PRINCIPAL AND SURETY-Continued.
harmless the said obligee from any pecuniary loss resulting
from the breach of any of the terms, covenants, and condi-
tions of said contract on the part of the said principal to be
performed. Held, that such bond is broad enough in its
terms to bind the surety for losses sustained through the pay-
ment of mechanics' liens; since simply contracting for the
materials, etc., and leaving the owner of the premises to pay
for them is not furnishing them in any substantial sense.
Stoddard v. Hibbler, 335.
See BILLS AND NOTES (1); EXECUTORS AND ADMINISTRA-
TORS (1).
PROBATE APPEALS-See APPEAL AND ERROR (17); EXECUTORS
AND ADMINISTRATORS (4).
1. Under the statute (chap. 33, 1 Comp. Laws, and chap. 234, 3
Comp. Laws) the probate court has exclusive jurisdiction of
the settlement of the estates of mentally incompetent per-
sons under guardianship except where its remedies are inad-
equate; and the amendment of 1871 (Act No. 39, Laws 1871)
to section 651, 1 Comp. Laws, is simply declaratory of the ex-
isting law, removing any doubt as to the power of chancery
courts to exercise their general inherent equity powers where
the remedies in the probate court were inadequate, and the
expression in said amendment "originally exercised over the
same matters" refers to the exercise of such powers as there-
tofore existed in this State, and not to such powers as origi-
nally exercised by the courts of chancery in England. Nolan
v. Garrison, 397.
2. It will be presumed that a guardian of a person mentally in-
competent will comply with his statutory duty to pay the
debts of his ward under the supervision of the probate court
without the necessity of the debtor's bringing suit upon his
bond; hence, it cannot be determined that such remedy is
inadequate so as to give a court of chancery auxiliary juris-
diction, especially since in such case the chancery court
would have no greater power than the probate court to allow
a preference of complainant's claim over those of other cred-
itors. Id. 398.
See EXECUTORS AND ADMINISTRATORS (4).
PROCESS-See JUSTICES OF THE PEACE (2).
PROOF-See MARRIAGE (1).
PROOF OF DEATH-See INSURANCE (4).
PUBLICATION-See INTOXICATING LIQUORS (6).
PUBLIC IMPROVEMENTS - See MUNICIPAL CORPORATIONS (15).
PUBLIC OFFICERS-See MUNICIPAL CORPORATIONS (7).
RAILROAD COMMISSION-See CARRIERS.
1. Plaintiff, in approaching a crossing of a railroad, had an unob-
structed view of the track for 450 feet and attempted to cross
without stopping to look or listen and was struck by a train
running at the rate of 35 miles an hour. Held, that he was
guilty of contributory negligence. Strong v. Grand Trunk
Western R. Co., 66.
2. In such action, it appearing that whatever negligence was at-
tributable to defendant occurred before the discovery of plain-
tiff's negligence, defendant could not be said to be guilty of
gross negligence. Id.
3. Aside from constitutional or statutory requirements, the rela-
tion between manufacturers and railroad companies as to
the construction and maintenance of side tracks rests entirely
in contract; and where, in the absence of an express con-
tract, a railroad company constructs a side track to facilitate
the handling of the products of a manufacturer, no contract
is implied binding either to a continuance of the arrange-
ment, nor is the manufacturer entitled to damages against
the railroad company occasioned by reason of changes in the
grade of such railroad necessitating a like change in the side
track. City of Detroit v. Michigan Cent. R. Co., 121.
4. And the fact, that in the interest of the public, certain statu-
tory requirements have been made in regard to securing rail-
road facilities, does not affect the right of the railroad com-
panies to change the grade of their tracks, nor give the man-
ufacturer damages therefor. Id. 122.
5. Plaintiff, in attempting to cross the tracks of defendant's road,
stopped his team within a few feet of the tracks and looked
and listened. His view was obstructed by box cars on a
side track close to the crossing, and, not hearing an approach-
ing train, drove upon the track and was injured. The train
was running at a rate of speed faster than was permitted by
ordinance. Held, that plaintiff was not, as a matter of law,
guilty of contributory negligence, and that the question was
properly submitted to the jury. Beck v. Ann Arbor R. Co.,
6. Where, under section 6234, subd. 5, 2 Comp. Laws, it is the
duty of steam railways crossing a highway to restore it to its
former state, as near as may be, the fact that said highway is
used by an interurban street railway does not affect the lia-
bility of said steam railway to erect and maintain a bridge
over its crossing under the highway; nor does it authorize
imposing any portion of such expense upon the street railway.
Chicago, etc., R. Co. v. St. Clair Circuit Judge, 567.
7. Nor does the fact that another steam road, pursuant to con-
tract, uses the same track, affect the liability of defendant;
since the adjustment of the equities between said companies
is a matter to be undertaken by them. Id.
See CARRIERS; HIGHWAYS AND STREETS; MANDAMUS (5,
MASTER AND SERVANT (16); MUNICIPAL CORPORATIONS (1,
5, 13).
RATIFICATION-See SALES (7).
REAL PROPERTY-See EQUITY (2); SPECIFIC PERFORMANCE
(3, 4).
REASONABLE TIME-See EXCEPTIONS, BILL OF.
RECEIVERS-See CORPORATIONS (2).
RECORD-See JUSTICES OF THE PEACE (3); Mandamus (7).
RECORDING LAWS-See EXECUTION.
RECOUPMENT-See SALES (2).
RELEASE-See EJECTMENT (2).
Defendant, under plea of the general issue, in an action of
replevin for a marine boiler and attachments, the title to
which was retained by the vendor, may not recoup unliqui-
dated damages for delay in delivery and deviation from the
specifications of contract of purchase. Dearing Water Tube
Boiler Co. V. Thompson, 365.
See SALES (6); TAXATION (6).
REPRESENTATIVE-See STATE VETERINARY BOARD (1).
REQUESTS TO CHARGE-See APPEAL AND ERROR (16).
RES ADJUDICATA-See MOTIONS.
RESCISSION-See FRAUD; SPECIFIC PERFORMANCE (2).
RESERVATIONS-See BROKERS (2); EVIDENCE (4, 5); MINES AND
MINERALS.
RETROACTIVE LAWS-See INSURANCE (5–8).
REVOCATION-See WILLS (2).
1. In an action on a promissory note given as a part of the pur-
chase price of a horse, it appearing upon the undisputed evi-
dence, as well as by the admissions in defendant's plea and
notice, that the sale was made on a certain day, and that the
only question for the jury was whether a written guaranty
bearing an earlier date was given and accepted as part of the
transaction, it was error to refuse an instruction that if such
guaranty was so given it was the only guaranty by which
plaintiff was bound. Comstock v. Taggart, 47.
2. Where, in such action, defendants under their plea and notice
sought to recoup damages for breach of a warranty, the
court properly instructed the jury, if they found for defend-
ants, that the measure of damages was to be determined by
the value of the horse at the time of sale, if he had been as
represented, less the amount of the note in suit and whatever
sum had been indorsed on certain other notes not yet due
and which had been pledged as collateral security for the
payment of plaintiff's note to a third party; the action of
plaintiff in placing the notes out of his control amounting to
an acceptance of them as payment. Id. 48.
3. In an action for goods sold and delivered, under the terms of a
written contract for the sale of certain articles of jewelry, in
which it was agreed that it contained all the conditions and
agreements between the parties; that the buyer would not
countermand the order; that the goods should be shipped by
express, to become the property of the buyer on delivery in
good order to the transportation company; that the seller
guaranteed that the purchaser would sell within one year an
amount at retail equal to 14 times the amount of the order;
that if the sales were less than that amount the seller would
buy back for cash at the purchase price all goods remaining
on hand at the end of the year; and that the guaranty was
given on condition that the purchaser should keep the goods
displayed for sale and furnish the seller every two months an
itemized list of all goods on hand. Held, that an instruction
that plaintiff was bound to furnish goods of such quality as
would sell at retail at the price mentioned as the "retail
price" at the head of one of the columns of the order, reads
into the contract an agreement not contained therein, and
was prejudicial to plaintiff's rights. Rice v. Malone, 79.
4. In an action on a promissory note given as part of the purchase
price of a machine, the principal, by retaining the order and
note, ratified the contract made by its agent, and was obli-
gated to deliver the goods sold; and delivery to the agent for
defendant, and notice to him to come and get the machine,
together with his promise to do so, was a sufficient delivery
to complete the contract, and plaintiff was entitled to re-
cover. Hansen v. Rolison, 83.
5. Plaintiffs contracted for the sale of certain lumber, to be there-
after cut, at an agreed price per thousand. Under the terms
of the contract, when the lumber was cut the purchaser was
to go to the mill and make an estimate of the same; that
payments were to be made based on such estimates; and that
the lumber was to be finally inspected by the purchaser and
the payments adjusted according to the final inspection.
When the estimates and payments were made, the purchaser
wrote the firm name upon the piles of lumber and insured the
same in the name of the purchaser with the plaintiffs' knowl-
edge and consent. Part of the lumber was shipped to the
purchaser upon its order, and the last car load plaintiffs
shipped to their own order with bill of lading and draft
attached. Held, that title to the lumber passed to the pur-
chaser upon the payments made upon the estimates, and that
plaintiffs by their action in shipping the last car load in their
own name could not maintain an action for the amount of
the draft against the carrier for an unlawful delivery to the
purchaser. Stearns v. Grand Trunk R. Co., 145.
6. In an action of replevin for certain chattels, pledged for the
payment of a clover huller, sold to defendant by plaintiff's
agent, a written warranty which contained a statement that
no person, unless authorized in writing by the company, had
any right to change its terms, defendant sought to establish
that he had rescinded the contract for breach of an additional
guaranty, waiving the terms of the original warranty and
guaranteeing the huller to do satisfactory work, and that
said mortgage was void. The trial court treated the addi-
tional guaranty as established and submitted the case to the
jury upon the single question of whether defendant was, or
should have been, reasonably satisfied, after having given
plaintiff an opportunity to remedy any defect in the huller.
Held, that the evidence did not conclusively establish the
making of the additional guaranty by plaintiff, and that
such question should have been submitted to the jury. Gaar,
Scott & Co. v. Meyer, 522.
7. Under defendant's plea, no proof was necessary to show that
the original contract was ratified by plaintiff. Id.
See TAXATION (6); VENDOR AND PURCHASER (1).
SALOON AS NUISANCE-See NUISANCES.
SEPARATE MAINTENANCE-See DOWER.
SEPARATION OF GRADES - See HIGHWAYS AND STREETS;
MUNICIPAL CORPORATIONS (1, 5, 13); RAILROADS (4).
SERVICE-See TAXATION (4).
SET-OFF AND RECOUPMENT-See REPLEVIN.
SPARK ARRESTER-See NEGLIGENCE.
SPECIAL APPEALS—See JUSTICES OF THE PEACE (1, 3).
1. On a bill for the specific performance of a land contract, it ap-
peared that, on complainant becoming of age, he desired to
engage in business for himself; that his father, desiring him
to remain at home, agreed if he would do so that he would
compensate him therefor; that complainant did so remain;
and that thereafter the father purchased certain property
and later made a deed to complainant who went into occupa-
tion and expended large sums of money in improvements.
The deed of said property was later held to be inoperative for
want of delivery, and was set aside without prejudice to
complainant's right to file a bill for specific performance.
Held, that, under the contract and its performance, complain-
ant was the owner of the equitable title, and as he was not
obliged to assert such title until after it had been repudiated,
the statute of limitations did not begin to run until such re-
pudiation; nor as a matter of law was he guilty of laches.
Stonehouse v. Stonehouse, 43.
2. On the 20th of November, complainants made a proposition to
defendant to sell certain lots for park purposes, which by
resolution of the common council was accepted on the same
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