fore be assumed that although not an offer to comply strictly with the contract, it was satisfactory to plaintiff. After its acceptance, defendant, in a letter to plaintiff, refused to turn over any stock. This action, it seems to me, may be regarded by plaintiff and the court as a withdrawal of the notice which has been referred to, leaving the cause to be tried upon the theory of the declaration, the plea of the general issue, and such special matter of defense as remains.

The judgment should be reversed, and the cause proceed to trial.

MCALVAY, J., concurred with OSTRANDER, J.

RALPH v. GIES-GEAR CO.

1. DAMAGES-PAIN AND SUFFERING-ADEQUACY.

In a personal injury case, a verdict of $100 damages for an injury to plaintiff's hand cannot be said to be inadequate, as a matter of law, under testimony disputed by plaintiff, tending to show that the pain which plaintiff suffered for about four years, from his injury, resulted from improper treatment and care.

2. SAME PLEADING-SPECIAL DAMAGES-GENERAL HEALTH. Evidence that plaintiff's general health suffered from the effects of his injury, was erroneously excluded, although the declaration did not specifically aver the fact.

Error to Wayne; Murfin, J. Submitted November 30, 1910. (Docket No. 156.) Decided December 22, 1910.

Case by William Ralph, by Tillie Ralph, his next friend, against the Gies-Gear Company for personal in

juries. A judgment for an alleged insufficient amount is reviewed by plaintiff on writ of error.

Reversed.

Lehman, Riggs & Lehman, for appellant.

Brennan, Donnelly & Van De Mark, for appellee.

MOORE, J. Plaintiff was born on the 25th of June, A. D. 1891. He received the injuries out of which this lawsuit grows on the 18th day of November, 1906. He recovered a judgment of $100. A motion was made for a new trial, which motion was overruled. He brings the case here by writ of error.

The contention of counsel is as follows (we quote from brief of counsel):

"(1) The jury regarded plaintiff with disfavor because, in substance, he was characterized by the court, almost at the inception of the trial, as untruthful.

"(2) Because the jury obtained the impression that the court thought the case was a trifling one, because he would not permit plaintiff's counsel to occupy a half hour, were he not compelled to do so by rule, in which to make both the opening and closing arguments; and we insist the rule should only be applied in cases of a trifling character, and not involving permanent injury to the hand of a boy at the very threshold of his young manhood, a boy destined to earn his living by the toil of his hands."

An examination of the record does not sustain either of these contentions. We again quote from the brief:

"We also insist that the court should have granted a new trial on the ground that the damages were wholly inadequate, and not at all reasonable compensation for the injury sustained by plaintiff. The undisputed testimony shows that the plaintiff was a terrible sufferer for at least two weeks, and that he has suffered more or less pain for a period of four years, and is not yet free from pain.

This contention cannot be sustained, because of testimony to the effect that much of the pain suffered by the plaintiff was due to neglect in caring for the injury, which injury defendant insists was not serious. If the jury be

lieved this testimony, it might account for the small verdict.

We must consider a more serious assignment of error. In the declaration appears the following:

"His hand came in contact with said unguarded and unprotected emery wheel, and was burned and ground by the same to such an extent that the use of the same was for a long time practically wholly destroyed, and he has not recovered from the same; that in consequence of the same he became sick, sore, lame, and disordered; that the same has been operated upon and treated on four different occasions, but plaintiff has not yet recovered from the same; that as a result of said injuries plaintiff has suffered pain from thence hitherto, and must suffer like pain in the future indefinitely."

Testimony was offered as to the effect of the injury upon the general health of the plaintiff. This testimony was excluded, upon the theory that it should have been specially pleaded. We think this was error, under the following authorities: Leslie v. Traction Co., 134 Mich. 518 (96 N. W. 580), and the many authorities cited therein; Renders v. Railroad Co., 144 Mich. 387 (108 N. W. 368); Groat v. Railway, 153 Mich. 165 (116 N. W. 1081).

Judgment is reversed, and new trial ordered.

OSTRANDER, HOOKER, MCALVAY, and BROOKE, JJ., concurred.

HARTLEY v. MILLER.

1. APPEAL AND ERROR-RECORD

TIME BY STIPULATION.

SETTLEMENT EXTENSION OF

The attorneys of the respective parties may stipulate to extend the time for settling a record on case-made.

2. SAME-CASE-MADE-TIME TO FILE.

A motion to dismiss a case-made, which was settled in accord. ance with stipulations of the attorneys extending the time, and was filed with the clerk of the circuit court to be returned to the Supreme Court on the last day of the year allowed by 3 Comp. Laws, §10492, will not be dismissed, although the clerk did not make the usual entry and indorsement until the following day.

Case by William Hartley against Frank P. Miller for negligence. On motion by defendant and appellee to dismiss a case-made. Submitted November 29, 1910. (Calendar No. 24,299.) Motion denied December 22, 1910.

Albert McClatchey, for the motion.

McHugh & Gallagher, contra.

MOORE, J. This is a motion to dismiss an appeal. Several reasons are assigned but the important one is that the appeal was perfected too late.

The attorney for the appellee in this motion did not represent the appellees in the court below. The record shows the judgment in the circuit court was entered October 13, 1909. At that term an order was entered giving appellant 60 days in which to settle a bill of exceptions or make a case. A motion was made for a new trial, which motion was overruled November 29, 1909. Within 60 days of this date the attorneys for the appellant prepared and served upon the attorney for the appellee a proposed case-made. It was then agreed upon between the at

torneys that the time for settling such case-made should be extended from time to time to suit the convenience of counsel. Stipulations extending the time in which to settle a case-made were filed from time to time, the last one extending the time until October 15, 1910. At least one amendment to the proposed case-made was prepared and agreed upon and on the 13th day of October a casemade was agreed to by the attorneys, and was on the same day taken to the trial judge and was read and signed by him. The attorneys for the appellant at once took the case-made which had been signed by the judge to the clerk of the court, and left it with him with the request that said clerk enter upon the records a note of the signing and filing of the same and the filing of the assignments of error thereto. What then occurred is shown by the affidavit of the clerk as follows:

"That on the 13th day of October, A. D. 1910, after the close of court on said day, and at about 4:15 p. m., the case-made and assignments of error in the case of William Hartley v. Frank P. Miller, et al., Wayne Circuit Court No. 49,436, were delivered to deponent by Wm. Henry Gallagher, in the office of the clerk of said county, said case-made at that time bearing the signature of said Morse Rohnert; and deponent was thereupon requested by said Wm. Henry Gallagher to note upon the records of the court the signing and filing of said case-made and the filing of said assignments of error; that deponent thereupon informed said Wm. Henry Gallagher that he had closed his court sheets for that afternoon, and did not intend to return to the courtroom of said judge, and asked if the said entry on the records might be made upon the following day, to which request said Wm. Henry Gallagher assented; and thereupon, on the following day (i. e., October 14, 1910, deponent entered upon the records of said court for that date a note of the signing and filing of said case-made and the filing of said assignments of error."

The case-made was then sent on and filed with the clerk of this court. The record also shows that no order substituting attorneys was made in the records of the circuit court, and that no notice of a change of attorneys was served upon the attorneys for the appellant.