granting a new trial. Leave having been granted by this court, plaintiff seeks review of this order. The plaintiff was charged with embezzlement. The affidavit of merits discloses that the defendants submitted the facts relative thereto to an attorney, and he advised that a prosecution be had; that they accompanied him to the office of the prosecuting attorney of the county, and that one of the deputies, after a full disclosure of the facts to him, advised that the complaint be made and the warrant issued, on which plaintiff was arrested. The civil case came on for trial before Judge Hunt of the Wayne circuit. It appears that defendants’ then attorney had agreed with plaintiff’s attorney that the trial should be had on May 18, 1932. The defendants were at that time traveling in the south. Fred Stuart, the defendants’ son, who was living in their home in Detroit, in an affidavit made by him deposed that about the first of May, 1932, defendants’ then attorney called him on the telephone, and in formed Mm that the ease was to come up about the middle of May; that he told the attorney that he “did not think Ms father, A. J. Stuart, intended to return to the city that soon, ’ ’ and that the attorney then said to him “that that might be just as well as the said A. J. Stuart was quite involved legally and that from the effect of the conversation this deponent did assume that there was no need to inform Ms father of the conversation, and actually did not inform either parent of the conversation.” There is no denial of the statements therein on the part of the attorney. When the case was called on the 18th, defendants ’ then attorney sought a continuance for the reason that his clients were not in the city. It does not appear that any affidavit was filed in support thereof, and it was denied. The attorney then left the court room and the trial was proceeded with, and a verdict for $15,000 rendered, on which a judgment was thereafter entered. On July 25,1932, there was apparently a substitution of attorneys for the defendants, and a motion to vacate the judgment and grant a new trial was filed. It was supported by several affidavits. The defendant Alexander J. 'Stuart deposed that he was at the time of the trial in Atlanta, Georgia; that from the information furnished him he had assumed that the case would not come on for trial until the fall of 1932; that he first learned of the trial and verdict from reading about it in a Detroit newspaper on May 20, 1932, and that he at once wrote his attorney and telegraphed to his son to get in touch with Ms attorney and see that proper action was taken to protect his interest. Pearl Stuart, the .wife of defendants’ son, Fred, deposed that on the receipt of a telegram at their home on the evening of May 23, 1932, from her father-in-law relative to the matter slie called up the attorney for the defendants the next morning and talked with him, and that he said “that he would do nothing in the matter whatsoever. ’ ’ Judge Hunt held the showing made insufficient, and denied the motion on October 8, 1932. It appears that, following this denial, the plaintiff had the defendant Alexander J. Stuart arrested on a capias ad respondendum; that an attorney for him filed a motion to have it withdrawn, which was denied, and that a petition for a writ of habeas corpiis to inquire into the cause of his detention was sought in the United States district court. A careful reading of the affidavits filed in support of the motion and of those submitted when the former motion was made, which are included in the record, indicates, not only that the defendants have a meritorious defense to plaintiff’s action, but that they were in no way personally to blame for their absence when the trial was had. When they retained an attorney to defend the action, they had a right to rely, not only upon his ability, but upon his allegiance to their cause. He knew that they were sojourning in the south, and his right to assent to the fixing of a date for the trial without obtaining their consent thereto might well be questioned. When he was informed by their son that they did not intend to return by the day he had agreed upon, he should at once have sought a consent to continuance from the attorney for the plaintiff, and, if it could not be obtained, have taken immediate steps to secure the attendance of the defendants at the trial. From the foregoing it appears that if the defendants can establish the facts set forth in the affidavits of merit, they have a complete defense to the action; that their failure to be present at the trial was in no way due to negligence on their part, and that as soon as they knew that a judgment against them had been entered they sought relief therefrom but until the present time they have been unable to obtain it. 1 ‘ There is no doubt the trial judge has a wide discretion in granting or refusing to grant new trials either upon his own motion or upon the motion of a party.” Zeilman v. Fry, 213 Mich. 504, 510. In Merriman v. Jackson Circuit Judge, 96 Mich. 603 (syllabus), the court held: “Where an appellant employs an attorney in regular standing, and does all that he is required by the advice of his attorney to do to perfect his appeal, he ought not to lose his right to an appeal through the neglect or oversight of the attorney, where justice requires a revision of the case.” See, also, cases therein cited. On the record here presented there was no such abuse of discretion as will justify this court in set-' ting aside the order made. The appeal is dismissed, but without costs. Potter, North, Fead, Wiest, Butzel, and Edward M. Si-iarpe, JJ., concurred. Bushnell, J., did not sit.

Dethmers, J. Plaintiff filed a petition for condemnation of certain of defendants’ lands. A jury made a finding of public necessity and awarded damages. The jury’s award was confirmed and judgment entered thereon, which, on appeal by defendants, this Court affirmed. Department of Conservation v. Connor, 316 Mich. 565. After the record in this Court was returned to the circuit court defendants gave notice of taxation before the clerk of their costs for officers’ and ordinary witnesses’ fees, on which the clerk withholds action awaiting outcome of this appeal. Defendants also filed a motion that the circuit court fix defendants’ expert witness fees and allow them as part of defendants’ taxable costs and judgment. This is an appeal by defendants from an order denying their right to tax costs in their favor. Act No. 149, Pub. Acts 1911, under which these condemnation proceedings were brought, provides, in section 17 thereof (1 Comp. Laws 1929, § 3779 [Stat. Ann. § 8.27]), in part, as follows: “Officers, jurors, and witnesses in any proceeding under this act shall be entitled to receive from the petitioner the same fees and compensation as are provided by law for similar services in an ordinary action at law in the circuit courts.” This statutory provision, relating to condemnation by State agencies, was adopted almost verbatim from Act No. 124, § 17, Pub. Acts 1883 (1 Comp. Laws 1929, § 3802 [Stat. Ann. § 8.59]) enacted 28 years earlier, relating to condemnation by cities, villages and counties, except for the italicized word “petitioner” in the above provision, instead of which, in the earlier act, appear the words “city [or] village or county instituting the proceedings.” In proceedings under this earlier statute the city or village or county, as the case may be, is the petitioner. This earlier statute has been construed by this Court in Dorland v. Judge of Superior Court of Grand Rapids, 78 Mich. 182. In holding that the landowner, whose land was taken in the proceedings, was entitled to tax his witness fees,- this Court said concernina section 17 of the statute: “This section applies to witnesses produced and sworn upon both sides of the issues pending, which are the public necessity and the just compensation to be made for taking the property of the owner. * * * The fees of all witnesses whose attendance is procured in good faith should, on filing the affidavit required to tax the fees of witnesses in circuit courts, be taxed in favor of the party producing.” In Rorabacher v. Nichols, 165 Mich. 127, involving-proceedings brought by a city under the 1883 statute, this Court held that the city, not the county, was required to pay the jurors’ fees. In Mr. Justice Ostrander’s concurring opinion it is said : “It has been held in construing Act No. 124, Pub. Acts 1883, as amended (1 Comp. Laws 1897, § 3408), that the city must pay the fees of all witnesses in such a proceeding, whether they are produced for or against the municipality. Dorland v. Judge of Superior Court of Grand Rapids, 78 Mich. 182. This ruling is in harmony with the idea that the cost of determining- the issues, namely, public necessity and pioper compensation to owners, ought to be paid by the one for whose benefit alone the issues are presented.” The statute here involved having been enacted after the above decisions, it must be held that by adopting- the language of the former statute the legislature adopted this Court’s previous construction thereof. Lenawee County Gas & Electric Co. v. City of Adrian, 209 Mich. 52 (10 A. L. R. 1328); People v. Township of Munising, 213 Mich. 629; People v. Powell, 280 Mich. 699 (111 A. L. R. 721). Cases from other jurisdictions, cited by plaintiff, need not be discussed when our own decisions reach the case and, as we believe, properly construe the statute governing- the situation at bar. Wagar v. Railroad Co., 79 Mich. 648; Savage v. Embrey, 216 Mich. 123. The statute entitles witnesses to receive the same fees and compensation as provided by law for similar services in an ordinary action at law in the circuit courts. In such an action it is provided by law (3 Comp. Laws 1929, § 14223 [Stat. Ann. § 27.918]) that: “No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case.” We said in Clay v. Penoyer Creek Improvement Co., 34 Mich. 204: “We do not question the right or power of the legislature to thus refer to the provisions of another statute, and render them applicable and binding as though incorporated and re-enacted in the act under consideration.” It follows that defendants’ expert witnesses shall be entitled to receive their ordinary witness fees or such larger sum in excess thereof as the circuit court awards, as in ordinary actions at law in circuit courts, which may be taxed as part of defendants’ taxable costs. While fixing the amount of expert witness fees is left, under the act, to the sound discretion of the circuit court, the act is not complied with when that court declines to exercise that discretion on the asserted ground of lack of the very jurisdiction which the act so clearly confers. We hold that the amendment of section 18 of the act here involved by Act No. 235, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 3780, Stat. Ann. 1947 Cum. Supp. § 8.28), in no respect altered nor affected the right to costs as provided for under section 17 of the act. Our award of costs to plaintiff in 316 Mich. 565 applies solely to costs of that appeal and is no adjudication of defendants’ statutory right to expert witness fees and to tax costs in the circuit court; nor did our refusal to hold that defendants’ expenses incurred in preparation for trial are embraced within the terms of just compensation affect defendants’ right to tax these costs. Plaintiff cites City of Grand Rapids v. Coit, 151 Mich. 109, in support of its contention that the first appeal to this Court ended the jurisdiction of the circuit court to fix fees or for taxing costs. The Coit Case involved appeal from taxation of costs, this Court holding that after such appeal the lower court was without jurisdiction to act in relation to such costs unless the case were remanded. Such is not the situation before us here. The right to tax costs in the court below and the fixing of expert witness fees were not considered in the previous appeal herein. When that appeal was determined jurisdiction was restored to the circuit court upon the filing of the remittitur. Reynolds v. Newaygo Circuit Judge, 109 Mich. 403; 3 Am. Jur. p. 727. Plaintiff asserts that this appeal is not properly before us because leave therefor was not obtained. Such challenge we do not consider after the case has been submitted on the merits, no motion to dismiss the appeal for that reason having been made. Toledo Pipe Organ Co. v. Paradise Theatre Co., 318 Mich. 342. Other points discussed by plaintiff as to number of expert witnesses allowed to testify on either side, the nature of their testimony, and their previous payment by defendants, constitute matters properly to be addressed to the circuit court when it proceeds to fix expert witness fees. They are not material to the question before us of the circuit court’s jurisdiction in the premises. The order of the circuit court is reversed and the cause remanded for taxation of defendants’ costs and fixing of defendants’ expert witness fees in accord herewith. Costs of this appeal to defendants. Bushnell, C. J., and Sharpe, Boyles, Beid, North, Butzel, and Carr, JJ., concurred.

Boyles, J. Plaintiff appeals from an order of the compensation commission denying him compensation under part 2 of the workmen’s compensation act. He claims that he sustained a personal injury while working for the defendant company, and that it arose out of and in the course of his employment. The facts are readily obtainable from his testimony before the deputy commissioner. In April, 1945, plaintiff went to work for the defendant company as a “trainee” on an electrical assembly, without previous experience. He claims he was injured about September 5 or 6, 1945. His work at the time was counting parts and making an inventory in the stock room. These parts were small articles, bolts, nuts, light fixtures, pipe fittings. He testified: “A. I was attempting to pull a pan of fittings from under a bench, probably the height of that table, with my left hand on the bench and reaching under to pull it out. I didn’t feel any particular pain as I pulled it, but after I pulled it out and attempted to straighten out it seemed as though my back was in a locked position. I could only straighten up gradually. * * * “Q. Did you have to strain or exert yourself to pull it Out? “A. It didn’t seem as though it was any great exertion. “Q. What did you do when you felt the pain in your back? “A. It was very near to an office chair. I sat down in that to straighten out, and it might have been as long as 15 minutes before I went back to work. In the meantime the person I had been working with on this, but who had been called away, came back and from that time on why we were mostly working on lighter stuff.” He told no one in authority about it at the time. He testified that he told one Herbert Anderson who was working with him. H.e called Mr. Anderson as a witness, who denied plaintiff’s assertion. Anderson testified: “Q. And on one occasion when you were away and you came back, I told you I had hurt my back, do you recall that? “A. No, I don’t. “Q. Do you recall being surprised when I didn’t go ahead and do the amount of work I had previous to that? “A. No for the reason that before that you had complained of a sore back, and as the days went on it got worse and worse, and then when I was called upstairs for that new job, well after that I don’t know what happened. “Q. Then your impression is that from the start I had a sore back? “A. That’s right. “Q. With that impression were you ever-surprised at some of the work I had to do which was heavy? “A. Well I don’t think there was any of the work, there that was absolutely injurious to a person’s back.” Plaintiff also testified that he told his supervisors, Mr. Cole and Mr. Martineau, about having hurt his back. They were called by plaintiff as his witnesses, and each denied having ever been told by plaintiff of the injury he claims. Mr. Cole testified: “Q. Do you have any remembrance, Roger, of me telling you I had a hurt back why I wanted to come back on electrical assembly? “A. I don’t recall that you asked me that at any time. I do have the knowledge that you had a weak back or had trouble with your back prior to, or might I say all during the time you worked for me.” Mr. Martineau testified: “The Commissioner: Did you have any knowledge of the fact that he got a kink in his back after pulling a pan out, the first part of September, out from under a bench? “Mr. Martineau: No, if it was reported, it was not to me. “The Commissioner: Did you ever hear of it from any source, that he claimed that? “Mr. Martineau: No.” At no time did he ask the defendant company for any treatment. About September 10th he went to a chiropractor for treatment. He further testified in regard to his claimed injury in September, that he did not jerk on the pan, gave it a steady pull, that he did not have to strain in doing that, that he felt pain only after he had pulled the pan out and straightened up. He admitted that he had hurt his back in 1944 by slipping on the ice, that he “had an awful sore back” for quite a while. On direct examination plaintiff testified: “Q. Did you lose any time from work because of this injury? “A. After the 28th of September I haven’t worked. “Q. Why? “A. Disability due to a painful back. “Q. You haven’t worked since then? “A. That’s right.” On cross-examination plaintiff claimed he lost time from work “from the 2d to the 9th of September,” “from the 9th to the 16th,” and that from the 16th to the 23d he worked only two days. However, plaintiff’s time cards which he himself punched on a mechanical clock were received in evidence. ■ They showed that plaintiff worked five days during' the week he claimed to have been injured. They also showed that he worked six days for the week of September 30th, contrary to his testimony that he did not work after September 28th on account of “disability due to a painful back.” Plaintiff also admitted on cross-examination that on September 28th he was transferred from inventory of electrical assembly, that work having been completed. He testified : “Q. And why were you being transferred? “A. No more work in electrical assembly,, and the inventory was completed. “Q. That’s right, so you didn’t quit working on the inventory or electrical assembly because of your back, but you quit because the job folded up, is that right? “A. That’s right. “Q. It was finished? “A. That’s right. “Q. Now before the 23d of September did you work steadily? “A. Fairly so. “Q. Did you ever lose any time? “A. Yes, sir. “Q. Do you know how much time you lost? “A. Average of $42.33 a week, so I must have lost quite a bit of time. “Q. Why were you losing that time? “A. Why, I was — it wasn’t because I was disabled to work, Mr. Hutter. “Q. Well, can you tell me why? “A. In everyday language I imagine it was, you would say it was chasing around too much outside of work hours. “Q. But it wasn’t because of your back? “A. No.” The plaintiff called a number of witnesses, to testify at the hearing before the deputy. Without exception, they failed to corroborate his testimony that he had received an injury, or told others that he had received an injury. There was considerable testimony that the plaintiff had trouble with his back before September 5th, while he was working for the defendant company and that he made no claim to anyone of having hurt his back by pulling a pan out from under a bench. Plaintiff himself admitted that he had a “sore back” when he started to work on the inventory. The commission made the following finding: “We find that plaintiff did not sustain a personal injury arising out of and in the course of his employment by the Kold-Hold Manufacturing Company on September 6, 1945 and is therefore not entitled to compensation benefits.” There is testimony in the record, as well as inferences properly drawn from all of the testimony, which amply support the above finding of the commission. The plaintiff, for reversal, relies solely on Anderson v. General Motors Corp., 313 Mich. 630. But it should be pointed out that the finding and order of the commission denying compensation to the plaintiff was made January 24, 1947, nearly a year after the opinion in the Anderson Case was handed down. A reading of the record is convincing that the commission gave little, if any, credence to plaintiff’s own testimony. There being testimony to support the finding of the commission, the order denying compensation is affirmed, with Gosts. Bushnell, C. J., and Sharpe, Reid, North, Dethmers, Butzel, and Carr, J J., concurred. Acts No. 10, pt. 2, Pub. Acts 1912 (1st Ex. Sess.), as amended (2 Comp. Laws 1929, § 8417 et seq. |_Stat. Ann. § 17.151 et seg.J).— Reporter.

Carr, J. Defendants herein have appealed, on leave granted, from an order of the trial court denying a motion to dismiss the bill of complaint. Said motion was based on the claim that the plaintiff had an adequate remedy at law and that in consequence his bill of complaint did not set forth a cause of action for equitable relief. It raised no issue in any way touching the merits of the case. The record does not disclose that the trial judge filed any opinion in the matter. Presumably the order from which defendants appeal was based on the determination of the jurisdictional question as raised by the motion. For the purposes of this appeal, well-stated allegations of fact in the bill of complaint must be taken as true. Plaintiff is a resident of Wayne county and for several years past has engaged in business as a practicing embalmer and funeral director. The bill of complaint shows that the individual defendants are the members of the State board of embalmers and funeral directors created by Act No. 229, Pub. Acts 1939. Charges of unprofessional conduct were filed with said board against plaintiff and a hearing was held for the purpose of determining whether the license previously granted to him should be revoked or suspended. Following such hearing-an order was made revoking plaintiff’s license. The bill of complaint avers that the purpose of the defendants is to prevent the plaintiff “from engaging-in the business of embalming, funeral directing, and •undertaking except upon pain of various penalties, fines, imprisonments, and various forfeitures and seizures of liis property, and to destroy plaintiff’s business and property, all to his irreparable damage, which said damages would be incapable of ad-measurement and adjudication in an action of law.” It further appears that defendants have advised jiublic officials that certificates signed by plaintiff cannot be honored, and in consequence plaintiff’s business activities have been effectually terminated. Other statements in the bill with reference to the effect of defendants’ acts on plaintiff’s business are of similar import. Plaintiff asserts that the statute above cited, under which defendants claim to have acted, is unconstitutional because in violation of provisions of the State and Federal Constitutions. Plaintiff asserts in substance that such statute is not a proper exercise of the police power of the State, that it involves an illegal delegation of legislative and judicial power to the board, and that the said board is illegally constituted in that the statute requires its members to be licensed embalmers and funeral directors to be appointed by the commissioner of health of the State, expressly authorizing such members to be selected from names proposed annually by the Michigan funeral directors’ and embalmers’ association. The claim is further made that the proceedings of the board were conducted in such manner as to violate constitutional requirements with reference to due process of law. The principal question involved, however, arises from the claim that the statute is unconstitutional and that as a result defendants are wholly without authority to interfere with plaintiff in the carrying on of his business. On behalf of defendants it is insisted that plaintiff should have invoked the remedy by way of appeal granted by section 10 of the act as last amended by Act No. 207, Pub. Acts 1947 (Stat. Ann. 1947 Cum. Supp. § 14.508 [10]), which reads in part as follows: “Any person who has been refused a license renewal or whose license has been revoked or suspended, may, within 30 days after the decision of the said board, file with the board a written notice setting forth that he feels himself aggrieved by such decision and appeals therefrom to the circuit court for the county within which such person resides and such circuit court shall hear and determine as to whether the action of the board was in accordance or consistent with this act, or the Constitution of this State or that said decision of the board was arbitrary, unwarranted or in abuse of discretion. Upon the filing of such notice, the board shall transmit forthwith to the clerk of the circuit court the records and findings of such proceedings. An appeal from the circuit court, judgment or decree may be reviewed by the Supreme Court the same as appeals from chancery decrees.” Defendants’ argument rests on the theory that plaintiff might have raised, on appeal under the statute, the questions presented by the bill of complaint, and that in consequence his remedy under the statutory proceeding is adequate. Reliance is placed on the decision of this Court in Slezenger v. Liquor Control Commission, 314 Mich. 644. In that case the plaintiff’s license for the sale of intoxicating liquor was revoked after a hearing, and plaintiff filed suit in equity asking for an injunction to enjoin the defendant from enforcing said order. It was his claim that the hearing before the board was not conducted in a proper manner, that incompetent evidence was received, that plaintiff was precluded from presenting the proof that he was entitled to offer, and that the requirements of the. statute were not observed. Section 20 of the liquor act specifically provided that a licensee should have no right of appeal from a final determination of the liquor commission except “by writ of certiorari to the proper court.” A motion to dismiss was granted by the trial court, and the order of dismissal was upheld by this Court on the ground that the remedy provided by the statute was adequate. However, in that case the constitutionality of the statute under which the defendant commission acted was not challenged. The plaintiff’s alleged cause of action as set forth in his bill of complaint rested on the theory that the statute had not been followed in the proceedings leading to the revocation of his license. It was further claimed in argument by counsel for plaintiff that it was not within the power of the legislature to make the remedy by way of certiorari exclusive. As the opinion in the case indicates, this Court disagreed with that contention. As suggested, the bill of complaint contained no allegation that said clause or any other provision of the statute was unconstitutional. In the case at bar plaintiff, as before noted, assails the constitutionality of the statute under which the defendant board has proceeded. The trial court did not pass on the merits of the claim, and for obvious reasons this Court may not, on the record now before us, undertake to do so. If plaintiff’s position is correct, in other words, if the entire statute is unconstitutional, then the provisions with reference to an appeal from an order of defendant board would necessarily fall with the rest of the act. It is scarcely logical to say that plaintiff is bound to press a remedy ostensibly granted by the statute the validity of which he assails. This Court has repeatedly held that in cases where an irreparable injury will result from the acts of public officials in attempting to proceed under an invalid law, the jurisdiction of equity may be invoked for the purpose of obtaining injunctive relief and a determination as to the constitutionality of the statute that is involved. In Michigan Salt Works v. Baird, 173 Mich. 655, a suit in equity was instituted against the salt inspector of the State to enjoin him from enforcing a statute for the inspection of salt and the collection of fees therefor. From an order overruling a demurrer to the bill of complaint the defendant appealed. After referring to the general rule laid down in Osborn v. Charlevoix Circuit Judge, 114 Mich. 655, it was said: “While the general rule is as above stated, we think it is established, by the weight of authority, that in certain classes of cases, of which the one at bar is a good example, equity will take jurisdiction. Referring to the contention of defendants that complainant has a full, adequate, and complete remedy at law, it is true that it has, a legal remedy. It may refuse to comply with the provisions of the act in question, and so expose itself and its responsible officers to prosecution under the act. Upon such prosecution, it may set up, in its defense, the alleged unconstitutionality of the law; and, if upheld in its contention, it will escape punishment either by way of fines or imprisonment. But suppose complainant should be illy advised, and upon final adjudication it is determined that the law is valid, it then becomes liable to all the penalties provided by the statute. # * “The jurisdiction of a court of equity, in cases like the one at bar, depends, not upon the absence of a legal remedy, but upon its inadequacy, and the exercise of such jurisdiction rests in the sound discretion of the court. In the case of Ex parte Young, 209 U. S. 123 (28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. [N. S.] 932, 14 Ann. Cas. 764) where the same contention, upon the question of jurisdiction, as is here insisted upon was urged, Mr. Justice Peckham said: “ ‘It is further objected that there is a plain and adequate remedy at law open to the complainants and that a court of equity, therefore, has no jurisdiction in such case. It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pending subsequent proceedings to test its validity. But, in the event of a single violation the prosecutor might not avail himself of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If however, he should do so while the company was thereafter obeying the law, several years might elapse before there was a final determination of the question; and, if it should be determined that the law was invalid, the property of the company would have been taken during the time, without due process of law, and there would be no possibility of its recovery. “ ‘Another obstacle to making the test on the part of the company might be to find an agent or employee who would disobey the law, with a possible fine and imprisonment staring him in the face if the act should be held valid. * * * It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. * * * “ ‘All the objections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit, and enjoining the enforcement of the act until the decision of the court upon the legal question.’ “See, also, Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (22 Sup. Ct. 30, 46 L. Ed. 92); Dobbins v. Los Angeles, 195 U.S. 223 (25 Sup. Ct. 18, 49 L. Ed. 169): State, ex rel. Ladd, v. Cass County District Court, 17 N.D. 285 (115 N.W. 675, 15 L.R.A.[N.S.] 331); Bonnett v. Vallier, 136 Wis. 193 (116 N.W. 885, 17 L.R.A.[N.S.] 486, 128 Am. St. Rep. 1061). These cases and those therein cited and discussed, in our opinion, by the weight of authority, establish the principle that equity has jurisdiction to interfere, by injunction, in a case where public officials are proceeding'illegally and improperly under claim of right, where it is alleged, as in the instant case, that the complainant thereby suffers irreparable injury- “Upon the meritorious questions presented by the bill, no opinion is expressed. When the defendants .have answered and a hearing is had, it will be time enough to consider that phase of the case. In the meantime, the State is suffering no injury, for, while an interim injunction prevents the collection of the fees under the act, an adequate bond seems to have been required by the court below.” The concluding paragraph of the above quotation may well be applied to the case at bar. As before noted, the trial judge did not pass on the merits of the case and on the record before him could not properly have done so. The motion to dismiss raised no issue except as to the matter of procedure. In this regard the situation was materially different than was involved in Fitzpatrick v. Liquor Control Commission, 316 Mich. 83. There a suit in equity was brought to enjoin the enforcement of an amendment to the State liquor law made by Act No. 133, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 9209-34a, Stat. Ann. 1947 Cum. Supp. § 18.990 [1]), with reference to the employment of female bartenders. A motion to dismiss the bill of complaint was filed which set forth, not only that the bill failed to state an equitable cause of action, but also that the statutory provisions that plaintiff sought to attack were proper exercises of the police .power of the State and within the power of the legislature to enact. On the record thus made the trial court- considered the case on the merits and this Court, in affirming, did likewise. In the instant case the situation is wholly analogous to that presented in Michigan Salt Works v. Baird, supra. In other words this Court may not, on this record, pass on the merits of the questions raised in the bill of complaint. Those questions are not before us. A somewhat analogous situation was presented in Maurer v. Greening Nursery Co., 199 Mich. 522, where it was said: “The constitutionality of the act is attacked under the ‘due process’ clause of the Constitution, on the specific ground that the penalties imposed by the act are excessive. This question does not appear to have been presented to nor passéd upon by the trial court. In view of our rule that trial courts must be given an opportunity to pass upon questions before being raised in this Court, we shall not consider it.” The rule recognized and applied in Michigan Salt Works v. Baird, supra, has been followed by this Court in subsequent decisions. Thus in Devereaux v. Township Board of Genesee Township, 211 Mich. 38, it was held that equity had jurisdiction to restrain the enforcement of a statute (Act No. 97, Pub. Acts 1919 [2 Comp. Laws 1929, § 8911 et seq. (Stat. Ann. § 18.511 et seq.)]) relating to the licensing of pool rooms, dance halls, et cetera, on the ground of its unconstitutionality. Of like import are Postal v. Village of Grosse Pointe, 239 Mich. 286; Cook Coffee Co. v. Village of Flushing, 267 Mich. 131; Milk Marketing Board v. Johnson, 295 Mich. 644. See, also, Toole v. State Board of Dentistry, 300 Mich. 180, and Fitzpatrick v. Liquor Control Commission, supra, in both of which cases the jurisdiction of equity to determine the constitutionality of a statute was invoked without question. Under the foregoing decisions and others of similar nature, we think the bill of complaint fairly set forth a cause of action cognizable in equity. For the reasons above indicated, the appeal provided for by the statute that plaintiff attacks may not be said to afford him an adequate remedy. It is by its terms limited to a review of the orders and procedure of the board under the statute. Obviously it was not intended by the legislature in its enactment that it should furnish a means of challenging the constitutionality of the entire statute. On the record before him the trial court was correct in denying the motion to dismiss. The order is therefore affirmed, with costs to plaintiff.. Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Bltxzel, JJ., concurred. Amended by Act No. 166, Pub. Acts 1941; Act No. 93, Pub. Acts 1943, Act No. 267, Pub. Acts 1945, Act No. 207, Pub. Acts 1947 (Stat. Ann. 1947 Cum. Supp. § 14.508[1] et seq.). Act No. 8, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937, Act No. 133, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 9209-35, Stat. Ann. 1947 Cum. Supp. § 18.991).

Reid, J. Plaintiff appeals from an order amending a decree of divorce, said order taking custody of James Joseph Kehoe, the youngest son of the parties, from plaintiff and giving the custody to defendant. The original decree filed March 8,1946, gave plaintiff a decree of divorce on ground of extreme cruelty and awarded the custody of two older sons, John Edward, born October 6,1934, and G-erald Raymond, born March 11, 1937, to defendant, and gave plaintiff custody of James Joseph Kehoe, born April 25, 1944. On October 10, 1946, defendant filed a petition alleging that plaintiff is wholly unfit to hax’e the custody of James Joseph, neglects him, leaves him alone in custody of incompetent people, uses vile, indecent and blasphemous language in the presence of said child, and associates immorally with men. Defendant specifies five dates in 1946 when such claimed improper and immoral conduct is alleged to have occurred. The petition also alleges that plaintiff while intoxicated assaulted Agnes Kehoe, the present wife of defendant, on Sunday, August 18, 1946, at Bell [Radigan] lake. The trial judge was evidently influenced to a great extent in changing the custody of the youngest son, by a reconsideration of the merits of the case as to the original decree and largely because he now’ considers he was too charitable with or “temporized with” plaintiff respecting a matter of supposed immoral conduct on her part which occurred before the rendition of the decree. The trial judge also gave great importance to the matter of the assault on defendant’s present’ wife Agnes, whom defendant married July 27, 1946. The occurrences giving rise to the assault wTere that defendant kept company with Agnes “for some time” before defendant was divorced and on the occasion of the assault Agnes stated to plaintiff, “I got your bus-band and two boys, and now I am going to get the baby.” Evidently plaintiff felt outraged and was the aggressor in the assault on Agnes at Radigan lake. There were extenuating circumstances and we do not consider that this assault constituted a sufficient reason for taking away from plaintiff Lillian the custody of her youngest son who is of such tender years. For the next two and a half months after the assault, defendant and his present wife Agnes spent much time on various nights waiting in defendant’s automobile outside the house occupied by plaintiff in the fruitless endeavor to obtain evidence of improper conduct on the part of plaintiff Lillian. Although defendant and his wife Agnes attempted by their testimony to convey the impression that they had discovered evidences of' improper conduct on the part of Lillian, such was not the case. After September 27,1946, Louis Clark, 63 years of age, an uncle of plaintiff, roomed at plaintiff’s house. Defendant testified, “There is no complaint about his [Louis Clark’s] having a room there.” The testimony of Louis Clark refuted testimony unfavorable to plaintiff Lillian as to improper conduct claimed by defendant and Agnes Kehoe to have been observed by them. The alleged acts of immoral conduct on plaintiff’s part, as well as other claims by defendant of plaintiff’s misconduct, were in each instance refuted by the testimony of not only unprejudiced witnesses but also in several instances by witnesses that were closely related to defendant. The weight of unbiased testimony indicated that defendant’s claims were largely based upon imaginary and unwarranted conclusions rather than upon an actual knowledge of happenings and facts. 'There is no persuasive evidence that the conduct of plaintiff since the divorce shows her unfit to have the custody of her youngest son awarded her by the decree of divorce nor such change of circumstances as would require a change of custody. On the contrary, apparently unbiased witnesses for the plaintiff (about nine in number) gave strong and convincing testimony of her good character and meticulous care of her home and child. Defendant’s sisters, his cousin and his brother, also gave testimony supporting plaintiff’s case. It cannot be said that defendant’s character and personal habits were so exemplary as to justify an award of custody of James Joseph Kehoe to him. On the contrary, the trial court said, “I am not saying I would select this home of Raymond Kehoe’s to turn this child over to.” Ordinarily in human nature and affairs there is nothing to be found that can equal the love of a mother for her own offspring, especially for a child of tender years. We consider that the welfare of the four-year-old boy, James Joseph Kehoe, would be best served by leaving him in the custody of his mother, the plaintiff Lillian Edith Kehoe. The amended decree appealed from is reversed. A decree will be entered in this Court dismissing defendant’s petition to amend the decree of divorce. Costs to plaintiff. Bushnell, C. J., .and Sharpe, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred.

Butzel, J. In many respects, the questions of law and fact involved herein are very similar to those presented in Re Snow’s Estate, 319 Mich. 333. To avoid repetition, we refer to that opinion for many of the facts as to how decedent, physically handicapped and afflicted with Parkinson’s disease, came to and was cared for in the Wells’ home. Ruth Wells, claimant, is the wife of Alvin Wells, whose claim for services rendered to the decedent during his lifetime was upheld by us in the cited case. She filed an independent claim against the estate for $30 a week aggregating $3,570 for practical nursing services rendered the decedent during a period of over two years and three months immediately preceding his death. The administrator of the estate contested the claim, and upon a trial before a jury a verdict for the full amount was rendered. Upon motion, the trial judge rendered a judgment non obstante veredicto in favor of the estate. Claimant appeals. The record leaves no doubt but that plaintiff rendered very valuable services to the decedent, that were fully worth the amount for which claim was made. Claimant has had over 20 years’ experience as a practical nurse, and there is no question but that she gave the decedent exceptionally good care and attention during his illness. He became almost as helpless as an infant; he had to be fed, cleaned, bathed, and shaved. There were other extremely disagreeable duties that had to be performed. See In re Snow’s Estate, supra. Defendant’s main contention is that there was a lack of proof of a definite contract for claimant’s services. He points out that the decedent paid Mr. and Mrs. Wells $10 a week while he was living at their house, and contends that if Mr. and Mrs. Wells made a bad bargain, they nevertheless must abide by it. The record does not show any definite contract as to what the $10 a week was to cover. There was evidence that decedent expected to compensate the Wells’ for their services to him, and that they expected to receive compensation, i. e., that the services were not intended to be gratuitous. There is some testimony that claimant and her husband were given reason to expect compensation through decedent’s devising to them a house and' lot in Grand Rapids. A Mrs. Bartholic, niece of the claimant and of the decedent, who inherits one-half of the entire estate under the decedent’s will, testified as follows: “It was nfter he decided to go to the home of Mr. and Mrs. Wells and he discussed the fact that if he went out there and made his home there, there should be some provision made for Mr. and Mrs. Wells to compensate them for taking care of him. At that time he asked me to call to his home the lawryer who looked after his legal matters.” The factual question as to whether or not the $10 a week was intended to cover claimant’s services as a nurse was submitted to the jury by the trial judge under proper instructions, and the jury held that it did not. There was evidence to sustain this verdict. After so submitting the question to the jury, the judge in his opinion setting aside the verdict intimated that in his opinion the $10 a week was intended to cover all services rendered by the Wells’ to the decedent. This issue was for the jury, and the trial judge was in error in invading its province. Defendants also contend that claimant may not sue in her own name for services rendered in the home of herself and her husband where an assignment or release from the husband has not been obtained. The fundamental premise upon which this argument is based is that a husband is entitled to the domestic services of his wife by virtue of the existence of the marital relationship. But here, the services rendered to the deceased were not, strictly speaking, household duties, but were services of a specialized nature which the claimant was able to perform by virtue of her many years experience as a practical nurse. A married woman is entitled to all her earnings resulting from her personal efforts. 3 Comp. Laws 1929, § 13061 (Stat. Ann. § 26.171). The judgment for defendant is reversed, and the case remanded to the trial court with instruction to enter a judgment in favor of claimant in accordance with the verdict of the jury. Claimant will recover costs in both courts. Bushnell, C. J., and Sharpe, Boyles, Reid, North, Dethmers, and Carr, JJ., concurred.

Butzel, J. Defendants were convicted of grand larceny. The information contained a count charging breaking and entering a certain store building at Three Rivers, Michigan, with intent to commit a felony and larceny therein, “and did steal, take and carry away” a large quantity of clothing of the value of more than $50, being the property of one Bernard Johnson. Another count charged respondents with receiving stolen property. The jury found them guilty of larceny of goods exceeding $50, to-wit, $1,200, in the manner and form charged in the information. Respondents claim that the verdict was contrary to the great weight of evidence, and further that the conviction was for an offense not charged in the information. The evidence is entirely circumstantial. It was shown that the clothing store of one Bernard Johnson at Three Rivers, Michigan, was broken into between 2:10 a.m. and 3:00 a.m. on November 19, 1933. A local police officer heard an automobile leaving the rear of the Johnson store at about 2:50 a.m. Upon investigation he discovered the rear window of the store broken and near the window he found a cushion which he thought belonged to a Hudson car, possibly a 1926 model from the design of the cloth. The superintendent of the hospital in the village of Constantine, Michigan, approximately eight miles from Three Rivers, Michigan, heard an automobile crash at about 3:00 a.m. It occurred about 100 feet from where she was standing. She called out to find if anyone was injured but received no reply. For 20 or 30 minutes thereafter she kept the automobile under observation. She saw two persons walking around the car but could not identify them. She examined the car, saw that the rear seat was missing and a coat hanger was on the ground under the right running board. She called the State police at 3:00 a.m. They found the rear seat and the right front seat were missing. They not only discovered a coat hanger at the side of the car, but about 30 feet south they found one overcoat and a small bunch of neckties. The coat was new and bore a store tag showing it came from Johnson’s store. Other coat hangers that had been dropped created a trail to a barn where the stolen clothing was discovered. Respondents had stopped at a gasoline station in White Pigeon, Michigan, only three miles from Constantine, where one of them telephoned to Detroit stating that they had had an accident and asking that someone come out and meet them. Defendants secured the aid of a wrecker to take the car to White Pigeon and one of them left with the wrecker. The car wrecked was a Ford V~8 automobile. Defendant Tamer told one of the State police that the wrecked car was the one that he and Butler were driving when they met with an accident near Constantine, Michigan. While defendants’ attorneys point out slight discrepancies, particularly as to the exact time when these various events took place, it is evident that they all oc curred within such a short time of one another that a slight variance in the exact time, as testified to by-witnesses, is unimportant. Defendants offered no testimony whatever. The undisputed testimony of the witnesses for the plaintiff leads us to the conclusion that the evidence, though circumstantial, justified the verdict. There is no merit to claim of defendants that they were convicted of a crime not charged in the information. The first count not only charged breaking and entering, but also stealing property of the value of more than $50. It was not even necessary to ask for a severance of the two charges in the first count, as might have been done under the provisions of 3 Comp. Laws 1929, § 17290, had a demand been made by the defendants. The count would not have been quashed. In both offenses the larceny charge was provable by the same evidence. People v. Ninehouse, 227 Mich. 480; People v. Mears, 251 Mich. 359. In Louisiana, where the two charges are triable before different tribunals, it has been held that one may not be convicted of the crime of larceny, when burglary and larceny are charged in the same information. By the great weight of authority, both burglary and larceny may be charged in the same count, and a conviction of larceny is proper thereunder. Commonwealth v. Hope, 22 Pick. (39 Mass.) 1; Roberts v. State, 55 Miss. 421; 2 Wharton’s Criminal Law (12th Ed.), § 1040. The judgment of conviction is affirmed. Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bushnell, and Edward M. Sharpe,, JJ., concurred.

Reid, J. This is an appeal from a decree amending the terms of a decree of divorce and awarding the custody of the son of the parties to the father, the defendant, but leaving the custody of the daughter with the mother, the plaintiff. Plaintiff appeals and defendant cross-appeals. Defendant obtained a decree of divorce on his cross bill, February 23,1945, while he was serving in the United States marines. The decree awarded the custody of the daughter Frances Marian, 8 years of age, and of the son, Joseph Hudson Slaughter II (Joey), 11 years of age, both to plaintiff. Both children were then in private boarding schools and not living with their mother, of which fact defendant was uninformed, being away in the service. Defendant returned from the service the last part of November or early December, 1945. Defendant filed a petition to amend the divorce decree to award the custody of both children of the parties to defendant, December 5,1946. Defendant married his present wife Neva, September 8,1946. Neva is the mother of three children by her former marriage; the children are 12,10, and 7 years of age. Defendant with his wife Neva and her three children live on' a farm owned by her father, miles from Mendon. Ar rangements are .being made whereby the title to the entire farm is to be taken in the names of defendant and Neva. Defendant expected to relocate his business, manufacturing surgical instruments, to Men-don. There was testimony that Joey is not happy at his boarding school, Barber' Hall. Defendant testified : “He [Joey] acts very happy when I go to get him —he smiles. When I have him at Mendon he acts the same way. He has a very good time. When I have taken him back to Barber Hall he has cried on numerous occasions when taking him back.” .. At the defendant’s farm a school bus' conveys Neva’s children to Mendon consolidated school in town. Concerning Joey, the court said: “I think the way this young lad feels at the present time — the way Joey feels he will be a whole lot more happy and satisfied if he is with his father in his home than he is down in the school. He has indicated that to me and his expressions to me makes me inclined to feel that I should determine the matter that way. I think you may prepare an order, at least for the time being that the child Joey shall have, the right to live with his father and in his father’s home in Mendon.” Defendant claims that neither plaintiff Viola nor her present husband, Dr. Ozeran, wish Joey to live in their home with them. Defendant claims his wife Neva and her children all desire Joey to live with them. Defendant’s residence near Mendon is well kept and there is convincing testimony that defendant’s wife Neva is a dutiful wife and a good mother in caring for her children. The fact that the mother is willing to or of-necessity must continue to leave the boy in a boarding-school a long distance from her home rather than to give him her personal attention, training and affection, lessens the desirability of leaving the boy in her custody. Since the decree of divorce there have developed cogent reasons for the awarding of the custody of the son Joey to his father, the defendant. The dissatisfaction of the son in the boarding school is a matter that has developed since the divorce decree. Defendant has remarried and the fact of his being out of service and having established a home suitable to rear his young son and give his son his personal care and parental affection is a matter that has come about since the decree. A good home is considered better as a place to rear a young son than even a good boarding school. Defendant did not make a convincing showing for change of the custody of the daughter Frances Marian. We concur in the conclusion of the trial judge that the interests of the son, Joseph Hudson Slaughter II, will be best served by awarding his custody to his father, the defendant. The custody of the daughter, Frances Marian Slaughter, is properly left with her mother. The amendatory decree appealed from is affirmed. No costs. Bushnell, C. J., and Sharpe, Boyles, North, Dethmers, Butzel, and Carr, JJ., concurred.

Potter, J. Plaintiff sued defendants in justice’s court to recover damages alleged to have been suffered by reason of defendant Edwin D. Frink having set a brush fire in the highway on plaintiff’s premises, which fire communicated to plaintiff’s muck land, burning out and destroying the value of about two acres. Ianni Construction Company had a contract for building a road. Frink was a subcontractor thereunder at the time of the alleged tortious acts. Frink subsequently abandoned the contract and the work was taken over and finished by Ianni Construction Company. Suit was commenced in justice’s court before one Hollenbeck, a justice of the peace, where a judgment was rendered against the defendant Frink for $250 damages and a judgment of no cause of action in favor of the defendant Ianni Construction Company. After suit brought in justice’s court defendant Ianni Construction Company agreed to pay plaintiff $50 for an assignment from plaintiff to it of any judgment which he might obtain against defendant Frink which assignment was as follows: “October 22, 1931. “I assign to Ianni Construction Company any judgment I may obtain against E. D. Frink in Hollenbeck court. “Glenn Slater.” The judgment of no cause of action against defendant Ianni Construction Company was not appealed. It remains in full force and effect, as a final judgment. Defendant Frink appealed from the judgment in justice’s court to the circuit court where the case was retried and judgment awarded plaintiff against defendant Frink in the snm of $250. Defendant Frink appeals, contending the settlement by plaintiff with defendant Ianni Construction Company released one defendant and the assignment of plaintiff’s right of action and judgment to one joint tortfeasor released the other. It was the rule of the common law there could be but one satisfaction for a tort. A settlement with one joint tortfeasor constituted a settlement as to all. No contribution may be enforced between joint wrongdoers. The law does not concern itself with equities between wrongdoers. One tortfeasor who takes an assignment of a tort judgment against himself and another cannot enforce contribution against the other joint tortfeasor. As assignee he takes only the rights of his assignor. He stands in the shoes of his assignor and is in no better position than his assignor to enforce contribution and as assignee cannot do so. That two persons, firms or corporations are jointly charged with tort is no proof of joint liability. Defendant Ianni Construction Company was held not liable, and from that judgment no appeal was taken. It remains in full force and effect. Plaintiff assigned the judgment recovered against Frink to defendant Ianni Construction Company which agreed to pay him therefor $50. Defendant then appealed and on appeal the judgment against defendant Frink was affirmed. Plaintiff will be compensated for the tort but once. There will be paid but one satisfaction for plaintiff’s claim. Defendant Ianni Construction Company has been conclusively adjudicated not to be a joint tortfeasor. The judgment in justice’s court recovered by plaintiff against defendant Frink was assignable. It was assigned by plaintiff to one who has been conclusively adjudicated not to be a joint tortfeasor. No reason exists why such assignment could not be made and why the judgment in the hands of the assignee could not be enforced. Defendant Frink saw fit to appeal. The judgment was affirmed as to him in circuit court and is affirmed here, with costs. Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred.

Bushnell, C. J. Plaintiff Standard Grocer Company is a wholesaler, engaged in selling its merchandise throughout western Michigan. Its principal place of business is at Holland and its branches are at Grand Rapids and Muskegon. Defendant Local No. 406 is a part of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, affiliated with the American Federation of Labor, and is commonly known as the teamsters union. Defendant Thomas E. Burke is the representative of the Michigan State Conference of Teamsters, defendant Pat Maekev is the secretary of the union, and defendant Jack Walsh, when the bill of complaint was filed in this cause, had been directing a picket line at Standard’s warehouse at Holland. Defendants have appealed from a decree enjoining them from “picketing the plants and places of business of the plaintiff, from threatening or ordering boycotts against suppliers to the plaintiff of merchandise or services, and from instructing or directing their representatives, agents or members to refrain or from causing any person, firm or corporation to refrain from supplying or to cease to supply plaintiff with articles of merchandise for its stock in trade, or refrain from handling merchandise be longing to or intended for delivery to plaintiff, or to refrain from driving trucks containing any other materials or supplies necessary to the conduct of plaintiff’s business, whether for making deliveries thereof or for any other proper purpose.” The appellants contend that a lawful labor dispute exists between themselves and plaintiff and between themselves and plaintiff’s employees, “which would authorize picketing and boycotting of plaintiff by the teamsters union,” and that the injunction issued violates their rights under the Thirteenth and Fourteenth Amendments to the Constitution of the United States. Appellee contends that the action of the union is unlawful in that its picketing and boycotting is to compel Standard to become an organizing agent of the union, although their employees are opposed to becoming members. Plaintiff also maintains that such unlawful action by the union in this instance was to compel plaintiff to enter into a closed-shop agreement without information as to the terms and conditions of such agreement. Appellee directs attention to the fact that the decree of the trial court, entered May 8,1946, cannot become a final decree, because of defendants’ appeal, until final decision here; that subsequent to the entry of the decree below the labor management relations act of 1947 (Taft-Hartley law) became effective August 22, 1947, and that decision here is controlled by this Federal act. The rather unusual features of this case and the important constitutional questions involved require a complete understanding of the factual situation and a full explanation thereof. At its Holland warehouse plaintiff employs 13 men, and at its Grand Rapids and Muskegon branches it employs 4, and 2, warehousemen, respectively. It receives the merchandise which it sells and distributes by both rail and common-carrier truck service from points within and outside the State of Michigan. In the territory in which Standard operates it competes with wholesalers in Muskegon, Grand Rapids and Kalamazoo. It also acts as a servicing agent in procuring merchandise for the Independent Grocers’ Alliance, a chain of grocery stores operating in this same area. The latter service constitutes a large portion of plaintiff’s business. Probably the majority of the companies with whom the plaintiff competes have contracts with the defendant union. Plaintiff also competes with common carriers operating in its area, making deliveries from their warehouse to retail customers and picking up merchandise for delivery to its warehouse. The employees of the common carriers, with whom the plaintiff thus competes in this respect, are generally members of the defendant union. Standard has no written collective bargaining agreement with its employees covering wages, hours or Avorking conditions, nor does it have any Avritten agreement Avith any collective bargaining agency, such as the defendant union, nor has defendant “labor organization” been “certified as the representative” of plaintiff’s employees under the provisions of section 9 of the Taft-Hartley act. It must be conceded that many of the benefits provided by the union’s contract Avith the Standard’s competitors are not enjoyed by the plaintiff’s employees, and that some of the benefits Avhich Standard’s employees do enjoy, such as a bonus, are not guaranteed to them, but rather depend solely upon the discretion of the plaintiff company. Defendant union had, from time to time, over a period of six years, made unsuccessful efforts to induce Standard’s employees to join the union, and to induce plaintiff company to sign a written collective bargaining agreement. In April of 1945, defendant Burke approached some officials of plaintiff company with respect to the advisability of the company attempting to induce their employees to join the union. These officials indicated that they had no desire to influence their employees’ decision in this respect. Defendant Mackey testified that, because of the adverse effect upon other union members of the failure of the plaintiff company to become organized, it was decided that it would be necessary to picket Standard, and that in October of 1945 a picket line was set up at the Grand Eapids branch. It is conceded that this picketing incident, and all subsequent picketing, was both peaceful and orderly, unaccompanied by any violence. At the instance of the conciliation division of the United States department of labor and the Michigan mediation board, this Grand Eapids incident was settled and picketing ceased when it was agreed that Standard would advise its employees of a meeting at which the union would explain the advantages of organization. Prior to this agreed-upon meeting, officials of the company “had a discussion” with its employees, during which they stated that Standard was not going to force its employees either to join or refuse to join the union. They stated in this discussion : “It is our desire that our family relationship should be continued as it is. It is your privilege to do as you desire to do. If you vote so that the majority of you want to join the union, we shall have to recognize it and we shall recognize it.” Subsequently the union representatives met with the employees of Standard at various times to discuss the question of organization. After some dif ficulty in trying to explain the advantages which would accrue to them if they joined the union, and after it had been stated that their failure to join the union would harm the employees of the company’s competitors, application blanks were passed out with the request that Standard’s employees sign them if they desired to join. The men were also informed that a picket line would be formed in the event they failed to join the union. At this time some of the men indicated that they had “religious objections” to joining this union and others had personal feelings against joining unions. None of the men signed application blanks and the union representatives made no further effort to contact the officers of the company. On November 12, 1945, picketing' began at the warehouse at Holland. There pickets carried signs indicating that the company was “unfair to organized labor” and to “Truck Drivers Union, Local 406.” The employees of the company countered with a sign setting forth their feelings in the matter, which read “Union Unfair. We voted 100% against the AFL. Employees of the Standard G-rocer Company.” As a result of this picketing two common carriers, in accordance with their union contract, refused to direct their drivers to make deliveries to Standard. Some deliveries, however, were made without regard to the picketing. After a brief period, rail deliveries were normal. The instant case is unique in one important respect. Plaintiff company, although obviously not desirous of having its employees organized, nevertheless allowed the union to have meetings with its employees in an attempt to organize them. Standard agreed to abide by whatever decision their employees should make. The employees, after being presented with all the facts, decided unanimously that they did not want to join the union. Thus, in actuality, it is the employees of the plaintiff company who, if any, are “unfair” to organized labor, and not the company itself. Two major issues are thus presented. First, whether there was an existing labor dispute, and second, whether the picketing was a means to accomplish a lawful labor objective. In this respect the trial court held: “Under the testimony it is clear that the result sought to be accomplished by picketing plaintiff’s place of business was to compel plaintiff to put its employees in defendant union, regardless of whether or not such employees wished to join. Our Supreme Court has declared such objective to be unlawful. # # * “In this case Mr. Burke offered to waive the initiation fees, but it is the unlawful ‘objective’ and not necessarily the means that determines whether such picketing is lawful.” The facts in the instant case closely parallel those of Silkworth v. Local No. 575 of the American Federation of Labor, 309 Mich. 746. In that case the union representatives approached the employer and made overtures concerning organizing the employees, coupled with a demand that the employer pay the initiation fees of the workers. This Court, in that case, affirmed the decision of the lower court enjoining the union from participating in picketing activities. In that case, although there are certain dissimilarities from the facts in this case, the general over-all picture is so much the same that much of what was said in the Silkworth Case, is applicable here. The citations and quotations covering the background material are particularly pertinent. Mr. Justice Starr, in the Silkworth Case, cogently pointed out some of the meat of the problem, saying : “There was no showing that plaintiffs had interfered with defendants’ efforts to unionize their driv ers; and no satisfactory showing that plaintiffs’ drivers were willing to join the union even under a check-off system, whereby plaintiffs would pay their initiation fees and deduct the same from their wages. There was no strike and no showing of any argument or dispute between plaintiffs and their drivers over wages, hours of work, collective bargaining or terms and conditions of employment. * * * “We recognize that peaceful picketing has been upheld as an exercise of the right of free speech, and that a union may, by the process of peaceful picketing, make known the facts of a labor dispute. * # * “However, a decision of the question as to whether or not a labor dispute existed between plaintiffs and their employee drivers would not alone determine the question of defendants’ right to maintain a picket line. In recent decisions it has been held that although there was no controversy between an employer and his own employees, if the economic interests of other employees engaged in the same industry were affected, they could, through their labor union, publicize their grievance by the means of peaceful picketing.” In reaching his conclusion, Mr. Justice Starr says: “Therefore, in the present case we must determine whether or not defendants’ picketing of plaintiffs’ storage plant was for the purpose of obtaining a lawful labor objective. The motive for the picketing, that is, the result sought to be accomplished, was a question of fact. The testimony is* convincing that defendants’ real objective was to compel plaintiffs to put their drivers in defendant union by paying their initiation fees, regardless of whether or not the drivers wished to join. This was not a lawful labor objective. Defendants could not use the lawful means of peaceful picketing to accomplish such unlawful purpose.” Apart from the effect of the Taft-Hartlev law, •which will be discussed later, the solution of the problem confronting us is simplified by the guide posts set up in the Silhivorth Case. As was recognized in the Silkworth Case, supra, as well as in Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, 315 U. S. 769 (62 Sup. Ct. 816, 86 L. Ed. 1178); American Federation of Labor v. Swing, 312 U. S. 321 (61 Sup. Ct. 568, 85 L. Ed. 855); Senn v. Tile Layers Protective Union, 301 U. S. 468 (57 Sup. Ct. 857, 81 L. Ed. 1229), and others, it is not necessary that there be a dispute between the employer and its own employees in order to give the union the right to picket the employer. In the Silkworth Case, supra, it was specifically decided that, “If the economic interests of other employees engaged in the same industry were affected, they could, through their labor union, publicize their grievance by the means of peaceful picketing.” ' But it must be remembered that this language was uttered in the light of the situation there existing, where the union and its members had a grievance with the employer of the nonunion workers. Here, we are asked to decide whether this same reasoning should apply with respect to picketing by a union and its members which actually have a grievance with the nonunion employees of their picketed employer. The language used in American Federation of Labor v. Swing, supra, is particularly applicable here. There it was said: “That a State has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic. But not even these essential powers are unfettered by the requirements of the bill of rights. The scope of the Fourteenth Amendment is not confined by the notion of a particular State regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the State. A State cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest of all engaged in the same industry has become a commonplace. American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 209 (42 Sup. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360). The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ. Communication by such employees of the facts of a dispute, deemed by them to be relevant to their interests, can no more be barred because of concern for the economic interests against which they are seeking to enlist public opinion than could the utterance protected in Thornhill’s Case. ‘Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.’ Senn v. Tile Layers Protective Union, 301 U. S. 468, 478 (57 Sup. Ct. 857, 81 L. Ed. 1229).” Such reasoning must apply with equal force to the present controversy. There is no more reason why the constitutional freedom of speech guaranteed to workers should permit them to air to the public a dispute which they have with an employer, whose employees are nonunion, than there is why this same constitutional freedom of speech should not guarantee to them the right to air to the public those grievances which they have with workers who are nonunion. Nor would it be a proper claim for the plaintiff here to say that his business and economic interests are being adversely affected by the union’s activities in a grievance with respect to his workers. Such, if true, seems to be an injury for which the law does not compensate. For these union men may not have their right of free speech abridged, merely because plaintiff’s economic interests are being damaged, without a showing of unlawful activity. With respect to the first problem, therefore, it must be held that, although there is no labor dispute present here, the defendants’ right of free speech allows them to picket, even in a case where this dispute is with the employees of the plaintiff. A question may be raised in this respect that, conceding what has been said above, nevertheless the sign carried by the pickets said, “This company unfair to organized labor,” when, in actuality, it was the employees and not the plaintiff company who were in conflict with the defendants. This argument cannot justify the issuance of an injunction in such broad language as is used in the present case, for thus far no reason is found why the defendants should not be permitted to picket the plaintiff’s employees. It might, however, be said, that the sign carried in the instant case was clear enough, under the circumstances, to apprise the public of the fact that some sort of a dispute was going on, and should not, therefore, subject these defendants to an injunction merely because the word “company” was used, rather than the words “company’s employees.” Further, were the latter words used, the effect upon the plaintiff’s business would be the same, and, therefore, this is an inconsequential argument. We, therefore, must next proceed to the question of whether there was a lawful objective to be achieved by this picketing. In the Silkworth Case, supra, it was held that the forcing of an employer to pay his employees initiation fees and thus force him to put his employees in the union, was not a lawful labor objective. But it was there further said: “Wo confine our holding in the present case to the point that defendants could not use the lawful means of peaceful picketing to accomplish their unlawful objective. However, our decision should not be construed as in any way limiting or restraining peaceful picketing in the accomplishment of a lawful labor objective.” We are therefore forced to determine just what the objects were which the union and its members were attempting to accomplish by this picketing. It must be stated, at the outset, that if the object of this picketing was to coerce the plaintiff into forcing the men into joining the union, that would not be a lawful labor objective. But it fairly appears that the basic objective of the picketing in the instant case was actually to bring the working standards, so far as wages, hours, working conditions, bonuses, and vacations of the workers in the plaintiff’s employ up to those of the union members. This was an essential accomplishment to the furtherance of the union’s objectives as well as the objectives of their members. As long as the plaintiff’s employees were receiving compensation or working conditions which were in any way inferior to those of the workers of plaintiff’s competitors, the union would be greatly handicapped in any attempts to better their members’ condition. This is, under the Federal authorities cited, supra, a clearly recognized economic fact. Therefore, in order to achieve the purposes of union organization, increasing the lot of the union members, it was necessary to increase those conditions and wages of the nonmember workers in the industry so as to satisfy the members’ employers that they were not competing with companies -who had a lower labor cost. Obviously the ultimate goal sought by this picketing was the unionization of the plaintiff’s employees, for if this were accomplished, it would bo easier to control the wages and working conditions of these workers. But, as pointed out above, if the objective was to coerce this employer to in turn coerce his men into becoming unionized, or to coerce the employees directly into becoming unionized, or, as later discussed herein, if otherwise declared to be unfair labor practice, it would not be a lawful objective. It clearly appears from the record before us that, if the wages and working conditions of the plaintiff’s employees were increased to those enjoyed by the union membership, these defendants would have been satisfied, for then the immediate barrier to increased benefits to the union membership would have been removed. This objective, vis., the bettering of the working conditions and wages of nonunion members in the industry, so as to remove the barrier to increased benefits to union members, we must deem to be a lawful labor objective, if not otherwise prohibited by law. That this was the objective of the instant picketing is amply supported by the record. As testified by Mackey, one of the union officers: “There was a dispute in working conditions, trying to equalize wage conditions, and as far as Standard Grocer only giving one week’s vacation when we were asking two, and in Armour and other contracts we get three weeks. How can we get grocery people three weeks if we can’t get two weeks at Standard Grocer? * * # “That to get out there and organize the Standard Grocer Company, and they were hurting our conditions and therefore we couldn’t go farther ahead unless there was something done about it. I knew what the conditions were at Standard Grocer Company. I knew some of the conditions.” It also appears that there was another lawful objective in connection with this picketing. In this respect Mackey testified: “You understand, as I explained before, in our union meetings union people don’t like to work with nonunion people and therefore they start to quarrel, and if the nonunion people can receive the same as the union people, why the nonunion person will say to the union person, ‘You pay two bucks for nothing,’ and so therefore they start to quarrel among themselves as members of our organization, and it is our duty to try to straighten out these quarrels.” In the light of this testimony, it would be a lawful objective of this picketing to attempt to induce the nonunion employees of the plaintiff to join the union so as to keep the union members satisfied, for, as stated by Mackey, one should not get the benefits of unionization without being a member. This basically is an attempt to preserve the organization and is a lawful labor objective, except as hereinafter stated. As was said in Harper v. Brennan, 311 Mich. 489, 505, a case in which it was held that there was no lawful labor objective: “No complaint is made that the employment of such employees by plaintiffs is not in full accord with union standards. As stated above the primary purpose of the picketing in this case is not to establish a closed shop or to protect or improve the interests of labor, but only to compel plaintiffs to pay monthly union dues.” This language clearly implies, although not the fact in that case, that if such an objective, i, e., “that the employment of such employees by plaintiffs is not in full accord with union standards,” or “to establish a closed shop,” or “to protect or improve the interests of labor,” is the one to be sought, then it was at the time a lawful objective of the picketing. In the present case the two objectives of the picketing are “that the employment of such employees by plaintiff is not in full accord with union standards” and “to protect or improve the interests of labor.” Appellee, however, urges application here of the provisions of the labor management act of 1947 (Taft-Hartley law), citing American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 (42 Sup. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360). That question was not presented to the trial court, nor could it have been presented as that Federal statute was not yet then enacted. We determined that at the time the picketing was lawful. Injunctions, however, operate in futuro, (Duplex Printing Press Co. v. Deering, 254 U. S. 443 [41 Sup. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196]); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U. S.) 421 (15 L. Ed. 435), and no vested right exists therein, as they may be modified or dissolved later. The Taft-Hartley law defines what shall be deemed unfair labor practice in section 8 (b) as follows: “Sec. 8 (b). It shall be an unfair labor practice for a labor organization or its agents: “(1) To restrain or coerce (a) employees in the exercise of rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (b) an employer in the selection of his representatives for the purpose of collective bargaining or the adjustment of grievances; “(2) To cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an em ployee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; * * * “(4) To engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any service, where an object thereof is: (a) Forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (b) forcing or requiring any other employer to recognize or bargain with a particular labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provision of section 9.” Section 7 thereof, above referred to, reads: “Sec. 7. .Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).” The act in question provides (section 8[c]): “The expressing of any views, arguments or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this act, if such expression contains no threat of reprisal or force or promise of benefit.” This section applies both to the employer under section 8 (a) and a union under section 8 (b), and probably cuts across both the doctrine of “totality of conduct,” see Fred Wolferman, Inc., v. Root, 356 Mo. 976 (204 S. W. [2d] 733), and that of the so-called “captive audience,” see New Labor Law, Labor-Management Relations Act of 1947, with explanation. C. C. H. June, 1947, pp. 41, 42. We are controlled by decision in Senn v. Tile Layers Protective Union, supra, and American Federation of Labor v. Swing, supra. See, also, Silkworth v. Local No. 575, of the American Federation of Labor, supra. The labor management act of 1947 did not and cannot abrogate the constitutional right of free speech as illustrated by the Senn and Swing Cases, supra. The decree below is modified by deletion of that portion which abrogates defendants’ right of free speech. In other respects it is affirmed. A modified decree may be entered here, but without costs, neither party having prevailed on appeal. Cl Stat. at L. 113 (29 USOA 1917 Supp. § 159).—Reporter. Thornhill v. Alabama, 310 U. S. 83 (GO Sup. Ct. 736, 81 L. Ed. 1093).—Reporter. 61 Stat. at L. 136 (29 USÜA 1947 Supp. § 141 et st—.REPORTER.

North, J. Plaintiff as the assignee of Calvin M. Parks brought this action to recover from defendant damages for the alleged unlawful conversion of personal property belonging to Mr. and Mrs. Parks. Prior to the assignment to plaintiff, Mrs. Parks had died leaving Mr. Parks the sole party in interest. On trial by jury plaintiff had verdict and judgment thereon. In this appeal defendant asserts that the trial court committed error in denying defendant’s motion for a directed verdict at the conclusion of plaintiff’s testimony and again at the conclusion of all the testimony in the case. In this connection defendant points out that it is essential to the maintenance of plaintiff’s action in conversion that he show the taking of the personal property was wrongful and without consent of plaintiff’s assignor, unless his consent was obtained by fraud or duress. It is defendant’s claim that the testimony of plaintiff’s assignor discloses that there was no such unlawful taking of the personal property. The following facts are pertinent. Prior to January 29, 1929, defendant held a mortgage on a farm owned by Mr. and Mrs. Parks. The original loan was $12,000. By reason of defaults the mortgage indebtedness increased to $13,626.30. Thereupon, on the date above noted, the farm was deeded to defendant and a contract taken back by Mr. and Mrs. Parks for the purchase of the farm at the amount of the indebtedness. The land contract contained a chattel mortgage clause covering the stock, tools, farm equipment and other personal property on the premises. This chattel mortgage was taken by the vendor as additional security for the payment of the contract price. The vendees defaulted in making payments required by the land contract. Thereafter, in November, 1931, a representative of defendant together with two other men took possession of the farm buildings and the chattel mortgaged property. There is no claim on the part of defendant that there was foreclosure of either the chattel mortgage or the land contract. The manner in which and the circumstances under which defendant’s agents took possession of both the real and personal property of Mr. and Mrs. Parks is the crux of this litigation. It is plaintiff’s claim that three men in behalf of the defendant company went to the .farm in November, 1931, and that one of these men, Mr. John R. Hudson^ then informed Mr. and Mrs. Parks that they were “all through.” Mr. Parks testified: “Mr. Hudson came to my house along with the other two gentlemen mentioned and he told me that I was all through and that I must go that night. That was Thursday. I told Mr. Hudson that it would be impossible and I would not move Thursday night. He says that the buildings are to be locked and that I would have to move. He had not brought back the contract (which plaintiff claimed and offered testimony to show Hudson had previously secured from Parks by a trick) and he put padlocks on the garage, the granary, the tool house and on the barn, and he told me that I would have to move and with no contract. I told Mr. Hudson that it would be impossible for me to move before Saturday. * * * We moved one load of material on Thursday night. ’ ’ By the following Saturday Mr. and Mrs. Parks had vacated the farm and, with the exception of certain items which they were permitted to take,, defendant had taken possession of all the personal property on the farm. It is plaintiff’s theory that by the conduct of its agents the defendant company cancelled and terminated its land contract with. Mr. and Mrs. Parks; and that this resulted in releasing Mr. and Mrs. Parks from the obligation to pay the purchase price and ipso facto discharged the chattel mortgage obligation. On this ground it is claimed that defendant in taking possession of the personal property acted unlawfully and rendered itself liable in damages for conversion thereof. On the other hand defendant asserts that the land contract was terminated as the result of a mutual and amicable agreement entered into between Mr. Hudson, representing the defendant, and Mr. and Mrs. Parks. This agreement in brief was that upon the voluntary surrender of possession of the farm and the chattel mortgaged property by Mr. and Mrs. Parks the latter' would be released from their obligation to purchase and pay for the farm on the one hand, and on the other the defendant would also be released from its contract obligation. The issue made by these conflicting claims was fairly submitted to the jury under a charge of which appellant has made no just complaint. The legal aspect of the case is somewhat similar to Schon v. Lawrence, 258 Mich. 543, since it involves the legal proposition that by unlawfully ousting a vendee from possession a vendor may terminate or annul a land contract if the vendee so elects. There is a decided conflict in the testimony. The record discloses no good reason for disturbing the jury’s determination. The testimony of Mr. Parks above quoted was given as a part of plaintiff’s principal case. Under the record it must be held that appellant was not entitled to a directed verdict either at the close of the testimony in behalf of plaintiff or at the conclusion of all the testimony. In so holding we have not overlooked that on his direct examination Mr. Parks, as emphasized by appellant, testified as follows : “Q. Had you any knowledge, had you been informed as to their right to come there and take that property on that day? “A. No. “ Q. I will ask you whether or not you took it for granted at that time that the Gleaners would have the right to do what they came there and forcibly did? “A. Yes.” And on cross-examination he testified: “Q. When was the first date that any of the personal property that you have mentioned was taken from the farm? “A. On the 13th. * * * “Q. Did you make any objection to that? “A. Not any other than— “Q. You can answer it by yes or no. “A. No, sir. * * * “Q. There was no feeling was there at that time? It was talked over in a friendly manner, wasn’t it? “A. Why, what little talk there was on the 13th. “Q. That was friendly talk, wasn’t it? “A. Yes, sir.” Notwithstanding the foregoing testimony, clearly there was a question of fact for the jury as to whether’ possession of the personal property was obtained in the manner asserted by plaintiff or as contended by defendant. Appellant also claims that, apart from the asserted adjustment of contract obligations, instead of there having been an unlawful or tortious taking of the personal property, the testimony discloses that the property was voluntarily surrendered to defendant by Mr. Parks; or possibly tbe transfer of possession resulted from mutual mistake of the parties; or at most, if taking possession was “high banded and unwarranted,” this constituted only a breach of tbe contract, not conversion. Tbe theory of plaintiff’s case and tbe testimony offered in support thereof are wholly inconsistent with tbe above noted claims of appellant; and tbe jury’s verdict in favor of plaintiff removes such claims from controlling consideration on appeal. Appellant’s contention that tbe verdict was against the great weight of tbe evidence is not sustained by tbe record. • Judgment is affirmed, with costs to appellee. Nelson Sharpe, O. J., and Potter, Pead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred.

Dethmers, J. By decree entered Juno 14, 1946, plaintiff was granted a divorce. On February 10, 1947, defendant petitioned for, and on July 18, 1947, the court ordered, a modifícátion of the decree. On July 28, 1947, defendant filed a motion to vacate the decree. On August 6, 1947, plaintiff perfected an appeal, now pending, from the order modifying the decree. On October 30, 1947, the court entered an order vacating the decree, from which this appeal is taken; Court Rule No. 56 (1945) provides: “Section 1. Every appeal to the Supreme Court shall be taken by filing a claim of appeal with the court, tribunal or officer whose action is to be reviewed, and paying the fee required by law for taking appeal. The Supreme Court shall thereupon have jurisdiction of the case.” When the appeal from the order modifying the decree had been perfected this Court had jurisdiction of the case and the trial court was without jurisdiction to vacate the decree. City of Grand Rapids v. Coit, 151 Mich. 109; Hughes v. Wayne Circuit Judge, 239 Mich. 110; Scott v. Scott, 255 Mich. 663; Daugherty v. Reading, 266 Mich. 514; Goldblum v. United Automobile, Aircraft & Agricultural Implement Workers of America, Ford, Local No. 50, 319 Mich. 30. The motion to vacate having been filed more than four months after decree’s entry, Domboorajian v. Domboorajian, 235 Mich. 668, is inapplicable. The ordering vacating the decree of divorce is reversed, with costs to plaintiff. Bushnell, C. J., and Sharpe, Boyles, Reid, North, Butzel, and Carr, JJ., concurred.

Fead, J. Plaintiff, a carpenter, with “average weekly wage” of $25.20, was injured and compensation fixed at $16.80 per week upon approved agreement. He returned to work for the same employer as a watchman, unskilled labor, at $16 per week. He was still totally disabled as a carpenter. The employer had adopted a code under the National Industrial Recovery Act (15 USCA, §701 et seq.). Under the code plaintiff would have earned $21.80 weekly had he worked full time as a carpenter but his average weekly wage, computed according to statute, would have been $26.16, with compensation, if based thereon, of $17.44. On petition to stop or reduce compensation the deputy commissioner awarded $3.87 per week, being two-thirds of $5.80, the difference between $21.80, present actual weekly wage of a carpenter, and $16, earned as watchman. The department allowed $9.20 per week, being the difference between $25.20, average weekly wage at time of accident, and $16 now earned. The question is upon the method of computation under the facts. Section 9 of the compensation act, 2 Comp. Laws 1929, § 8425, provides, for total incapacity for work, weekly compensation equal to two-thirds of the employee’s average weekly wage, Section 10 (2 Comp. Laws 1929, §8426), provides, for partial incapacity for work, weekly compensation of two-thirds “of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter. ’ ’ Under section 11(b) (2 Comp. Laws 1929, § 8427), the “average weekly wages” are “six times the daily wage, salary or emolument which the injured employee is earning at the time he suffers the accidental injury.” Prior to 1927, section 11(e) (2 Comp. Laws 1929, § 8427), read: “The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury.” In this state of the statutes, except as to rates of compensation, it was held that a skilled workman was entitled to full compensation for an injury as long as he was totally disabled from pursuing his trade (within the statutory period), although he could earn wages at another occupation and his actual earnings therein were more than his original wages at his trade. Foley v. Railway Co., 190 Mich. 507; Jameson v. Walter S. Newhall Co., 200 Mich. 514 (18 N. C. C. A. 855); Geis v. Packard Motor Car Co., 214 Mich. 646. In 1927 the legislature amended the compensation act in several respects. With the exception of amounts, which were increased, sections 9,10, 11(b) and 11(e) were reenacted in haec verba. But, evidently to remedy the situation above mentioned, the legislature added a proviso to section 11(e), by Act No. 376, Pub. Acts 1927, reading: “Provided, The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury. ’ ’ Defendants’ contention is that the proviso operated to abolish the distinction between skilled and unskilled labor, so that if the employee retains ability to work in any occupation he is not totally disabled although he cannot work at his trade; he must be treated as partially incapacitated; his compensation is .to be computed under section 10; section 10 is to be read in connection with section 11(e); and, in determining “the proportionate extent of impairment of earning capacity” in his trade, changes in labor conditions and wages are to be considered. Trask v. Modern Pattern & Machine Co., 222 Mich. 692. We discover in the proviso added in 1927 no intention to abolish the difference between skilled and unskilled labor pointed out in the cases cited. On the contrary, the reenactment of the body of section 11(e), in the light of the decisions, demonstrates an intention that impairment of earning capacity shall continue to be computed upon the basis of the employment at the time of the injury. The proviso has no effect upon the determination of the basic computation of compensation. It merely allows a sort of set-off against it. The first controlling figure in the computation is found from section 9, as to total disability, section 10 as to partial disability, and section 11(b). In both cases the start is made at the average weekly wage at the time of injury.' The body of section 11(e) provides a method of determining the percentage or degree of impairment of earning capacity. As construed in the Trash Case, it makes changes in labor and wage conditions factors in finding the “proportionate extent” of impairment. It does not affect the first determination of the basic figure. It operates merely to find the percentage to reduce it. Where continued incapacity to work in the employment at the time of injury is total, there is no occasion for using any rule to find the percentage of impairment. The rule in the Trash Case is applicable only on partial incapacity in such employment. Section 9 and the proviso in section 11(e) govern the rate of compensation at bar. Under section 9 the basic rate was $16.80. Against it the proviso allows such set-off, by reason of earning capacity in another occupation, as will restrict earning capacity plus compensation to $25.20, the average weekly earnings at time of injury. It would be strange if, under some circumstances and in individual cases, the statutory rule did not work injustice to employer or employee, whether, on general and long-time administration, the rule works justly or otherwise, we cannot say. Such considerations are for the legislature. The department reached the correct result and the award is affirmed. Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bxjshnell, and Edward M. Sharpe, JJ., concurred.

Wiest, J. This is an appeal by defendant from a decree enjoining him from prosecuting an action at law he instituted against plaintiff in Cook county, Illinois, to recover damages for personal injuries, alleged to have been occasioned him in a collision with one of plaintiff’s trains at the city of Benton Harbor, this State, in June, 1932. Defendant herein, plaintiff in the action at law in the State of Illinois, is a resident of Van Burén county, Michigan, and plaintiff herein is a Michigan corporation, with a line of its railroad traversing Van Burén county, and extending to the city of Chicago, Cook county, Illinois. The right of action, if any, accrued in this State; defendant 'is a resident of this State; rights of the parties should be determined according to established law pf the State where the accident happened and the injured party was and is domiciled and the alleged tortfeasor domesticated. The court of equity has unquestioned power in a proper case to enjoin a person, over whom the court has jurisdiction, from prosecuting a civil action in the court of another State. In Oates v. Morningside College, 217 Iowa, 1059 (252 N. W. 783, 91 A. L. R. 563), it was well said: “Where an action is brought in a foreign State for the purpose of evading or avoiding the laws of this State, or for other unjust and inequitable purposes, harassing its citizens and causing them irreparable injury, injunction is properly brought.” See, also, Royal League v. Kavanagh, 233 Ill. 175 (84 N. E. 178); 32 C. J. p. 115. The statute, 3 Comp. Laws 1929, § 13997, provides : “Actions shall be commenced and tried in the proper county as follows: * * * “All actions founded upon wrongs, and contracts, except as herein otherwise provided, shall be commenced and tried in the county where one of the •parties shall reside at the time of commencing such action; ‘ ‘ Suits may be commenced against any street railway or railroad company in any county where the principal office of such company within the State may be situated, or in any county traversed by a line of railroad, owned or operated by such company, or in any county in which such company shall be the owner or lessee of a right of way for a line of road: Provided, That if such line of road traverses the county of the plaintiff’s residence, suit shall be brought in such county.” This statute required plaintiff in the action at law to bring suit in Van Burén county. The evident purpose of the statute is to keep the venue of actions against railroads close to the point where witnesses are available. It was the duty of defendant herein to comply with this statute, and the court was fully justified in restraining him from prosecuting the action at law in a foreign jurisdiction. The decree, restraining defendant from prosecuting the action at law in the State of Illinois, is affirmed, with costs to plaintiff. Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred.

Edwards, J. This lawsuit involves a dangerous fire, a great amount of monetary damage, and a lengthy record. Each party involved seeks to establish negligence on the part of the other as to the cause of the fire and the damage it suffered therefrom. At the end of trial, the judge instructed the jury to return no cause for action as to both plaintiffs and cross plaintiff because, he said: “All of the evidence on both sides of this case pertaining to negligence rests entirely on surmise, speculation, and conjecture.” Each party appeals, asserting that it did present evidence from which the jury could have found the other party’s negligence the proximate cause of the fire and damage. In addition, the defendant and cross plaintiff (hereinafter referred to as Shell) asserts that it was entitled to recover its damages from plaintiffs and cross defendants (hereinafter referred to as American) under a contract count which the trial judge did not mention at all. This Court has repeatedly held that it must be a very clear case before a trial judge is justified in taking the issue of negligence from the jury as was done here. Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99. See, also, Normand v. Thomas Theatre Corporation, 349 Mich 50; Ware v. Nelson, 351 Mich 390; Murphy v. Roux, 352 Mich 97. We proceed to analyze the instant facts with this principle in mind. The undisputed facts are these: The fire occurred at 4 a.m. on July 19, 1952, at the Willow Run .airport. An American Airlines DC-4 cargo plane was being loaded on the concrete ramp in front of a hangar and an American Airlines mechanic was engaged in filling the DC-4’s wing tanks with high •octane gasoline furnished by an automotive tank-trailer refueler owned by Shell but leased to and •operated by American Airlines. After placing about 75 gallons in the wing tank (with some difficulties which will be related later), the mechanic found the gasoline flow from the hose interrupted, looked down and saw a wide pool of gasoline forming on the concrete apron on the driver’s side of the refueling truck, and jumped from the wing to the ground to cut off the refueler engine. Before he could get to his feet, the gasoline burst into flames engulfing the refueling unit and threatening to do the same to the DC-4. The $600,000 plane was saved from total destruction by action of flight and ground crewmen who, while it was burning, released its brakes, hooked it do a tractor and pulled it away from the doomed refueler to a point where the fire, which had already consumed 1 wing, could be extinguished. The record discloses no injuries to personnel. The refueler, a total loss, was valued at $6,340. The repairs to the DC-4 cost $86,776.79, which were paid by Continental Insurance Company (subrogee of American, and party plaintiff), and American Airlines also claimed $59,532 damages for loss of use of the DC-4 during the period when it was being reconditioned for service. Crucial to the dispute between the parties as to duties owed by each is the agreement then in effect under which Shell leased the refueler to American, the applicable provisions of which follow: “2. Lessee has examined the above-described equipment and agrees that same is in good condition and repair and further agrees to use the equipment in a manner consistent with the purposes hereof. Major repairs and major overhauls to such truck equipment will be made at Shell’s expense, but these items shall be deemed to include only such of the following as shall not be necessitated by neglect, abiose or accident; engine overhauls; valve grinding; transmission overhauls; rear end overhauls; ivheel bearings and front end alignment corrections; tire replacements; tank and pumping equipment repairs; and repairs to electrical generators, starting motors and wiring. Lessee at lessee’s expense shall maintain such truck equipment in good and safe condition, shall keep the same properly lubricated and make all other repairs, including ivithout limitation preventive maintenance repairs. Lessee shall make repairs necessitated by neglect, abuse or accident and shall be responsible for loss by theft, fire or explosion. Lessee shall notify Shell immediately of the need for any major repairs to such equipment in order to enable Shell to keep such equipment, fundamentally, in good condition and repair. If at any time inspection by Shell reveals that repairs of the kind herein undertaken by lessee have not been made, Shell shall notify lessee of the need for snch repairs and, upon lessee’s failure to make such repairs within 10 days thereafter, may make such repairs and charge the costs thereof to lessee. Lessee Shall Not Aud to, Remove From, or Alter Such Equipment or any Part Thereoe Without the Written Consent oe Shell. * * * “6. Lessee shall hold Shell harmless from any and all claims and damages unless caused by the negligence of Shell asserted against or sustained by Shell by reason of the use of the equipment hereinabove described or other operations under this lease, and lessee shall defend any suit brought against Shell on account of such claims, and pay any judgment against Shell resulting from any such suit; provided, however, that Shell shall have the right to participate with lessee in the defense of any such suit. Lessee agrees to carry the following insurance covering any liability arising out of or relating to the use and operation of the equipment above described, to-wit: Public liability insurance in the amount of: $50,000 for any 1 person killed or injured in 1 accident, $100,000 for more than 1 person killed or injured in 1 accident, and property damage insurance in the amount of $20,000. Said policies of insurance shall be obtained from an insurance company acceptable to Shell. Lessee shall furnish Shell with a certificate from the carrier, showing such insurance to be in force, if requested.” (Emphasis supplied.) It is obvious that to a large degree the common-law duties owed by these parties to each other were .■supplanted by the written contract quoted above. American, however, elected to bring their suit in tort. Presumably they relied in this regard upon the ■exception contained in the language of paragraph 6: “Lessee shall hold Shell harmless from any and all claims and damages unless caused by the negligence of Shell.” American’s claims of negligent causation by Shell are set forth thus in their amended declaration: “That said defendant owed a duty to your plaintiffs to use due care in the maintenance, servicing and inspection of the aforedescribed tractor and tank-truck unit, but the defendant violated the same in the following particulars: “A. In failing to properly install, service and maintain the GMC tractor and Heil tank truck, the pumping equipment and hoses attached thereto. “B. In failing to use proper hoses, clamps and fittings, as would withstand the pressure built up by the pump installed thereon. “C. In failing to install, service and maintain a proper pump on said tractor and tank truck. “D. In failing to provide adequate gauges and other safety devices to maintain a proper pressure in said pumping unit. “E. In failing to properly inspect and test said GMC tractor, Heil tank truck and various pumping equipment after substituting tractors during the month of June, 1952. “F. In failing to employ sufficient and competent workmen to maintain, service and inspect the aforedescribed unit owned by the defendant.” Plaintiffs ask that we review their appeal from this directed verdict, not only construing the testimony as strongly as possible in their favor, but also by accepting those legitimate inferences which favor them. In this regard they rely upon the following language from Gapske v. Hatch, 347 Mich 648, 654: “It is well-established law in Michigan that negligence may be inferred from circumstantial evidence as well as from direct proofs; and that, on defendant’s appeal from a denied motion for a directed verdict, those legitimate inferences which most favor the plaintiff must be accepted. Anderson v. Kearly, 312 Mich 566; Cebulak v. Lewis, 320 Mich 710 (5 ALR2d 186); Spiers v. Martin, 336 Mich 613; Kaminski v. Grand Trunk Western R. Co., 347 Mich 417.” Accepting this as the law to be applied in both appeals, we can find neither testimony, nor legitimate inference from testimony, which would tend to sustain American’s allegations of negligence C, E and F. As to allegation A, pertaining to claimed improper installation and maintenance of the pumping equipment and hose, more facts must be related— again from the view favorable to plaintiffs. It is clear that the refueler was furnished by Shell and that it had, under the lease, responsibility for “major repairs,” such to be undertaken when notified by the lessee. The testimony indicates that a major overhaul of this particular unit was accomplished in September of 1951, at which time Shell installed a power take-off pump on a baekplate immediately behind the tractor cab. This pump was connected with the tank trailer by both inlet and outlet hoses, the latter of which served the function of feeding-the gasoline under pressure back into the refueler’s plumbing and ultimately into the refueling hoses which led from the top of the trailer to the wing of the plane. The evidence establishes that in September, 1951, Shell installed new couplings at the pump connections and attached thereto new inlet and outlet hoses. These were fitted over the 6-inch ribbed steel shanks of the couplings and clamped in place with 3 metal clamps each. Undisputed likewise is testimony that the refueler was again the subject of a major change in June of 1952 when the original Diamond T tractor was replaced by a GMC tractor. This involved removing the inlet and outlet couplings, but not the removal of the 2 hoses from the coupling shanks. The unit was last returned to American by Shell about July 2d, and had been, in service without return or notice of trouble to Shell until the fire on July 19th. American’s claim is apparently founded specifically on their deduction from evidence presented that the outlet hose blew loose from the pump outlet coupling because 1 of the clamps had been improperly applied by Shell mechanics 9 months earlier, in September of 1951. They rely in this regard upon photographs of the coupling end of a piece of the pump outlet hose, taken after the fire was extinguished and showing it lying partially burned on the concrete apron near the refueler, entirely disengaged from the pump coupling and with 2 of the hose clamps still in place, but the third clamp disengaged. They also rely upon the testimony of their mechanic who was fueling the plane and who apparently was the only man in position to give any eyewitness account. American’s brief summarizes his testimony thus : “Ben Stefaniak testified that he was a lead mechanic and had been a mechanic for American Airlines for 11 years; and further, that he had used refuelers hundreds of times per year. He testified that on the day of the accident he drove the refueler 75 or 100 feet and placed it under the wing of the aircraft and that he then attached the ground wires to eliminate static electricity and set the power take-off in the tractor to operate the pump and checked the various valves. He then got up onto the wing and attempted to fuel the aircraft, but when he opened the nozzle, he received no gasoline. He then got down and rechecked the valves and re-engaged the power take-off and also checked the various hoses and determined that they were all connected. He then returned to the wing and opened the hose nozzle and received gasoline, and at such time put about 75 gallons into a wing tank. He then waited 2 or 3 minutes for the gasoline to settle and then turned the nozzle on again. He received about 5 gallons of gasoline when the gasoline flow suddenly stopped. He was on the wing when he noticed the flow of gasoline stop and he looked down at the ground and saw the end of a big hose, 3 inches in diameter, swishing back and forth over the edge of the platform located between the tractor and trailer. He also noticed fuel pouring out from that point. The end of the hose swished back and forth about 2 feet and the end of the hose he noticed was square and not lagged or broken. He also saw a great oool of gasoline on the left or driver’s side of the truck. He immediately jumped some 15 feet from the wing of the plane to the concrete runway and fell on his hands and knees. As he was getting back up, the fire started. He ran around to the right door of the tractor and turned the ignition off to stop the power take-off.” American also presented a metallurgical expert witness, Dr. DiGuilio, who testified that in his opinion the clamp found loose after the fire had been “improperly tightened” in its original installation, and, in answer to a hypothetical question which assumed the outlet hose had come loose from the coupling shank before the fire, he said that back pressure associated with the stopping of gasoline flow had pushed the hose from the coupler. On further examination, the Doctor testified, however, that he believed that 2 of the clamps had been properly applied on the hose in question, and that he had no knowledge as to the safety factor involved in the particular installation: “Q. All right. And I think you said, Doctor, what the factor of safety is with the 2 clamps in relation to the third clamp you can’t tell us? “A. No. “Q. And, then, is it true, Doctor, that insofar as you are able to express an opinion, those 2 clamps might have had a complete factor of safety so far as the holding of the hose under ordinary operations are concerned? “A. My answer to that is that every engineer designs the structure with some factor of safety. I cannot tell you whether it would be as good as 3. “I would state, though, that if the third were not necessary, it would not be put on. That is good engineering practice. Now, what this design was, I don’t know. “Q. All right, Doctor. That is left entirely in the realm of speculation and guessing and conjecture as far as you are concerned? “A. That is right.” We do not believe that the jury could have found from this or any other testimony in this record that the 2 clamps which plaintiffs’ witness identified as being properly installed on the pump outlet hose would, if they had been the only clamps installed, represent an unsafe installation as to this pump and hose. Nor is there any evidence that Shell had knowledge of, or should have had knowledge of, any unsafe condition as to this particular hose connection. On the contrary, the evidence is clear that this hose and its clamps had served satisfactorily for 9 months without any difficulty through daily use and numerous visual and performance tests made both by Shell and American. American’s automotive mechanic, Lantz, testified that on the last return of the refueler by Shell to American, in his presence Shell mechanics had visually inspected it, pressure- and performance-tested the refueler, including the hose connection now under consideration, and that it had passed these tests satisfactorily. He also testified that he made the same tests with satisfactory results on July 17th, 2 days before the fire, when the refueler came into the American repair shop because of a refueling hose break. At that time he did the last maintenance work performed on the unit before the fire. Thus this record clearly shows that neither Shell nor American had any knowledge of any unsafe ■condition as to this hose connection in spite of repeated inspections and tests thereof by both. “Knowledge is fundamental to liability for negligence. The very concept of negligence presupposes that the actor either does foresee an unreasonable risk of injury, or could foresee it if he conducted himself as a reasonably prudent man.” 2 Harper & ■James, Law of Torts, § 16.5. See, also, Livesley v. Continental Motors Corporation, 331 Mich 434; Green v. Atlantic & C. Air Line R. Co., 131 SC 124 (126 SE 441, 38 ALR 1448). Here we have neither proof of actual knowledge nor of failure of a duty to inspect properly for such knowledge. Cf., MacPherson v. Buick Motor Co., 217 NY 382 (111 NE 1050, LRA1916F, 696, Ann Cas 1916C, 440). Further, if we were to assume defective application of 1 of the clamps and defendant’s knowledge thereof, either constructive or implied, we do not find in this record testimony from which the jury could have found such to have been the proximate ■cause of the fire, since there is no evidence from which the jury could have found the other 2 clamps (admittedly properly applied) inadequate to hold the hose on the coupling shank. Indeed, the only testimony pointed to by plaintiffs as offering a reasonable inference that this outlet hose became detached from the pump coupling before, as opposed to during or after, the fire is that of American’s mechanic Stefaniak pertaining to his observation of gasoline spillage in that vicinity and his seeing the hose “sticking out, I’d say a foot over the platform” and “swishing hack and forth and fuel running around.” From our study of the photographs of the installation, this testimony seems to us to suggest a reasonable inference that the outlet hose was at that point still connected to the pump coupling and that it had burst, come loose or been cut at an entirely different point than that to which plaintiffs addressed their attention and for reasons as to which this record leaves us completely in the dark. As to American’s claim of negligence pertaining-to Shell’s failure to make a proper installation of the outlet hose upon the pump-coupling shank, we believe the trial judge was correct in terming the evidence too speculative to submit to a jury. We have dealt at this length with this particular claim of negligence because the record indicates that American’s testimony was designed to emphasize it both as their principal assertion of negligence against Shell and as their principal defense to Shell’s countersuit on contract. Before leaving the negligence aspect of this case, however, we should note negligence claims B and D advanced by American’s declaration pertaining to Shell’s failing to furnish proper hose material and failing to furnish pump pressure safety devices. This was obviously a highly hazardous operation. Even more obvious is the fact that a damaging fire did result from some failure of the refueler, or some facet of the operation of same, on the morning in question. Each party had a duty to the other, and to third parties, to conduct the maintenance and operation of this refueler with a high degree of care. It would appear that with these gross facts a minimum of proof as to the alleged negligence might suffice to offer legitimate inferences which might he drawn by a jury under our holdings in Gapske v. Hatch, supra, and Kaminski v. Grand Trunk Western R. Co., supra. Quickly it should be said that we simply do not find testimony in this record wherein American ever sought to prove the installation by Shell of improper or defective hose material, or the existence of a pump-pressure safety device which, if used, might have avoided the accident. This would appear surprising except for the obvious fact that under the lease agreement and the facts of this case, American had at least an equal duty and certainly a superior opportunity to inspect for, to know, and to take steps to avoid such hazards as these. The record discloses no protests from American about hose material or safety devices prior to the fire. Hence, the more American might prove Shell’s negligence as to such items, the more definitely they would have tended to establish their own contributory negligence. American’s brief does emphasize as to negligence claim B, the testimony of 1 of Shell’s employees who stated that in his opinion the pump outlet hose had burst, and then answered “yes” to the question: “Was it your opinion that the hose was defective which caused it to rupture?” Accepting the favorable view of this testimony as establishing both defect and rupture, the record still leaves us, as it did the trial judge, completely in the dark as to whether the defect was inherent in the hose orginally furnished, or whether it was acquired during its 9 months of service. The record is devoid likewise of any proof of Shell’s actual knowledge of any such defect, or of any failure on its part to inspect for such knowledge. Here, American had operation and control of the instrumentality which failed. They had the burden of proof to show that the failure was due to defendant’s conduct rather than their own. Whatever the situation might be as to a third party to whom both of these parties might have owed joint duties, we cannot find testimony which serves directly, or by legitimate inference, to allocate the responsibility for the failure of the hose to Shell. “To establish negligence there should be either direct proof of the facts constituting such negligence, or proof of facts from which negligence may be reasonably presumed. Its existence may not rest in mere conjecture or in the mere possibility that the accident or injury may have occurred in a particular way.” 38 Am Jur, Negligence, § 332, p 1031. American’s proofs as to these 2 claims cannot be held to have established a prima facie case and we believe, that as to American, the trial judge was correct in directing a verdict. On similar grounds of surmise and conjecture, the trial judge likewise dismissed Shell’s cross declaration. Because we dispose of the cross declaration on other grounds, we make no detailed examination of Shell’s negligence allegations beyond noting that its proofs offered no more specific evidence as to the ■cause of the fire than American’s did. The trial judge, in directing a verdict, however, plainly overlooked Shell’s rights under its contract count. The lease flatly required American to “be responsible for loss by theft, fire or explosion,” and to “hold Shell harmless from any and all claims and •damages unless caused by the negligence of Shell,” and required American to insure this risk. The lease in this regard is unambiguous. American has failed to produce proof of their claim of negligence on the part of Shell. The damages to the refueler are stipulated by the parties to be $6,340. There is no issue of fact to be determined as to this count. “As a general rule, the terms, express or implied, «of the contract of bailment determine the rights, du ties, and liabilities of tbe parties each to the other.” 6 Am Jnr, Bailments, § 172. See, also, Smith v. McGill, 27 Mich 142; Johnston v. Miller, 326 Mich 682; Commercial Acetylene Supply Co. v. Fox, 47 Cal App 673 (191 P 33). It is true that Shell sought to assert its right of reimbursement under the refueler lease as a second count of a cross declaration. The right to file a cross declaration is created by statute and refers to negligence actions. CL 1948, § 615.11 (Stat Ann § 27.836). Since, however, Shell’s claim under the contract arose from the same occurrence which gave rise to the tort action, it could properly have been plead in recoupment. CL 1948, §§ 615.3, 615.10 (Stat Ann §§ 27.828, 27.835); Moskin v. Goldstein, 225 Mich 389. The issue involved was clearly stated and completely and separately set forth as a separate count (See Court Rule No 23, § 5 [1945]). By nature of the contract, it involved the same issue of negligence which was tried in the principal case. It would clearly be folly to require retrial. See Pierce v. Underwood, 103 Mich 62. Confronted with such a situation, this Court considered such a count in a cross declaration as a notice of recoupment and affirmed an order entered thereon. Lyons v. City of Grand Rapids, 305 Mich 309. See, also, Watson-Higgins Milling Company v. Pere Marquette R. Company, 328 Mich 5. We follow the Lyons precedent in this case. On Shell’s motion, the trial judge should have directed a verdict on Shell’s claim of recoupment in the sum of $6,340. For the reasons stated, the judgment of no cause for action entered in favor of defendant Shell is affirmed; and the judgment of no cause for action entered in favor of cross defendant American is re versed for entry of the judgment indicated above. ■Costs to appellee and cross appellant. Dethmers, C. J., and Carr, Kelly, Smith, Black, 'Voelker, and Kavanagh, JJ., concurred.

Smith, J. The issue in the case before us is the existence of a partnership interest in William A. Barnes, deceased. Shortly after the close of what we commonly refer to as the “first” World War, around the year 1918, the Barnes Check Printing Company was formed. The 3 partners at that time were William M. Barnes and his 2 children, now Edith Barnes Osgood and Roy Y. Barnes. On February 24, 1945, the father, William M. Barnes, and another son, William A. Barnes, executed the agreement set forth substantially below: “Know all men by these presents, that William M. ¡Barnes and William A. Barnes, do hereby, for a valmable consideration, mutually agree as follows: “William M. Barnes has transferred his interest in a certain copartnership, located in the city' of Royal Oak, Michigan, known as Barnes Check Printing Company to William A. Barnes, to expedite the closing of the estate of the said William M. Barnes, in the event of his death. William A. Barnes holds said partnership interest in name only, the real co-partner and interest being the said William M. Barnes, until the event of his death. Upon the death of the said William M. Barnes, William A. Barnes becomes the absolute owner of the aforedescribed partnership interest without further change or proceeding in the said copartnership. “Dated at the city of Royal Oak, Michigan, the 24th day of February, A.D., 1945. “(s) William M. Barnes William M. Barnes “(s) William A. Barnes William A. Barnes” Upon the same date a partnership certificate was filed with the county clerk showing the partners in the Barnes Check Printing Company to be Roy V. Barnes, Edith Barnes Osgood, and William A. Barnes. Some 8 years later (and during the lifetime of the father) an instrument purporting to form a partnership named “Barnes Printing Company” was executed by the 3 children, Roy, Edith and William A. Barnes. This instrument is silent as to capitalization of the venture and the assets of the business. The plaintiff’s decedent, William A. Barnes, died on July 3, 1954. Subsequent to his death a financial statement was prepared, purporting to allocate a 1/3 interest in a business to William A. Barnes. The business is not identified in the “statement” but it apparently has reference to the Barnes Check Printing Company. This instrument also allocates interests to Roy V. Barnes and Edith Barnes Osgood,omitting any reference to the father, William M. Barnes, who (so far as appears in the record beforens) had no knowledge thereof. He died in 1957, subsequent to the commencement of the action before us-but before trial thereof. Plaintiff, administratrix of the estate of William A. Barnes, deceased, asserts that her deceased husband was a partner in the Barnes Check Printing Company but that the remaining partners have refused to pay to his estate its rightful share thereof. An accounting and award are asked, together with incidental relief. The trial chancellor found that plaintiff’s decedent had no interest in the Barnes Check Printing Company or its assets and dismissed the bill. This, appellant asserts, was “against the great weight of the evidence.” Much learning, both ancient and modern, has gone into the determination of whether those who have pooled their properties and talents in a common endeavor, have thereby constituted themselves “partners.” Various tests have had their days of primacy,, only to be eroded by the scouring action of various-unforeseen fact situations. Thus Lord Chief Justice DeGrey’s famous dictum in Grace v. Smith, 2 W Bl 998 (96 Eng Rep 587), stressing a sharing of profits as conclusive of the relationship lost its eminence upon consideration of the situation in which profits were shared merely by way of compensation. Other tests have suffered similar compromise. At the present time no test is conclusive, though in modern law the factor of the intent of the parties, gauged by the legal effect- of their agreement, bulks large. Beecher v. Bush, 45 Mich 188 (40 Am Rep 465). See section 7, uniform partnership act, CL 1948, § 449.7 (Stat Ann § 20.7). The complete negation of any intent that William A. Barnes become an actual partner in the Barnes Check Printing Company is found in the very instrument upon which appellant places reliance, it1 ¡stating that the father was to retain his interest until death, the son to be a partner “in name only.” Whatever the father and son may have had in mind in the execution of this instrument it is clear that there was no intent that the son become a principal in the business. Nor does the record, including the testimony, disclose that the son was invested with ■other of the usual indicia of a partner, no showing that he shared, with the others forming the firm, a •common authority in administration and control of the business, a common interest in the capital employed, a common enjoyment as of right in the profits ■or suffered a common burden in the losses. As further evidencing the intent of the parties and their business structure, the taxpayers’ draft copies before us of the income-tax returns of William A. Barnes and his wife (for the years 1949, 1950, and 1951) list, as income, only his wages as an employee. There was, we will note, no violation of the so-called dead-man’s statute (CL 1948, § 617.65 [Stat Ann § 27.914]) in the admission of these documents and their weight was for the trier of the facts. Cf., In re Wood’s Estate, 251 Mich 560. Moreover, and finally, the books of the company do not reveal a partnership interest in the son, nor do the office file copies ■of its income-tax returns. The trial chancellor stated that he did not rule upon “what rights or cause of action, if any, the administratrix may have against Roy V. Barnes, Edith Barnes Osgood, under any claim not involving the assets and property of the partnership known as the Barnes Check Printing Company here sought to be accounted for by the administratrix of William A. Barnes, deceased.” No more do we. The decree is affirmed. Costs to appellees. Dethmers, C. J., and Carr, Kelly, Black, Edwards, Voelker, and Kavanagh, JJ., concurred.

Per Curiam. Certiorari by plaintiff Walsh, issued out of the Ingham circuit, to the defendant Secretary of State and the defendant members of the Ingham county board of canvassers. Prom an order modifying an official certificate of election, prepared and filed by the defendant members of the county board of canvassers, all defendants plus intervening plaintiff McElmurry appeal on granted leave. The facts requisite to determination of the controlling reviewable question appear in the opinion of the circuit judge as follows: “On petition of plaintiff, the circuit court for the county of Ingham issued a writ of certiorari directed to defendants to test the results of an annexation election held November 4, 1958. Defendants filed return to the writ; oral arguments were had December 19, 1958, and thereafter briefs were filed by all parties and amici curiae briefs were filed by the city of Lansing and the school district of the city of Lansing. All facts are found in the pleadings and briefs; no testimony was taken. “The facts disclose that such election was had following the filing of a proper petition with the Secretary of State under the provisions of CLS 1956, § 117.11 (Stat Ann 1957 Cum Supp § 5.2090). This petition asked for the submission to the voters of a proposition to annex to the city of Lansing 5 separate parcels of land; 4 of these are in Lansing township and are designated A, B, C, and D on the map attached to exhibit B of defendants’ return; the fifth parcel is partly in Lansing township, Ingham county, and partly in Delta township, Eaton county, and is designated E on the same map. Parcel E is the Stoner school district. The board of canvassers certified the results of said election as follows: Yes No Delta township inside affected area........................ 63 135 Lansing township inside affected area ....................... 1,723 1,200 Delta township ontside affected area........................ 955 1,117 City of Lansing............... 18,146 5,630 Total 19,101 6,747 Lansing township ontside affected area........................ 1,078 1,247 City of Lansing............... 18,146 5,630 Total 19,224 6,877 and that the proposal was not approved, ‘a majority of the electors in 1 of the above-mentioned areas having failed to vote in favor of said proposal.’ This certification resulted from an opinion of the attorney general and the prosecuting attorney of Ingham county to the effect that the proposal, as submitted, was indivisible and since it did not carry in all areas, it failed entirely. “That is the gist of the position of the attorney general and prosecuting attorney in the present proceeding. Plaintiff contends that the proposal was divisible, and since it carried in all areas but Delta township, the Lansing township areas should be annexed. The school district of the city of Lansing contends the total annexation carried, since there was a favorable majority in all 5 areas (the combined vote in the areas to be annexed was 1,786 for and 1,335 against the proposal), and a favorable majority in the rest of the affected area, vis.: city of Lansing, Lansing and Delta townships outside the affected area, 20,179 for and 7,994 against. The city of Lansing takes the same view as the school district of the city of Lansing.” In accordance with the statutory petition but 1 proposition was submitted to the electors voting in the city of Lansing, and in both Lansing township and Delta township. The ballot-question was-whether all of the parcels, shown on the map and proposed for annexation, should be annexed to* Lansing. The proposition failed because it did not get a “yes” vote in the territory of Delta township proposed to be annexed. As the attorney general contends, the proposal was a “package” proposition. Under the statute it was bound to fail should 1 of the voting units, such as the territory of Delta township, turn thumbs down by majority vote. That territory did so. Nothing in the cited case'of Cook v. Kent County Board of Canvassers, 190 Mich 149, or in the specific statutory provision on which the question is said to-depend (CLS 1956, § 117.9 [Stat Ann 1957 Cum Supp § 5.2087]), offends such conclusion. It follows that the writ issued below should have been quashed. The order of the circuit court is reversed and the case is remanded for entry of order as indicated. No costs. Dethmers, C. J., and Carr, Kelly, Smith, Black,. Euwarbs, Voelker, and Kavanagh, JJ., concurred.

Edwards, . J. From Lord Mansfield to Josepb Welch, the lawyer who fought for cause or client against great odds has played a vital role in the defense of human freedom. We preface this opinion with recognition of the great value of the legal advocate and the frequent need for zeal and boldness in such advocacy. The lawyer who believes in his client’s cause is all the more effective therefor; and the courts have generally granted him a wide latitude in criticizing official actions of any 1 of the 3 branches of government. Courts are not, and should not be, immune to criticism. (See Konigsberg v. State Bar of California, 353 US 252, 268, 269 [77 S Ct 722, 1 L ed 2d 810].) Indeed, the very first of the Canons of Professional Ethics of the Bar imposes a duty upon the lawyer to submit his grievances to the proper authorities “whenever there is proper ground for serious complaint of a judicial officer.” We preface this opinion with this restatement of general principles because we deal here with the appeal of an advocate suspended for 1 year for unprofessional conduct in his advocacy of his clients’ cause and because our affirmance can only be construed as recognition of a limit upon the exercise of rights, the proper exercise of which we view with great favor. This case represents an aftermath of 1 of the most bitter legal conflicts ever to occur in the State of Michigan. The controversy had its origin in the failure of the Lapeer Farmers’ Mutual Fire Insurance Association and subsequent assessments made upon certain Lapeer county farmers as a result thereof. Its legal history is recorded in at least 14 cases in which appeals were taken to, and ultimately decided by, this Court. Appellant in this case was 1 of the attorneys for the farmers in several of these cases and filed a number of briefs in the course of their progress to final decision. Briefs filed in 3 cases occasioned the entry of a Supreme Court order of reference to the State Bar association on June 27,1950, directing attention to the remarks of counsel for appellants contained in said briefs. After investigation the State Bar filed a formal complaint against appellant and 3 other lawyers whose names were on the same briefs, alleging professional misconduct and breach of the Canons of Professional Ethics in certain portions of the briefs referred to, which portions were attached as exhibit B. The complaint was referred to the sixth district grievance committee for hearing and disposition under the Supreme Court Rules concerning the State Bar of Michigan, particularly Rule No 15. After notice of bearing and 1 adjournment, the complaint came on for hearing. At the time of hearing, appellant had filed no answer, although required to do so by State Bar Rule (Rule No 15, § 6). He did appear and at the hearing he filed and argued a lengthy motion to dismiss, based largely upon an attack on the committee’s jurisdiction. This motion was denied, as was a subsequent motion for adjournment, and the grievance committee went ahead to hear testimony on the complaint. As far as appellee’s case is concerned, the testimony consisted only of identification of the challenged briefs by the then deputy and subsequently clerk of the Supreme Court. Appellant offered no testimony but in oral argument made clear that he “wrote every word contained in those briefs.” In fact, appellant went out of his way to assume complete individual responsibility for the challenged language of the briefs and reiterated his contention that it represented “the absolute truth.” Despite this contention, appellant contented himself with oral' argument principally addressed to claimed defects in the proceedings and to asserted lack of jurisdiction of the committee over the proceedings. He was twice asked whether he had any testimony to present and answered negatively, finally saying “I know of no evidence * * * I think that is the evidence right there,” apparently referring to the briefs. The sixth district grievance committee, after allowing appellant to file an answer and considering the briefs submitted by the parties, filed its opinion in the matter. The committee found appellant and 1 other lawyer guilty of unprofessional and unethical conduct and recommended disbarment for a limited period of time. In accordance with the Rules governing the State Bar, the grievance committee certified its report and filed it with the Ingham county circuit court (State Bar Rule No 15, §§ 11, 13), whereupon the clerk thereof issued an order to the appellant to show cause why the report should not be confirmed, and the presiding circuit judge of Michigan designated 3 circuit judges to hear the matter (State Bar Rule No 15,. §15). At the time of hearing appellant had filed no objections to the report, although required to do so by State Bar Rule (Rule No 15, § 11). But he again appeared and filed a belated motion to dismiss challenging the jurisdiction of the court on various grounds. Objection was made to argument of his motion on the ground that counsel for the State Bar had not had a copy of the motion in time to prepare for argument (Court Rule No 10, § 2 [1945]). The court sustained the objection, but allowed appellant to submit a brief for court consideration on the points concerned, with an answering brief to be filed by opposing counsel. Appellant again tendered no testimony and answered in the negative the court’s question as to whether there was anything else to come before the court. Upon consideration of the certified record made before the grievance committee and its report and recommendations, and the briefs filed by the various parties, the 3-judge court entered a formal opinion approving the grievance committee’s report and suspending appellant from the practice of law for 1 year, and until subsequent application for reinstatement. The opinion also found mitigating circumstances as to the other attorney found guilty of unprofessional conduct and ordered a private reprimand by the grievance committee as to him. Prom this portion of the order no appeal was taken. On December 29, 1952, appellant filed Ms claim of •appeal from the order of suspension entered in his ■case. The record on appeal was filed November 19, 1953. Nothing further was done until July 7, 1958, when appellant filed his brief and noticed the matter for hearing at the October, 1958, term. The period of suspension has, of course, long since run (no stay having been granted), but no application for reinstatement has been filed. We are tendered no explanation for the extraordinary delay but assume the matter is finally brought to decision as a result of our recently-adopted No Progress Rule (Court Rule No 70 B, effective April 14, 1958). The opinion of the 3-judge court held that appellant had been guilty of conduct which violated professional ethics, and particularly the preamble and Canons 1 and 15 of the Canons of Professional Ethics which follow: “Preamble “In America, where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the Republic, to a great extent, depends upon our maintenance of justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men. “No code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life. The following canons of ethics are adopted by the Supreme Court of the State of Michigan as a general guide for the State Bar of Michigan. The enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned.” * * # “Canon 1. The Duty oe the Lawyer to the Courts “It is the duty of the lawyer to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases, but not otherwise, such charges should be encouraged and the person making them should be protected.” “Canon 15. How Far a Lawyer May Go in Supporting a Client’s Cause “Nothing operates more certainly to create or to foster popular prejudice against lawyers as a class, and to deprive the profession of that full measure of public esteem and confidence which belongs to the proper discharge of its duties than does the false claim, often set up by the unscrupulous in defense of questionable transactions, that it is the duty of the lawyer to do whatever may enable him to succeed in winning his client’s cause. “It is improper for a lawyer to assert in argument his personal belief in his client’s innocence or in the justice of his cause. “The lawyer owes ‘entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,’ to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds •of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client.” The opinion of the 3-judge court cited in particular certain portions of the briefs written by appellant which attacked the integrity of Judge Herman Dehnke, the judge who had originally tried some of the Lapeer cases : “The trial court not only failed and refused to assert the illegality of the appellants’ contract and the inability on the part of the receiver to collect an assessment thereon, but collaborated with the receiver and his attorney by striking this material defense from the appellants’ answer — -the trial court stripped the appellants of their defense by striking all pleadings that pointed a finger of such illegality and thereby joined in the efforts of the receiver and his attorney to wrongfully, inequitably and unlawfully enforce an illegal contract. * * !S “The manner in which this matter was conducted by the trial court, the type of notice given, the language of the opinion and the decision rendered, are all in violation of all concepts of fair and judicious handling of the rights and property of citizens by a court of justice, and help to confirm the claim of disqualification filed on 2 separate occasions against the trial judge in this matter. It is obvious that this petition of appellants was never heard on its merits and that the trial court never intended that it should be heard. * * *_ “This was an opinion held by the court because of his readiness to believe the vicious propaganda cir ■eulated at every opportunity for the purpose of preventing the exposure of fraud. * * * “The trial court in this case has violated every Tule in the books of sportsmanship, fair play, due process, fair trial, equal protection of the law, sanctity of contracts, duty of officers, honor and respect of the law of the land. He would shield and protect those who have violated the insurance laws of the State and punish those who were supposed to have been protected by those laws; he would overlook the flagrant disregard of the insurance laws by the commissioner of insurance and the attorney general and overreach his own authority and jurisdiction, yes, •even, violate the fundamental law of the land, the statutes and Canons of Judicial Ethics, in his zeal to punish parties who are legally entitled to the protection of those officers and the court; he would •put the honor and the reputation of the court on the block in obvious violation of his oath of office, when by simply following the rules of law, principles of justice and the principles of fair play, he could help ■so much to place the court on the pedestal of high respect where it must be kept if our system is to work.” All of the quoted material is extracted from the "brief written and filed by appellant in Forbes v. Ziegenhardt, 328 Mich 187. This appeal was from a denial by Judge Dehnke of a petition to vacate a decree of foreclosure entered July 26, 1943, and from which no appeal was taken. The petition was filed September 8, 1948. Among other things it alleged that fraud had been perpetrated upon the court by plaintiff Forbes in the original foreclosure suit, ■and that petitioners now possessed new evidence tending to prove fraud. The petition made no ■charges as to the trial judge’s conduct in the original proceedings and alleged no facts which in any way Teflected upon his judicial integrity. Judge Dehnke dismissed the petition upon motion and after argument and briefs upon the doctrine of res judicata, holding that the alleged “new facts” of the petition were all facts known to, or readily available to, petitioners at the time of the original proceeding. The question of whether he was right or wrong in this decision is not now before this Court. Suffice it to say that his decision was affirmed by the Supreme Court in Forbes v. Ziegenhardt, supra, and that at no place in the record of this case do we find 1 fact recited from which it could be deduced that the trial judge had been guilty of fraud, corruption or, indeed, of any sort of improper conduct unless his entering of a decision in a hotly-disputed case upon what he conceived to be the law could be so termed. We view the language set forth above from appellant’s brief in the Ziegenhardt Case as a direct attack upon the integrity of the trial judge. Neither in the Ziegenhardt Case, nor in the instant proceeding,, have we noted any attempt by appellant to suggest facts which could represent reasonable grounds for such charges except his arguments pertaining to claimed error in the judge’s decision. The fact that a lawyer deeply believes a trial judge has made a serious error in deciding an important case is hardly proper ground for his charging in an official court record that the judge had violated his oath of office and illegally and unlawfully collaborated with the prevailing party. There is no indication here of “proper ground for serious complaint of a judicial officer” within the meaning of Canon 1 of the Canons of Professional Ethics. The language used is, on the contrary, when totally unsupported by fact, the language of insult and contempt. The fact that it might well be punishable in contempt proceedings (see CL 1948, § 605.1 [Stat Ann § 27.511]) does not make it any the less "unprofessional in character. Appellant’s brief relies strongly upon the following language from Hartung v. Shaw, 130 Mich 177, 179: “If statements made in the course of judicial proceedings, in pleadings or in argument, are relevant, material, or pertinent to the issue, their falsity or the malice of their author is not open to inquiry. 'They are then absolutely privileged.” Without re-examining this holding, we feel it is ■obviously inapplicable to the current situation. Hartung v. Shaw was a libel action and not a proceeding which, as here, concerned a charge of violation of professional ethics. In the leading case in Michigan dealing with a similar problem, this Court said: “An attorney ought not to be disbarred unless the ■duty of the court is very clear. We are not unmind.ful of the fact that an attorney is privileged to go great lengths in the defense of himself or his client in proceedings in court, without being held responsible out of court for what he has said or done in court; but this privilege does not carry with it the right to charge fellow attorneys and the presiding judge with conspiracy and corruption, when there is no adequate basis for such a charge. The law is tersely stated in People, ex rel. Rogers, v. Green, 9 Colo 506, 533 (13 P 514): “ ‘Neither the letter nor the spirit of the attorney’s privilege permits him to enter our courts and spread upon judicial records charges of a shocking ■and felonious character against brother attorneys, and against judges engaged in the administration'of .justice, upon mere rumors coupled with facts which should, of themselves, create no suspicion of official corruption in a just and fair mind. And although, in .actions of libel and slander, it has been thought wise to exempt them from liability for defamatory words,, published or spoken, in the course of judicial proceedings, provided such words are material, in a disbarment proceeding the recognition of such a privilege could neither secure justice nor advance the independence of the bar. On the contrary, its inevitable tendency would be to destroy the respect due to the profession as well as to the bench, and cripple the influence and usefulness of both.’ ” In re Mains, 121 Mich 603, 610. In proceedings of this sort, our review is in the nature of a writ of certiorari. We do not hear the appeal de novo. Attorney General v. Lane, 259 Mich 283. We find in this record “no adequate basis” for the charges made by appellant. We do find evidence which warranted the 3-judge court in holding that appellant had violated those portions of the Canons of Professional Ethics which we have previously quoted. We have reviewed the complete record with care. We cannot see that any prejudicial error was made in the investigation, the filing of the complaint by the State Bar, in the hearing of the grievance committee, or at the show-cause hearing before the 3-judge court. Appellant has his own dilatoriness and disinclination to present testimony to blame for any inadequacies in the present record. We find no abuse of due process. Nor do we believe that this Court is deprived of jurisdiction to hear this appeal by the fact that this Court originally forwarded the briefs in question to the State Bar association for investigation. The complaint acted npon was that of the State Bar. The basic penalty of 1 year’s suspension imposed by the order of the 3-judge court has, of course, long since been served. On the record presented here, since the offense complained of was specific and not of a continuing nature, the added requirement of application for reinstatement must be regarded as largely a formality, provided, of course, there has been compliance with the order. It would seem highly desirable for said requirement to be met without further delay so as to bring to a close an unhappy chapter of Michigan legal history. Affirmed. Dethmers, C. J., and Carr, Kelly, Smith, Voelker, and Kavanagh, JJ., concurred. Black, J., took no part in the decision of this case. Simpson v. Goodrich, 280 Mich 351; In re Dissolution of The Lapeer Farmers Mutual Fire Insurance Association (Claim of Crawford; Claim of North Branch Depositors Corporation), 280 Mich 363; In re Gilliland, 284 Mich 604; In re Dissolution of The Lapeer Farmers’ Mutual Fire Insurance Association (Claim of Rice), 295 Mich 218; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Assn., 297 Mich 174; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Assn., 297 Mich 188; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Assn. (Appeal of Rice), 300 Mich 320; Commissioner of Insurance v. Lapeer Circuit Judge, 302 Mich 614; Fmery v. Clark, 303 Mich 461; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers’ Mutual Fire Insurance Association (Appeal of Warner), 318 Mich 60; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers' Mutual Fire Insurance Association (Appeal of Turner), 325 Mich 655; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers’ Mutual Fire Insurance Association, 327 Mich 333; Forbes v. Ziegenhardt, 328 Mich 187; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers’ Mutual Fire Insurance Association (Appeal of Ziegenhardt), 337 Mich 681. 317 Mich xlvi-lx, as amended; 343 Mich xliii-ixiii.—Reporter. See Stryker, The Art of Advocacy. See American Bar Association, Canons of Professional and Judicial Ethics and Opinions (1957) ; State Bar Rule No 14, 317 Mich xlvi, 343 Mich xli-xliii, 351 Mich xv; Honigman, Michigan Court Rules Annotated, p 814, and 1957 Supp, appendix 7, p 316 et seg_.\ 29 MSBJ, No 5 (May, 1950).—Reporter. 317 Mich xlvi-lx, as amended; 343 Mich xliii-lxiii. — Reporter. 352 Mich xvii. — Reporter.

Black, J. An evidentiary phase of this proceeding came to decision in In re Potter Estate, 351 Mich 326 (66 ALR2d 325). On remand the executor’s appeal from probate to circuit was tried to the court without a jury. The witness Ward testified fully in support of the executor’s petition. The circuit judge thereupon ruled that the petitioner-executor had failed to sustain the burden of overcoming the statutory presumption, to which presumption reference was made in our previous opinion, and entered an order affirming the probate court’s determination that the executor’s petition should be denied. From such order the executor has taken this appeal. The facts necessary to fair understanding of the pleaded issue appear in In re Potter Estate, supra. As to Mrs. Ward’s ensuing testimony, the executor insists that same clearly shows that the transfer, of $77,780, by the decedent to the joint (savings) account mentioned in our previous opinion, was made “to enable Mrs. Ward to replenish the joint checking account if needed to pay Mrs. Potter’s medical, hospital, nursing and household expenses.” It is conceded by all that such testimony, and the mentioned ■presumption, presented a question of fact below (see In re Kutsche’s Estate, 268 Mich 659). As counsel are wont to do, each, draws different inferences from the testimonial record and insists that such inferences call for conclusion favoring his pleaded view of the case. Thus, and again, we are asked to judge favorably the weight and credibility of testimony the constituted fact-trier has appraised and found dissatisfactory, and to conclude that such fact-trier has reached the wrong fact-verdict. To this we wearily rejoin that this Court does not hear and decide, de novo, eases brought here by authority of Court Rule No 64 (1945). (See Barnes v. Beck, 348 Mich 286; Northwest Auto Co. v. Mulligan Lincoln-Mercury, Inc., 348 Mich 279.) The circuit judge found from the “large” amount of the transfer; from the advanced age and developing disability of the decedent; from the fact that the decedent had a separate income of substance (approximately $1,000 per month) which was subject to direct use for her expenses; from the fact that “there were discrepancies” in Mrs. Ward’s testimony, and from the fact that death occurred within 7 months after the bank account transfer, “that the petitioner’s proofs do not overcome the statutory presumption that the joint bank account opened March 4, 1955, within 2 years of the death of Carrie Potter was made in contemplation of death.” No proof suggests that these findings are improper or strained. Assuredly we are not persuaded that they violate our rule of “clear preponderance.” We therefore affirm, with costs to appellee. Dethmers, C. J., and Carr, Kelly, Smith, Edwards, and Voelker, JJ., concurred. Kavanagh, J., did not sit. See CLS 1956, § 205.201 (Stat Arm 1957 Cum Supp §7.561).— Refoetee.

Kelly, J. Ernest J. Vida was convicted in the recorder’s court of Detroit of obtaining personal property of a value of more than $100 by false pretenses in violation of CLS 1961, § 750.218 (Stat Ann 1962 Rev § 28.415), and was sentenced on March 5, 1964, to State Prison of Southern Michigan for a period of not less than 7-1/2 nor more than 10 years. The Court of Appeals affirmed the conviction and sentence. People v. Vida (1966), 2 Mich App 409. To prove intent, the State produced three witnesses, in addition to complainant Melbourne P. King, and all four testified that they advertised their automobiles for sale in a Detroit newspaper and, responding to said advertisements, defendant visited them at their respective Detroit residences. The visit to the Price and Smith residences occurred on Saturday, February 2,1963, and the King and Hayes visits were made on the following day, Sunday, February 3,1963. All four of these witnesses stated that they gave defendant the titles and keys to their automobiles and that defendant gave to them checks (totalling for the four over $10,000), having the name, address and telephone number of the “Annis Real Estate and Tax Service,” and that none of the checks was honored because of insufficient funds. Plaintiff introduced proof that on January 24, 1963, defendant, using the name of Annis, rented a vacant store in the city of Pontiac, Michigan, under the name of “Annis Real Estate and Tax Office.” The agreed rental was $85 per month, but the defendant made a deposit of only $25. The owner never saw him again after making said deposit until the date of trial. Plaintiff also introduced proof that on January 26, 1963, a checking account in the name of “Annis Real Estate and Tax Service” was opened, with an opening amount of $50, against which a check for $20 was drawn on February 2, 1963. The record does not sustain defendant’s claim that “the trial judge by taking over the questioning of witnesses in several instances, so destroy [ed] his neutral image as to prejudice the defendant before the jury,” or the claim that the trial judge committed reversible error in instructing the jury. Defendant’s claim that “the court err[ed] in telling the jury to retire to the jury room, select a foreman, and attempt to arrive at a verdict,” is without merit. The court, over objection, permitted the following questions to be asked and answers given by complainant King: “Q. Now, I will ask you again, Lieutenant, if on February the 3d * * * at the time that Mr. Annis purchased your car, he disclosed to you that at approximately 8 p.m. on Saturday, February the 2d, he had purchased a 1962 Buick 4-door hardtop as a present for his wife ? “A. Definitely no. * * * “Q. Did he disclose to you that on Saturday, February the 2d at some time after 8 p.m., he had purchased from Mr. Frank G-. Smith, a 1962 Ford T-bird as a present for his wife ¥ “A. No, sir, he did not. * * * “Q. Had you known of these two facts at the time of the negotiations with Mr. Annis, would you have accepted the statements he made with relation to himself in other regard? “A. No.” Defendant claims this constituted error because: “The jury must determine if the defendant defrauded the complainant, and by the trial court actions the complainant is allowed to speculate as to what his state of mind would have been, and thereby concretely establishing the fraud in the mind of the jury. A defendant cannot be and should not be convicted on speculation and conjecture.” Defendant was not convicted “on speculation and conjecture,” and a review of the record sustains the Court of Appeals’ finding that (p 412): “The record clearly indicates that defendant Vida falsely represented himself as George Annis, that he was in the real estate business, and that the automobile was being purchased for his wife. “The record also indicates that the complainant believed and relied on the defendant’s false pretenses and was induced to give up possession of his automobile.” The only remaining question to consider is defendant’s claim on oral and written argument that “Judge Eieca sentenced him to 7-1/2 to 15 years with no recommendation,” but that the clerk of the court provided in the mittimus “that he was to serve not less than 7-1/2 years,” and that “the Michigan department of corrections and the Michigan State department of pardons and paroles are, by reason of the illegal directions in said ‘mittimus,’ denied and deprived of their lawful and discretionary powers and prohibited from exercising their independent judgments as to the minimum amount of time to be served by defendant.” The assistant prosecuting attorney, during oral argument, admitted “there is a difference between what the court said and what the clerk typed on the mittimus,” and admitted that he did not know whether the clerk’s error would affect defendant’s rights before the parole board. To remove all doubt, we are remanding for the sole purpose of allowing the trial court to eliminate all discrepancies and clearly establish for the prison records the reason for taking such action. Conviction affirmed. T. E. Brennan, C. J., and Dethmers, Black, T. M. Kavanagh, and Adams, JJ., concurred. T. Q-. Kavanagh, J., took no part in the decision of this case. CL 1948, § 768.27 (Stat Ann 1954 Rev § 28.1050). A certificate of the commissioner of the Corporation & Securities Commission was introduced certifying that no license had ever been issued to George Annis or Annis Seal Estate & Tax Service to engage in real estate business. CL 1948, §451.201 (Stat Ann 1964 Eev §19.791), states: “It shall be unlawful for any person, firm, partnership, association, co-partnership or corporation, whether operating under an assumed name or otherwise, from and after January first, 1920, to engage in the business or capacity, either directly or indirectly, of a real estate broker or real estate salesman within this State without first obtaining a license under the provisions of this act.”

Kelly, J. On February 14, 1966, defendant, represented by his court-appointed counsel, was arraigned in the Clinton county circuit court on a charge of felonious assault. The reading of the information was waived and defendant’s attorney informed the court of defendant’s intention to stand mute. A plea of not guilty was entered. February 23, 1966, in the Clinton county circuit court, defendant, through his attorney, informed the court of his desire to change his plea of not guilty to a plea of guilty. There follows the questions the court asked and the answers defendant gave previous to the court’s acceptance of such plea: “The Court: * * * Do you have any questions concerning the charge that has been made against you, Mr. Lang? “Mr. Lang: No, sir. “The Court: You fully understand the nature of the charge and what it means. “Mr. Lang: Yes, sir. “The Court: You understand that you have been charged with the crime of felonious assault, but without intending to commit the crime of murder and without intending to inflict great bodily harm. “Mr. Lang: Yes, sir. “The Court: I don’t recall if I have already gone through this with you, but we will go through it again. First of all I might say, you understand that you. don’t have to say anything at this time if you don’t want to. “Mr. Lang: Yes, sir. “The Court: Now there are three possible pleas that you may enter. You may plead guilty if you think you did that which is set forth in the information, charging you with this crime. “If you think that you did not do it, then you would plead not guilty or you may stand mute, that is say nothing, and in which case the court would cause a plea of not guilty to be entered for you. I believe you have already at one hearing stood mute, is that correct? “Mr. Lang: Yes. “The Court: And I entered a plea of not guilty. Now I understand that today you wish to change your plea. Is that correct? “Mr. Lang: Yes, sir. “The Court: Now you know that if you plead not guilty or stand mute you would be entitled to a trial by either a jury or by this court, at your election? If you plead guilty, and your plea is accepted by the court, it would be the court’s duty to sentence you at a later date. I will also tell you that the maximum consequence of a plea of guilty or a conviction after trial, would be imprisonment for a term of up to four years. The minimum penalty is discretionary with the court, and the offense charged is subject to the probation law. That does not mean that you would necessarily be placed on probation, but merely that the court could place you on probation if it deemed it advisable. “How do you wish to plead? “Mr. Lang: Guilty, Your Honor. “The Court: Do you plead guilty because you are guilty? “Mr. Lang: Yes, sir. “The Court: To what offense are you pleading-guilty? “Mr. Lang: Felonious assault, sir. # * # “The Court: You know, Mr. Lang, I can’t accept your plea unless you actually committed the crime of felonious assault. Now I don’t want you pleading guilty to something you don’t think you are guilty of. I wasn’t there. “Mr. Lang: Well if he said I did, I must have sir, but I was pretty drunk, so I — “The Court: You mean there is no doubt in your mind that you threatened him with a pistol, is that right ? “Mr. Lang: No, no, I don’t. “The Court: You don’t have any doubt of that? “Mr. Lang: No, sir, I don’t. * * * “The Cotirt: And you are pleading guilty because you feel you are guilty; you’re not just pleading guilty to get this over with. It that correct? “Mr. Lang: No, sir, I feel that I am guilty. “The Court: All right. Has anyone forced you to plead guilty? “Mr. Lang: No, sir. “The Court: Has anyone forced you to tell the court what you have told here today? “Mr. Lang: No, sir. “The Court: Has anyone mistreated you while you have been in jail? “Mr. Lang: No, sir. “The Court: Has anyone promised you anything to persuade you to plead guilty? “Mr. Lang: No, sir. “The Court: Has anyone promised you the court would give you a light or easy sentence if you pleaded guilty? “Mr. Lang: No, sir. “The Court: Has anyone promised you that you would be placed on probation if you pleaded guilty? “Mr. Lang: No, sir. “The Court: Now you understand you may still have a trial, either by a jury or by the court, if you want to? “Mr. Lang: Yes, sir. “The Court: Do you want to? “Mr. Lang: No, sir. “The Court: Is everything you have told the court today concerning this case told of your own free will and accord? “Mr. Lang: Yes, sir. “The Court: The court now determines that the plea of guilty to the charge as offered is made freely, with understanding, and voluntarily. The court also finds that said plea was not offered because of undue influence, compulsion or duress, and no promise of leniency was made. “The plea of guilty is accepted and ordered entered upon the records of this court. “The bond will be continued, and I will sentence you on March 14th at 1:30. “Mr. Lang: Yes, sir.” On March 14, 1966, defendant was sentenced to serve 1-1/2 to 4 years in the State prison of southern Michigan. On October 17,1966, defendant appeared before the parole board on the expiration of his minirmrm term and the case was continued for 18 months. On November 4, 1966, defendant filed a petition and motion to withdraw his plea of guilty, set aside his conviction and be granted a new trial. In denying defendant’s motion, the trial court stated: “While it does not appear in the petition, it would appear from Mr. Lang’s covering letters and from paragraph 3 of his response to the prosecuting attorney’s answer to the petition, that the motivating factor in this matter is the fact that the parole board denied him parole on the basis of his minimum sentence. Mr. Lang takes the position that this is a ‘nonjudicial increase in his minimum sentence, without proper cause shown from his postconviction record, is a substitution of the judgment of the parole board for that of the sentencing judge and violates the “separation of powers” doctrine of the State and Federal Constitutions.’ # * * “The court has reviewed the transcripts relating to this case and is o£ the opinion, as it was when the plea was accepted, that the provisions of GCR 785.3 (2) were complied with. At the time of entering the plea, Mr. Lang was 39 years of age, was represented by competent counsel, had the benefit of a preliminary examination, had the experience afforded by six prior felony convictions, and requested a change of plea from not guilty to guilty. It seems rather preposterous for Mr. Lang to now claim that he didn’t know the nature of the crime with which he was charged and that his plea was not understandingly made. “So far as the action taken by the parole board is concerned, the court can find no basis for finding that its action was illegal, unconstitutional, or beyond the scope of its authority. “The court finds that the grounds on which the petition to withdraw the plea of guilty is based are without merit and that there is no reason for the court to exercise its discretion and allow a withdrawal of the plea. “The petition is denied.” On May 12, 1967, the Michigan Court of Appeals denied defendant’s application for delayed appeal. In People v. Vasquez (1942), 303 Mich 340, 342, this Court stated: “We have always adhered to the rule that after sentence has been imposed, the withdrawal of a plea of guilty rests in the sound discretion of the court. People v. Williams, 225 Mich 133; People v. Kobrzycki, 242 Mich 44; People v. Skropski, 292 Mich 461.” The record before us indicates no abuse of discretion on the part of the trial judge in denying defendant-appellant’s petition and motion to with draw his plea of guilty, set aside his conviction and grant a new trial. Affirmed. Dethmers, C. J., and Black, O’Hara, Adams, and T. E. Brennan, JJ., concurred with Kelly, J. T. M. Kavanagh, J., concurred in the result. CL 1948, § 750.82 (Stat Ann 1962 Roy § 28.277).—Reporter,

Levin, J. Royal Moning, when he was 12 years old, lost the sight of an eye which was struck by a pellet fired from a slingshot being used by his 11-year-old playmate, Joseph Alfono. There was evidence that Alfono purchased two l(ty-slingshots from defendant Campbell Discount Jewelry and had given one to Moning, and that the slingshots had been manufactured by defendant Chemtoy Corporation and distributed by defendant King Tobacco and Grocery Company. Moning claims that it is negligence to market slingshots directly to children, and that the manufacturer, wholesaler and retailer are subject to liability. The claim against the Alfonos was settled. Upon completion of Moning’s proofs, the trial judge directed a verdict for the remaining defendants. The Court of Appeals affirmed. We remand for a new trial because a manufacturer, wholesaler and retailer of a manufactured product owe a legal obligation of due care to a bystander affected by use of the product, and whether defendants in violation of that obligation created an unreasonable risk of harm in marketing slingshots directly to children is for a jury to decide, reasonable persons being of different minds. My colleague declares that there is no legal duty to refrain from manufacturing slingshots for and marketing them directly to children. It obscures the separate issues in a negligence case (duty, proximate cause and general and specific standard of care) to combine and state them together in terms of whether there is a duty to refrain from particular conduct. It is now established that the manufacturer and wholesaler of a product, by marketing it, owe a legal duty to those affected by its use. The duty of a retailer to a customer with whom he directly deals was well established long before the manufacturer and wholesaler were held to be so obligated. The scope of their duty now also extends to a bystander. All the defendants were, therefore, under an "obligation for the safety” of Moning; they owed him a duty to avoid conduct that was negligent. Whether it would be a violation of that obligation to market slingshots directly to children is not a question of duty, but of the specific standard of care: the reasonableness of the risk of harm thereby created. Negligence is conduct involving an unreasonable risk of harm. Slingshots pose a risk of harm. In manufacturing and marketing slingshots the defendants necessarily created such a risk. The meritorious issues are whether the risk so created was unreasonable because the slingshots were marketed directly to children, and whether this should be decided by the court or by the jury. The reasonableness of the risk of harm, whether analyzed or expressed in terms of duty, proximate cause or the specific standard of care, and whether regarded as one of law or fact or for the court or the jury to decide, turns on how the utility of the defendants’ conduct is viewed in relation to the magnitude of the risk. If a court is of the opinion that marketing slingshots directly to children is of such utility that it should be fully protected, the court in effect determines as a matter of law that the risk of harm so created is not unreasonable and, therefore, such conduct is not negligent. The resolution of the balance between the utility of children having ready-market access to slingshots and the risk of harm thereby created is an aspect of the determination of the reasonableness of that risk and of the defendants’ conduct, and should be decided by a jury: —Reasonable persons can differ on the balance of utility and risk, and whether marketing slingshots directly to children creates an unreasonable risk of harm; —The interest of children in ready-market access to slingshots is not so clearly entitled to absolute protection in comparison with the interest of persons who face the risk thereby created as to warrant the Court in declaring, as a rule of common law, that the risk will be deemed to be reasonable. The statement that "we are being asked to perform a legislative task” because a holding for Moning "would in effect be making a value judgment and saying * * * [that slingshots] should not be manufactured or marketed”(emphasis supplied) to children assumes that allowing juries to decide the reasonableness of the risk of harm created by marketing slingshots directly to children will so burden the manufacture and marketing of slingshots that all manufacturing and marketing would cease, rather than merely affect the manner and cost of marketing slingshots, and does not take into account that however the Court decides the case it in effect makes a value judgment: —Affirming a directed verdict for the defendants in effect expresses a value judgment that the interest of the child in ready-market access to slingshots is of such societal importance that as a matter of law it takes precedence over the interest in protecting persons exposed to the risk of harm so created, or that all reasonable persons would agree that the risk so created is not unreasonable. —Reversing the directed verdict and holding that the issue should be decided by a jury is not an expression of a value judgment that slingshots should not be manufactured and marketed, but rather expresses a value judgment that all reasonable persons do not agree concerning the reasonableness of the risk so created and that the interest of the child in ready-market access is not of such overriding importance as to be entitled to absolute protection as a matter of law, and therefore a jury, applying the community’s judgment of how reasonable persons would conduct themselves, should make the ultimate value judgment of the risks and the societal importance of the interests involved in marketing slingshots directly to children. However the Court decides this case, it necessarily makes a choice, even if the Legislature may later make a different choice. If the issue is left to juries to decide, different juries will, indeed, reach different results, sometimes in cases appearing to be factually indistinguishable. The variant results may be more perceptible in this kind of case than in one where it may appear there are more variables. The preference for jury resolution of the issue of negligence is not, however, simply an expedient reflecting the difficulty of stating a rule that will readily resolve all cases; rather, it is rooted in the belief that the jury’s judgment of what is reasonable under the circumstances of a particular case is more likely than the judicial judgment to represent the community’s judgment of how reasonable persons would conduct themselves. If the experience should be that juries invariably reach one result, that may suggest the specific standard of care upon which "all” reasonable persons would agree. Until the community judgment is made so to appear, the principle that doubtful questions regarding the application of the standard of care should be decided by reference to the community judgment requires jury submission of the question so in doubt. The law of negligence was created by common-law judges and, therefore, it is unavoidably the Court’s responsibility to continue to develop or limit the development of that body of law absent legislative directive. The Legislature has not approved or disapproved the manufacture of slingshots and their marketing directly to children; the Court perforce must decide what the common-law rule shall be. I Duty and Proximate Cause While we all agree that the duty question is solely for the court to decide, the specific standard of care is not part of that question. The elements of an action 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. "Duty” comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include — where there is an obligation — the nature of the obligation: the general standard of care and the specific standard of care. Dean Prosser observed: the duty. ” Prosser, Torts (4th ed), § 53, p 324 (emphasis supplied). "It is quite possible, and not at all uncommon, to deal with most of the questions which arise in a negligence case in terms of 'duty.’ Thus the standard of conduct required of the individual may be expressed by saying that the driver of an automobile approaching an intersection is under a duty to moderate his speed, to keep a proper lookout, or to blow his horn, but that he is not under a duty to take precautions against the unexpected explosion of a manhole cover in the street. But the problems of 'duty’ are sufficiently complex without subdividing it in this manner to cover an endless series of details of conduct. It is better to reserve ’duty’ for the problem of the relation between individuals which imposes upon one a legal obligation for the beneñt of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation. In other words, 'duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy The statement in my colleague’s opinion that the "defendants did not owe plaintiff minor the asserted duty not to manufacture, distribute and sell slingshots” combines the separate questions of duty, general and specific standard of care and proximate cause: whether in marketing a product a manufacturer, wholesaler and retailer are under any legal obligation to a bystander (duty); the nature of that obligation (general standard of care: reasonable conduct "in the light of the apparent risk”); whether marketing slingshots directly to children is reasonable conduct (specific standard of care); whether marketing slingshots directly to children is "so significant and important a cause [of loss resulting from such marketing] that the defendant should be legally responsible” (proximate cause, a policy question often indistinguishable from the duty question). Combining in one statement these different questions obscures the functions of the court and jury. While the court decides questions of duty, general standard of care and proximate cause, the jury decides whether there is cause in fact and the specific standard of care: whether defendants’ conduct in the particular case is below the general standard of care, including — unless the court is of the opinion that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy — whether in the particular case the risk of harm created by the defendants’ conduct is or is not reasonable. Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person. Proximate cause encompasses a number of distinct problems including the limits of liability for foreseeable consequences. In the Palsgraf case, the New York Court of Appeals, combining the questions of duty and proximate cause, concluded that no duty is owed to an unforeseeable plaintiff. The questions of duty and proximate cause are interrelated because the question whether there is the requisite relationship, giving rise to a duty, and the question whether the cause is so significant and important to be regarded a proximate cause both depend in part on foreseeability— whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable. It is well established that placing a product on the market creates the requisite relationship between a manufacturer, wholesaler and retailer and persons affected by use of the product giving rise to a legal obligation or duty to the persons so affected. A manufacturer owes the consumer an obligation to avoid negligent conduct. The obligation extends to persons within the foreseeable scope of the risk. In Piercefield v Remington Arms Co, Inc, 375 Mich 85; 133 NW2d 129 (1965), a bystander, injured when his brother’s shotgun bar rel exploded, was permitted to maintain an action against the manufacturer, wholesaler and retailer of allegedly defective shotgun shells. A manufacturer, wholesaler and retailer of slingshots can be expected to foresee that they will be used to propel pellets and that a person within range may be struck. Moning, as a playmate of a child who purchased a slingshot marketed by the defendants, was within the foreseeable scope of the risk created by their conduct in marketing slingshots directly to children. Moning was a foreseeable plaintiff. The defendant manufacturer, wholesaler and retailer were under an obligation for the safety of Moning. The question of proximate cause, like the question of duty, is "essentially a problem of law”. Most proximate cause problems are not involved in this case. Alfono’s conduct in using the slingshot to propel pellets was to be anticipated. "If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent, among other reasons, because he has failed to guard against it; or he may be negligent only for that reason.” Prosser, supra, § 44, p 272. By marketing slingshots directly to children, the defendants effectively created the risk that Alfono would use the slingshot. "Obviously the defendant cannot be relieved from liability by the fact that the risk, or a substantial and important part of the risk, to which he has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant’s negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant’s responsibility.” Id, p 273. Alfono’s shooting pellets toward a tree and a ricochet into Moning’s'eye was within the "recognizable risk of harm” created by marketing slingshots directly to children. The ricochet was "a normal consequence of the situation” created by the defendants’ conduct. II General Standard of Care Specific Standard of Care Turning to a consideration of the nature of the obligation owed by a manufacturer, wholesaler or retailer, we note that this is not an ordinary products liability case where the plaintiff seeks to recover by proving a defect in the product without carrying the burden of proving fault or negligence. Moning’s claim is grounded in negligence. He asserts that his damage was caused by the fault of the defendants. In a negligence case, the standard of conduct is reasonable or due care. 2 The Restatement Torts, 2d, § 283, provides: "[T]he standard of conduct to which [the actor] must conform to avoid being negligent is that of a reasonable man under like circumstances.” "[I]n negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk.” Prosser, Torts, supra, § 53, p 324. It is the application of that general standard of conduct to the marketing of slingshots to children, the specific standard of care — not whether there is a duty of due care in such marketing — that is the primary area of disagreement in this case. Manufacturing and marketing slingshots necessarily creates a risk of harm. Moning does not, however, contend that manufacturing and marketing slingshots is negligence per se. His contention, rather, is that marketing them directly to children creates an unreasonable risk of harm. Moning relies on the doctrine of negligent entrustment, one of the many specific rules concerning particular conduct that have evolved in the application of the general standard of care. A person who supplies an article to a child which may pose a reasonable risk of harm in the hands of an adult but which poses an unreasonable risk of harm in the hands of a child is subject to liability for resulting harm: "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” 2 Restatement Torts, 2d, § 390. The common law has long recognized that a parent or other responsible adult who entrusts a potentially dangerous instrumentality to a child may be subject to liability. Liability "arises from [the defendant’s] active misconduct; he has actually created an unreasonable risk to others by placing a chattel in the hands of a person whose use thereof is likely to create a recognizable risk to third persons”. The obligation "to guard or secure objects which are dangerous to children” arises "because of the likelihood of their own intermeddling”. Persons dealing with children must "take notice of the ordinary nature of young boys, their tendency to do mischievous acts, and their propensity to meddle with anything that came in their way”. Special rules for children are not unusual. The attractive nuisance doctrine, an exception to the general rule limiting the liability of landowners for injuries to trespassers, is based on the child’s inability to appreciate danger and his inclination to explore without regard to the risk. The doctrine does not depend on the landowner’s knowledge that the "individual” child is "incompetent”. The doctrine of negligent entrustment is not peculiar to automobiles but rather an ordinary application of general principles for determining whether a person’s conduct was reasonable in light of the apparent risk. It is grounded in the general principle that a reasonable person will have in mind the immaturity, inexperience and carelessness of children. If, taking those traits into account, a reasonable person would recognize that his conduct involves a risk of creating an invasion of the child’s or some other person’s interest, he is required to recognize that his conduct does involve such a risk. "He should realize that the inexperience and immaturity of young children may lead them to act innocently in a way which an adult would recognize as culpably careless, and that older children are peculiarly prone to conduct which they themselves recognize as careless or even reckless.” 2 Restatement, supra, § 290, comment k. The issue whether the defendants are subject to liability cannot properly be taken from the jury on the supposition that an 11-year-old boy knows how a slingshot operates and, therefore, appreciates the risk. Even if it is thought, without supporting evidence and as a matter of law, that children should be deemed to appreciate the risk, there still may be an unreasonable risk of physical harm to the child and others in marketing slingshots directly to them. Entrusting potentially dangerous articles to a child may pose an unreasonable risk of harm not only because the child may not appreciate the risk or may not have the skill to use the article safely but — even if he does appreciate the risk and does have the requisite skill — because he may recklessly ignore the risk and use the article frivolously due to immaturity of judgment, exuberance of spirit, or sheer bravado. "One has no right to demand of a child, or of any other person known to be wanting in ordinary judgment or discretion, a prudence beyond his years or capacity, and therefore in his own conduct, where it may possibly result in injury, a degree of care is required commensurate to the apparent immaturity or imbecility that exposes the other to peril. Thus, a person driving rapidly along a highway where he sees boys engaged in sports, is not at liberty to assume that they will exercise the same discretion in keeping out of his way that would be exercised by others; and ordinary care demands of him that he shall take notice of their immaturity and govern his action accordingly.” 3 Cooley, Law of Torts (4th ed), § 490, pp 433-434. Just as the driver of an automobile is expected to take precautions for the safety of children playing near a highway even though children can be expected to appreciate the risk and the driver does not know that the individual children are incompetent to look after themselves, so too a supplier can be expected in marketing a product to take precautions for the safety of children and others even if the child may be expected to appreciate the risk and individual children may both appreciate it and be skilled in using the product. It is for a jury to decide whether any negligence in marketing slingshots directly to children is a cause in fact of plaintiffs loss. Ill Reasonableness of the Risk of Harm Even if a person recognizes that his conduct involves a risk of invading another person’s interest, he may nevertheless engage in such conduct unless the risk created by his conduct is unreasonable. The reasonableness of the risk depends on whether its magnitude is outweighed by its utility. The Restatement provides: "Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.” 2 Restatement, supra, § 291. The balancing of the magnitude of the risk and the utility of the actor’s conduct requires a consideration by the court and jury of the societal interests involved. The issue of negligence may be removed from jury consideration if the court concludes that overriding considerations of public policy require that a particular view be adopted and applied in all cases. A court would thus refuse to allow a jury to consider whether an automobile manufacturer should be liable for all injuries resulting from manufacturing automobiles on the theory that it is foreseeable that some 50,000 persons may be killed and hundreds of thousands injured every year as a result of manufacturing automobiles. The utility of providing automobile transportation is deemed by society to override the magnitude of the risk created by their manufacture. Similarly, a court might conclude that it would be violative of public policy to hold a manufacturer of slingshots liable for all injuries resulting from their use. The interest of mature persons who wish to purchase and use slingshots might be deemed to supersede the interest of those who may be harmed by their careless or improper use. The issue in the instant case is not whether slingshots should be manufactured, but the narrower question of whether marketing slingshots directly to children creates an unreasonable risk of harm. In determining that question, the Court must first ask whether the utility of marketing slingshots directly to children so overrides the risk thereby created as to justify the Court in refusing to permit juries to subject persons who engage in such conduct to liability for the resulting harm. If it concludes that the utility does not, as a matter of law, override the risk, then the question of balancing utility and risk is for the jury to decide, again, as part of its consideration of the reasonableness of defendants’ conduct, unless the Court concludes that all reasonable persons would be of one mind on that question. The Restatement suggests a number of factors that should be considered in balancing the utility of the actor’s conduct and the magnitude of the risk. First, the magnitude of the risk: "In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important: "(a) the social value which the law attaches to the interests which are imperiled; "(b) the extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member; "(c) the extent of the harm likely to be caused to the interests imperiled; "(d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.” 2 Restatement, supra, § 293. a) The law attaches a high social value to the interest of persons in unimpaired eyesight. b) Slingshots are potentially dangerous. An expert witness, called by Moning, testified that the slingshots Alfono purchased were capable of launching projectiles at speeds exceeding 350 miles per hour. Slingshots cause hundreds of serious injuries each year to school-age children. Almost all these injuries are head or eye injuries and occur to children 5 to 14. Experience therefore shows that marketing slingshots to children may with substantial frequency cause an invasion of the interest in unimpaired eyesight of a substantial number of persons. c) The extent of the harm likely to be caused to the interest so imperiled may be of a most serious nature. d) The number of persons whose interests are likely to be invaded is difficult to estimate, but it appears that hundreds of injuries, many resulting in serious impairment of vision, occur every year as a result of the use of slingshots by children. Turning to utility: "In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important: "(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct; "(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct; "(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.” 2 Restatement Torts, 2d, §292. a) There is a sharp difference of opinion concerning the social value of the child’s interest in having direct-market access to slingshots. The view that slingshots should not be sold or used by children is widely held and is reflected in statutes and ordinances prohibiting the sale of slingshots to or their use by minors. Statutes and other legislative judgments may themselves be a source of common law. "This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.” Moragne v States Marine Lines, Inc, 398 US 375, 390-391; 90 S Ct 1772; 26 L Ed 2d 339 (1970). Similarly, see Williams v Polgar, 391 Mich 6, 14, 26-28; 215 NW2d 149 (1974). North Carolina and Mississippi prohibit sale of a slingshot to a minor. Idaho prohibits sale to a minor under 16 without parental consent. Mississippi holds a father liable for allowing a son under 16 to have, own or carry concealed a slingshot. Pennsylvania prohibits sale to and carrying by persons under 18 of an implement "which impels a pellet of any kind with a force that can reasonably be expected to cause bodily harm”. Nine states prohibit any person from carrying a concealed slingshot. A number of states consider slingshots to be deadly weapons and treat them under statutes prohibiting carrying concealed weapons. Many cities regulate the sale and possession of slingshots. Michigan empowers fourth class cities to "prohibit and punish the use of toy pistols, sling shots and other dangerous toys or implements within the city” (emphasis supplied). Nine cities in this state prohibit persons from possessing slingshots, five others prohibit possession by or sale to minors. Those ordinances generally classify slingshots as "dangerous weapons”. It is apparent from the legislation in other state and innumerable municipalities that all reasonable persons do not agree that marketing slingshots directly to children does not involve an unreasonable risk of harm. The failure of other states and cities to enact like statutes and ordinances, and of the Legislature either to authorize or prohibit the marketing of slingshots directly to children, indicates a variety of opinion, but not a consensus regarding the reasonableness of marketing slingshots directly to children. b) Children are more likely to obtain slingshots if they are marketed directly to them. c) Slingshots could be marketed in a manner designed to confine sale to adults and to exclude purchases by children. Instead of manufacturers, wholesalers and retailers effectively determining whether children shall have slingshots, an adult who generally would know the child would decide whether he is of sufficient maturity to have one; the adult would, under the common law, assume responsibility for any negligence on his part in entrusting a slingshot to the child. Having in mind the parent’s interest in protecting the child from potentially dangerous instrumentalities and in avoiding exposure to litigation such as befell the Alfonos, the child’s interest in an opportunity to use slingshots cannot be said as a matter of law to be inadequately advanced or protected by allowing a jury to decide that a manufacturer, wholesaler or retailer is negligent in marketing them directly to children. Balancing the magnitude of the risk and the utility of the conduct in the application of the factors suggested by the Restatement, there is not a sufficient basis for concluding as a matter of law that the utility of the defendants’ conduct outweighs the risk of harm thereby created. The sharp difference of opinion regarding the balancing of utility and risk of harm requires submission of these questions for jury assessment as part of its consideration of the reasonableness of the risk of harm and of defendants’ conduct. While "slingshots have a long history of association with the human race” and have been used for hundreds of years by both adults and children, the common law is not immutable, unable to respond to changes in society and technology. "The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard [of reasonably prudent conduct] has been met. Such usage cannot, however, be determinative of the standard. As stated by Justice Holmes: " 'What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.’ Texas & PR Co v Behymer, 189 US 468, 470; 23 S Ct 622; 47 L Ed 905 (1903).” Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369-370; 189 NW2d 208 (1971). As society becomes increasingly urbanized and access to open space decreases, the law responds and develops. Modern technology may have magnified the risk of ricochet and of injury to persons not in the immediate range or direction in which the slingshot is aimed. Slingshots capable of firing projectiles at 350 miles per hour may be a far cry from those historically made by children from rubber bands and household paraphernalia. Nor does calling a slingshot a "toy” make it any less dangerous nor immunize its marketing di rectly to children from the general rules of negligence liability. There is a qualitative difference between slingshots and other projectile "toys” on the one hand, and baseball equipment and bicycles on the other. The latter are viewed by society essentially as are automobiles in that although children are injured and killed riding bicycles and playing baseball, the utility of such activity is regarded by society and all reasonable persons as outweighing the risk of harm created by their manufacture for and marketing to children. Statutes and ordinances do not prohibit the purchase or use of bicycles or baseball equipment by children. There is no ongoing debate, as there is about slingshots, whether children should have direct market access to bicycles or baseball equipment. In sum, it cannot be said that there was no "obligation of reasonable conduct for the benefit of the plaintiff’, or that all reasonable men would agree that defendants’ conduct was not "a substantial factor in producing the result” or regarding "the foreseeability of [the] particular risk” or regarding "the reasonableness of the defendants’ conduct with respect to it, or the normal character of [Alfono’s conduct]” as an intervening cause. Since reasonable persons can differ regarding the balance of risk and utility (the reasonableness of the risk of harm) and since there is no overriding policy based on social utility of maintaining absolute access to slingshots by children, we reverse and remand for a new trial. Kavanagh, C. J., and Williams, J., concurred with Levin, J. Ryan and Blair Moody, Jr., JJ., took no part in the decision of this case. See Prosser, Torts (4th ed), § 37, p 206, quoted in my colleague’s opinion. "The reasonable man represents the general level of community intelligence and perception and the jury, being a cross-section of the community, should best be able to tell what that general level is.” 2 Harper & James, The Law of Torts, § 16.10, p 936. Similarly see, Prosser, supra, §37, p 207; Detroit & M R Co v Van Steinburg, 17 Mich 99, 120 (1868). See Prosser, supra, § 35, p 188; 2 Harper & James, supra, § 17.2, p 971. See Prosser, supra, § 37, p 206. See, also, Elbert v Saginaw, 363 Mich 463, 476; 109 NW2d 879 (1961). Prosser, supra, § 42, p 244. Id, § 45, pp 289-290; § 37, pp 205-208. Id, § 42, p 244; Clark v Dalman, 379 Mich 251, 260; 150 NW2d 755 (1967). See generally, H. L. A. Hart & A. M. Honoré, Causation in the Law (Oxford, Clarendon Press, 1973), ch IX. Palsgraf v Long Island R Co, 248 NY 339; 162 NE 99; 59 ALR 1258 (1928). Prosser, supra, § 43, p 254. MacPherson v Buick Motor Co, 217 NY 382; 111 NE 1050 (1916). "Agreeing as all of our recent decisions do with the developing weight of authority, the essence of which is that the manufacturer is best able to control dangers arising from defects of manufacture, I would say definitely that Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120 [90 NW2d 873 (1958)]; Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich 235 [109 NW2d 918 (1961)]; Barefield v La Salle Coca-Cola Bottling Co, 370 Mich 1 [120 NW2d 786 (1963)], and Hill v Harbor Steel & Supply Corp, 374 Mich 194 [132 NW2d 54 (1965)], have put an end in Michigan to the defense of no privity, certainly so far as concerns an innocent bystander injured as this plaintiff pleads, and that a person thus injured should have a right of action against the manufacturer on the theory of breach of warranty as well as upon the theory of negligence. ” Piercefield v Remington Arms Co, Inc, 375 Mich 85, 97-98; 133 NW2d 129 (1965) (emphasis supplied). Prosser, supra, § 42, p 244. "[I]t is possible to approach 'proximate cause’ as a series of distinct problems, more or less unrelated, to be determined upon different considerations. The list, which is not necessarily exclusive, would include at least the following problems: "1. The problem of causation in fact * * * . "2. The problem of apportionment of damages among causes. "3. The problem of liability for unforeseeable consequences * * * . "4. The problem of intervening causes * * * . "5. The problem of shifting responsibility * * * .” Id, pp 249-250. See fn 13, supra; there is no issue of apportionment of damages, or of shifting responsibility to another person except insofar as defendants similarly situated might be free to leave the duty of protecting a person affected by a child’s use of a slingshot to adults were they to market slingshots in a manner designed to reach adults and not children; the issue of causation in fact is for a jury to resolve. The Restatement illustrates the scope of the responsibility for delivering a potentially dangerous chattel to a child: "A gives a loaded pistol to B, a boy of eight, to carry to C. In handing the pistol to C the boy drops it, injuring the bare foot of D, his comrade. The fall discharges the pistol, wounding C. A is subject to liability to C, but not to D.” 2 Restatement Torts, 2d, § 281, illustration to comment f on clause (b). "If a gun is entrusted to a child, it suggests at once to anyone with imagination at all that someone, the child or another, is likely to be shot.” Prosser, supra, § 44, p 273. 2 Restatement, supra, § 281, comment f on clause (b). "So far as scope of duty (or, as some courts put it, the relation of proximate cause) is concerned, it should make no difference whether the intervening actor is negligent or intentional or criminal. Even criminal conduct by others is often reasonably to be anticipated. After all, if I leave a borrowed car on the streets of New York or Chicago with doors unlocked and key in ignition, I am negligent (at least towards the owner) because of the very likelihood of theft. And if I lend a car to one known by me to be habitually careless I am negligent precisely because of the likelihood of his negligent operation of the car. Again the importance of the factor of foreseeability is not altered if the intervening act is that of plaintiff himself, nor is it if that act is a negligent one. When I lent my car to the careless driver, one of the risks that made me negligent was surely the chance that he might hurt himself. If he is barred from recovery for such hurt it is because of his contributory fault, not for want of a causal connection or because he is beyond the scope of my duty.” 2 Harper & James, supra, § 20.5, pp 1144-1146. Similarly see Comstock v General Motors Corp, 358 Mich 163, 179; 99 NW2d 627; 78 ALR2d 449 (1959); Berry v Visser, 354 Mich 38, 47; 92 NW2d 1 (1958). "The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.” 2 Restatement, supra, § 443. "The word 'normal’ is not used in this Section in the sense of what is usual, customary, foreseeable, or to be expected. It denotes rather the antithesis of abnormal, of extraordinary. It means that the court or jury, looking at the matter after the event, and therefore knowing the situation which existed when the new force intervened, does not regard its intervention as so extraordinary as to fall, outside of the class of normal events.” Id, comment b. The doctrine is not limited to plaintiffs whose "individual” propensities are known to the supplier. The comments following 2 Restatement, supra, § 390, show that the doctrine of negligent entrustment also applies to classes of persons. 2 Restatement, supra, § 390, comment b. See, Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale LJ 886, 894 (1934). Id. James, Scope of Duty in Negligence Cases, 47 NW U L Rev 778, 782 (1953). See Terranella v Union Building & Construction Co, 3 NJ 443; 70 A2d 753 (1950). "A product designed to be used by adults who may be expected to exercise care may not be dangerous, but when intended to be placed in the hands of inexperienced children who may seek to enlarge their knowledge by experimentation of various and sometimes unexpected character, it may be a source of peril * * * .” Crist v Art Metal Works, 230 App Div 114, 117; 243 NYS 496, 499 (1930), aff'd 255 NY 624; 175 NE 341 (1931). Note, Dangerous Toys, 64 Irish L Times 223, 224 (1930); 38 Am Jur, Negligence, § 40, pp 685-686. See generally, Prosser, supra, § 59, p 364. While the Restatement’s illustrations and the case law applying the doctrine of negligent entrustment largely concern suppliers of automobiles (see, e.g., Johnson v Cassetta, 197 Cal App 2d 272; 17 Cal Rptr 81 [1961]), it does not depend on the nature of the chattel. Fredericks v General Motors Corp, 48 Mich App 580, 585; 211 NW2d 44 (1973) (supply of dies to plaintiffs employer). See also Dee v Parrish, 160 Tex 171; 327 SW2d 449, 452 (1959); 65 CJS, Negligence, § 69, pp 949-950; cf. Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark L Rev 101, 107-108 (1966); Littlejohn, 1974 Annual Survey of Michigan Law: Torts, 21 Wayne L Rev 665, 681 (1975). Nor is the doctrine restricted to chattels classified as latently defective or inherently dangerous. Fredericks, supra, 584. The Restatement sets forth a rule crystalized by the development of the common law concerning the liability of one who sells or entrusts devices to children who, because of their youth and inexperience, cannot be relied on to use them prudently, or because of their immaturity may not appreciate the risk of injury or have the skill to use such devices safely: "At common law the legal principle is established that if one sells a dangerous article or instrumentality such as firearms or explosives to a child whom he knows or ought to know to be, by reason of youth and inexperience, unfit to be trusted with it, and who might innocently and ignorantly play with or use it to his injury, and injury does in fact result, he may be found guilty of negligence and consequently liable in damages.” Anno, Liability of Seller of Firearm, Explosive, or Highly Inñammable Substance to Child, 20 ALR2d 119, 124. See also 79 Am Jur 2d, Weapons and Firearms, § 43, p 48. "The common law imposes upon every one the duty of so using and disposing of his property as not to injure the person or property of another, and if one sells a dangerous article to a child whom he knows to be, by reason of his youth and inexperience, unfit to be trusted with it, and who probably might innocently and ignorantly play with it to his own injury, and injury does in fact result, he is liable in damages therefor.” McEldon v Drew, 138 Iowa 390, 392; 116 NW 147, 148 (1908). In McEldon, the Court held that the seller of ten-cents worth of gun powder to a 12-year-old boy was liable for the injury to one of the boy’s eyes caused by an inadvertent explosion. See also Carter v Towne, 98 Mass 567; 96 Am Dec 682 (1868). Entrusting other devices used by children as playthings may also give rise to liability. See Schmidt v Capital Candy Co, 139 Minn 378; 166 NW 502 (1918) (sparkler) (dictum); Bosserman v Smith, 205 Mo App 657; 226 SW 608 (1920) (fireworks); Gerbino v Greenhut-Siegel-Cooper Co, 165 App Div 763; 152 NYS 502 (1915) (airgun used on retailer’s premises); Semeniuk v Chentis, 1 Ill App 2d 508; 117 NE2d 883 (1954) (airgun; sale to parents, retailer knew that 7 year old would use); Krueger v Knutson, 261 Minn 144; 111 NW2d 526 (1961) (potassium chlorate); LaFaso v LaFaso, 126 Vt 90; 223 A2d 814 (1966) (cigarette lighter without fluid); Note, supra, 64 Irish L Times 223 (citing cases). The only basis for distinguishing these cases from the instant case would be to conclude that there is a qualitative difference between the risk of entrusting such instrumentalities to children and the risk posed by marketing slingshots directly to children. In light of the frequency and severity of injuries to children attributable to slingshots, and the widely held view, expressed in statutes and ordinances, that children should not be entrusted with slingshots, there is no sound basis for creating, as a matter of law, such a distinction. An actor "is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising (a) such attention, perception of the circumstances, memory, knowledge of other-pertinent matters, intelligence, and judgment as a reasonable man would have ** * * ” 2 Restatement, supra, § 289. "For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know (a) the qualities and habits of human beings and animals and the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community * * * .” Id, § 290. There is some evidence that one of the reasons slingshot injuries are experienced by children between the ages of 5 and 14 in disproportion to the populace generally is that the risk is not appreciated. See, Johnston, Perforating Eye Injuries: A Five Year Survey, 91 Transactions of the Ophthalmological Soc’y U K 895, 897 (1971); Kerby, Eye Accidents to School Children, 20 Sight-Saving Rev 2 (1950). Reasonable precautions must be taken even though the actor does not know that an individual child is not competent and the child may appreciate the risk: "And when children are in the vicinity, much is necessarily to be expected of them which would not be looked for on the part of an adult. It may be anticipated that a child will dash into the street in the path of a car, or meddle with a turntable. It may be clear negligence to entrust him with a gun, or to allow him to drive an automobile, or to throw candy where a crowd of boys will scramble for it. There have been a number of 'pied piper’ cases, in which street vendors of ice cream, and the like, which attract children into the street, have been held liable for failure to protect them against traffic. It may be quite as negligent to leave the gun, or to leave dynamite caps, where children are likely to come, and can easily find them. In all such cases, the question comes down essentially to one of whether the risk outweighs the utility of the actor’s conduct. He may be required to guard a power line pole located in a public park, but not one in the open country; and whether he must take steps to prevent children from interfering with such an object as a stationary vehicle is entirely a matter of the circumstances of the particular case.” Prosser, supra, § 33, pp 172-173. "In addition, people who have an ordinary amount of exposure to the facts of modern life in America will be treated as though they know many other things. The normal adult is held to have knowledge of the characteristics of animals common to his community, such as the proneness of mules to kick, the viciousness of bulls, and the propensity of mad dogs to bite. He is also required to be acquainted with the natural propensities of children, the dangers incident to common sports, and the elements of the weather to which he is accustomed. "35 Such as their heedlessness — Femling v Star Publication Co, 195 Wash 395; 81 P2d 293 (1938); the attractiveness of ponds of water—Davoren v Kansas City, 308 Mo 513; 273 SW 401; 40 ALR 473 (1925); the attractiveness of dangerous objects such as explosives—Wellman v Fordson Coal Co, 105 W Va 463; 143 SE 160 (1928); childish impulses—Louisville & NR Co v Vaughn, 292 Ky 120; 166 SW2d 43 (1943); climbing propensity — Deaton’s Administrator v Kentucky & West Virginia Power Co, 291 Ky 304; 164 SW2d 468 (1942); propensity of small children to wander into streets — Agdeppa v Glougie, 71 Cal App 2d 463; 162 P2d 944 (1945). Compare § 27.5 infra.” A jury might conclude that because the child was skilled in the use of a slingshot and did not use it frivolously, the manner of marketing the slingshot was not the cause in fact of plaintiffs injury. "Conduct is not negligent unless the magnitude of the. risk involved therein so outweighs its utility as to make the risk unreasonable. Therefore, one relying upon negligence as a cause of action or defense must convince the court and jury that this is the case.” 2 Restatement, supra, § 291, comment b (emphasis supplied). Projections from one study indicate that nearly 66,000 school children in the United States during any 9-month school year suffer injuries to the eye. Over 4% of the reported injuries in a study carried out in Louisville were caused by slingshots and other weapons. Such instrumentalities were responsible for 17% of the more serious injuries. Kerby, supra, 20 Sight-Saving Rev, 3-4, 11. Another study shows that "[t]here were an estimated 471 injuries related to slingshots and sling propelled toys during the period July 1, 1974-July 30, 1975, treated in United States hospital emergency rooms, all but 2 of which were head or eye injuries to victims under 15 years of age”. United States Consumer Product Safety Commission, Bureau of Epidemiology, Special Report: Injuries Associated with Products Which Have Projectiles (Draft, October 23, 1975), p 15. During the same time period, 2,120 injuries reported to hospital emergency rooms involved projectile products. Id, p 17. The United States Consumer Product Safety Commission states that since "[sjlingshots range from toys to hunting models capable of killing small game * * * it is recommended that high powered slingshots be sold only to persons over 20 years of age”. Id, p 23. The commission concluded that "[ojverall, projectile products include a diverse array of products which while they share a common hazard are very different in age of users, intended use, and likelihood and consequences of misuse,” and that therefore "Commission action would be most effective” "in the area of toy guns and other toy weapons with projectiles and slingshots.” Id. See fn 30, supra, and accompanying text. The United States Supreme Court, relying on state statutes providing for wrongful death actions and overruling cases to the contrary, held that under general maritime law there was a cause of action for wrongful death. State courts created an action for wrongful death in admiralty cases, based on statutes not, by their terms, applicable to maritime cases. In that context, judges were "awake to the purport of this legislative movement, eagerly seized upon principles derivable from 'natural equity’ and 'consonant * * * with the benign spirit of English and American legislation on the subject’ to mould admiralty law to conform with the trend of civilized thought”. Landis, Statutes and the Sources of Law, Harvard Legal Essays, pp 213, 226 (1934). Several state courts have relied on statutes in other jurisdictions as "the wiser and safer rule,” notwithstanding local common law to the contrary, in holding that a general devise operates to execute a power of appointment vested in the testator. Id, p 231. Legislative judgments or trends and statutory changes may be relevant in assessing the "national conscience” in common-law and constitutional adjudication. See Furman v Georgia, 408 US 238, 298-299; 92 S Ct 2726; 33 L Ed 2d 346 (1972) (Brennan, J., concurring). In extending the obligation of an abstractor to persons not in privity of contract, this Court relied in part on statutes of other jurisdictions so providing. NC Gen Stat § 14-315; Miss Code Ann § 97-37-13. Idaho Code § 18-3302. Miss Code Ann § 97-37-15. Pa Stat Ann, title 18, § 6304 (Purdon). Alas Stat Ann § 11.55.010; Idaho Code § 18-3302; Miss Code Ann § 97-37-1; Mont Rev Codes Ann § 94-3525; Tenn Code Ann § 39-4901; Utah Code Ann § 76-23-4; NC Gen Stat § 14-269; SC Code § 16-23-460; RI Gen Laws § 11-47-42. Alas Stat Ann § 11.55.010 (treated, along with pistols, firearms and daggers, under carrying concealed weapons statute); Del Code Ann, title 11, § 222(5) (defined to be a "deadly weapon”); DC Code Ann § 22-3217 ("dangerous article”); Idaho Code § 18-3302 (treated with "concealed and dangerous weapons”); Ind Code Ann § 35-1-79-1 (Burns) ("dangerous weapon”); Mass Laws Ann, ch 269, § 12 (sale prohibited, along with switch knife, sword cane, bludgeon and blackjack); Miss Code Ann § 97-37-1 ("deadly weapon”); Mont Rev Codes Ann § 94-3525 ("deadly weapon”); NJ Stat Ann §§ 2A:151-2, 2A:151-5 (West) ("weapon,” "dangerous instrument”); NC Gen Stat § 14-269 ("deadly weapon”); SC Code § 16-23-460 ("deadly weapon”); Tenn Code Ann § 39-4901 ("dangerous weapon”); Utah Code Ann § 76-23-4 ("deadly weapon”). See Ga Code Ann § 26-2901, committee notes, p 201. 39 Fed Reg 16707-16710 (1974). MCLA 91.1; MSA 5.1740. Home-rule cities possess the police power and thus there is no need for specific enabling legislation. MCLA 117.3; MSA 5.2073. Belding ordinances, § 12.11; Buchanan ordinances, § 11.4; Center Line ordinances, § 8-108; Escanaba ordinances, § (D); Grand Haven ordinances, § 8-209; Hazel Park ordinances, § 15; Sterling Heights ordinances, § 7.(1); Trenton ordinances, § 9.171, and Warren ordinances, § 8-210. See 39 Fed Reg 16708-16710 (1974). Gladstone ordinances, § 504.06 (prohibits possession, sale, or gift to persons younger than 18); Lake Orion ordinances, § 9 (prohibits sale, offer to sale, give away or distribute to persons under the age of 21); Port Huron ordinances, § 9.117 (prohibits parents to knowingly permit child under 18 to use or possess except under adult supervision); Waterford ordinances, § 61-IX (prohibits possession, sale or gift to persons younger than 21); Royal Oak ordinances, § 276.1(c) (prohibits selling or giving to persons under 16). See 39 Fed Reg 16707-16710 (1974). See 39 Fed Reg, supra. See generally 59 Am Jur 2d, Parent and Child, § 106, p 205 et seq.; Prosser, supra, § 125, p 888 et seq. A slingshot is no more a toy than a sparkler, fireworks, an air gun or an empty cigarette lighter, yet courts have sustained liability for the entrustment of such articles to children. See fn 24, supra. Books prepared for parents speak of the dangers of such "toys”. See, e.g., Swartz, Toys That Don’t Care (Gambit, Inc, 1971), p 251. The toy industry has acknowledged its awareness of the risks; the industry’s proposed draft of Voluntary Product Standards for Toy Safety (May, 1972), while excluding slingshots from coverage, states that there are "[c]ertain well-recognized hazards inherent in such traditional toys as bows and arrows, slingshots and darts,” quoted in Swartz, Blindness in the Toy Box, 43 Sight-Saving Rev 95, 97 (1973). Prosser, supra, § 45, pp 289-290. Id. Id. Id. Harper & James, supra, § 16.5, pp 912-913. The trier of fact decides whether reasonable precautions have been taken and thereby establishes the specific standared of care: "The common formula for the negligence standard is the conduct of a reasonable man under like circumstances. In applying this standard under the instructions of the court, the jury normally is expected to determine what the general standard of conduct would require in the particular case, and so to set a particular standard of its own within the general one. This function is commonly said to be one of the determination of a question of fact, and not of law. It differs from the function of the court, however, only in that it is not reduced to any definite rules, so that the same conclusion will not necessarily be reached in two identical cases, and that it is a secondary function, performed only after the court has reached its initial conclusion that the issue is for the jury.” 2 Restatement, supra, § 328 C, comment on clause (b).